               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).

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