               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 , joined by JUSTICE WILLETT , dissenting.


       “[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 effectuated a

taking of their property without compensation by approving private development that resulted in the

flooding of their homes. I join JUSTICE WILLETT ’s dissent because I agree that the circumstances

of this case do not give rise to a cognizable takings claim. We also agree on the availability of

compensation when a taking occurs, regardless of whether it is for public or private use. The latter

point, while not crucial to today’s dispute, 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 that the taking will serve the

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) (emphasis added); 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).

However, 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.”

                                                  2
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 the property was taken for private use or the public-use

requirement was 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 made 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 Takings Clause of the Texas Constitution, 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 the holding in Maher that the government’s

declaration that the plaintiff’s property was no longer private was void, the County cannot undo the

water damage to the plaintiffs’ homes in the case at hand. 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 to address the compensability of a private taking is of particular importance in

Texas because of the real possibility for such a taking to occur. 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 Cnty., 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

Cnty., 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, the Court held that the taking of private property for the

purpose of turning it over to private developers pursuant to a “carefully formulated . . . economic



        2
            However, the burden is not insurmountable. Federal courts 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
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 abundantly clear that the

government may not condemn property if it “is not for the 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 deferential approach to the public-use requirement

taken in federal courts. The Legislature has clearly exercised its prerogative to protect the property

rights of Texans 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, I disfavor any

possible suggestion that a private-use taking might bar a property owner’s right to recovery. The

Constitution limits government power; it does not limit Texans’ rights to obtain appropriate relief

when that power is exceeded.



                                                   5
         While 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 doing so, it turns a public shield against improper government action

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

         The danger to property owners presented here is real: a Texas court of appeals has already

held that a private-use taking did not warrant compensation. Osburn v. Denton Cnty., 124 S.W.3d

289, 293 (Tex. App.—Fort Worth 2003, pet. denied). But the Texas Constitution recognizes the

fundamental importance of property rights.                   I write separately to underscore only that the

Constitution’s language should not be used to diminish the value of those rights.




         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).

                                                            6
                                       _________________________________
                                       Debra H. Lehrmann
                                       Justice


OPINION DELIVERED: June 12, 2015




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