takings claim in Texas

2025Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016) (“Sovereign immunity does not shield the government from liability for compensation under the takings clause.”); City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236 (Tex. 2011) (explaining that the Constitution “waives immunity for suits brought under the Takings Clause”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (“The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”). 6

2025State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007) (recognizing that immunity will not shield the government from a claim under the takings clause); accord, Steele, 603 S.W.2d at 791 .

2024Applying the second Jennings standard is unnecessary in cases where, as here, the intentional conduct of government agents is itself a taking, 18Little–Tex Insulation Co., 39 S.W.3d at 598-99 ; City of Anson v. Harper, 216 S.W.3d 384, 392 (Tex. App.—Eastland 2006, no pet.) (“[W]hen the State acts as a party to a contract and exercises the same rights as would a private party, it is not acting as a sovereign, and a takings claim does not lie.”); but cf. Harrison v. City of Sulphur Springs, 67 S.W. 515, 516 (Tex. Civ. App.— Dallas 1902 , no writ) (rejecting city’s argument of contractual consent

2019Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001) (“[T]he doctrine does not shield the State from an action for compensation under the takings clause.” (citations omitted)); Board of Trustees v. O’Rourke, 405 S.W.3d 228, 237 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“Generally, governmental immunity does not shield a governmental entity from a suit for declaratory relief based on alleged constitutional violations.” (citations omitted)).

2025Controls, Inc. 221 S.W.3d 639 , Holding that the State retains sovereign immunity against an alleged takings claim 25 State v. Holland 643-44 (Tex. because the claim sounded in contract. 2007) State v. Fidelity 223 S.W.3d 309 , Holding State waived immunity against defensive counterclaim by initiating 26 and Deposit Co. of 312 (Tex. 2007) litigation on a performance bond.

2025State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007) (recognizing that immunity will not shield the government from a claim under the takings clause); accord, Steele, 603 S.W.2d at 791 .

2025The first element of a takings claim is that the state entity “intentionally performed certain acts.” Id. “[S]uch a requirement helps ensure that the taking is for public use.’” Id.17 This element requires “evidence that the entity either (a) ‘intended to damage the property’ or (b) ‘knew that its conduct was causing identifiable harm’ or that ‘specific property damage was substantially certain to result from the conduct.’” Id.18 “If a defendant files a plea to the jurisdiction showing that the plaintiff has not alleged these elements and cannot amend its petition to do so, or if 17 Citing Cit

2023The first element of a takings claim, intent, can be satisfied by alleging facts to show the governmental entity: “(1) knows that a specific act is causing identifiable harm; or (2) knows that the specific property damage is substantially certain to result from an authorized government action.” City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004).

2025Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016) (“We have always characterized a takings claim as based on some affirmative ‘act’ or ‘action’ of the government.”). “[M]ere negligence that 36 eventually contributes to property damage does not amount to a taking.” Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004).

2023The third element of a takings claim, public use, is satisfied by alleging facts that show the property has been taken or damaged “in furtherance of the public interest.” Gragg, 151 S.W.3d at 555 .

2025A takings claim must also be ripe for the court’s consideration because “[r]ipeness is an element of subject-matter jurisdiction.” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) (noting that “ripeness doctrine conserves judicial time and resources for real and 4 current controversies, rather than abstract, hypothetical, or remote disputes”). “[F]or a regulatory takings claim to be ripe, there must be a final decision regarding the application of the regulations to the property at issue.” Id. at 929 .

2025A takings claim must also be ripe for the court’s consideration because “[r]ipeness is an element of subject-matter jurisdiction.” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) (noting that “ripeness doctrine conserves judicial time and resources for real and 4 current controversies, rather than abstract, hypothetical, or remote disputes”). “[F]or a regulatory takings claim to be ripe, there must be a final decision regarding the application of the regulations to the property at issue.” Id. at 929 .

2015Cf. Williamson Cnty., 473 U.S. at 186 , 105 S.Ct. at 3116 (stating that a takings claim is ripe when a final decision on the application of zoning ordinance and subdivision regulations to the property is obtained and state procedures have been used for obtaining just compensation).

2015Cf. Williamson Cnty., 473 U.S. at 186 , 105 S.Ct. at 3116 (stating that a takings claim is ripe when a final decision on the application of zoning ordinance and subdivision regulations to the property is obtained and state procedures have been used for obtaining just compensation).

2025Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016) (“Sovereign immunity does not shield the government from liability for compensation under the takings clause.”); City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236 (Tex. 2011) (explaining that the Constitution “waives immunity for suits brought under the Takings Clause”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (“The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”). 6

2025Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016) (“Sovereign immunity does not shield the government from liability for compensation under the takings clause.”); City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236 (Tex. 2011) (explaining that the Constitution “waives immunity for suits brought under the Takings Clause”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (“The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”). 6

2024See Kerr, 499 S.W.3d at 799-800 (“Only affirmative conduct by the government will support a takings claim,” and the “government cannot be liable for a taking if ‘it committed no intentional acts.’” (quoting City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 1997))).

