taking claim in Texas

2014Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex. 2001). 15 Id. 7 that resulted in a taking or damaging of property (3) for public use.” 16 Thus, only an intentional act will give rise to liability under this constitutional provision. 17 Not every intentional act by a governmental entity will give rise to a taking claim.

2014Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex. 2001). 15 Id. 7 that resulted in a taking or damaging of property (3) for public use.” 16 Thus, only an intentional act will give rise to liability under this constitutional provision. 17 Not every intentional act by a governmental entity will give rise to a taking claim.

2016Thus, while sovereign immunity protects the State from lawsuits for monetary damages, it “offers no shield against a taking claim brought under Article I, section 17 of the Texas Constitution.” John G. & Marie Stella Kenedy Mem’l Found. v. Mauro, 921 S.W.2d 278, 282 (Tex. App.—Corpus Christi 1995, writ denied); see also Gen.

2013Porretto v. Patterson, 251 S.W.3d 701, 708 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (explaining that a takings claim is not equivalent to a trespass-to-try-title suit because the relief available for a takings differs from a suit to quiet title and concluding that immunity does not bar a takings claim); Kenedy Mem'l Found. v. Mauro, 921 S.W.2d 278, 281-82 (Tex.App.-Corpus Christi 1995, writ denied) ("Governmental immunity offers no shield against a taking claim brought under Article I section 17 of the Texas Constitution."). .

2015To prevail on a taking claim, the plaintiff must prove the ″governmental actor acted intentionally to take or damage property for a public use.″ Holland, 221 S.W.3d at 643 ; The Supreme Court has also held that cities may be ″…held liable for depreciation in value of land and for physical discomfort resulting from nuisances in the exercise of governmental functions…” such as digging of ditches for the purposes of improving or altering drainage as alleged by the Plaintiffs/Appellees in several different sections of the Second Amended Petition [CR V7, 127-128] Municipal liability in such cases i

2014A plaintiff’s taking claim may not be based on only an assertion that the governmental entity intended to do the act that caused the damage; “[w]hen damage is merely the accidental result of the government’s act, there is no public benefit and the property cannot be said to be ‘taken or damaged for public use.’” 18 But neither must a government intend to damage the property; “if the government knows that specific damage is substantially certain to result from its conduct, then taking liability may arise even when the government did not particularly desire the property to be damaged.” 19 Thus,

2014A plaintiff’s taking claim may not be based on only an assertion that the governmental entity intended to do the act that caused the damage; “[w]hen damage is merely the accidental result of the government’s act, there is no public benefit and the property cannot be said to be ‘taken or damaged for public use.’” 18 But neither must a government intend to damage the property; “if the government knows that specific damage is substantially certain to result from its conduct, then taking liability may arise even when the government did not particularly desire the property to be damaged.” 19 Thus,

2014A plaintiff’s taking claim may not be based on only an assertion that the governmental entity intended to do the act that caused the damage; “[w]hen damage is merely the accidental result of the government’s act, there is no public benefit and the property cannot be said to be ‘taken or damaged for public use.’” 18 But neither must a government intend to damage the property; “if the government knows that specific damage is substantially certain to result from its conduct, then taking liability may arise even when the government did not particularly desire the property to be damaged.” 19 Thus,

2013The U.S. Supreme Court has noted that, in determining whether a regulatory taking occurred, “[tjhe posture of the case is critical because we have recognized an important distinction between a claim that the mere enactment of a statute constitutes a taking and a claim that the particular impact of government action on a specific piece of property requires the payment of just compensation.” Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 494 , 107 S.Ct. 1232 , 94 L.Ed.2d 472 (1987).

2013The U.S. Supreme Court has noted that, in determining whether a regulatory taking occurred, “[tjhe posture of the case is critical because we have recognized an important distinction between a claim that the mere enactment of a statute constitutes a taking and a claim that the particular impact of government action on a specific piece of property requires the payment of just compensation.” Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 494 , 107 S.Ct. 1232 , 94 L.Ed.2d 472 (1987).

