Case: 18-50994   Document: 00515433679     Page: 1   Date Filed: 05/29/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit


                                 No. 18-50994
                                                                     FILED
                                                                 May 29, 2020
                                                                Lyle W. Cayce
DAVID STRATTA; ANTHONY FAZZINO,                                      Clerk

            Plaintiffs - Appellants

v.

JAN A. ROE, in her individual and official capacity as director of the Brazos
Valley Groundwater Conservation District; BILLY L. HARRIS, in his
individual and official capacity as director of the Brazos Valley Groundwater
Conservation District; BRYAN F. RUSS, JR., in his individual and official
capacity as director of the Brazos Valley Groundwater Conservation District;
JAYSON BARFKNECHT, in his individual and official capacity as director of
the Brazos Valley Groundwater Conservation District; MARK J. CARRABBA,
in his individual and official capacity as director of the Brazos Valley
Groundwater Conservation District; GORDON PETER BRIEN, in his official
capacity as director of the Brazos Valley Groundwater Conservation District;
STEPHEN C. CAST, in his individual and official capacity as director of the
Brazos Valley Groundwater Conservation District; BRAZOS VALLEY
GROUNDWATER CONSERVATION DISTRICT,

            Defendants - Appellees



                Appeal from the United States District Court
                     for the Western District of Texas
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                                      No. 18-50994

Before JONES, SMITH, and HAYNES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
       A pair of landowners sued the Brazos Valley Groundwater Conservation
District (“BVGCD”) and its Board of Directors. The BVGCD is a Texas political
subdivision whose mission is to manage water resources within its two-county
jurisdiction. One of them contends the BVGCD has allowed the City of Bryan
to drain groundwater from under his property without compensation, violating
the Constitution’s Equal Protection and Takings clauses. The other, a Board
Member of BVGCD, alleges that the Board deprived him of First Amendment
rights by preventing him from speaking at a public meeting. The district court
dismissed their claims on the grounds of Eleventh Amendment immunity,
ripeness, Burford abstention, and qualified immunity. Because the district
court erred on all grounds except the dismissal of the First Amendment claim,
we AFFIRM IN PART, REVERSE IN PART, and REMAND. 1
                                   BACKGROUND
       Appellants Anthony Fazzino and David Stratta are landowners with
property within the territorial boundaries of the BVGCD. Stratta is also a
member of the BVGCD Board of Directors. Fazzino owns 26.65 acres of real
property in Brazos County Texas. Under Texas law, Fazzino also owns the
groundwater beneath his land, including the groundwater located in the
Simsboro aquifer. The City of Bryan, Texas, owns a 2.7-acre tract that is less
than 3,000 feet distant from Fazzino’s property.
       BVGCD is a Groundwater Conservation District (“GCD”) created under
Section 59, Article XVI of the Texas Constitution and Chapter 36 of the Texas
Water Code (“TWC”) for the purpose of managing groundwater resources. TEX.


       1  Judge Haynes concurs fully in the reasoning as to the takings claim but concurs in
the judgment only as to the class-of-one equal protection claim. Judge Jones dissents as to
Part III.

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WATER CODE §§ 36.0015, 36.011. GCDs are statutorily tasked with developing
groundwater     management        plans   that    regulate    the   production    and
conservation of water, govern its use, study the quantity of water flowing into
and out of the aquifers within their territory, and minimize waste. Currently,
nearly one hundred GCDs cover over 60 percent of the state’s land and
encompass approximately 72 percent of major and minor aquifers.                   The
territorial boundaries of 60 GCDs coincide with a single county or less, while
the remaining GCDs cover more than one county. BVGCD’s boundaries are
coextensive with Robertson and Brazos Counties.
      Pursuant to its authority under TWC Chapter 36, BVGCD promulgates
rules governing the production of groundwater from the Simsboro formation.
On December 2, 2004, new rules (“Rules”) took effect to regulate landowners’
production of groundwater by establishing three categories of wells:
1) Existing Wells; 2) New Wells; and 3) Wells with Historic Use. The rules
regulate “groundwater pumpage,” i.e., how much water may be withdrawn
from a well, through spacing requirements and production limitations.
      The spacing and production requirements are designed to “minimize as
far as practicable the drawdown of the water table and the reduction of
artesian pressure, to control subsidence, to prevent interference between wells,
to prevent degradation of water quality, and to prevent waste.” RULES OF THE
BRAZOS     VALLEY     GROUNDWATER         CONSERVATION        DISTRICT,   Rule 6.1(a)
(published Dec. 1, 2004). 2 As water is drawn from a well, it creates a “cone of
depression” impact; when more water is withdrawn there is a larger cone of
depression. Rule 7.1 established maximum allowable production regulations
for New Wells according to a formula that calculates the “total number of


      2  The most recent version of the Rules, amended September 12, 2019, retains that
precise language.


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contiguous acres required to be assigned to the well site.” 3 The definition of
“contiguous acreage” requires that the land be “owned or legally controlled . . .
by the well owner or operator,” and that the land “shall bear a reasonable
reflection of the cone of depression impact near the pumped well, as based on
the best available science” and BVGCD’s formula.

1.1(6). The
formula thus requires 649 contiguous acres surrounding a New Well producing
3,000 gallons per minute (“GPM”), which equates to a circle around the well
with a radius of 3,003 feet.
       Historic Use wells are generally limited to producing the maximum
amount of groundwater an owner can prove was beneficially used before the
effective date of the new Rules. Rules 1.1(16), 8.3(g). In contrast to the other
categories, the Rules define “Existing Wells” as those wells “for which drilling
or significant development of the well commenced before the effective date of
these Rules.”

s 1.1(12).       But the Rules do not establish clear
production limits for Existing Wells that have no established Historic Use.
       On December 8, 2004, six days after the Rules took effect, the City of
Bryan began drilling Well No. 18 on its 2.7-acre tract of land and completed
the well ten months later. In June 2006, the City applied for a permit to
operate Well No. 18 at a production rate of 3,000 GPM. BVGCD conditionally
granted a permit authorizing production of 4,838 acre-feet annually at a rate
of 3,000 GPM. Subsequently, with no change in the amount of City land
surrounding the well or the Rules’ formula, the City received an identical
conditional permit in April 2013.
       The basis for these permits under the Rules and constitutional law is
hotly disputed. Because no groundwater was pumped from the well before the


       3 The formula is: (the square of the product of the average annual production rate in
gallons per minute times the District spacing requirement between wells) multiplied by pi,
with the result divided by 43,560. Rules 7.1(2).

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Rules were promulgated on December 2, 2004, it could not be classified as a
Historic Use Well.     BVGCD granted the conditional permits under a
classification of Well No. 18 as an Existing Well, although its only “existence”
before the date of the Rules must have been in the form of “significant
development,” at least on paper. Appellants assert, not unreasonably, that
Well No. 18 is a New Well; consequently, the Rule 7.1 formula would have
capped the maximum allowable production on the City’s 2.7-acre tract at 192
GPM. Not only did the City’s well far exceed the Rules’ limitation on acreage-
based groundwater production for a New Well, but Fazzino’s property lies
within 3,003 feet of Well No. 18 and therefore within its anticipated cone of
depression. The City’s well may threaten to dissipate Fazzino’s groundwater.
      Fazzino filed a complaint with BVGCD in January 2017, asserting that
Well No. 18 was not a Historic Use or Existing Well and therefore must adhere
to the production limitations imposed on New Wells. He asked BVGCD to
initiate proceedings to reduce Well No. 18’s authorized production. After the
State Office of Administrative Hearings (“SOAH”) found that Fazzino was not
permitted to assert such a complaint, Fazzino applied for a permit to produce
3,000 GPM from a New Well on his 26-acre property in order to “offset” the
production from Well No. 18. Twice, the District advised Fazzino that his
application was administratively incomplete without proof that he owned or
controlled sufficient acreage—649 acres—to support production of 3,000 GPM.
Fazzino acknowledged this deficiency, but he renewed the permit request to
offset production from Well No. 18, and requested a variance BVGCD’s spacing
and production rules. Shortly afterward, BVGCD informed Fazzino both that
his application had lapsed due to his failure to provide documentation of land




