From the shores of the Gulf Coast to the rolling hills painted in swaths of blue, red, and yellow in spring to the rugged mesas of the Chihuahuan Desert, Texans are passionate about their land. With this love comes a fierce desire to protect it and their interests in it. Texans don’t like to be fenced in, and they certainly don’t like the government taking their land unjustly, or without receiving compensation in return. Recently, the United States Supreme Court handed down an opinion in DeVillier, et al. v. Texas, 601 U.S. _ (2024), which has far-reaching implications for many Texas property owners. Following devastating flooding, Richard DeVillier, a cattle rancher and property owner, filed suit in state court, alleging that the construction of a barrier along the median of U.S. Interstate 10 in Winnie, Texas, amounted to a taking of his property without just compensation. Following removal to federal court, the State of Texas filed a motion to dismiss the federal claim, arguing that there was no cause of action for inverse condemnation under the Takings Clause of the Fifth Amendment. The District Court denied the motion, but the Court of Appeals agreed with the State. The United States Supreme Court granted certiorari to consider the issue of “whether a ‘person whose property is taken without just compensation [may] seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action.’” The Court remanded the action, holding that Texas law, through its inverse condemnation cause of action, provides the mechanism by which property owners may seek redress from the State under the Takings Clause.

The Fifth Amendment to the United States Constitution prohibits the taking of private property by the federal government without the payment of just compensation to the landowner. This notion of private property being protected from governmental interference originated in the common law and recognized the government’s inherent power to take property while also tempering that power by requiring the government to fairly compensate the landowner for such taking. With the passage of the Fourteenth Amendment, this power of eminent domain was made applicable to the States.

The right of the State of Texas to take private property for public use can be found in Article I, § 17 of the Texas Constitution, which provides: “No person’s property shall be taken, damaged, or destroyed for or applied for public use without adequate compensation being made, unless by the consent of such person and only if the taking, damage, or destruction is for: (1) the ownership, use, and enjoyment of the State, or public at large…” To prove a takings claim, plaintiff must show: “(1) an intentional act by the government under its lawful authority, (2) resulting in a taking, damaging, or destruction of plaintiff’s property, (3) for public use.” City of Socorro v. Campos, 510 S.W.3d 121 (Tex. App.—El Paso 2016, pet. denied). (Coincidentally, this case involved the re-diverting of flood waters). Although the court in Socorro did not reach the merits of the case, the court found that the residents’ claims were sufficiently pleaded to overcome the city’s claim of governmental immunity. In particular, the court found that on the face of the petition, the residents properly pleaded the intent element of their claim.

Here in Texas, there is a difference between statutory eminent domain proceedings and constitutional inverse condemnation claims. Typically, “[a] statutory eminent-domain or condemnation proceeding under the Property Code involves the government’s acquisition of real property. An inverse condemnation action is a constitutional claim in which the property owner asserts that an entity with eminent-domain power intentionally performed acts that resulted in a ‘taking’ of property for public use, without formally condemning the property.” San Jacinto River Authority V. Burney, 570 S.W. 3d 820, 826 (Tex. App. – Houston [1st Dist.] 2018, pet. Filed). The procedure by which the state government can exercise its eminent domain right is found in Chapter 21 of the Texas Property Code. Before a final offer is made to the property owner, the entity must provide the property owner a copy of the landowner’s bill of rights statement as provided by Tex. Gov’t Code § 402.031. If the landowner does not agree to the taking, Tex. Property Code § 21.012 describes the contents of the condemnation petition. Generally, district courts and county courts at law share concurrent jurisdiction in an eminent case. Tex. Gov’t Code § 21.001. However, in Harris County, pursuant to Tex. Gov’t Code § 25.1032, a county civil court at law has exclusive jurisdiction over inverse condemnation claims so long as the amount in controversy does not exceed $250,000 as provided in Tex. Gov’t Code § 25.0003(c)(1). In those cases, eminent domain proceedings can be filed in district court. See San Jacinto River Auth. V. Ogletree, 594 S.W. 3d 833 (Tex. App. – Houston [14th Dist.] 2020, no pet.)

Eminent domain, and by extension inverse condemnation, is a fascinating, but complex legal area. If you would like to learn more about it, please visit us the Harris County Robert W. Hainsworth Law Library or check out the articles we’ve listed below.

Ex Libris Juris - HCLL Blog

Further Reading