- Investigate Midwest

When we last visited Texas’ claim that several of the state’s property owners didn’t have the right to sue for damages to their property under the Fifth Amendment’s Takings Clause, the case surrounding a 32-inch high concrete retaining wall had arrived in the U.S. Supreme Court.

The short version of the story is that Texas built the wall right down the middle of I-10 between Houston and Beaumont.

Which, as it turns out, wasn’t all that smart because the wall in effect became a dam during Hurricane Harvey in 2017 and Tropical Storm Imelda in 2019, creating a miles-wide lake north of the highway that flooded houses and farms.

Naturally, homeowners politely asked Texas how the state would reimburse them for their losses.

Texas got all grinchy, telling flooded homeowner Richie Devillier that it was his farm and, thus, his problem, therefore the good people of Texas owed him not one red cent.

Devillier sued. Wouldn’t you? Devillier claimed under the Fifth Amendment to the Constitution that the concrete wall was actually designed by Texas without his consent to keep storm water on the side of the highway where his private property was flooded.

Devillier had a case. A really good case with high prospects of winning. Especially in Texas state court.

To prevent the possibility of losing in state court, Texas petitioned to move the case to the federal courts.

Devillier claimed he could legally make his takings clause claim in Texas state court under the Fifth Amendment because it was “self-executing.” Just point at the Fifth Amendment and claim away.

Which left Texas holding the short end of the stick. But in federal court? If Texas could move the case, it could potentially put an end to Deviller’s wish for compensation because federal takings lawsuits are not self-executing, but rather controlled by 42 U.S.C. 1983:

“Every person (italic added) who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

Texas won the right to move the case to the federal system, a misjustice if ever I’ve seen one, where the state argued it wasn’t a person, not controlled by 42 U.S.C 1983, and thus was immune to takings clause lawsuits.

The district court saw through Texas’ malarkey, but the U.S. Court of Appeals for the Fifth Circuit reversed and sided with the state.

This left Devillier seeking certiorari in the U.S. Supreme Court, which agreed to take a look-see.

If Texas pulled off its scam it would erase protections granted by the 2019 Supreme Court ruling in Knick v. Township of Scott, where Chief Justice John Roberts forcibly said “a property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it.”

The Supreme Court heard oral arguments in January, and late last month issued its ruling. Justice Clarence Thomas put an end to the Texas rope-a-dope:

“Texas state law provides a cause action by which property owners may seek just compensation against the State. As Texas explained at oral argument, its state-law inverse-condemnation cause of action provides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause. And, although Texas asserted that proceeding under the state-law cause of action would require an amendment to the complaint, it also assured the Court that it would not oppose any attempt by DeVillier and the other petitioners to seek one.”

Why didn’t Texas tell Devillier that in the first place? The Supreme Court vacated the district court decision and sent the whole mess back to the state court for further adjudication, presumably with an amended lawsuit.

I guess everything is bigger in Texas, including a desire to avoid the possibility of reimbursing its citizens for property loss. Shame on them.

Unfortunately, the Supreme Court did not directly rule on whether the takings clause is self-executing all across the nation. That is a case needing Supreme Court adjudication at the earliest possibility.