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                                        No. 18-50994

ownership, and that BVGCD did not grant variances. 4 The Rules provide no
mechanism to obtain Board action on an administratively incomplete permit.
       Stratta is a member of the Board of Directors who became concerned by
what he considered unequal application of the District’s Rules. He requested
that the agenda for the Board’s March 8, 2018 meeting include discussion of
whether Well No. 18 was a New Well or an Existing Well. The President of the
Board told Stratta that no such discussion would take place because it might
affect pending litigation. Another board member, Russ, echoed the President’s
view that Well No. 18 should not be discussed. Stratta attended the March 8
meeting, but he signed in as a member of the public and submitted a
“Registration Form” in his capacity as a Brazos County landowner who wished
to make a public comment on an “open” agenda item. Specifically, Stratta
wanted to ask the Board to include the subject of the status of Well No. 18 at
its next meeting. He was prohibited from voicing this small request, however,
on the rationale that “Directors” may not discuss subjects that are not on the
agenda, even though “Public Comment” on “non-agenda items” was specified
as an agenda item.
       Lacking other recourse, Fazzino sued BVGCD and its Directors in their
individual and official capacities, alleging that their unequal application of
BVGCD’s Rules violated his right to equal protection under the law and
constituted a taking of his property interest in subsurface water beneath his


       4Appellants dispute this conclusion, pointing out that the cities of Bryan and College
Station, as well as Wickson Creek Special Utility District, Brazos Valley Water Supply
Company, and OSR Water Supply Corporations, all maintain wells permitted to produce
quantities of groundwater that would be disallowed due to inadequate tract size under
Rules 6.1 and 7.1 without a variance from those rules. In fact, Appellants allege that BVGCD
consistently ignores the production limitation rules for entities, like those listed, that are led
or owned by, or employ, present or former Directors of BVGCD. ROA.19; Blue Br. at 5.
Appellants, however, failed to plea specific facts—e.g. the dates when the wells were created,
so as to establish them as “New Wells”—that would raise these allegations above being
wholly conclusory. ROA.19.

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land. Stratta joined the suit and alleged violation of his First Amendment
rights. In response, BVGCD and its Directors filed motions to dismiss under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). BVGCD (hereafter,
collectively including its Directors) moved for dismissal under 12(b)(1) for lack
of jurisdiction because: BVGCD is an arm of the state that enjoys Eleventh
Amendment sovereign immunity; Fazzino failed to exhaust state court
remedies for his takings claim; and Burford abstention is required on the
takings claim because Texas law is unsettled as to Fazzino’s property interest
in the groundwater.      BVGCD asserted failure to state a claim because
Fazzino’s property interest in groundwater is not “clearly established,” his
claims against the Directors are barred by qualified immunity, and Stratta’s
right to speak, as a Board member, is regulated by the Texas Open Meetings
Act (“TOMA”) and in any event not clearly established.
      The district court was persuaded by all of these arguments, granted the
Rule 12(b)(1) dismissal without prejudice and the Rule 12(b)(6) motion with
prejudice, and entered judgment. This appeal followed.
                          STANDARD OF REVIEW
      We review a district court’s dismissal orders under Rules 12(b)(1) and
12(b)(6) de novo. Griener v. United States, 

, 703 (5th Cir. 2018);
Meyers ex rel. Benzing v. Texas, 

, 240 (5th Cir. 2005); Ysleta Del
Sur Pueblo v. Laney, 

, 285 (5th Cir. 2000).        When reviewing
12(b)(1) dismissals, “we take the well-pled factual allegations of the complaint
as true and view them in the light most favorable to the plaintiff.” Lane v.
Halliburton, 

, 557 (5th Cir. 2008). Applying the same standard
as the district court, we may consider:       “(1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the




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complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Ramming v. United States, 

, 161 (5th Cir. 2001).
      On appeal from a Rule 12(b)(6) dismissal, we consider the allegations set
forth in the complaint and any documents attached to the complaint. Kennedy
v. Chase Manhattan Bank USA, NA, 

, 839 (5th Cir. 2004). A
plaintiff’s complaint “must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.” Phillips v. City of Dallas,
Tex., 

, 775–76 (5th Cir. 2015) (quoting Ashcroft v. Iqbal, 

, 678 (2009)) (internal quotation marks omitted).            A claim is facially
plausible if the pleaded factual content “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”

(citing Bell Atl. Corp. v. Twombly, 

, 556
(2007)).
                                  DISCUSSION
      Appellants filed suit under 42 U.S.C. § 1983 alleging that BVGCD
violated Fazzino’s equal protection right and has taken his property without
compensation, and Stratta asserts that BVGCD violated his First Amendment
right to free speech. The district court held that it lacked jurisdiction over
claims against BVGCD because the district is an “arm of the state” immune
from federal suits as a sovereign under the Eleventh Amendment (and its
Directors are derivatively immune), (2) Fazzino’s takings claim was not ripe
according to Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 

, 186, 194 (1985), and (3) the takings claim was
subject to Burford abstention because exactly what protectible rights Fazzino
has in groundwater subject to regulation by BVGCD is an unsettled question
of Texas law. Burford v. Sun Oil Co., 

(1943). Granting the
Rule 12(b)(6) motion to dismiss for failure to state a claim with prejudice, the


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court held that without clearly established rights to groundwater, Fazzino’s
equal protection claim cannot succeed on the merits and the Directors enjoy
qualified immunity. Further, Stratta failed to show that BVGCD’s conduct in
prohibiting him from speaking was objectively unreasonable in light of clearly
established law. We disagree with each of these conclusions.
                                        I.
                                        A.
      Taking the jurisdictional issues first, as we must, the district court
erroneously concluded that BVGCD is an arm of the State of Texas and
therefore immune from suit in federal court under the Eleventh Amendment.
Texas law counsels otherwise, and analytical inconsistencies in this circuit’s
precedent misled the district court.
      Immunity under the Eleventh Amendment extends to any state agency
that is deemed an “alter ego” or an “arm of the state” such that the State itself
is the “real, substantial party in interest.” Vogt v. Bd. Of Comm’rs, 

, 688–89 (5th Cir. 2002) (internal quotation marks and citations omitted).
The purpose of the Eleventh Amendment is to recognize state sovereignty by
shielding states, absent their consent or an explicit act of Congress, from
money judgments assessed in federal court. The Eleventh Amendment does
not bar suit, though, “if the political entity possesses an identity sufficiently
distinct from that of the State.” 

