Harris County Flood Control District and Harris County, Texas v. Edward A. and Norma Kerr
Opinion
IN THE SUPREME COURT OF TEXAS 444444444444
NO . 13-0303
444444444444
HARRIS COUNTY FLOOD CONTROL DISTRICT AND HARRIS COUNTY, TEXAS, PETITIONERS, v.
EDWARD A. AND NORMA KERR, ET AL., RESPONDENTS
4444444444444444444444444444444444444444444444444444 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS 4444444444444444444444444444444444444444444444444444
JUSTICE LEHRMANN , concurring.
“[A]ware of the tendency of power to degenerate into abuse,” Thomas Jefferson said that “our own country [has] secured its independence by the establishment of a constitution and form of government for our nation, calculated to prevent as well as to correct abuse.” 8 THOMAS JEFFERSON , To the Tammany Society of Columbian Order of the City of Washington (March 2, 1809), in THE WRITINGS OF THOMAS JEFFERSON 156, 156–57 (1854). Recognizing the same need to set in stone the limits on government’s capacity to invade certain essential rights, “Texans have adopted state constitutions to restrict governmental power.” Vinson v. Burgess, 773 S.W.2d 263, 267 (Tex. 1989). In that sense, the constitutional bedrock underlying and supporting Texas’s legal system assumes both the possibility that the government will abuse its authority and the wisdom of curtailing that abuse from the outset.
To that end, Article I, section 17 of the Texas Constitution contains an important limitation on the government’s authority to invade Texans’ property rights, providing that “[n]o person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made.” In this case, the plaintiffs contend that the government took their property without compensation by approving private development that resulted in the flooding of their homes. I agree with the Court that the circumstances of this case do not give rise to a cognizable takings claim and join the Court’s opinion in full. I write separately to call attention to the Court’s recognition that “if a taking for public use is compensable, then surely a taking for private use would also be compensable.” Ante at ___ n.41. While not crucial to the dispute at hand, this point warrants further discussion.
In compliance with Article I, section 17’s restrictive mandate, we have consistently held that the State must justify its exercise of eminent domain by establishing the taking is for public use. See, e.g., City of Austin v. Whittington, 384 S.W.3d 766, 772 (Tex. 2012); Davis v. City of Lubbock, 326 S.W.2d 699, 702–03 (Tex. 1959). And quoting that same constitutional language—perhaps carelessly—we have also stated that an aggrieved property owner’s claim for inverse condemnation is predicated on a showing that the government “intentionally took or damaged [private] property for public use, or was substantially certain that would be the result.” City of Keller v. Wilson, 168 S.W.3d 802, 808 (Tex. 2005); see also State v. Hale, 146 S.W.2d 731, 736 (Tex. 1941); Gulf, C. & S.F. Ry. Co. v. Donahoo, 59 Tex. 128, 133 (1883). But we have never held that a taking that fails to satisfy the public-use element is not compensable. To the contrary, we have broadly held that when “the government takes private property without first paying for it, the owner may recover
damages for inverse condemnation.” Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004). Our inclusion of “public use” as an element of an inverse-condemnation claim—stated with no analysis in cases in which public use was not even at issue—should not be read to imply that an inverse-condemnation claimant would not be entitled to compensation if property were taken for private use or the public-use requirement were not satisfied. See, e.g., City of Keller, 168 S.W.3d at 808.
Moreover, the Court has explicitly addressed the propriety (or rather, the impropriety) of a private-use taking within other contexts. We did so with greatest clarity in Maher v. Lasater, 354 S.W.2d 923 (Tex. 1962). In that case, a property owner challenged the constitutionality of a commissioners court’s order declaring a private road to be a public highway. Id. at 924. The order was issued pursuant to a statute that permitted such a declaration if a road was deemed “of sufficient public importance.” Id. at 925. The road at issue traversed the plaintiff’s property from a public road and terminated at the boundary of his neighbor’s land, which was used for grazing and pasturing. Id. at 924. As the road allowed access solely to the neighbor’s land, the only public purpose served was “putting the products of the soil and the range of [the neighboring property] into the economy of the community.” Id. at 926. As such, we held that the commissioners court’s declaration violated the public-use requirement of the Texas Constitution’s Takings Clause, and that the taking was void because it was not of sufficient public importance.1 Id. Implicit in this holding is a recognition that a taking for a private purpose would also be void.
1
This decision fits squarely with the U.S. Supreme Court’s view. Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 245 (1984) (“A purely private taking could not withstand the scrutiny of the public[-]use requirement; it would serve no legitimate purpose of government and would thus be void.”).
But this precedent does not clearly address whether an inverse-condemnation plaintiff is entitled to compensation for a private taking. Unlike Maher, in which the government’s declaration that the plaintiff’s property was no longer private was declared void, in this case the County cannot undo the water damage to the plaintiffs’ homes. The proverbial bell has been rung. Maher addresses what Texas courts should do when title to property is taken outright for private use, but it fails to suggest a solution when a taking for private use damages property and reduces its value.
The need for this Court to address the compensability of a private taking is particularly important in Texas because such a taking is a real possibility. See Osburn v. Denton Cty., 124 S.W.3d 289, 293 (Tex. App.—Fort Worth 2003, pet. denied) (holding that a private-use taking did not warrant compensation). By contrast, private takings are ostensibly a non-issue under the federal Constitution. The Sixth Circuit has stated that “[e]xamples of a taking for a private use tend to be esoteric . . . because all that is required for the taking to be considered for public use is a rational relationship to some conceivable public purpose.” Montgomery v. Carter Cty., Tenn., 226 F.3d 758, 765 (6th Cir. 2000). As such, “[v]ery few takings will fail to satisfy that standard.” Id. at 765–66. The Seventh Circuit has similarly characterized the burden of establishing a public use as “remarkably light.” Daniels v. Area Plan Comm’n of Allen Cty., 306 F.3d 445, 460 (7th Cir. 2002).2 That low bar was confirmed by the U.S. Supreme Court’s ruling in Kelo v. City of New London that a taking “for public use” need only serve a public purpose. 545 U.S. 469, 480 (2005). As a result,
2 However, the burden is not insurmountable. Federal courts on occasion have enjoined condemnation proceedings on federal constitutional grounds because the purported reason for the proposed taking did not satisfy the public-use requirement. See, e.g., 99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F. Supp. 2d 1123, 1130–31 (C.D. Cal. 2001).
the Court held that taking private property for the purpose of turning it over to private developers pursuant to a “carefully formulated . . . economic development plan” satisfied the public-use requirement of the U.S. Constitution’s Takings Clause. Id. at 483.
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