Important status note

This is NOT legal advice or a professional legal opinion. This is simply a baseline, automatically generated, neutral synopsis of the available information. These documents do not show that the judge has dismissed the County’s case—or that the County has won these motions. Several documents titled “Proposed Order” are drafts submitted by the competing lawyers for the judge to sign. An unsigned proposed order is essentially each side saying, “This is the ruling we would like the judge to enter.”

Based on the supplied filings, the key hearing is scheduled for:

July 29, 2026, at 1:00 p.m. Gillespie Co Justice Center/The Law Enforcement Center, 104 Industrial Loop, Second Floor.

For additional information about this case and others in Gillespie County regarding BESS and Solar facilities, please visit the non-profit: https://fightbesstexas.org

Filing Documents from the District Court as of July 28th 2026: Documents as of July 28, 2026:

Short Summary

Gillespie County has sued the developers of the proposed Marshall Springs solar and battery storage project, asking the court to confirm that County fire-safety, floodplain, water-protection, and nuisance laws apply—and potentially to stop the project before construction if it cannot be made safe and compliant.

The developers are presently trying to end the lawsuit before the County gets a full opportunity to develop evidence. They have filed two principal dismissal requests:

1. A Rule 91a motion, arguing that even if the County’s allegations are accepted as true, the lawsuit is legally defective or speculative.
2. A plea to the jurisdiction, arguing that the lawsuit was filed too early because construction has not begun and the feared harm may never occur.

The County responds that it should not have to wait until the land is cleared, batteries are installed, or a fire, flooding event, or contamination occurs before seeking protection. It says the project is real and actively advancing because the companies control the site, have created project entities, and have obtained an interconnection agreement with a stated grid connection date of November 12, 2028. 

For Gillespie County residents, the immediate issue is not yet whether the project will ultimately be built. The immediate issue is whether the County is legally allowed to remain in court and challenge the project before construction begins.

A ruling for the County would allow the lawsuit to continue, including evidence gathering and further examination of fire, floodplain, water, siting, and safety issues. A ruling for the developers could dismiss the current lawsuit—possibly because it was filed prematurely—without necessarily approving the project or stripping the County of all permitting authority.

Long Summary

1. What the underlying lawsuit is about

The project described in these filings would place two connected energy facilities on approximately 800 acres of private property in unincorporated Gillespie County:

• A roughly 150-megawatt solar facility
• A 150 MW / 600 MWh lithium-ion battery energy storage system, occupying approximately 17 acres
• Both connected to a Lower Colorado River Authority transmission line

The County’s lawsuit raises four general categories of claims:

• Public nuisance and statutory nuisance
• Strict liability based on allegedly abnormally dangerous activity
• Fire-code and floodplain compliance
• Protection of water resources

The County is seeking declarations from the court concerning its regulatory authority and an injunction preventing development activity unless the project complies with applicable requirements. The developers describe this as an effort to permanently block a lawful private development based on future fears. 

In practical terms, the dispute is:

Must Gillespie County wait until the project is under construction—or operating—before it can ask a court to prevent the harm it believes is likely? Or can the County act beforehand?

That timing question currently dominates the case.

2. The developers’ first argument: the Rule 91a motion

A Rule 91a motion is an early procedural device used to argue that a lawsuit has no valid legal or factual basis, even assuming the plaintiff’s properly pleaded facts are true.

The developers argue that:

• Nothing has been constructed.
• No battery has been installed.
• No fire, toxic release, contamination, flooding, or injury has occurred.
• The project design is unfinished.
• No construction permits have been issued.
• The County is relying on predictions about what might happen in the future.
• “Nuisance” is generally a type of legal injury, not an independent common-law cause of action.
• The County has not adequately alleged an existing underlying wrongful act.
• The County cannot obtain a court declaration concerning hypothetical future regulatory violations.
• An injunction against a future nuisance requires an imminent and reasonably certain threat, which the developers say is missing here.

They therefore ask the judge to dismiss all four of the County’s claims. 

The deadline problem

There is also a procedural problem for the developers: their Rule 91a motion was filed one day late.