(internal quotation
marks omitted).      “There is no bright-line test for” ascribing Eleventh
Amendment Immunity, but the inquiry is meant to determine whether,
“despite the presence of a state agency as the nominal defendant,” the lawsuit
is “effectively against the sovereign state.”

v. Tarrant County, this court identified six important factors
that should be weighed in this inquiry: (1) whether the state statutes and case


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law view the agency as an arm of the state; (2) the source of funds for the entity;
(3) the degree of local autonomy the entity enjoys; (4) whether the entity is
concerned primarily with local, as opposed to statewide, problems; (5) whether
the entity has the authority to sue and be sued in its own name; and
(6) whether the entity has the right to hold and use property. Clark v. Tarrant
Cty., Texas, 

, 744–45 (5th Cir. 1986). While no one factor is
dispositive, the “second Clark factor—the source of the entity’s funding—is the
weightiest factor” because “[t]he Eleventh Amendment exists mainly to protect
state treasuries.” United States ex rel. Barron v. Deloitte & Touche, L.L.P.,

, 440 (5th Cir. 2004). We consider each of the factors.
      1. Characterization in State Law and Case Law
      “The first factor we take into account is how the state, through its
constitution, laws, judicial opinions, attorney general’s opinions, and other
official statements, perceives the entity in question.” Hudson v. City of New
Orleans, 

, 683 (5th Cir. 1999). “If the state characterizes the
[entity] as an arm of the state, this factor is counted in favor of Eleventh
Amendment immunity.”

ago, the Texas Supreme Court, ruling on the question
whether navigation districts are state agencies or political subdivisions, clearly
distinguished between the two in three ways. Guaranty Petroleum Corp. v.
Armstrong, 

, 531 (Tex. 1980).          A political subdivision has
jurisdiction over a portion of the state, while a state agency exercises its
jurisdiction throughout Texas.        The governing members of a political
subdivision are elected or appointed by locally elected officials, but heads of
state agencies are elected statewide or appointed by state officers.          And
political subdivisions may assess and collect taxes, a power that state agencies
lack. The court concluded that “the legislature has consistently recognized


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these distinctions between departments, boards or agencies on the one hand
and political subdivisions on the other.”

The navigation
district was held to be a political subdivision.
      Guaranty Petroleum is relevant here because the navigation district was
created, exactly like BVGCD, pursuant to Art. XVI, Section 59 of the Texas
Constitution and, parallel to BVGCD, the navigation district is defined as a
“district” under the Texas Water Code. The Code defines a “District” as “any
district or authority created under . . . Section 59, Article XVI, Texas
Constitution, that has the authority to regulate the spacing of water wells, the
production from water wells, or both.” TEX. WATER CODE § 36.001(1). Further,
the TWC defines “political subdivision” to include “a county, municipality, or
other body politic or corporate of the state, including a district or authority
created under Section 52, Article III, or Section 59, Article XVI, Texas
Constitution, a state agency, or a nonprofit water supply corporation created
under Chapter 67.” TEX. WATER CODE § 36.001(15). Finally, as was the case
with the navigation district, the BVGCD is run by officials appointed by county
officeholders, its jurisdiction is not statewide but covers only two counties, and
it may assess and collect taxes.
      Despite this guidance from the Texas Supreme Court, federal case law
has diverged when analyzing the Clark factors. To be sure, “comparisons
[between like entities] cannot substitute for a careful examination of the
particular entity at issue.” Sw. Bell Tel. Co. v. City of El Paso, 

,
938 (2001) (quoting McDonald v. Board of Miss. Levee Comm’rs, 

,
908 (5th Cir. 1987)) (internal quotation marks omitted). In Southwestern Bell,
a water improvement district unsuccessfully claimed Eleventh Amendment
immunity by resting on faulty precedent—from this court.

This
court had to explain that pursuant to Clark, and a line of cases preceding


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Clark, an entity is not an arm of the state “simply because it is a creature of
state law and a political subdivision of the state;” such a “conclusion would
entirely obviate the arm-of-the-state analysis” such that “every entity claiming
Eleventh Amendment immunity is a ‘creature’ of some state law.”

Whether entities are created under the same law—e.g. the Texas Water Code
or Article XVI, Section 59 of the Texas Constitution—cannot be the sole or
sufficient factor when determining immunity. “[S]uch a test is no test at all.”

       Most political subdivisions, in fact, are “not entitled to Eleventh
Amendment immunity.”              Sw. 

.            Southwestern Bell
thoroughly criticized and rejected as fundamentally inconsistent with our
earlier precedent the cases that Appellees here rely on for their conclusion
that BVGCD is an arm of the state. See Kamani v. Port of Houston Authority,

(5th Cir. 1983); Pillsbury Co. v. Port of Corpus Christi Authority,

(5th Cir. 1995).           The Southwestern Bell court explained that
“Kamani was an admiralty action in which the court stated without analysis
that the Port of Houston Authority was ‘a “creature of state law and a political
subdivision of the State of Texas”’ entitled to Eleventh Amendment immunity,”
and “Pillsbury was a breach-of-contract action in which the court held that the
Port of Corpus Christi Authority was factually and legally indistinguishable
from the Port of Houston Authority, and was thus entitled to immunity under
Kamani”. Sw. 

–40 (internal citations omitted). In light of
Southwestern Bell, those two cases may not be relied on. 5


       5  The district court’s citation of Celanese Corp. v. Coastal Water Auth., 

(S.D. Tex. 2007) is also inapt. While the authority in that case (the “CWA”) was created
pursuant to Art. XVI, Sec. 59 of the Texas Constitution to regulate water resources, the CWA
is critically distinguishable from the instant GCD because several members of its Board are
appointed by the governor and confirmed by the state Senate, imparting considerable direct
state influence on its operations. 

. Moreover, unlike BVGCD,

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      The district court also relied on a Texas appellate case for the proposition
that an underground water conservation district is “an arm of the state created
to administer the enumerated governmental powers delegated to it.” Lewis
Cox & Sons, Inc. v. High Plains Underground Water Conserv. Dist. No. 1,

, 662 (Tex. Civ. App.—Amarillo 1976). But the court overlooked
what immediately followed: “[a]s constituted, the water district exists and
functions as a governmental agency, a body politic and corporate, and stands
upon the same footing as counties and other political subdivisions of the state.”
Lewis 

(internal citations omitted). Other case law
besides Guaranty Petroleum characterizes water management entities, like
that in Lewis Cox, as “political subdivisions” that “stand upon the same footing
as a county.” South Plains Lamesa R.R., Ltd. v. High Plains Underground
Water Conservation Dist. No. 1, 

, 774 (Tex. App.—Amarillo 2001,
no pet.); see also Coates v. Hall, 

, 778 (W.D. Tex. 2007);
Sullivan v. Chastain, 

, at *7 (W.D. Tex. Apr. 28, 2005).
Counties, of course, are not entitled to Eleventh Amendment immunity. See,
e.g., Crane v. State of Texas, 

, 415 (5th Cir. 1985).
      The application of this factor has been unfortunately complicated by our
case law, but on balance, in light of our decision in Southwestern Bell and state
law authority, this factor suggests BVGCD is not an arm of the state.
      2. Source of Funding
      The second Clark factor looks at the source of BVGCD’s funding. We
have consistently held that the “second factor is given the greatest weight
because one of the principal purposes of the Eleventh Amendment is to protect
state treasuries.” 

; see also Cozzo v. Tangipahoa Par.



the CWA has the power to operate outside of its geographic boundaries. Act of May 17, 1967,
60th Leg., R.S., ch. 601 Section 3, Tex. Gen. Laws 1381, 1385.

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Council--President Gov’t, 

, 282 (5th Cir. 2002); 

(“It bears repeating that this is the most important factor in our
Eleventh Amendment arm of the state analysis.”). “In assessing this second
factor, we conduct inquiries into, first and most importantly, the state’s
liability in the event there is a judgment against the defendant, and second,
the state’s liability for the defendant’s general debts and obligations.” 

. “The state’s liability for a judgment is often measurable by a
state’s statutes regarding indemnification and assumption of debts.” 

. The Texas Water Code does not explicitly render the state
liable for judgments against GCDs or their general debts and obligations.
       GCD’s are funded by locally assessed taxes and fees. TEXAS WATER CODE
§§ 36.201–250. BVGCD points out that GCDs may receive grants or loans from
the state, TEXAS WATER CODE §§ 36.158–61, 36.3705–374, and urges that state
funds may thus be implicated in an action against the district.                        This
observation ignores the limited statutory purposes for such infusions of state
money. 6 None of these provisions permit state funds to indemnify or assume
the debts of BVGCD, nor is there evidence that such grants or loans have ever
been used to satisfy a judgment.
       Indeed, the law speaks to satisfaction of judgments against a GCD in
only one way, by an order requiring the district’s board “to levy, assess, and
collect taxes or assessments to pay [judgments].”                    TEX. WATER CODE
§ 36.066(b).    No parallel provision references the state treasury.                On the
contrary, in Edwards Aquifer Authority v. Bragg, the court held that the
Edwards Aquifer Authority (“EAA”) was responsible for its permitting
decisions and liable for any judgment. 

