Devillier v. State of Texas

Opinion

Case: 21-40750 Document: 00516603930 Page: 1 Date Filed: 01/10/2023

REVISED 1/10/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED November 23, 2022 No. 21-40750 Lyle W. Cayce Clerk

Richard Devillier; Wendy Devillier; Steven Devillier; Rhonda Devillier; Barbara Devillier; et al,

Plaintiffs—Appellees,

versus

State of Texas,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Texas No. 3:20-CV-223

Before Higginbotham, Southwick, and Higginson, Circuit Judges. Per Curiam: The State of Texas appeals the district court’s decision that Plaintiffs’ federal Taking Clause claims against the State may proceed in federal court. Because we hold that the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action Case: 21-40750 Document: 00516603930 Page: 2 Date Filed: 01/10/2023

No. 21-40750

for takings claims against a state, 1 we VACATE the district court’s decision and REMAND for further proceedings. Nothing in this opinion is intended to displace the Supreme Court of Texas’s role as the sole determinant of Texas state law. 2

1 See Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020) (“[A] federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress.”); Azul–Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (holding that a takings plaintiff has “no cause of action directly under the United States Constitution”), cert. denied, 506 U.S. 1081 (1993). 2 The Supreme Court of Texas recognizes takings claims under the federal and state constitutions, with differing remedies and constraints turning on the character and nature of the taking. See City of Baytown v. Schrock, 645 S.W.3d 174, 178 (Tex. 2022) (“Under our [federal and state] constitutions, waiver occurs when the government refuses to acknowledge its intentional taking of private property for public use. A suit based on this waiver is known as an ‘inverse condemnation’ claim.”); see also Gutersloh v. Texas, No. 93- 8729, 25 F.3d 1044, 994 WL 261047, *1 (5th Cir. 1994) (unpublished per curiam) (“[The State] . . . admits, the courts of the State of Texas are open to inverse condemnation damage claims against state agencies on the basis of the Fifth Amendment, as applied to the states through the Fourteenth Amendment, as well as on the basis of the Texas Constitution and laws.”); Allodial Ltd. P’ship v. N. Tex. Tollway Auth., 176 S.W.3d 680, 683–84 (Tex. App.— Dallas 2005, pet. denied) (noting that Texas courts apply a two-year limitations period to takings claims for “damaged” property and a ten-year limitations period to takings claims for “taken” property).