The defendants acknowledge that they were served on March 27, 2026, making the Rule 91a deadline May 26. The motion was filed May 27. They say the delay resulted from a mistaken understanding that service occurred March 30, compounded by lead counsel’s recovery from an automobile accident and concussion protocol. They ask the court to excuse the mistake and treat the motion as timely. 

The County opposes that request. It argues that:

• The correct service date was publicly available.
• The accident occurred after the original misunderstanding concerning service.
• The concussion protocol does not explain why the service date was not checked during the following two months.
• The developers still have other ways to seek dismissal later, such as summary judgment.
• Rule 91a is intended to be a tightly timed, expedited procedure, so its deadline should be enforced. 

Why that matters

The judge could decide the developers should not be allowed to use Rule 91a because it was filed late. That would be a procedural win for the County, but it would not mean the County has proved its underlying safety claims.

The developers could still pursue other dismissal procedures later.

Conversely, if the judge excuses the one-day delay, that only allows the judge to consider the Rule 91a motion. It does not mean the developers automatically win it. The developers submitted a proposed order allowing the late filing, while the County submitted a competing proposed order asking that leave be denied. Neither supplied document shows a judge’s signature. 

3. The County’s response to the Rule 91a motion

The County argues that its claims are legally sufficient and should survive the early dismissal stage.

Its principal arguments are:

The court must accept pleaded facts as true at this stage

A Rule 91a proceeding is generally decided from the lawsuit itself, rather than after a full factual hearing. The County says the judge should determine whether its allegations, if eventually proven, could support relief—not whether the County has already conclusively proven every danger.

The statutory claims are different from ordinary nuisance claims

The developers rely heavily on Texas cases saying nuisance is an injury rather than a separate common-law cause of action. The County responds that it is also relying on statutes, fire-safety rules, floodplain rules, and water-protection authority that allegedly provide independent enforcement rights.

The County says it pleaded the required underlying wrongful conduct

The County says it pleaded negligence and strict-liability theories, including:

• A high degree of thermal-runaway fire risk
• The potential seriousness of the resulting harm
• The alleged inability to eliminate the risk completely through reasonable care
• The unusual nature of utility-scale battery storage
• The suitability of the particular location
• The relationship between the project’s community value and its alleged dangerous characteristics

The County also emphasizes the proposed site’s proximity to a school, residences, water resources, and the Pedernales River watershed. 

The County cites another Texas BESS case

The County relies on Clements v. McBroom, a recent Texas appellate decision involving efforts to stop a battery storage facility. According to the County’s filing, the appellate court reversed an earlier Rule 91a dismissal and permitted those battery-related nuisance claims to continue.

The developers argue that Clements involved more concrete allegations, including an identified construction schedule and specific alleged deficiencies in the fire-response plan. The County responds that its own allegations are comparably detailed and that its status as a governmental regulator strengthens rather than weakens its position. 

Attorney’s fees

The developers requested attorney’s fees if their Rule 91a motion succeeds. The County argues that Rule 91a contains an exception for actions by or against governmental entities, meaning the developers should not receive Rule 91a fees from Gillespie County. 

Again, competing proposed orders have been submitted: one dismissing all four County claims and awarding fees, and another denying dismissal and denying fees. These are proposals, not proof that the court has selected either outcome. 

4. The developers’ second argument: plea to the jurisdiction

The plea to the jurisdiction is different from Rule 91a.

Here, the developers argue that the court does not yet have authority to decide the dispute because the case is not ripe. “Ripeness” means the dispute must be sufficiently real and developed, rather than dependent upon uncertain future events.

The developers say the lawsuit is premature because:

• No land has been cleared.
• No construction has started.
• The project may never be built.
• The project cannot move forward without County fire and floodplain compliance.
• No power-purchase, offtake, or merchant agreement has yet been secured.
• The design, footprint, fire breaks, and suppression systems remain under development.
• The developers say they will not begin construction without obtaining required permits.
• They do not anticipate breaking ground earlier than approximately 12 months before the November 12, 2028 interconnection date.

Their basic position is:

Because Gillespie County itself controls important approvals, and because other business and engineering conditions remain unresolved, there is no immediate injury for the court to prevent.