2022It is true that “[o]nly affirmative conduct by the government will support a takings claim,” and “[a] government cannot be liable for a taking if ‘it committed no intentional acts.’” Id. at 800 (quoting City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 1997)).

2025See Hearts Bluff Game Ranch, 381 S.W.3d at 476 .7 7 The Amended Petition appears to only state a takings claim against UT Southwestern.

2024But Tran does not assert or brief any such argument, nor does he advance the typical takings clause jurisprudence in which the Texas and federal provisions are treated consistently with each other.3 See Carlson, 451 S.W.3d at 831 (citing Hearts Bluff Game Ranch, 381 S.W.3d at 477 ).

2024Applying the second Jennings standard is unnecessary in cases where, as here, the intentional conduct of government agents is itself a taking, 18Little–Tex Insulation Co., 39 S.W.3d at 598-99 ; City of Anson v. Harper, 216 S.W.3d 384, 392 (Tex. App.—Eastland 2006, no pet.) (“[W]hen the State acts as a party to a contract and exercises the same rights as would a private party, it is not acting as a sovereign, and a takings claim does not lie.”); but cf. Harrison v. City of Sulphur Springs, 67 S.W. 515, 516 (Tex. Civ. App.— Dallas 1902 , no writ) (rejecting city’s argument of contractual consent

2007The language of the takings clause, article I, section 17 of the Constitution, has no exceptions or limitations attached; rather, “[i]t is a clear, definite statement of the rule which prevails in this State, which controls all the departments of the State government.” Hale, 146 S.W.2d at 736 .

2024Co., 290 S.W.3d 345, 364-66 (Tex. App.—Austin 2009, pet. denied) (concluding owner alleged takings claim based on State’s intentional leasing of minerals to third party notwithstanding State’s assertion of ownership); City of Dallas v. VSC, LLC, 242 S.W.3d 584, 593 (Tex. App.— Dallas 2008) (“The City misreads Little–Tex Insulation Co. as requiring, for a takings claim, that the government intend to act under its eminent domain power.”), rev’d on other grounds, 347 S.W.3d 231 (Tex. 2011); Koch, 273 S.W.3d at 458 (rejecting argument that government mineral owner’s claim of title to disputed mate

2024Co., 290 S.W.3d 345, 364-66 (Tex. App.—Austin 2009, pet. denied) (concluding owner alleged takings claim based on State’s intentional leasing of minerals to third party notwithstanding State’s assertion of ownership); City of Dallas v. VSC, LLC, 242 S.W.3d 584, 593 (Tex. App.— Dallas 2008) (“The City misreads Little–Tex Insulation Co. as requiring, for a takings claim, that the government intend to act under its eminent domain power.”), rev’d on other grounds, 347 S.W.3d 231 (Tex. 2011); Koch, 273 S.W.3d at 458 (rejecting argument that government mineral owner’s claim of title to disputed mate

2023Taking the property owners’ allegations as true, see City of Ingleside, 469 S.W.3d at 590 ; Miranda, 133 S.W.3d at 226 , they have alleged the City acted with the necessary intent to satisfy the intent element of a takings claim.

2021The Texas Constitution’s takings clause similarly provides that “[n]o person’s property shall be taken, damaged, or destroyed for or 7 See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (requiring the state to meet the summary judgment standard of proof); Dallas County v. Wadley, 168 S.W.3d 373, 377 (Tex. App.—Dallas 2005, pet. denied) (same). 6 applied to public use without adequate compensation being made, unless by the consent of such person, . . .” TEX.

2022In Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (O’Connor, J., concurring), Justice O’Connor expounded on the Penn Central analysis, noting that “[t]he purposes served, as well as the effects produced, by a particular regulation inform the takings analysis.” Id. at 634 (citing Penn Central, 438 U.S. at 127 ).

2022In Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (O’Connor, J., concurring), Justice O’Connor expounded on the Penn Central analysis, noting that “[t]he purposes served, as well as the effects produced, by a particular regulation inform the takings analysis.” Id. at 634 (citing Penn Central, 438 U.S. at 127 ).

2026See Self, 690 S.W.3d at 26 (“If a defendant files a plea to the jurisdiction showing that the plaintiff has not alleged these elements and cannot amend its petition to do so, or if the defendant negates an element in an evidentiary plea, the takings claim must be dismissed.” ).

