
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00580-CV


Susan B. Combs, Texas Comptroller of Public Accounts, Appellant

v.

B.A.R.D. Industries Inc., Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GN-08-001071, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING


O P I N I O N


		On the Court's own motion, the opinion issued August 26, 2009, is withdrawn and
the following opinion is substituted in its place.
		Appellee B.A.R.D. Industries Inc. ("BARD") filed suit against the Comptroller under
chapter 74 of the Texas Property Code, appealing the Comptroller's decision that it was not entitled
to recover damages in connection with BARD's claim for delivered property.  See Tex. Prop. Code
Ann. §§ 74.501, .506 (West 2007).  Additionally, BARD asserted claims against the Comptroller for
an unconstitutional taking, denial of due process, and unlawful seizure.  Asserting that BARD's
chapter 74 and takings claims were barred by sovereign immunity, the Comptroller filed a plea to
the jurisdiction, which the trial court denied.  We will affirm in part the trial court's order denying
the Comptroller's plea to the jurisdiction and reverse and dismiss in part.

FACTUAL AND PROCEDURAL BACKGROUND
		In May 2005, BARD received notice that the Comptroller was holding 155,387 shares
of BARD's stock in the Goodrich Petroleum Corporation, which the Comptroller had received from
an unrelated third party as unclaimed property in May 2003.  On November 29, 2005, Robert Alpert,
BARD's President, sent a letter to the Comptroller claiming the Goodrich stock and instructing the
Comptroller not to sell the stock.  Alpert also submitted a claim form identifying the Goodrich stock
as BARD's property, per the Comptroller's required procedures.  See id. § 74.501(c) ("All claims
to which this section applies must be filed in accordance with procedures, contain the information,
and be on forms prescribed by the comptroller.").
		On January 20, 2006, the Comptroller notified BARD that all 155,387 shares of the
Goodrich stock had already been sold in 2004.  The Comptroller tendered BARD a check for
$1,157,280, which, according to the Comptroller, represented the proceeds of the sale of all
155,387 shares.  Later that year, BARD filed a pre-suit discovery action against the third party from
whom the Comptroller had received the shares to determine why its Goodrich stock had been
surrendered as unclaimed property and delivered to the Comptroller.  On December 19, 2006, after
the Comptroller had been served with a copy of BARD's petition in that action, a representative from
the unclaimed property division of the Comptroller's office submitted a letter to BARD that stated
the following:
A recent review of your unclaimed property claim #05169072 has revealed an error
in the calculated value of 155,387 shares of Goodrich Petroleum stock.

Although only 71,500 shares were actually sold in 2004, with the balance being sold
in 2006, the value of this entire stock sale was erroneously calculated on the lower
2004 price.  Enclosed is a refund check for $1,337,190.83, which represents the
remaining balanced owed to B.A.R.D. on the above reference[d] claim.