2014A plaintiff’s taking claim may not be based on only an assertion that the governmental entity intended to do the act that caused the damage; “[w]hen damage is merely the accidental result of the government’s act, there is no public benefit and the property cannot be said to be ‘taken or damaged for public use.’” 18 But neither must a government intend to damage the property; “if the government knows that specific damage is substantially certain to result from its conduct, then taking liability may arise even when the government did not particularly desire the property to be damaged.” 19 Thus,

2014A plaintiff’s taking claim may not be based on only an assertion that the governmental entity intended to do the act that caused the damage; “[w]hen damage is merely the accidental result of the government’s act, there is no public benefit and the property cannot be said to be ‘taken or damaged for public use.’” 18 But neither must a government intend to damage the property; “if the government knows that specific damage is substantially certain to result from its conduct, then taking liability may arise even when the government did not particularly desire the property to be damaged.” 19 Thus,

2012See State v. Franco, 180 S.W.3d 219, 225 (Tex. App.—San Antonio 2005, pet. ref’d) (quoting Mechler, 153 S.W.3d at 449 (Cochran, J., concurring) (“the relative probative value of the [results] depends primarily upon . . . the degree to which the test result exceeds the legal limit . . . and . . . the amount of time elapsed between driving and the taking of the test”).

2010Id. at 440 ; see also id. at 449 (Cochran, J., concurring) (noting that the relative probative value of the test depends primarily upon “(1) the degree to which the test result exceeds the legal limit of 0.08% and (2) the amount of time elapsed between driving and the taking of the test.

2018As our Court has previously held, “[a] governmental entity’s failure to act, even in the face of evidence that curative measures are necessary to prevent future damage, rise only to the level of a negligence claim, and acts of mere negligence will not support a taking claim.” City of El Paso v. Ramirez, 349 S.W.3d 181, 187 (Tex.App.--El Paso 2011, no pet.); see also Likes, 962 S.W.2d at 505 .

2011See AN Collision Cent. of Addison, Inc., 310 S.W.3d at 196 , citing Gragg, 151 S.W.3d at 554 , Jennings, 142 S.W.3d at 313 , City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex.1997); see also City of Anson v. Harper, 216 S.W.3d 384, 393 (Tex.App.-Eastland 2006, no pet) (holding pleadings were sufficient to support a takings claim for city’s actual development of property as landfill, but limiting such a claim to “actions physically taken on the property....”).

2015“A governmental entity’s failure to act, even in the face of evidence that curative measures are necessary to prevent future damage, rise only to the level of a negligence claim, and acts of mere negligence will not support a taking claim.” City of El Paso v. Ramirez, 349 S.W.3d 181, 187 (Tex. App.—El Paso 2011, 15 See also AN Collision, 310 S.W.3d at 196 (“The Texas Supreme Court has repeatedly held that acts of mere negligence will not support a taking claim.”); Karnes City v. Kendall, 172 S.W.3d 624, 629 (Tex. App.— San Antonio 2005 , pet. denied) (holding that even “gross negligence does n

2012Id.

2011See AN Collision Cent. of Addison, Inc., 310 S.W.3d at 196 , citing Gragg, 151 S.W.3d at 554 , Jennings, 142 S.W.3d at 313 , City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex.1997); see also City of Anson v. Harper, 216 S.W.3d 384, 393 (Tex.App.-Eastland 2006, no pet) (holding pleadings were sufficient to support a takings claim for city’s actual development of property as landfill, but limiting such a claim to “actions physically taken on the property....”).

2011See AN Collision Cent. of Addison, Inc., 310 S.W.3d at 196 , citing Gragg, 151 S.W.3d at 554 , Jennings, 142 S.W.3d at 313 , City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 1997); see also City of Anson v. Harper, 216 S.W.3d 384 , -7- 393 (Tex.App.--Eastland 2006, no pet)(holding pleadings were sufficient to support a takings claim for city’s actual development of property as landfill, but limiting such a claim to “actions physically taken on the property . . . .”).