2026Tex. Dep’t of Transp., 690 S.W.3d at 27; see Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 844 (Tex. 2010) (“A person who consents to the governmental action, however, cannot validly assert a takings claim.”); see also Bauer v. City of Waco, No. 10-19-00020- CV, 2020 WL 7253430 , at *4 (Tex. App.—Waco Dec. 9, 2020, no pet.) (mem. op.) (“A landowner may consent to property being taken or damaged without payment of any compensation.”). 11 A taking can be a physical occupation, appropriation, or invasion of property or a regulatory action that is so restrictive or intrusiv

2025Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016) (“Sovereign immunity does not shield the government from liability for compensation under the takings clause.”); City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236 (Tex. 2011) (explaining that the Constitution “waives immunity for suits brought under the Takings Clause”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (“The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”). 6

2025Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016) (“Sovereign immunity does not shield the government from liability for compensation under the takings clause.”); City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236 (Tex. 2011) (explaining that the Constitution “waives immunity for suits brought under the Takings Clause”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (“The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”). 6

2025And even if it does not, a party is not precluded from pursuing its constitutional claims after exhaustion . . . ."); Garcia v. City of Willis, 593 S.W.3d 201, 211-12 (Tex. 2019) (holding that even if the complainant "could not litigate his constitutional claims in an administrative proceeding, the fact remains that the hearing officer might have ruled in his favor for other reasons that would moot his constitutional arguments," so "he was at least required to seek administrative relief before filing a takings claim in district court"); City of Dallas v. Stewart, 361 S.W.3d 562, 579 (Tex. 2012

2015I, § 17(a); City of Dallas v. Stewart, 361 S.W.3d 562, 568 (Tex.2012), Governmental immunity does not shield a municipality from an action for compensation under the takings clause.

2023Section 17 provides a textual entitlement to compensation in its limited context. 59 Later, in Brown, we cited Bouillion to exemplify our fidelity, when construing statutory or constitutional text, to “ascertain[ing] the drafters’ intent” and also for the rule that the Texas Constitution or a statute will be construed to “create[] a private action for damages only if the language of the specific provisions involved clearly impl[y] one.” 60 To illustrate that rule, we contrasted the language of the takings clause prohibiting takings “without adequate compensation” with the language in Article I

2023Section 17 provides a textual entitlement to compensation in its limited context. 59 Later, in Brown, we cited Bouillion to exemplify our fidelity, when construing statutory or constitutional text, to “ascertain[ing] the drafters’ intent” and also for the rule that the Texas Constitution or a statute will be construed to “create[] a private action for damages only if the language of the specific provisions involved clearly impl[y] one.” 60 To illustrate that rule, we contrasted the language of the takings clause prohibiting takings “without adequate compensation” with the language in Article I

2024Co., 290 S.W.3d 345, 364-66 (Tex. App.—Austin 2009, pet. denied) (concluding owner alleged takings claim based on State’s intentional leasing of minerals to third party notwithstanding State’s assertion of ownership); City of Dallas v. VSC, LLC, 242 S.W.3d 584, 593 (Tex. App.— Dallas 2008) (“The City misreads Little–Tex Insulation Co. as requiring, for a takings claim, that the government intend to act under its eminent domain power.”), rev’d on other grounds, 347 S.W.3d 231 (Tex. 2011); Koch, 273 S.W.3d at 458 (rejecting argument that government mineral owner’s claim of title to disputed mate

2009Appellees have alleged that “[t]he exercise of police powers in seizing and impounding the trailer by DPS officials is authorized under state law [as] a valid, proper, and reasonable exercise of police powers”; therefore, “[t]here can be no compensable taking for the ‘seizure and impounding’ of the trailer by DPS officials.” 12 But even the valid exercise of police power does not bar a takings claim under article I, section 17 if the taking was for a “public use.” See Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980); City of Dallas v. VSC, LLC, 242 S.W.3d 584, 591-92 (Tex.App.-Dallas

2025Nor would it have cited Little-Tex, 39 S.W.3d at 598-99 and City of Anson v. Harper, 216 S.W.3d 384, 392 (Tex. App.—Eastland 2006, no pet.) favorably for the proposition that “when the State acts as a party to a contract and exercises the same rights as would a private party, it is not acting as a sovereign, and a takings claim does not lie.” Id. at 27 n.18.

2025Nor would it have cited Little-Tex, 39 S.W.3d at 598-99 and City of Anson v. Harper, 216 S.W.3d 384, 392 (Tex. App.—Eastland 2006, no pet.) favorably for the proposition that “when the State acts as a party to a contract and exercises the same rights as would a private party, it is not acting as a sovereign, and a takings claim does not lie.” Id. at 27 n.18.

2009See Firemen’s Ins., 909 S.W.2d at 543 .