, 126–131 (Tex. App.—


       6 Some provisions strictly proscribe the use of certain funds while others are largely
related to startup and research costs. TEXAS WATER CODE §§ 36.158–61. The state is under
no obligation to provide such funding.

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San Antonio 2013, pet. denied). A judgment was later entered against the EAA
for over $4.5 million. The EAA satisfied this judgment in full without any
portion being paid by the state of Texas. And in Edwards Aquifer Authority v.
Day, the State disclaimed takings liability for the actions of the EAA.

, 821 n.24 (Tex. 2012). In Day, the State took the position that
a takings judgment entered against the EAA would have to be satisfied from
the EAA’s own coffers.

last resort, BVGCD relies on a provision which states, “[t]he Texas
Water Development Board, the commission, the Parks and Wildlife
Department, the Texas Agricultural Extension Service, and institutions of
higher education may allocate funds to carry out the objectives of this chapter.”
TEXAS WATER CODE § 36.160.             Coupled with the statutory statement of
purpose—GCDs may be created “to protect property rights, balance the
conservation and development of groundwater to meet the needs of this state,
and use the best available science in the conservation and development of
groundwater through rules developed, adopted, and promulgated by a
district”—the district argues that the Texas Legislature created a mechanism
for GCDs to obtain funding in the event of an adverse judgment.

      At best, this argument suggests that state agencies may volunteer to pay
off a judgment debt by means of a grant. 7 But the second Clark factor concerns
whether the state is “directly responsible for a judgment” or “indemnif[ies] the
defendant.” Ex rel. 

. Evaluated against the position
that similar entities are responsible for their own judgments, this contention
is virtually frivolous. See 

–31; 

n.24. In the absence of any meaningful financial relationship between GCDs



      7  Loans could not be used to satisfy a judgment because their statutorily stipulated
uses are limited to start-up expenses. TEXAS WATER CODE §§ 36.3705, 36.371–374.

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and the Texas treasury, the second factor weighs heavily against finding
Eleventh Amendment immunity.
      3. Degree of Autonomy
      “The third factor we look to focuses on the degree of local autonomy the
entity at issue enjoys.”    Pendergrass v. Greater New Orleans Expressway
Comm’n, 

, 346 (5th Cir. 1998).                “‘In our circuit, . . . the
determination of an agency’s autonomy requires analysis of the “extent of the
[entity’s]   independent    management        authority” . . .   [as   well   as]   the
independence of the individual commissioners’ who govern the entity.” 

(quoting Jacintoport Corp. v. Greater Baton Rouge Port
Comm’n, 

, 442 (5th Cir. 1985)). Thus, we examine “the scope of
the entity’s authority over its day-to-day activities” and the “appointment
process” of its directors.

      The Code grants GCDs broad authority to “make and enforce rules”
governing groundwater production, preservation, and usage within their
geographic boundaries.      TEX. WATER CODE § 36.101(a).            Referring to this
delegation, the Texas Supreme Court added that districts’ “activities remain
under the local electorate’s supervision,” and they “have little supervision
beyond the local level.” 

. The state’s highest court has
also observed that the localized GCD structure “permits the people most
affected by groundwater regulation in particular areas to participate in
democratic solutions to their groundwater issues.” Sipriano v. Great Spring
Waters of Am., Inc., 

, 80 (Tex. 1999).             BVGCD Directors are
appointed by the commissioners courts of Robertson and Brazos counties, and
are thus indirectly accountable to local constituents. The state supreme court
in Guaranty Petroleum associated this fact with the existence of an
independent political 

; see Pendergrass,


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                                  No. 

.     This court has held that local accountability evidenced
autonomy. McDonald v. Board of Mississippi Levee Comm’rs, 

,
907 (5th Cir. 1987). Nevertheless, “the appointment process is given less
weight than the scope of the entity’s authority,” 

.
      From another perspective, the primary responsibility of GCDs is to
develop a local groundwater management plan.                TEXAS WATER CODE
§§ 36.0015, 36.1071. In creating this plan, the Texas Water Development
Board and the Texas Commission on Environmental Quality “provide technical
assistance” and the Water Development Board must approve the plan.
§§ 36.1071–1072. Each GCD is obligated to “review the plan annually . . . and
readopt the plan with or without revisions at least once every five years.”
§ 36.1072(e). Notably, in Day, the Texas Supreme Court listed these
interactions while still affirming the essentially local autonomy of GCDs. 

.
      But in addition, the state auditor and Legislature are required to audit
GCDs’ operations periodically. TEXAS WATER CODE §§ 36.061, 36.302. If the
auditor determines that the GCD is not appropriately managing its
groundwater, the auditor may deem the GCD non-operational and the
Commission     on    Environmental    Quality    must   take      over   to   ensure
comprehensive management of the district. §§ 36.302–303; see also Guitar
Holding Co., L.P. v. Hudspeth Cty. Underground Water Conserv. Dist. No. 1,

, 913 (Tex. 2008) (the state auditor had deemed a GCD to be
non-operational under Chapter 36).          The district court here took these
relationships as an indication of significant state control.
      Several Fifth Circuit cases have held, however, that audit and reporting
requirements did not justify finding a lack of local autonomy.            See 

–95 (holding a lack of “supervisory control over the day-to-day


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                                  No. 18-50994

operations . . . counsels against Eleventh Amendment immunity” (quotation
marks omitted)); Williams v. Dallas Area Rapid Transit, 

, 321 (5th
Cir. 2001) (“audit requirements are some evidence of state oversight, but they
are not dispositive with respect to the issue of local control”); 

(Levee Board’s obligation to make an annual report to the
governor did not outweigh its predominately autonomous actions). It is not
clear whether any of these cases involved a situation where, as with GCDs, the
statutory oversight can and has resulted in the state’s exerting control over the
entity.
      When these facts are considered together, the degree of local control and
potential state intervention at most merely offset each other.
      4. Scope of Activity
      The fourth factor “properly centers on ‘whether the entity acts for the
benefit and welfare of the state as a whole or for the special advantage of local
inhabitants.’”    Dallas Area Rapid 

(quoting

). “Limited territorial boundaries suggest that an
agency is not an arm of the state,” and “most entities that are entitled to
Eleventh Amendment immunity have statewide jurisdiction.” 

.
      This inquiry is largely geographic. In Vogt, the court held that even
though flooding is a statewide problem, the levee board acted for the “special
advantage of local inhabitants,” and its powers “may be exercised only within
clearly defined territorial limits.”

Hudson, the court “found it highly
useful to examine the geographic reach of the [entity’s] 

. In Celanese, however, it was an indication of statewide interest that the
CWA was authorized to take significant actions inside and outside its
territorial 

.


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                                  No. 18-50994

      BVGCD’s legal boundaries are coextensive with the boundaries of
Robertson and Brazos Counties.         TEX. SPECIAL DIST. LOC’L LAWS CODE
§ 8835.004. Groundwater conservation districts are authorized to exercise
their authority only within their territorial boundaries.        True, GCDs are
expected to coordinate with each other and the Texas Water Development
Board, 

, but there is no evidence that these entities
operate in conjunction for the “benefit and welfare of the state as a whole.”