BARD maintains that, prior to receiving this letter, it had not known that the Comptroller had
maintained possession of any of its shares of Goodrich stock following receipt of the Comptroller's
January 2006 letter informing BARD that all shares had already been sold.
		The parties do not dispute that the second sale--i.e., the February 2006 sale of the
remaining 83,887 shares--took place three months after the Comptroller received BARD's claim
for all 155,387 shares and its instructions not to sell the stock.  Nor is it disputed that the Comptroller
retained the proceeds from the February 2006 sale until December 2006, when BARD received the
"refund check" for the balance owed from the sale of all 155,387 shares.
		Asserting that it was entitled to further compensation in addition to the proceeds from
the 2004 and 2006 sales of its Goodrich stock, BARD sought review under chapter 74 of the property
code.  See id. § 74.501.  After conducting an investigation, the Comptroller's office informed BARD
that its claim for additional compensation was denied, asserting that "[t]here is no basis for the
payment of such a claim under the Texas Property Code" and stating that the warrant attached to the
December 19, 2006 letter "represents the Comptroller's final payment on this claim."
		BARD appealed the Comptroller's ruling pursuant to section 74.506 of the property
code.  See id. § 74.506(a), (c)-(d) (providing for de novo review in Travis County district court and
waiver of State's immunity from suit with respect to suits brought under this section).  BARD
alleged that it was entitled to monetary damages because the Comptroller's tender of funds did not
fully compensate BARD for damages it suffered as a result of the Comptroller's failure to return
BARD's property and promptly tender funds received from the "unlawful sale."  Specifically, BARD
sought to recover the difference between the value of the stock at the time the Comptroller sold it
and the value at its peak on November 30, 2006, which totaled approximately $1,570,062.22.  BARD
also sought to recover the interest earned on the proceeds of the sale of the 83,887 shares.
		In addition to its claims under the property code, BARD asserted constitutional claims
for a taking, denial of due process, and an unlawful seizure of its property.  BARD alleged that the
Comptroller took its property for public use without adequate compensation, intentionally
disregarding BARD's rightful claim, refusing BARD's demand that the property be returned, and
ordering that the stock be sold three months after BARD asserted its claim.  As stated in BARD's
amended petition, "[s]elling the stock constitutes taking of the property for public use because the
purpose of the Comptroller's action was to generate money for Texas's general revenue fund
pursuant to § 74.601(b)(2)."  BARD further pleaded that, because compensation for the property was
not paid contemporaneously with the taking, but instead was paid "nine months later, after the stock
had increased in value," BARD had been denied just compensation.
		In response, the Comptroller filed a plea to the jurisdiction, arguing that BARD's
claims were barred by sovereign immunity.  After a hearing, the trial court denied the Comptroller's
plea, and this appeal followed.  See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West 2008)
(authorizing interlocutory appeal from order denying governmental unit's plea to jurisdiction).
		On appeal, the Comptroller argues that the trial court's order should be reversed
because (1) BARD failed to meet the jurisdictional requirements of section 74.304(d) of the property
code; (2) BARD has not alleged actions that constitute an unconstitutional taking; (3) the sale of
BARD's stock was not an unconstitutional seizure; and (4) BARD failed to state the basis for its lack
of due process claim.

STANDARDS OF REVIEW
 Sovereign immunity from suit defeats a trial court's subject-matter jurisdiction and
thus is properly asserted in a plea to the jurisdiction.  Texas Dep't of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 225-26 (Tex. 2004).  Whether a court has subject-matter jurisdiction and whether
a plaintiff has alleged facts that affirmatively demonstrate a trial court's jurisdiction are questions
of law reviewed de novo.  Id. at 226.  "Likewise, whether undisputed evidence of jurisdictional facts
establishes a trial court's jurisdiction is also a question of law."  Id.
 In this case, the Comptroller's plea challenged only BARD's pleadings, not the
existence of jurisdictional facts.  "When a plea to the jurisdiction challenges the pleadings, we
determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to
hear the cause."  Id. (citing Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993)).  "We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders'
intent."  Id.  "If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial
court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue
is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend." 
Id. at 226-27 (citing County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)).  "If the
pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be
granted without allowing the plaintiffs an opportunity to amend."  Id. at 227.
		Our determination of whether BARD has established a waiver of immunity for its
claims arising under the property code involves statutory construction.  Statutory construction is a
question of law, which we review de novo.  Texas Mun. Power Agency v. Public Util. Comm'n,
253 S.W.3d 184, 192 (Tex. 2007).  In construing statutes, our primary objective is to give effect to
the legislature's intent as expressed in the statute's language.  Tex. Gov't Code Ann. § 312.005
(West 2008); First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631-32 (Tex. 2008).  If the words
of a statute are clear and unambiguous, we apply them according to their plain and common
meaning.  City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008).

