Eminent Domain and Inverse Condemnation in Texas
I don’t mind admitting that the legal terms eminent domain and inverse condemnation cause me to pause to do the mental gymnastics required to understand them. The same pause that’s necessary when you need to figure out the tip at an expensive restaurant when the bill comes – you pause at seeing the cost, and once you recover from that, you calculate percentages. Yes, that is exactly the feeling.
Eminent Domain is a fancy word for the government taking property. The Fifth Amendment to the U.S. Constitution states no private property shall be taken without just compensation. The Texas Constitution Art. I, Sec. 17 Taking, Damaging, or Destroying Property for Public Use states no person’s property shall be taken, damaged, or destroyed without just compensation. The property may only be “taken” for the ownership, use and enjoyment by the State, a political subdivision of the State or the public, or an entity granted the power of eminent domain.
Government taking requires it should pay and the property ends up belonging to the government or the public. Texas affords more protection for the public as it will or should pay for not only taking but damaging or destroying. Pretty basic.
Many Texans anticipate numerous eminent domain suits to be filed by the U.S. government in Texas along the United States-Mexico border in the wake of the current president’s desire to build a wall. This has not occurred yet, but Laredo City Council is trying to thwart the taking of city property by the United States for the border wall.
Laredo rejected the United States’ request to survey 600 acres in Starr County, where the city owns land for water rights to prepare for wall construction. In response, the federal government filed suit in November 2018. The suit was filed in the U.S. District Court located in McAllen, Texas. The federal government contends it needs access to the property in order to conduct surveying, testing and other investigatory work needed to plan the proposed construction of roads, fencing, vehicle barriers, security, lighting, cameras, sensors, and related structures designed to help secure the United States-Mexico border in Texas.
The City of Laredo also anticipates the federal government will focus on a barrier in city limits. However, the City has been working on a plan for several years to build a 15-foot bulkhead between the river and the retail district, and hopes to convince the United States to allow use of federal funds for the bulkhead rather than a fence.
Inverse Condemnation is the legal cause of action brought when the government did not exercise eminent domain and a taking of private property occurred without compensation.
Government takes and they didn’t pay. Pretty basic, except the Texas Supreme Court in 1978 described the complexity of inverse condemnation law as “Sophistic, Miltonian, Serbonian bog” … “where armies whole have sunk”.[1] Go ahead Google that.
While you are at it; Google Inverse Condemnation. If you live here in the Houston area many of the hits on page 1 will be for attorneys and law firms. When Hurricane Harvey dumped more than 50 inches of rain on the Houston area[2], the U.S. Army Corps of Engineers and the city decided in the interest of protecting the public as a whole to release flood water from reservoirs, at the expense of a few. Property and homes were destroyed, resulting in lawsuits seeking payment for the destruction. The Texas Supreme Court in 2004 decided an inverse condemnation flooding case and determined intent to flood, damage take is present when the government knows a “specific act is causing identifiable harm or knows that the harm is substantially certain to result.”[3]
If the United States does proceed with a border wall and exercises the right of eminent domain, it is inevitable there will be lawsuits that follow for inverse condemnation due to not only the damage that will be caused that will be uncompensated, but also the immeasurable damage to flora and fauna for which it is impossible to properly compensate.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.
[1] City of Austin v. Teague, 570 S.W.2d 389, 391 (Tex. 1978)
[2] https://www.houstonchronicle.com/life/article/Hurricane-Harvey-by-the-numbers-12172287.php
[3] Tarrant Regional Water District v. Gragg, 151 S.W.3d 546 (Tex.2004).
