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
2 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.”).
3 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
Free access — add to your briefcase to read the full text and ask questions with AI
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
2 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.”).
3 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).
4 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.
In what has widely been viewed as a response to Kelo, the Texas Legislature passed the
Limitations on Use of Eminent Domain Act during a 2005 special session. Act of Aug. 16, 2005,
79th Leg., 2d C.S., ch. 1, § 1, 2005 Tex. Gen. Laws 1, 1–2; see also W. Seafood Co. v. United States,
202 F. App’x 670, 677 (5th Cir. 2006) (noting that the Act was passed in response to the Kelo
decision). Codified as Texas Government Code section 2206.001, the Act precludes a government
taking that (1) would confer “a private benefit on a particular private party through the use of the
property,” (2) was “merely a pretext to confer a private benefit,” or (3) served purely “economic
development purposes.” The Act was amended in 2011 to make clear that the government may not
condemn property if it “is not for a public use.” Act of May 6, 2011, 82d Leg., R.S., ch. 81, § 2, sec.
2206.001, 2011 Tex. Gen. Laws 354, 354.
These provisions are aimed squarely at the federal courts’ deferential approach to the public-
use requirement. The Legislature has clearly exercised its prerogative to protect Texans’ property
rights by narrowly defining public use. As a result, government actions that satisfy the federal
public-use requirements could very well fail to satisfy such requirements in Texas. Because the
Texas Legislature has opted to give greater protection to individual property rights, any suggestion
that a private-use taking might bar a property owner’s right to recovery is misplaced. The
Constitution limits government power; it does not limit Texans’ rights to obtain appropriate relief
when that power is exceeded.
5 Although a few cases from other jurisdictions addressing those states’ constitutions have held
that a taking for private use is not compensable, I find the reasoning in these cases unpersuasive.
E.g., Clark v. Asheville Contracting Co., 342 S.E.2d 832, 839 (N.C. 1986); Tulare Irrigation Dist.
v. Lindsay-Strathmore Irrigation Dist., 45 P.2d 972, 990 (Cal. 1935). Such a holding improperly
infers from the constitutionally placed burden on the government a reciprocal burden on property
owners. Just as crucially, however, it ignores the Texas Constitution’s goal of anticipating and
preventing potentially abusive government action. Declaring that a private-use taking is not
compensable would create a perverse set of incentives for State actors by encouraging takings that
do not serve a public use. In turn, a public shield against improper government action would be
converted into a sword to enable that same improper action. Put simply, it makes no sense to say
that a property owner is entitled to compensation if the government does the right thing but not if
it does the wrong thing.3
With these additional thoughts, I join the Court’s opinion and judgment.
_________________________________ Debra H. Lehrmann Justice
OPINION DELIVERED: June 17, 2016
3 Such a conclusion would leave property owners injured by a private taking with little recourse, as sovereign immunity would bar alternative tort claims against the government. W hile ultra vires actions against a government official who acts without legal authority allow prospective relief, they offer little solace to a property owner faced with repairing damage that has already occurred. See City of El Paso v. Heinrich, 284 S.W .3d 366, 373–77 (Tex. 2009) (discussing the strictly prospective nature of the relief in an ultra vires action).