DISCUSSION
Property Code Claims
		By her first issue, the Comptroller argues that BARD failed to establish a waiver of
sovereign immunity for its claims arising under the property code.  As the parties acknowledge,
section 74.304 grants a limited waiver of sovereign immunity regarding claims against the State for
damages to abandoned or unclaimed property in the State's possession.  Section 74.304 provides:

The comptroller is not, in the absence of negligence or mishandling of the property,
liable to the person who claims the property for damages incurred while the property
or the proceeds from the sale of the property are in the comptroller's possession.  But
in any event the liability of the state is limited to the extent of the property delivered
under this chapter and remaining in the possession of the comptroller at the time a
suit is filed.

Tex. Prop. Code Ann. § 74.304(d) (West 2007).  Thus, in order to establish a waiver of immunity
from liability, the statute imposes the following jurisdictional requirements:  (1) the Comptroller
must have acted negligently or mishandled the property; (2) damage to the property for which a
claimant may recover must have been incurred while the property or the proceeds from the sale of
the property were in the Comptroller's possession; and (3) the property must have been delivered
under chapter 74 and remained in the Comptroller's possession at the time a suit was filed.  See id. 
Conceding that "administrative errors were made in the handling of the shares" of BARD's Goodrich
stock, the Comptroller does not dispute that BARD has properly alleged "negligence or mishandling
of the property."  See id.  The Comptroller urges, however, that BARD's pleadings fail to assert a
claim for damage to property that was delivered to the Comptroller under chapter 74 and was still
in the Comptroller's possession at the time suit was filed.  See id.  Because we interpret the statute
to require that the "property delivered under this chapter" must be the same property that is
"remaining in the possession of the comptroller at the time a suit is filed," see id., we agree with the
Comptroller that BARD has failed to state a claim for which immunity has been waived under
chapter 74.
		In its amended petition, BARD sought to recover damages for "the Comptroller's
failure to return BARD's property and to promptly tender funds received from its unlawful sale,"
which "deprived BARD of the increased value of the securities and the interest earned while in the
wrongful possession of the Comptroller."  According to BARD's pleadings, the property that was
delivered under chapter 74 is the Goodrich stock certificates, while the property that the Comptroller
"is still, at the time of filing suit, in possession of" is "BARD's interest that was earned while the
Comptroller possessed BARD's property and after BARD asserted ownership."  The statute, by its
plain language, does not waive immunity unless the property giving rise to damages is both
"delivered under this chapter" and "remaining in the possession" of the Comptroller when suit is
filed.  Cf. Whitehead v. Johnson, 949 S.W.2d 47, 48 (Tex. App.--Eastland 1997, no writ)
(construing previous version of section 74.304 and holding that claimant was not entitled to recover
under mineral interest he had purchased at tax foreclosure sale when State mistakenly delivered
funds to previous interest holder because those funds were no longer remaining in state treasurer's
possession at time of suit).  Because BARD's pleadings affirmatively negate the existence of
subject-matter jurisdiction, we hold that the trial court erred in denying the Comptroller's plea
to the jurisdiction with respect to BARD's claims under the property code.  See Miranda,
133 S.W.3d at 227.  We sustain the Comptroller's first issue.

