valid takings claim in Texas

2016Little-Tex Insulation Co., 39 S.W.3d at 598 .

2013Comm’n, 39 S.W.3d at 598 . 5 upon lawful and proper governmental action that rises to the level of a taking.20 The City‘s order to vacate was void because it violated procedural due process.21 Thus, as a matter of law, this order to vacate cannot be the basis for a valid takings claim.22 Under the applicable standard of review, the facts alleged in the Owners‘ live petition affirmatively negate the trial court‘s subject-matter jurisdiction by showing that the Owners‘ takings claims are based upon the City‘s action in issuing an order to vacate that was void because it violated procedural due p

2021See Miranda, 133 S.W.3d at 227 (holding if pleadings affirmatively negate the existence of jurisdiction, a plea may be granted without allowing plaintiff the opportunity to amend); Bell, 146 S.W.3d at 825 (holding that the trial court properly granted the City of Dallas’s motion to dismiss when the plaintiffs failed to plead a valid takings claim).

2019See id.; see also Bell v. City of Dallas, 146 S.W.3d 819, 825 (Tex. App.—Dallas 2004, no pet.) (concluding that the plaintiff’s allegation that property was damaged by the city’s failure to maintain and repair faulty pipes did not demonstrate a valid takings claim because it was based only on “negligent omissions”).

2026Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013) (quoting Hearts Bluff, 381 S.W.3d at 491 ); Kaufman County v. Combs, 393 S.W.3d 336, 345 (Tex. App.—Dallas 2012, pet. denied) (“Although governmental immunity does not shield a governmental entity from a valid takings claim, it does apply when a plaintiff does not allege a valid takings claim.”).

2024Id. (citing Singer, 232 S.W.3d at 800 ); see also Kaufman Cnty. v. Combs, 393 S.W.3d 336, 345 (Tex. App.—Dallas 2012, pet. denied) –19– (“Although governmental immunity does not shield a governmental entity from a valid takings claim, it does apply when a plaintiff does not allege a valid takings claim.”).

2014See Tex. Const, art. 1, § 17; State v. Holland, 221 S.W.3d 639, 643 (Tex.2007) (“Article I, section 17 waives immunity for takings.”); City of New Braunfels v. Carowest Land, Ltd., No. 03-11-00699-CV, 432 S.W.3d 501, 513-14 , 2014 WL 1774535, at *6 (Tex.App.-Austin Apr. 30, 2014, no pet. h.) (“Because this cause of action is created by the Texas Constitution, a valid takings claim is not barred by common-law doctrines of sovereign and governmental immunity.”) (citing Holland, 221 S.W.3d at 643 and General Servs.

2014See Tex. Const, art. 1, § 17; State v. Holland, 221 S.W.3d 639, 643 (Tex.2007) (“Article I, section 17 waives immunity for takings.”); City of New Braunfels v. Carowest Land, Ltd., No. 03-11-00699-CV, 432 S.W.3d 501, 513-14 , 2014 WL 1774535, at *6 (Tex.App.-Austin Apr. 30, 2014, no pet. h.) (“Because this cause of action is created by the Texas Constitution, a valid takings claim is not barred by common-law doctrines of sovereign and governmental immunity.”) (citing Holland, 221 S.W.3d at 643 and General Servs.

2026Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013) (quoting Hearts Bluff, 381 S.W.3d at 491 ); Kaufman County v. Combs, 393 S.W.3d 336, 345 (Tex. App.—Dallas 2012, pet. denied) (“Although governmental immunity does not shield a governmental entity from a valid takings claim, it does apply when a plaintiff does not allege a valid takings claim.”).

2022The City claims that De Leon’s pleadings do not meet the elements of a valid takings claim because there was no public benefit, and the property was not “taken or damaged for public use.” See Horne v. Dep’t of Agric., 576 U.S. 350 , 352 (2015) (“The Fifth Amendment requires that the Government pay just compensation when it takes personal property, just as when it takes real property.”); Hearts Bluff, 381 S.W.3d at 477 (explaining that Texas takings jurisprudence is “consistent with federal jurisprudence”).

2021See Miranda, 133 S.W.3d at 227 (holding if pleadings affirmatively negate the existence of jurisdiction, a plea may be granted without allowing plaintiff the opportunity to amend); Bell, 146 S.W.3d at 825 (holding that the trial court properly granted the City of Dallas’s motion to dismiss when the plaintiffs failed to plead a valid takings claim).

2016See Miranda, 133 S.W.3d at 227 (holding if pleadings affirmatively negate the existence of jurisdiction a plea may be granted without allowing plaintiff opportunity to amend); Bell, 146 S.W.3d at 825 (holding that the trial court properly granted the City of Dallas’s motion to dismiss when the plaintiffs failed to plead a valid takings claim); see also City of Carrollton, 02-15-00119-CV, 2016 WL 93031 , at *4.