They say the County can sue again later if construction becomes imminent or the developers threaten to violate County regulations. 

5. The County’s response to the jurisdiction argument

The County says that reasoning would make preventive enforcement nearly impossible.

Its response is essentially:

A government should not have to wait until the land is cleared, construction begins, batteries are energized, or an emergency occurs before asking a court to prevent an imminent danger.

The County argues that a threatened injury can be legally “ripe” before it actually happens when the danger is direct, immediate, and reasonably certain.

It points to evidence of an actual advancing project:

• The project companies have been formed.
• The developers have control of the site.
• An interconnection agreement exists.
• A specific grid-interconnection date exists.
• Project design and development work are ongoing.
• The developers have expressed an intention to break ground if the remaining requirements are satisfied.

The County argues that incomplete design details do not make the project imaginary. It also says the developers should not be able to avoid court review by pointing to contingencies—such as a future contract or final project design—that are largely within the developers’ own control. 

The County additionally says there is already a present disagreement over whether County regulations apply, what they require, and whether the project can comply. In its view, the court can decide those regulatory questions now even if construction has not begun.

Competing proposed orders were submitted on this issue as well: one would grant the jurisdictional plea, and another would deny it. Neither supplied copy establishes that the judge has signed either order. 

What this means for Gillespie County residents

1. The County is taking an unusually proactive position

The County is not simply waiting for state regulators or for construction to begin. It is asserting that local fire, floodplain, water-protection, and nuisance authority permits preventive action.

That is significant because the case may help define how far a Texas county can go in challenging large-scale BESS and solar developments in unincorporated areas.

2. This stage is primarily about whether the County gets its day in court

The judge is not necessarily being asked at this stage to make a final scientific finding that battery storage is safe or unsafe.

The immediate questions are:

• Did the County plead a legally recognizable case?
• Is the controversy sufficiently immediate?
• Can the County seek preventive relief before construction?
• Was the developers’ Rule 91a motion filed too late?
• Should the dispute continue into discovery and a fuller evidentiary record?

3. A County win would not automatically prohibit every battery or solar project

If the dismissal requests are denied, the lawsuit continues. The County would still need to prove its allegations and establish its legal authority and entitlement to an injunction.

However, continuing the case would give the County a greater opportunity to obtain and examine information involving:

• Final facility design
• Battery chemistry and equipment
• Fire modeling and emergency-response plans
• Water supply and firefighting resources
• Toxic gas and runoff risks
• Floodplain impacts
• Setbacks and fire breaks
• Evacuation considerations
• Developer communications and project schedules
• Compliance with County regulations

4. A developer win would not necessarily mean the project is approved

A dismissal—particularly one based on ripeness—could mean only that the court believes the County sued too early.

The developers themselves state that they will not move forward in violation of County ordinances and permitting requirements. Their affidavit expressly recognizes the County’s flood-damage ordinance, fire-code requirements, and November 3, 2025 resolution, and states that no clearing, grading, or construction will begin until required permits and regulations are satisfied. 

That written representation may be important to residents because it places the developers’ compliance commitment in a sworn court filing.

5. The solar and battery portions should be understood separately

The lawsuit concerns a co-located solar and BESS project, but many of the most serious alleged emergency-response concerns relate specifically to the lithium-ion battery facility.

A court ruling in this case may address the combined project and the County’s regulatory powers, but it should not automatically be read as a determination that all solar installations present the same risks as utility-scale battery storage.

Bottom line

This is a consequential procedural battle over when and how Gillespie County may act.

The developers say:

“Nothing has been built, the design is unfinished, and the County controls the permitting process. This lawsuit is speculative and premature.”

The County says:

“The project is real, organized, scheduled, and advancing. The purpose of preventive law is to stop reasonably certain harm before residents, firefighters, property, or water resources are placed in danger.”

For residents opposing the Marshall Springs project, the most favorable immediate outcome would be denial of both dismissal efforts, allowing the County to pursue evidence and obtain a full judicial determination of its regulatory and protective authority. But none of the unsigned proposed orders should presently be described publicly as an actual victory or loss.