Unconstitutional Taking
		By her second issue, the Comptroller urges that the facts alleged by BARD do not
establish an unconstitutional taking under Article I, section 17 of the Texas Constitution, which
provides, in pertinent part:  "No person's property shall be taken, damaged or destroyed for or
applied to public use without adequate compensation being made, unless by the consent of
such person."  Tex. Const. art. I, § 17.  Therefore, in order to establish a takings claim, a plaintiff
must prove:  (1) the governmental entity intentionally performed certain acts, (2) that resulted in a
"taking" of property, (3) for public use.  General Servs. Comm'n v. Little-Tex Insulation Co., Inc.,
39 S.W.3d 591, 598 (Tex. 2001); Texas Workforce Comm'n v. Midfirst Bank, 40 S.W.3d 690, 697
(Tex. App.--Austin 2001, pet. denied).
		Sovereign immunity does not shield a governmental entity from an action for
compensation under the takings clause.  State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007);
Little-Tex Insulation, 39 S.W.3d at 598.  But when a plaintiff fails to allege facts that constitute a
taking, dismissal for want of jurisdiction is appropriate.  Little-Tex Insulation, 39 S.W.3d at 600
(dismissing inverse-condemnation claim for want of jurisdiction because allegations did not state
takings claim).  Whether the facts alleged are sufficient to constitute a taking is a question of law. 
Id. at 598.
		In its petition, BARD alleged that the Comptroller's failure to promptly return the
83,887 shares, her prolonged retention of the proceeds from its sale, and her continued retention of
the interest earned thereon amount to a taking of its property. (1)  BARD alleged, and the Comptroller
does not dispute, that after being notified of BARD's claim to all 155,387 shares of Goodrich stock,
the Comptroller tendered payment purportedly representing the proceeds from the entire sale, in
essence recognizing the validity of BARD's claim to the property.  All of the intentional actions that
BARD identifies in its petition took place after (1) BARD notified the Comptroller of its claim and
instructed the Comptroller not to sell the stock and (2) the Comptroller tendered the sales proceeds
in alleged satisfaction of BARD's claim of ownership.
		A takings claim requires an intentional act of the state.  Steele v. City of Houston,
603 S.W.2d 786, 792 (Tex. 1980).  Mere negligence is not a compensable taking.  Id. at 790.  The
question here is whether BARD has alleged that the Comptroller intentionally deprived BARD of
its property or that the Comptroller merely acted negligently in failing to return BARD's property.
		"Our supreme court has held that a takings claim must be based on intentional state
action that is within its authority."  Firemen's Ins. Co. v. Board 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, 146 S.W.2d 731, 737 (Tex. 1941)).  Only when the state has properly exercised its
authority may the state be liable under Article I, section 17.  Id. (citing Nussbaum v. Bell County,
76 S.W. 430, 432 (Tex. 1903)).  Governmental entities are not responsible, however, "for damages
caused by the neglects or wrongs committed by their officers."  Nussbaum, 76 S.W. at 432.  BARD's
pleadings allege that the Comptroller's decision to withhold the interest earned on the proceeds of
the February 2006 stock sale was made during the chapter 74 appeals process, whereby the
Comptroller is statutorily authorized to review claims such as the one brought by BARD, and that
by the authority of the unclaimed property statute, the Comptroller was empowered to use the
property for the benefit of the State.  Thus, construed liberally and in BARD's favor, BARD's
pleadings allege a taking of the interest, based on the Comptroller's intentional acts within the scope
of her chapter 74 authority.
		The Comptroller's only argument in response to BARD's takings claim is that her
actions do not constitute a taking because "the shares at issue were delivered to the Comptroller as
unclaimed property" and thus, "there can be no taking of BARD's property as there was no intention
by the Comptroller to deprive BARD of its property after the holder's delivery of the property to the
Comptroller."  This argument, however, does not address BARD's claim as to the delay in returning
the stock or the proceeds from the sale thereof, including the interest earned on the proceeds, after
BARD asserted its claim to the stock in November 2005 or, at the very least, after the Comptroller
received the proceeds from the February 2006 sale.
		As a basis for recovery of the interest earned from the proceeds after the February
2006 sale, BARD's theory is consistent with this Court's discussion in Clark v. Strayhorn,
184 S.W.3d 906 (Tex. App.--Austin 2006, pet. denied).  In Clark, the plaintiff asserted a takings
claim for the interest earned on abandoned property in the Comptroller's possession before the
plaintiff's assertion of ownership.  Id. at 909-10.  Clark's claim was largely premised on his assertion
that the funds in the Comptroller's possession were held in trust for the owner until they were
claimed, analogizing to cases discussing an owner's right to interest earned on interpleader funds and
IOLTA accounts, see Phillips v. Washington Legal Found., 524 U.S. 156, 172 (1998); Webb's
Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164-65 (1980).  This Court rejected that
argument, holding instead that, under Texas's unclaimed property statute, property is held for the
benefit of the State and that "the State's use of unclaimed property and retention of any interest
earned before the owner asserts a claim is not an unconstitutional taking."  Clark, 184 S.W.3d at 915
(emphasis added).  We stated:  "Until a missing owner asserts a claim, it is wholly appropriate for
the Comptroller to use unclaimed property for the benefit of the State instead of allowing a windfall
to a private holder or permitting the funds to lie fallow."  Id. at 914-15 (emphasis added).  The cases
we have found from other jurisdictions are consistent with Clark in holding that the state's retention
of interest earned on presumptively abandoned property before a claim of ownership is made is not
a taking.  See Cwik v. Topinka, 905 N.E.2d 300, 306-08 (Ill. Ct. App. 2009); Rowlette v. State,
656 N.E.2d 619, 621-26 (N.C. Ct. App. 2008); Hooks v. Kennedy, 961 So.2d 425, 430-32 (La. Ct.
App. 2007); Smyth v. Carter, 845 N.E.2d 219, 222-25 (Ind. Ct. App. 2006).  But cf. Sogg v. Zurz,
905 N.E.2d 187, 190-93 (Ohio 2009) (under Ohio statutory scheme, unclaimed property is not
presumptively abandoned; therefore, state's retention of interest earned was unconstitutional taking);
Canel v. Topinka, 818 N.E.2d 311, 320-25 (Ill. 2004) (although state may retain interest earned
on presumptively abandoned property, it may not retain dividends accruing on unclaimed shares
of stock).
		In the present case, a claim of ownership was asserted by the owner of the property,
and the Comptroller has pointed to no authority indicating that an action under the takings clause in
these circumstances is barred.  While there is no unconstitutional taking of interest on property that
is presumed abandoned, see Clark, 184 S.W.3d at 910, once the owner asserts a valid claim to the
property, it is no longer presumed abandoned.  Thus, an unreasonable retention of the property--or
the proceeds from its sale--may constitute a taking.  A "temporary" taking requires compensation
just as much as a "permanent" taking.  First English Evangelical Lutheran Church v. County of
Los Angeles, 482 U.S. 304, 318-19 (1987); see also Morton Grove Park Dist. v. American Nat'l
Bank & Trust Co., 399 N.E.2d 1295, 1298-99 (Ill. 1980) (retention of landowner's condemnation
award during 30-month appeal process constituted taking, and county had to pay landowner interest
earned on award).
		With respect to the Comptroller's sale of the stock itself, however, BARD has
alleged intentional acts that sound in tort, which are not compensable under the takings clause. 
See Fireman's Ins., 909 S.W.2d at 543.  BARD's petition states that the Comptroller "intentionally
disregarded BARD's rightful claim to its shares of Goodrich Petroleum stock and ordered that the
stock be sold three months after BARD sought its return. . . . The actions of the Comptroller are
analogous to an unlawful conversion.  BARD owned personal property over which the Comptroller
unlawfully exercised dominion."  These pleadings do not allege lawful Comptroller  actions--a
prerequisite for a compensable taking.  See Mac'Avoy v. Smithsonian Institution, 757 F. Supp. 60,
70 (D.D.C. 1991); Adams v. United States, 20 Cl. Ct. 132, 137 (1990).
		We hold that the trial court did not err in denying the Comptroller's plea to the
jurisdiction with respect to BARD's constitutional takings claim based on the Comptroller's failure
to promptly return the 83,887 shares, her prolonged retention of the proceeds from its sale, and her
continued retention of the interest earned thereon.  Accordingly, we overrule the Comptroller's
second issue.