2014We therefore briefly discuss the program and some regulations issued under it. 26 See Tex. Ass’n of Bus., 852 S.W.2d at 446 ; see also Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 390 (Tex. 2011) (holding that the Trust “did not assert a valid takings claim giving the trial court jurisdiction over its claim”). 27 See Tex. Ass’n of Bus., 852 S.W.2d at 477–78. 28 Tex. Dep’t of Transp. v. A.P.I.

2014See Tex. Ass'n of Bus., 852 S.W.2d at 446 ; see also Tex. Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 390 (Tex.2011) (holding that the Trust "did not assert a valid takings claim giving the trial court jurisdiction over its claim”). .

2015For example, 14 “Merely designing the pleadings to track language in Jennings does not satisfy the standards established by Miranda because we review the pleadings as well as the evidence submitted below on the plea to the jurisdiction.” City of Dall. v. Blanton, 200 S.W.3d 266, 273 (Tex. App.—Dallas 2006, no pet.) 23 even though Ballenger was an independent contractor, Bhakta’s Third Amended Petition seems to imply an allegation that TxDOT should be liable for Ballenger’s negligent construction work under some type of agency theory.

2012See Little-Tex Insulation, 39 S.W.3d at 598 ; City of Dallas v. Blanton, 200 S.W.3d 266, 272 (Tex.App.-Dallas 2006, no pet.).

2009See Koch, 273 S.W.3d at 457 (noting that “[t]he Texas Constitution itself waives immunity for the taking, damage, or destruction of property for public use”) (citing State v. Holland, 221 S.W.3d 639, 643 (Tex.2007); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980)).

2009Constitutional takings claim BP also seeks a declaration that “the Commissioner’s and the GLO’s actions in leasing and in asserting rights under the [disputed property] constitute an impermissible taking under Article I, Sections 17 and 19 of the Texas Constitution and in violation of the Fifth and Fourteenth Amendments of the United States Constitution.” The State Defendants concede that they have “no sovereign immunity to a valid takings claim” under the Texas or U.S. constitutions. 27 See Koch, 273 S.W.3d at 457 (noting that “[t]he Texas Constitution itself waives immunity for the taking, d

2009See Koch, 273 S.W.3d at 457 (noting that “[t]he Texas Constitution itself waives immunity for the taking, damage, or destruction of property for public use”) (citing State v. Holland, 221 S.W.3d 639, 643 (Tex.2007); Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980)).

2009Constitutional takings claim BP also seeks a declaration that “the Commissioner’s and the GLO’s actions in leasing and in asserting rights under the [disputed property] constitute an impermissible taking under Article I, Sections 17 and 19 of the Texas Constitution and in violation of the Fifth and Fourteenth Amendments of the United States Constitution.” The State Defendants concede that they have “no sovereign immunity to a valid takings claim” under the Texas or U.S. constitutions. 27 See Koch, 273 S.W.3d at 457 (noting that “[t]he Texas Constitution itself waives immunity for the taking, d

2015For example, in Jennings, the landowners brought a takings claim against the city after the city unclogged a sewer main, which resulted in raw sewage flooding their home. 142 S.W.3d at 314 .

2012In Gragg, 151 S.W.3d at 555 , the Supreme Court stated the following: In City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex.2004), which we also decide today, we hold that the requisite intent is present when a governmental entity knows that a specific act is causing identifiable harm or knows that the harm is substantially certain to result.

2026Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013) (quoting Hearts Bluff, 381 S.W.3d at 491 ); Kaufman County v. Combs, 393 S.W.3d 336, 345 (Tex. App.—Dallas 2012, pet. denied) (“Although governmental immunity does not shield a governmental entity from a valid takings claim, it does apply when a plaintiff does not allege a valid takings claim.”).

2014Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013); Miranda, 133 S.W.3d at 228 . 29 Miranda, 133 S.W.3d at 227–28. 10 Congress enacted the National Flood Insurance Act of 1968 as part of Title XIII of the Housing and Urban Development Act of 1968, establishing a national flood insurance program “to provide previously unavailable flood insurance protection to property owners in flood-prone areas.” 30 For a community to qualify for the sale of federally-subsidized flood insurance, the community must adopt floodplain management regulations designed to reduce or avoid future flood damages. 31 The

2026Group, LLC, 502 S.W.3d at 866 (“A governmental entity does not have immunity from a valid takings claim.

2023Group, LLC, 502 S.W.3d 859, 866 (Tex. App.—San Antonio 2016, no pet.).

2023See City of Arlington v. State Farm Lloyds, 145 S.W.3d 165, 168 (Tex. 2004) (holding governmental immunity was not waived when plaintiff had not demonstrated a valid takings claim or alleged any applicable waiver of immunity for its nuisance claim).