.      Appellees’ contention that water conservation is
“undeniably a statewide concern” is unavailing because the scope of authority
rather than the scope of concern is controlling. The fourth factor cuts against
BVGCD’s entitlement to Eleventh Amendment immunity.
      5. Remaining Factors
      Both parties and the district court agree that the remaining factors—the
authority to sue and be sued in its own name and the right to hold and use
property—weigh against granting immunity. See TEX. WATER CODE §§ 36.251,
36.105.
      On balance, five of the six Clark factors weigh against finding BVGCD is
an arm of the state of Texas for which Eleventh Amendment immunity is
appropriate. Most important, funds from the Texas treasury will not be used
to satisfy a judgment against the entity. The Directors are likewise not entitled
to assert such immunity.        The district court erred in dismissing the
landowners’ action for lack of jurisdiction on this basis.
                                       B.
      Relying on Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 

(1985), the district court dismissed Fazzino’s
takings claims as unripe because he had neither received a final decision
regarding the application of the challenged regulations nor sought


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                                 No. 18-50994

compensation for the alleged taking in state courts. This holding has become
moot after the Supreme Court overturned Williamson County. In Knick v.
Twp. Of Scott, 

(2019), the Court held that “the property owner
has suffered a violation of his Fifth Amendment rights when the government
takes his property without just compensation, and therefore may bring his
claim in federal court under § 1983 at that time.”

(emphasis added).
Further, “[t]he availability of any particular compensation remedy, such as an
inverse condemnation claim under state law, cannot infringe or restrict the
property owner’s federal constitutional claim.”

The Court then
explicitly disavowed Williamson County and its state litigation requirement:
“Williamson County was not just wrong. Its reasoning was exceptionally ill
founded and conflicted with much of our takings jurisprudence.”

      Based on Knick, Fazzino’s takings claim is ripe for adjudication because
Fazzino fully pursued the administrative remedies available to him before
filing this action.
                                      C.
      The district court held Fazzino’s takings claim subject to Burford
abstention, but the following analysis will also necessarily apply to the equal
protection claim that is not barred by Eleventh Amendment immunity. “[W]e
review an abstention ruling for abuse of discretion, but ‘we review de novo
whether the requirements of a particular abstention doctrine are satisfied.’”
Aransas Project v. Shaw, 

, 648 (5th Cir. 2014) (quoting Romano v.
Greenstein, 

, 380 (5th Cir. 2013)).       Because the exercise of
discretion must fit within the specific limits prescribed by the particular
abstention doctrine invoked, “[a] court necessarily abuses its discretion when
it abstains outside of the doctrine’s strictures.” Webb v. B.C. Rogers Poultry,




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                                  No. 18-50994

Inc., 

, 701 (5th Cir.1999); see also Texas Ass’n of Bus. v. Earle,

, 518 (5th Cir. 2004).
      Burford abstention is an “extraordinary and narrow exception to the
duty of the District Court to adjudicate a controversy properly before it.”
Quackenbush v. Allstate Ins. Co., 

, 728, 

, 1727
(1996). “Burford allows a federal court to dismiss a case only if it presents
‘difficult questions of state law bearing on policy problems of substantial public
import whose importance transcends the result in the case then at bar,’ or if
its adjudication in a federal forum ‘would be disruptive of state efforts to
establish a coherent policy with respect to a matter of substantial public
concern.’”

116 S. Ct. at 1726. The decision to exercise Burford
abstention must be weighed against federal courts’ “virtually unflagging
obligation . . . to exercise the jurisdiction given them” by Congress. Colorado
River Water Cons. Dist. v. United States, 

, 821, 

,
1248 (1976).
      Burford itself involved a suit to enjoin the enforcement of an order of the
Texas Railroad Commission, which at that time enforced a detailed regulatory
scheme involving complicated oil and gas issues. 

–26,
63 S. Ct. at 1103.     The Court admonished that federal courts should be
reluctant to get involved in inherently local matters involving the management
of state interests covered by a complex regulatory scheme, where the inevitable
result would be “[d]elay, misunderstanding of local law, and needless federal
conflict with the State policy.”

63 S. Ct. at 1104.
      Five factors govern a federal court’s decision whether to abstain under
Burford: “(1) whether the cause of action arises under federal or state law;
(2) whether the case requires inquiry into unsettled issues of state law or into
local facts; (3) the importance of the state interest involved; (4) the state’s need


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                                       No. 18-50994

for a coherent policy in that area; and (5) the presence of a special state forum
for judicial review.” Aransas Project v. Shaw, 

, 649 (5th Cir. 2014)
(quoting Wilson v. Valley Elec. Membership Corp., 

, 314 (5th Cir.
1993)). The district court cited this standard correctly and found that all five
factors militated in favor of abstention. We disagree.
       The court had to acknowledge that because Fazzino’s § 1983 claims
allege constitutional violations, the first factor is satisfied in favor of federal
jurisdiction. See Romano v. Greenstein, 

, 380 (5th Cir. 2013). But
it joined this factor with the second factor and found the “unsettled issue” “that
state courts, including the Texas Supreme Court, have been wrestling with for
years,” as having to do with the applicability of Texas oil and gas common law
to groundwater regulation by GCDs. As will be seen in the next section, we do
not view this case in the same overgeneralized terms and find Fazzino’s claims
sufficiently precise under federal and state law to move forward.                     In the
briefest terms, the Texas Supreme Court reaffirmed in Day that groundwater
is owned in place by the surface landowner, and the EAA’s (and by necessary
implication, GCDs’) regulatory provision affording landowners a “fair share” of
groundwater confers property rights that may be enforced in takings law and
under doctrines of equal protection. 

. In this highly
analogous context, it is no extension of state law to echo Day’s conclusion. 8
       Regarding the third factor, “[t]he regulation of water resources is . . . a
matter of great state concern.” Sierra Club v. City of San Antonio, 

, 794 (5th Cir. 1997). In light of the severe droughts that periodically strike

       8  The cases cited by the district court in favor of abstention for similar issues of
“unsettled state law” predate Day and thus are of little support. See Williamson v. Guadalupe
Cty. Groundwater Cons. Dist., 

(W.D. Tex. 2004); Coates v. Hall,

, 780 (W.D. Tex. 2007) (“[T]he Texas Supreme Court has not addressed the
scope of a landowner[’]s cognizable property interest in groundwater beneath their [sic] land.”
(quotation marks omitted)).


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                                    No. 18-50994

the state and the anticipated growth in Texas’s water needs, the state’s
interest is only increasing. 9 This factor favors abstention to the extent that,
unlike our decisions in Aransas Project and Romano, there is no strong,
countervailing federal interest. Aransas 

; 

. Nevertheless, the relief Fazzino seeks diminishes the
importance of this factor. In contrast to Sierra Club, in which the plaintiff
sought to enjoin the EAA to reduce groundwater withdrawals, and Wilson,
where the plaintiff sought refunds for unconstitutional rate increases on behalf
of a class, Fazzino      asks that BVGCD simply apply its rules equally to
landowners within its purview or provide adequate compensation to him.
Compare Sierra 

with 

. His lawsuit
therefore poses little threat to the general state interest.
      The fourth factor looks at the state’s need for a coherent policy in
regulating groundwater.        This factor “is intended to avoid recurring and
confusing federal intervention in an ongoing state scheme.” 

. But Burford “does not require abstention whenever there exists [complex
state administrative processes], or even in all cases where there is a potential
for conflict with state regulatory law or policy.” NOPSI v. Council of City of
New Orleans, 

, 362, 

, 2515 (1989) (quotation marks
omitted). Nor would a federal judgment here interfere with the coherence of
state policy. GCDs are designed to be decentralized and fragmentary in order
to offer local control over groundwater resources. There are roughly 100 GCDs
in Texas, but nearly two-thirds of them oversee territory coextensive with a
single county. Each GCD designs and implements its own rules under a

      9 The Texas House Committee on Natural Resources observed, “[i]n recent years . . .
severe drought coupled with a growing population has caused pressure to grow on
groundwater resources.” H. Comm. on Nat. Res., Interim Rpt. 84th Leg. at 15 (Tex. Jan
2015). “What was once used mainly in times of emergency, is fast becoming the preferred
method of water supply in this state.”