Seizure
		In her third issue, the Comptroller argues that BARD's pleadings affirmatively show
that the State's retention of its property does not constitute a Fourth Amendment seizure.  BARD
pleaded that the Comptroller's failure to return "the property" following its claim of ownership was
an unreasonable seizure for which the State had failed to provide adequate monetary compensation. 
BARD's petition does not specify whether the property that was allegedly seized refers only to the
stock certificates or also to the proceeds from the sale of the stock and the interest earned thereon.
		BARD asserted its claim under Article I, section 9 of the Texas Constitution, which
is coterminous with claims under the Fourth Amendment of the United States Constitution. 
See Flores v. State, 172 S.W.3d 742, 744 (Tex. App.--Houston [14th Dist.] 2005, no pet.). 
Violation of the Fourth Amendment requires an intentional acquisition of physical control, which
must itself be willful.  Brower v. County of Inyo, 489 U.S. 593, 596 (1989).  "This is implicit in the
word 'seizure,' which can hardly be applied to an unknowing act."  Id.  It has also been held that a
"seizure" under the Fourth Amendment "connotes a forcible dispossession from the owner." 
Caldwell v. United States, 338 F.2d 385, 388 (8th Cir. 1964); accord United States v. White,
268 F. Supp. 998, 1004 (D.D.C. 1966).  Thus, BARD cannot recover for an unlawful seizure of the
stock itself because, having established that the stock was lawfully delivered to and received by the
Comptroller as unclaimed property and that the Comptroller was unaware of BARD's claim of
ownership at the time of delivery, BARD's pleadings affirmatively negate the necessary element of
seizure.  In other words, BARD cannot show that the Comptroller intentionally or willfully acquired
control over the stock.
		Of necessity, the same is true of the proceeds from the sale of the stock, because the
sale simply exchanged one form of a fungible asset for another.  BARD does not assert that the
Comptroller received less than fair market value at the time of the sale.
		Finally, the same must also be true of the interest earned on the proceeds of the sale
during the time that the proceeds remained in the possession of the Comptroller.  The mere accrual
of interest on an asset that was initially received lawfully does not amount to the kind of "forcible
dispossession from the owner" necessary to constitute a seizure under the Fourth Amendment.  We
sustain the Comptroller's third issue.