2009Co. v. Board *471 of Regents of the Univ. of Tex. Sys., 909 S.W.2d 540, 543 (Tex.App.-Austin 1995, writ denied) (citing Steele, 603 S.W.2d at 792 ; State v. Hale, 136 Tex. 29 , 146 S.W.2d 731, 737 (1941)).

2025See Tex. Workforce Comm’n v. Midfirst Bank, 40 S.W.3d 690, 695 (Tex. App.—Austin 2001, pet. denied).

2008See Little-Tex Insulation Co., 39 S.W.3d at 598 (“To establish a takings claim, [the claimant] must prove (1) the state intentionally performed certain acts, (2) that resulted in a ‘taking’ of property, (3) for public use”); see also Tex. Workforce Comm’n v. Midfirst Bank, 40 S.W.3d 690, 697 (Tex.App.-Austin 2001, pet. denied) (“we will not limit takings-clause actions to situations involving eminent domain”).

2025Finding guidance in United States Supreme Court decisions construing the federal Constitution’s takings clause,24 we have recognized that a regulatory taking may occur when a law or ordinance (1) requires an owner to suffer a permanent physical loss or invasion of its property (sometimes called a Loretto taking),25 (2) completely deprives an owner of all economically beneficial use of its property (sometimes called a Lucas taking),26 or (3) unreasonably interferes with 22 A physical taking “is, categorically, a taking for which compensation is constitutionally mandated.” Sheffield, 140 S.W.3d

2025Finding guidance in United States Supreme Court decisions construing the federal Constitution’s takings clause,24 we have recognized that a regulatory taking may occur when a law or ordinance (1) requires an owner to suffer a permanent physical loss or invasion of its property (sometimes called a Loretto taking),25 (2) completely deprives an owner of all economically beneficial use of its property (sometimes called a Lucas taking),26 or (3) unreasonably interferes with 22 A physical taking “is, categorically, a taking for which compensation is constitutionally mandated.” Sheffield, 140 S.W.3d

2015City of Anson v. Harper, 216 S.W.3d 384, 393 (Tex.App.-Eastland 2006, no pet.) (affirming denial of plea to the jurisdiction based on City’s prior acts because “Plaintiffs’ allegations and extrinsic evidence, when taken as true and construed liberally in their favor, are sufficient to establish a potential takings claim”); see also State v. Brownlow, 319 S.W.3d 649, 652 (Tex.2010) (“Sovereign immunity from suit does not protect the State from a claim under the takings clause.”). 7 B.

2011Moreover, we agree with the Koehlers that State v. Brownlow, 319 S.W.3d 649 (Tex. 2010), supports the trial court’s ability to interpret the ongoing validity of the easement in the context of the takings claim.

2025Young is able to enjoyment of property, but Young has not pleaded facts sufficient to state such a takings claim. 28 See Lingle v. Chevron, 544 U.S. 528, 548 (2005) (identifying regulatory takings as including a “physical taking,” a “Lucas-type total regulatory taking,” a “Penn Central” taking, and a “land-use exaction”). 29 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982); see Sheffield Dev.

2022Our Court acknowledged this limitation in VSC. 347 S.W.3d at 238 (holding that statute’s failure to provide for proper notice is a due process challenge, not a takings challenge, because “[t]he Takings Clause guarantees compensation ‘in the event of otherwise proper interference amounting to a taking’” (quoting Lingle, 544 U.S. at 543 )). 12 property on granting the City a property interest or upon fulfilling a property improvement condition.41 These alternative grounds are not preserved for our review. * * * We hold that the City’s utility enforcement actions do not establish a regulatory tak

2017Id. at 825 .

2013However, "a plaintiff suing a governmental entity cannot create jurisdiction by stating a takings claim unless that claim is facially valid." Bell v. City of Dallas, 146 S.W.3d 819, 825 (Tex. App.—Dallas 2004, no pet.).

2025Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016) (“Sovereign immunity does not shield the government from liability for compensation under the takings clause.”); City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236 (Tex. 2011) (explaining that the Constitution “waives immunity for suits brought under the Takings Clause”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (“The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”). 6

2025Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016) (“Sovereign immunity does not shield the government from liability for compensation under the takings clause.”); City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236 (Tex. 2011) (explaining that the Constitution “waives immunity for suits brought under the Takings Clause”); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (“The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.”). 6

2023Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 936 (Tex. 1998). - 11 - “Generally, the government compensates the owner before appropriating property, either by paying a mutually agreed price or by paying the value as determined in a statutory condemnation proceeding.” Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992).

2019Thus, when the government takes private property without first paying for it, the owner may recover damages for inverse condemnation, Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992); sovereign immunity does not shield the government from liability for compensation under the takings clause, Gen.

2003Id. at 435 .

2003Id. at 434 .