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                                 No. 18-50994

general legislative framework subject ultimately to the local electorate. The
existence of some coordination and state oversight does not transform a
decentralized system of regulation into a comprehensive one, nor does
Fazzino’s lawsuit threaten this regulatory scheme any more than a takings
judgment secured by the Braggs against EAA. 

. This
factor weighs against abstention.
      Finally, we consider the state forum for judicial review. GCD decisions
are reviewed in state court. Those lawsuits are filed against local GCDs, not a
state agency, and maintained in the county where the district is located. TEX.
WATER CODE § 36.251. Accordingly, “there is no special state forum for judicial
review.” 

.
      The BVGCD is no Texas Railroad Commission, and the federal court
should not have abstained from the constitutional issues raised by Fazzino.
The claims do not delve into unduly complex issues of state law, the state
concerns that are implicated are not overriding in light of the remedy sought,
no state law would be usurped by a federal decision, and statewide processes
or regulatory regimes would not be disrupted. The district court abused its
discretion in deciding to abstain under Burford.
                                            II.
      Having rejected the jurisdictional objections to this litigation, we turn to
the merits. The district court dismissed Fazzino’s takings and equal protection
claims because it believed that they rested on unsettled questions about the
application of oil and gas law to the landowner’s rights in the groundwater
beneath his property. As we noted above, this formulation of Fazzino’s claim
is at too high a level of generality. BVGCD’s briefing compounds this error by
asserting that to adopt Fazzino’s position would require the federal court to
completely assimilate Texas oil and gas law to groundwater regulation. This


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                                   No. 18-50994

position is disavowed by Fazzino, unnecessary to adjudicate here, and amounts
to a bright red herring.
      It is correct, however, that Fazzino’s rights as a property owner are a
creature of state law. Thus, his property rights constitute whatever he has
that the BVGCD may not constitutionally “take” without compensation, and
they provide the baseline by which to determine whether he has been treated
“unequally” by the district vis a vis the City’s permit. Fortunately, Texas law
is not unsettled as to the landowner’s basic rights. The Texas Supreme Court
plainly held in Day that a landowner’s property rights include the ownership
of groundwater in place beneath his acreage, and such ownership right is
subject to takings claims. The court stated at the outset that it would decide
“in this case whether land ownership includes an interest in groundwater in
place that cannot be taken for public use without adequate compensation
guaranteed [by the Texas Constitution].           We hold that it does.”      

. Further, as the court recognized, the TWC reinforces its
conclusion by providing that “[n]othing in this code shall be construed as
granting the authority to deprive or divest a landowner . . . of the groundwater
ownership and rights described by this section.”             TEXAS WATER CODE
§ 36.002(c). With a cogent observation, the court rebuffed an argument, rather
like BVGCD’s argument here, that groundwater rights by their nature are “too
inchoate” to merit constitutional protection: the intolerable extreme of that
argument would allow a regulator to deprive the property owner of all his
groundwater rights. 

–33. The court instead restated
that “[g]roundwater rights are property rights subject to constitutional
protection,   whatever     difficulties   may   lie   in   determining   adequate
compensation for a taking.”

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                                  No. 18-50994

      What is “unsettled” about Day’s interpretation of the common law and
statutory rights of groundwater owners? Indeed, it is BVGCD, not Fazzino,
that would “unsettle” Texas law by asking the federal court essentially to
reconsider Day and dramatically reduce the constitutional rights of
landowners to the groundwater in place.
      Neither the state Supreme Court nor the legislature is blind to
differences between groundwater and oil and gas reserves that may require
legal distinctions to be drawn. See, e.g.,

840–41. Still, the court
has explained, “[c]ommon law rules governing mineral and groundwater
estates are not merely similar; they are drawn from each other or from the
same source.” Coyote Lake Ranch v. City of Lubbock, 

, 64 (Tex.
2016). This common parentage led the court in Day to analogize the correlative
rights as between landowners in common subsurface reservoirs, whether of
minerals or water, as being recognized both at common law and more
particularly through state regulation that “afford[s] landowners their fair
share of the groundwater beneath their property.” 

; see
also Elliff v. Texon Drill. Co., 

, 562-63 (Tex. 1949).
      Notably, the TWC “requires groundwater districts to consider several
factors in permitting groundwater production, among them the proposed use
of water, the effect on the supply and other permittees, [and] a district’s
approved management plan.” 

(citing TEXAS WATER
CODE § 36.113(d)(2)–(4)). Affording groundwater owners their fair share “must
take into account factors other than surface area,” the historic metric for an oil
and gas owner’s fair share.

Fazzino’s takings claim, it
seems highly pertinent, notwithstanding the statutory list of factors, that
BVGCD opted for Rules based on spacing and production limits plus the
water’s proposed or historic use. Fazzino’s allegation is that by permitting the


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                                 No. 18-50994

City of Bryan to drain water from an area with a 3003 ft. radius, far outside
its surface ownership and including surface area of Fazzino’s property, the
BVGCD has “taken” his groundwater in place without compensation. The task
of the district court will be to assess, as the state supreme court did in Day,
whether the groundwater scheme effectuated by BVGCD’s Rules promulgated
in December 2004 has resulted in a taking of Fazzino’s interest.

That this task may be challenging is not the same as concluding it is infeasible.
See 

(affirming judgment against the Authority for
“taking” of landowners’ property).
      Likewise, Fazzino’s equal protection claim alleges sufficiently that
BVGCD unequally applied its Rules by treating municipalities, like the City of
Bryan, as exempt from the production limits required by the Rules’ surface
area formula while rigorously enforcing those limits against Fazzino. The
district court discussed this claim only in terms of qualified immunity for the
Board, and in that respect held that Fazzino’s right to equal protection, if any,
was not clearly established because GCDs have broad discretionary authority
in framing and implementing groundwater production rules.             The court
dismissed the Board members for failure to state a claim on this basis. In light
of our rejection of BVGCD’s jurisdictional objections, and the preceding
discussion of Fazzino’s property rights, this analysis is wanting.
      A class-of-one equal protection claim is based on two factors: whether the
plaintiff was “intentionally treated differently from others similarly situated,”
and whether there was a “rational basis” for this difference.         Village of
Willowbrook v. Olech, 

, 564 (2000); Lindquist v. City of Pasadena,

, 233 (5th Cir. 2012).
      Lindquist disavowed any precise formula to determine whether a
plaintiff is similarly situated to comparators, holding instead that “the full


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                                 No. 18-50994

variety of factors that an objectively reasonable . . . decisionmaker would have
found relevant” must be 

. Further, “the plaintiff’s
and comparators’ relationships with the ordinance at issue will generally be a
relevant characteristic for purposes of the similarly-situated analysis.”

when creating rules, GCDs must consider “groundwater
ownership and rights”; “the public interest”; and “develop rules that are fair
and impartial.” TEX. WATER CODE § 36.101(a)(2)–(4). Day held that one
purpose of regulating groundwater is ensuring that owners in a common
reservoir receive their fair share. 