Due Process
		In her fourth and final issue, the Comptroller argues that BARD's pleadings
affirmatively show that it was afforded the process due under chapter 74 of the property code for
appealing a Comptroller determination, whereby BARD received "notice and the right to be
considered."  In the Comptroller's view, BARD simply disagreed with the Comptroller's
determination that there was no basis for BARD's asserted recovery.  We agree.
		BARD asserted that it was denied due process by the Comptroller's "unlawful and
unconstitutional" deprivation of its property without providing BARD recourse to obtain
adequate compensation in contravention of Article I, section 19 of the Texas Constitution.  Article I,
section 19 provides in relevant part that no citizen shall be deprived of property except by the due
course of the law of the land.  See Tex. Const. art. I, § 19.  A due process claim requires the court
to determine (1) whether the claimant has a liberty or property interest that is entitled to procedural
due process protection; and (2) if so, what process is due.  See University of Tex. Med. Sch. v. Than,
901 S.W.2d 926, 929 (Tex. 1995).
		We have recognized that BARD has a property interest in the interest earned on the
proceeds from the sale of its property, which is the subject of its takings claim.  By the proceeding
before the Comptroller and by this suit, BARD has been afforded the opportunity to be heard and
to seek recourse regarding this alleged deprivation--the very process that it claims to have been
denied.  BARD may yet be successful in its claim, at least in part.  BARD is entitled to no further
process.  Accordingly, no amendment of BARD's pleadings could give life to its due process claim. 
We sustain the Comptroller's fourth issue.

CONCLUSION
		We reverse the portion of the trial court's order pertaining to BARD's claims under
the property code, for violation of due process, and for a Fourth Amendment seizure; we dismiss
those claims for lack of subject-matter jurisdiction.  Because BARD has adequately pleaded a takings
claim under Article I, section 17 of the Texas Constitution, we affirm the district court's order
denying the Comptroller's plea to the jurisdiction as to that claim.



  
						J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Puryear and Henson

Affirmed in part; Reversed and Dismissed in part

Filed:   October 22, 2009
1.   Significantly, BARD does not argue that the Comptroller had no right to possess and
dispose of the 71,500 shares that were sold in 2004, contending instead that such use of the property
and retention of interest "is constitutional only in the absence of a claim by the owner.  Upon a claim
by the owner, the use of the property and retention of interest becomes an unconstitutional taking."