2011For instance, the mere existence of a contract between the governmental entity and a private party “does not build an impenetrable wall nullifying the possibility of other waivers of and exceptions to that immunity.” Tex. Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 150 (Tex.App.Austin 1998, no pet.); see also Little-Tex, 39 S.W.3d at 601 (Abbott, J., concurring) (“[M]ore than the mere existence of a contract is required to overcome a taking claim[.]”).

2007Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001) (sovereign immunity does not shield State from action for compensation under takings clause). 1 Rather, “[t]he Constitution itself is ... a waiver of governmental immunity for the taking, damaging or destruction of property for public use.” Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980); see also Callaway, 971 S.W.2d at 149 (action for inverse condemnation is exception to doctrine of sovereign immunity).

2019See City of Houston v. HS Tejas, Ltd., No. 01-11-00431-CV, 2012 WL 682298 , at *4 (Tex. App.—Houston 7 [1st Dist.] Mar. 1, 2012, no pet.) (mem. op.); City of Houston v. Norcini, 317 S.W.3d 287 , 293–95 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see also Palazzolo v. Rhode Island, 533 U.S. 606, 620 (2001) (“While a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a taking claim is l

2013On the other hand, where an ordinance prohibits precisely the use a land-owner intends to make of the property, and nothing in the ordinance suggests any exceptions would be made, the taking claim is ripe upon enactment because at that moment the “permissible uses of the property [were] known to a reasonable degree of certainty.” Id. (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 620 , 121 S.Ct. 2448 , 150 L.Ed.2d 592 (2001)).

2014A plaintiff’s taking claim may not be based on only an assertion that the governmental entity intended to do the act that caused the damage; “[w]hen damage is merely the accidental result of the government’s act, there is no public benefit and the property cannot be said to be ‘taken or damaged for public use.’” 18 But neither must a government intend to damage the property; “if the government knows that specific damage is substantially certain to result from its conduct, then taking liability may arise even when the government did not particularly desire the property to be damaged.” 19 Thus,

2013Porretto v. Patterson, 251 S.W.3d 701, 708 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (explaining that a takings claim is not equivalent to a trespass-to-try-title suit because the relief available for a takings differs from a suit to quiet title and concluding that immunity does not bar a takings claim); Kenedy Mem'l Found. v. Mauro, 921 S.W.2d 278, 281-82 (Tex.App.-Corpus Christi 1995, writ denied) ("Governmental immunity offers no shield against a taking claim brought under Article I section 17 of the Texas Constitution."). .

2011See AN Collision Cent. of Addison, Inc., 310 S.W.3d at 196 , citing Gragg, 151 S.W.3d at 554 , Jennings, 142 S.W.3d at 313 , City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex.1997); see also City of Anson v. Harper, 216 S.W.3d 384, 393 (Tex.App.-Eastland 2006, no pet) (holding pleadings were sufficient to support a takings claim for city’s actual development of property as landfill, but limiting such a claim to “actions physically taken on the property....”).

2011See AN Collision Cent. of Addison, Inc., 310 S.W.3d at 196 , citing Gragg, 151 S.W.3d at 554 , Jennings, 142 S.W.3d at 313 , City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 1997); see also City of Anson v. Harper, 216 S.W.3d 384 , -7- 393 (Tex.App.--Eastland 2006, no pet)(holding pleadings were sufficient to support a takings claim for city’s actual development of property as landfill, but limiting such a claim to “actions physically taken on the property . . . .”).

2019See Mayhew, 964 S.W.2d at 932 (holding that a taking claim was ripe after it was clear the municipality would not approve development at the level requested by the landowner; reasoning that a landowner is not required to seek permits that the landowner does not deem economically viable, nor is a landowner required to expend time and resources pursuing a development proposal that the landowner will “never actually develop”).