. BVGCD implicitly
accepted this position by setting groundwater production limits based on a
spacing and production formula. Thus, Fazzino’s equal protection claim is not
judged against the backdrop of “unsettled” questions of Texas law, but against
the precise regulations enacted and enforced by BVGCD in this case.
      Fazzino alleges that BVGCD intentionally treated the City differently in
two ways. First, the district mischaracterized Well No. 18 as an Existing Well
although it was not completed for ten months after the Rules were
promulgated. Fazzino contends the well had to be a New Well under the
district’s Rules and therefore subject to its spacing and production limits. The
Texas Supreme Court rejected a similar misapplication of a GCD’s regulations
that deviated from the district’s enabling statute in Guitar Holding Co. v.
Hudspeth Cty. Underground Water Cons. Dist. No. 1, 

, 917–18
(Tex. 2008). Additionally, Fazzino alleges, BVGCD ignored its land ownership,
spacing and production limits for Well No. 18 while enforcing them rigorously
against him. The results of the preference for the City’s well are dramatic.
Based on its land ownership, the City’s well should have been limited to
pumping 192 GPM, not 3000 GPM as authorized, and its annual production
should have been about 315 acre-feet, not 4,838 as authorized by BVGCD. In


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                                     No. 18-50994

contrast, the district agreed to permit Fazzino a New Well under Rule 7.1 for
192 GPM and 315 acre-feet per year based on his 26-acre tract.
      Fazzino additionally asserts there was no rational basis for the district’s
differential treatment of him, and he implies the intentionality of the district’s
efforts based on its preference for, and the relations of its Board members to,
the cities within the BVGCD. These allegations of disparity and intentional
conduct are sufficient to require further development rather than dismissal on
the pleadings. Because neither BVGCD nor its Board was required to respond
on the merits, the substance of these allegations must be tested in discovery
and further proceedings. For now, the court’s Rule 12(b)(6) dismissal must be
reversed as to all defendants.
                                          III. 10
      Stratta insufficiently pleaded that BVGCD and its Board of Directors
(collectively, “Defendants”) violated Stratta’s First Amendment right to free
speech. Given Stratta’s status as a member of the Board, he was governed by
the Texas Open Meetings Act (“TOMA”). As such, he did not have the same
rights as the “public” under the particular circumstances. We therefore affirm
the district court’s judgment dismissing Stratta’s First Amendment claims.
      Stratta’s First Amendment claim revolves around TOMA’s notice
requirement, TEX. GOV’T CODE ANN. § 551.041, and its notice exception
provision,

We have already upheld TOMA as a constitutional,
content-neutral time, place, or manner restriction on an individual’s First
Amendment right. Asgeirsson v. Abbott, 

, 462 (5th Cir. 2012). 11

      10 Judge Smith and Judge Haynes join Part III in full. Judge Jones writes separately
in dissent.

      11  Because free speech restrictions under TOMA do not violate the First Amendment,
free speech cases that arise under TOMA are distinguishable from free speech cases that do
not. As such, cases holding that a governmental body violated a member’s First Amendment
right to free speech for non-TOMA reasons are inapplicable here. See, e.g., Wilson v. Hous.

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                                       No. 18-50994

Thus, if TOMA prohibited Stratta from requesting during the Board meeting’s
public comment period on non-agenda items that the Board add a topic to the
next meeting’s agenda, then Stratta’s First Amendment rights were not
violated when he was barred “as a member of the public” from saying whatever
he wanted at the Board meeting.
       A governmental body, such as the Board, must give written notice before
each meeting.

But such notice is not required in one instance:
             (a) If, at a meeting of a governmental body, a member of the
       public or of the governmental body inquires about a subject for
       which notice has not been given as required by this subchapter,
       the notice provisions of this subchapter do not apply to:
                     (1) a statement of specific factual information given in
             response to the inquiry; or
                     (2) a recitation of existing policy in response to the
             inquiry.
             (b) Any deliberation of or decision about the subject of the
       inquiry shall be limited to a proposal to place the subject on the
       agenda for a subsequent meeting.

This exemption does not permit Stratta, as a member of a
governmental body, to place an unnoticed issue before the Board. 12
       The exemption’s “purpose is to authorize a governmental body to make
a limited response to an inquiry about a subject not included on the posted
notice and to prevent it from engaging in ‘deliberation’ or making a ‘decision’
about the subject matter of the inquiry.” Hays Cty. Water Planning P’ship v.
Hays Cty., 

, 181 (Tex. App.—Austin 2001, pet. denied); see also
Tex. Att’y Gen. Op. No. JC-169 (2000), at 5.


Cmty. Coll. Sys., 

, 497–500 (5th Cir. 2020), petition for reh’g filed, Case No. 19-
20237 (5th Cir. April 7, 2020) (holding that a governmental body’s censure of one of its
members for violating its bylaws was an unlawful restriction on the member’s free speech
rights).
        12 Stratta himself thought so because he signed in as a “member of the public” to make

this point.


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                                       No. 18-50994

       TOMA provides this exemption because “public comment sessions
provide an opportunity for citizens to speak their minds on an unlimited
variety of subjects” and a governmental body cannot be expected “to divine or
foresee the myriad of matters its constituents wish to bring to its attention.”
Tex. Att’y Gen. Op. No. JC-169, at 4. Section 551.042 provides an outlet for a
governmental body to address the public’s concerns without violating the
notice provision of § 551.041: instead, it may place the subject on the agenda
for a future meeting. TEX. GOV’T CODE ANN. § 551.042; accord

(requiring written notice before a meeting);

(stating that a
deliberation is a type of “meeting”).             It does not allow a member of a
governmental body to bypass the notice requirements of TOMA by introducing
a subject that has not been the subject of proper written notice during the
public comment period of a meeting. Indeed, the court in Hays County held
that a member of the governmental body in that case could not rely on
§ 551.042 to circumvent the notice requirement when the member “was not
responding to an inquiry.” 

. Similarly, Stratta was not
responding to an inquiry; he was making one. Thus, the exemption does not
apply. 14


       13The dissent states that Hays County is distinguishable for a number of reasons. But
none of those stated reasons mattered to the court’s exemption determination. See Hays 

. The only fact that mattered was whether the member of the governmental
body was responding to an inquiry; he was not.

exemption in § 551.042 did not
apply.

dissenting opinion would hold that § 551.042 permits Stratta “solely to place a
proposal before the Board that the issue be taken up at a future meeting” because “[i]t is not
determinative . . . whether Stratta was ‘a member of the public or of the governmental body.’”
Aside from the fact that Stratta presents his issue as based upon his status as a member of
the public, the Texas appellate court’s holding in Hays County does not support this
interpretation of § 551.042. See Hays 

. When evaluating issues of state
law, if there is no final decision on the issue by the state’s highest court, we “defer to
intermediate state appellate court decisions, unless convinced by other persuasive data that
the highest court of the state would decide otherwise.” Temple v. McCall, 

, 307

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                                       No. 18-50994

       In his brief, Stratta acknowledges that he “intended to make a public
comment requesting that the Board include the subject of the status of Well
No. 18 on its next agenda,” and that the “Board prevented Stratta from making
the request on the basis that they feared it would violate TOMA’s notice
requirements.”
       Although, he disagreed with this analysis, he acknowledges it. Thus,
Stratta’s argument is based upon his contention that he inquired as a “member
of the public.” At the meeting, he signed in as a member of the public. His
brief states his appellate issue as: “Does Stratta have a clearly established
right to address the board of directors as a member of the public during a period
reserved for public comment on open agenda items?” Addressing this “member
of the public” contention, the answer is clearly “no.” “Member of the public” is
not defined in TOMA, or any other Texas statute. See TEX. GOV’T CODE ANN.
§ 551.001; Austin Bulldog v. Leffingwell, 

, 245 (Tex. App.—
Austin 2016, no pet.) (stating that no Texas statute has defined “member of the
public”). Texas courts have thus looked to the plain and common meaning of
the term while considering its context. See 

;
accord TGS-NOPEC Geophysical Co. v. Combs, 

, 441 (Tex.
2011). “When ‘member of the public’ is used in conjunction with an identified
or identifiable group . . . as it is here with ‘governmental body’ its meaning
is contextually modified to mean a person who does not belong to the identified
group.” 