2013See id.; see also City of Arlington v. State Farm Lloyds, 145 S.W.3d 165, 168 (Tex. 2004) (holding governmental immunity was not waived when plaintiff had not demonstrated a valid takings claim or alleged any applicable waiver of immunity for its nuisance claim); City of Van Alstyne v. Young, 146 S.W.3d 846, 851 (Tex. App.— Dallas 2004 , no pet.) (“As in Jennings, the sole waiver of immunity asserted by the [plaintiffs] in this case is under Article I, section 17 of the Texas Constitution. . . .

2014See Tex. Const, art. 1, § 17; State v. Holland, 221 S.W.3d 639, 643 (Tex.2007) (“Article I, section 17 waives immunity for takings.”); City of New Braunfels v. Carowest Land, Ltd., No. 03-11-00699-CV, 432 S.W.3d 501, 513-14 , 2014 WL 1774535, at *6 (Tex.App.-Austin Apr. 30, 2014, no pet. h.) (“Because this cause of action is created by the Texas Constitution, a valid takings claim is not barred by common-law doctrines of sovereign and governmental immunity.”) (citing Holland, 221 S.W.3d at 643 and General Servs.

2014See Tex. Const, art. 1, § 17; State v. Holland, 221 S.W.3d 639, 643 (Tex.2007) (“Article I, section 17 waives immunity for takings.”); City of New Braunfels v. Carowest Land, Ltd., No. 03-11-00699-CV, 432 S.W.3d 501, 513-14 , 2014 WL 1774535, at *6 (Tex.App.-Austin Apr. 30, 2014, no pet. h.) (“Because this cause of action is created by the Texas Constitution, a valid takings claim is not barred by common-law doctrines of sovereign and governmental immunity.”) (citing Holland, 221 S.W.3d at 643 and General Servs.

2009See Tex. Parks & Wildlife Dep't v. Calloway , 971 S.W.2d 145, 149 (Tex. App.-Austin 1998, no writ).

2009See Tex. Parks & Wildlife Dep’t v. Calloway, 971 S.W.2d 145, 149 (Tex. App.–Austin 1998, no writ).

2025A. Breeder Deer Like his due process claim, Young must have a vested property interest in the subject property to assert a valid takings claim under both the state and federal constitutions.15 Our holding above that Young lacks a vested property interest in 13 See, e.g., Hollywood Park Humane Soc’y v. Town of Hollywood Park, 261 S.W.3d 135, 140 (Tex. App.—San Antonio 2008, no pet.) (“One’s status as a landowner is insufficient to confer individual property rights to the wild animals on that land.”); City of La Marque v. Braskey, 216 S.W.3d 861, 863 (Tex. App.—Houston [1st Dist.] 2007, pet. den

2025Further, applying Tyler presupposes Appellant has a valid takings claim related to a vested property right, which he does not. 28 See Tyler, 598 U.S. at 645 (“Minnesota law itself recognizes that in other contexts a property owner is entitled to the surplus in excess of her debt.… In collecting all other taxes, Minnesota protects the taxpayer’s right to surplus.”). 25 same cannot be said here.

2025See Bd. of Trs. of Galveston Wharves, 297 S.W.3d at 490–91. 27 43565622v.7 43565622v.9 Because Curadev’s Amended Petition fails to allege a cognizable takings claim, the trial court correctly granted the Plea.

2025A. Breeder Deer Like his due process claim, Young must have a vested property interest in the subject property to assert a valid takings claim under both the state and federal constitutions.15 Our holding above that Young lacks a vested property interest in 13 See, e.g., Hollywood Park Humane Soc’y v. Town of Hollywood Park, 261 S.W.3d 135, 140 (Tex. App.—San Antonio 2008, no pet.) (“One’s status as a landowner is insufficient to confer individual property rights to the wild animals on that land.”); City of La Marque v. Braskey, 216 S.W.3d 861, 863 (Tex. App.—Houston [1st Dist.] 2007, pet. den

2024Relevant here, a compensable regulatory taking occurs when a governmental agency imposes “restrictions that either (1) deny landowners of all economically viable use of their property, or (2) unreasonably interfere with the landowners’ rights to use and enjoy their property.” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex. 1998).6 To plead a valid takings claim and establish waiver of immunity under the takings clause, a plaintiff must allege that the governmental entity (1) intentionally performed certain acts in the exercise of its lawful authority, (2) that resulted in taking, damagi

2023York v. State, 298 S.W.3d 735, 749 (Tex. App.—Fort Worth 2009), rev’d on other grounds, 373 S.W.3d 32 (Tex. 2012) (“When a plaintiff fails to allege facts that would support a valid takings claim, governmental immunity applies, and the trial court should grant a plea to the jurisdiction.”).