2002See Mayhew, 964 S.W.2d at 932 (applying the “more familiar” federal land-use standard to a taking claim because the claimant urged that Texas follows the federal jurisprudence).

2018As our Court has previously held, “[a] governmental entity’s failure to act, even in the face of evidence that curative measures are necessary to prevent future damage, rise only to the level of a negligence claim, and acts of mere negligence will not support a taking claim.” City of El Paso v. Ramirez, 349 S.W.3d 181, 187 (Tex.App.--El Paso 2011, no pet.); see also Likes, 962 S.W.2d at 505 .

2015“A governmental entity’s failure to act, even in the face of evidence that curative measures are necessary to prevent future damage, rise only to the level of a negligence claim, and acts of mere negligence will not support a taking claim.” City of El Paso v. Ramirez, 349 S.W.3d 181, 187 (Tex. App.—El Paso 2011, 15 See also AN Collision, 310 S.W.3d at 196 (“The Texas Supreme Court has repeatedly held that acts of mere negligence will not support a taking claim.”); Karnes City v. Kendall, 172 S.W.3d 624, 629 (Tex. App.— San Antonio 2005 , pet. denied) (holding that even “gross negligence does n

2014A plaintiff’s taking claim may not be based on only an assertion that the governmental entity intended to do the act that caused the damage; “[w]hen damage is merely the accidental result of the government’s act, there is no public benefit and the property cannot be said to be ‘taken or damaged for public use.’” 18 But neither must a government intend to damage the property; “if the government knows that specific damage is substantially certain to result from its conduct, then taking liability may arise even when the government did not particularly desire the property to be damaged.” 19 Thus,

2014A plaintiff’s taking claim may not be based on only an assertion that the governmental entity intended to do the act that caused the damage; “[w]hen damage is merely the accidental result of the government’s act, there is no public benefit and the property cannot be said to be ‘taken or damaged for public use.’” 18 But neither must a government intend to damage the property; “if the government knows that specific damage is substantially certain to result from its conduct, then taking liability may arise even when the government did not particularly desire the property to be damaged.” 19 Thus,

2001Int'l, Inc. v. United States, 42 Fed.

2001Int’l, Inc. v. United States, 42 Fed.

2001See Sun Oil Co. v. United States, 215 Ct.Cl. 716 , 572 F.2d 786, 818 (1978) ("[T]he concept of a taking as a compensable claim theory has limited application to the relative rights of party litigants when those rights have been voluntarily created by contract.").

2001See Sun Oil Co. v. United States, 215 Ct.Cl. 716 , 572 F.2d 786, 818 (1978) ("[T]he concept of a taking as a compensable claim theory has limited application to the relative rights of party litigants when those rights have been voluntarily created by contract.").

2024Based on [City of Houston v.] Carlson, [ 451 S.W.3d 828, 831 (Tex. 2014)], we conclude appellants have not alleged a taking and the trial court properly granted the City’s plea to the jurisdiction respecting appellants’ taking claim.”).

2015Id. at 833 .

2025Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992) (recognizing an inverse condemnation claim exists when property is taken without compensation and without a condemnation proceeding).

2022See Garcia, 666 F.2d at 966 ; Wije, 2015 WL 9872534 , at *7; In re K.G.S., 2014 WL 801127 , at *5–6.

2022See Vill. of Tiki Island v. Ronquille, 463 S.W.3d 562 , 576–77 (Tex. App.—Houston [1st Dist.] 2015, no pet.). 10 court of appeals, relying on Davis, held that “even assuming without deciding that the [plaintiffs] were required to exhaust their administrative remedies under the local government code in order to bring a taking claim against the City, the record shows that they have done so” because the plaintiffs filed a writ of certiorari in the trial court within ten days of the BOA’s decision.