. Stratta is a BVGCD Board member.
He thus is not a “member of the public” when he attends a BVGCD meeting.
       Stratta cannot bypass TOMA’s notice requirement by attending a Board
meeting as a “member of the public.” TOMA does not allow for such action


(5th Cir. 2013) (internal quotation marks and citation omitted). We thus defer to the Texas
appellate court’s interpretation of § 551.042. Federal courts should be reluctant to interfere
in a city council’s conclusion about what Texas law means in contradiction to Texas case law.

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                                      No. 18-50994

because Stratta is a Board member. TOMA is designed to protect the public
by making open meetings, including notice of what will be discussed at the
meetings, the norm. TEX. GOV’T CODE ANN. §§ 551.002, .041. In other words,
it is designed to protect the public from Board member violations, not to allow
Board members to circumvent its requirements by calling themselves
“members of the public.” As a “member of the public,” a panel member could
appear in the town square and endorse a candidate for public office. But as
federal judges, we are barred from doing so.              See ADMIN. OFFICE OF U.S.
COURTS, CODE OF CONDUCT FOR UNITED STATES JUDGES, Canon 5(a)(2) (2019);
see also MODEL CODE OF JUDICIAL CONDUCT Canon 4 (AM. BAR ASS’N 2010).
Even candidates for judge are subject to limitations that “members of the
public” are not. Cf. Williams-Yulee v. Fla. Bar, 

, 437 (2015). A
“member of the public” could comment on a pending criminal trial, but a juror
in the case could not. See United States v. Albert, 

, 290 (5th Cir.
1979) (prohibiting prejudicial private communications between jurors and
third persons); Chambliss v. State, 

, 682 (Tex. App.—El Paso
1982), aff’d, 

(Tex. Crim. App. 1983) (stating the same). The
list goes on. Thus, whatever Stratta’s rights otherwise may be, they were
overcome by his status as a Board member, and the Board correctly prevented
Stratta from speaking at the meeting. 15
       In accordance with TOMA’s notice requirement, the Board notified the
public that the March 8, 2015, meeting would include a public comment period
on open agenda items. TEX. GOV’T CODE ANN. § 551.041. That agenda item
was limited to comments by the public, of which Stratta was not included.



       15As a result, there is no need to address the qualified immunity issue. But, assuming
arguendo that the dissenting opinion is correct that there was a First Amendment violation,
of course, we agree that Defendants are entitled to qualified immunity on that claim.


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                                       No. 18-50994

Stratta thus was not permitted under § 551.042 to raise a new topic as an
agenda item in a future meeting during the existing meeting. Accordingly, we
affirm the district court’s judgment dismissing Stratta’s First Amendment
claims. 16
                                     CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment dismissing
Stratta’s First Amendment claim; REVERSE the dismissal of BVGCD for lack
of jurisdiction, and REVERSE and REMAND the judgment dismissing all
other claims and defendants.
       AFFIRMED IN PART, REVERSED IN PART, and REMANDED.




       16 The district court dismissed Plaintiffs’ official-capacity claims against Defendants
for lack of jurisdiction and their individual-capacity claims as barred by qualified immunity.
However, “[w]e are free to uphold the district court's judgment on any basis that is supported
by the record.” Zuspann v. Brown, 

, 1160 (5th Cir. 1995).

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                                       No. 18-50994

EDITH H. JONES, Circuit Judge, dissenting in part:
       I respectfully dissent from the majority’s conclusion that Stratta was not
permitted under § 551.042(a)-(b) to inquire about a new subject for the limited
purpose of placing that subject on the agenda for a subsequent meeting. These
provisions specify that if “a member of the public or of the governmental body
inquires about a subject for which notice has not been given,” then “[a]ny
deliberation of or decision about the subject shall be limited to a proposal to
place the subject on the agenda for a subsequent meeting.” (Emphasis added).
The majority hold that (1) Stratta could not make an “inquiry” as a member of
the governmental body, and (2) Stratta was not permitted to attend the Board
meeting as a “member of the public.” The plain text of the statute contravenes
the first conclusion and renders the second conclusion superfluous. By limiting
the response to an inquiry by a member of the governmental body to placing
that subject on a subsequent meeting agenda, the statute presupposes the
permissibility of such an inquiry by a member of the governmental body. 1



       1 Statutory regulation of a response to an activity short of prohibition presupposes
that the activity is permissible. The majority does not engage with this principle of statutory
interpretation. Instead, my colleagues rely on Hays Cty. Water Planning P’ship v. Hays Cty.,
Texas, 

(Tex. App. 2001), for the proposition that an elected official could not
rely on § 551.042 to circumvent the notice requirements when the member “was not
responding to an inquiry.”

The majority omits the pertinent second half of that
quotation, however. In full, the court stated that the commissioner “was not responding to
an inquiry by either a member of the public or a colleague on the commissioners court,”
implying once again that a member of the governmental body may make an inquiry.

the court held that “551.042 is clear and unambiguous and relates to ‘inquiries’ from
members of the public or the governmental body.”

Cty. is distinguishable on numerous grounds. The central holding
of Hays Cty. is that a commissioner gave a “presentation” for which notice was insufficiently
given.

remarks went far beyond getting an item placed on the agenda
for a subsequent meeting. And the argument that the commissioner appeared as a member
of the public was not even raised until litigation; indeed, the commissioner did not even
attempt to speak during the public comment period.

181. By contrast, Stratta
signed into the meeting as a member of the public, attempted to speak during the public
comment period, and intended only to inquire about the status of Well No. 18.
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                                 No. 18-50994

      Stratta made his request at the meeting either as a member of the
governmental body or as a member of the public. Because he would have been
permitted to inquire about placing the status of Well No. 18 on a future agenda
in either capacity, it is not determinative under this statute whether he was “a
member of the public or of the governmental body.”

expressly supports Stratta’s strategy to place a proposal before the Board,
which it was then required to debate, solely as to whether to take up this issue
at a future meeting.
      The purpose of TOMA is to guarantee openness in the operation of public
bodies by reducing non-public discussion and deliberations and giving the
public access to their activities.   The Board members here, however, are
interpreting TOMA to stifle and discriminate against “open” discussion of
whether an important issue should be placed on an open meeting agenda. Yet
“[i]t is axiomatic that the government may not regulate speech based on its
substantive content or the message it conveys.”       Rosenberger v. Rector &
Visitors of Univ. of Virginia, 

, 828, 

, 2516 (1995).
Stratta’s pleading makes a plausible argument that TOMA was applied here
in a viewpoint discriminatory fashion. The Board members, sued in their
official capacity, should be required to defend against Stratta’s charge.
      Nonetheless, I would affirm the district court’s conclusion that the
Board members are qualifiedly immune in their individual capacities from
liability for any violation of Stratta’s First Amendment rights. The district
court theorized they could have reasonably believed that denying him the right
to speak in the public comment period of the meeting was sanctioned by TOMA.
Under TOMA, a board may place items on an agenda for public discussion but
may not discuss those items in advance. TEX. GOV’T CODE ANN. § 551.041. The
district court interpreted this section to mean that if Stratta had debated with

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                                 No. 18-50994

fellow Board members whether to discuss the status of Well No. 18 in the
upcoming meeting, they had foreknowledge of his views such that taking them
up during the public comment session would have failed the law’s notice
requirement. The court relied on a Texas Attorney General opinion stating
that “the use of ‘public comment’ or similar term will not provide adequate
notice if the governmental body is, prior to the meeting, aware or reasonably
should have been aware, of specific topics to be discussed.” Op. Tex. Att’y Gen.
No. JC169 (2000) at 3–4.
      For purposes of qualified immunity, the court’s analysis suffices.
“Qualified immunity protects all but the plainly incompetent or those who
knowingly violate the law.” Anderson v. Creighton, 

, 638 (1987)
(quotation marks omitted).
      In sum, I would affirm the court’s grant of qualified immunity to the
individual Board members but remand Stratta’s claim for a First Amendment
violation against the Board members in their official capacity.




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