Texas and Oregon Attorneys General Face Possible Smackdown in Devillier v. State of Texas

A couple of years ago, I had the pleasure of talking to the County Clerk of Parker County, Texas.  A friend had decided to buy a warehouse outside of Weatherford (the County seat) and asked me to check on the zoning of the property and whether there were any restrictions that might make the property less desirable. 

I looked on the county’s website and found no reference to the County’s zoning laws.  Assuming the County just hadn’t gotten around to putting their zoning ordinance on the web, I called the County Clerk’s office and asked if I could get a copy. 

The Clerk’s response was priceless: “We don’t have zoning in Parker County, AND WE NEVER WILL!” Fair enough – that’s certainly different from Oregon, but to each their own.

So imagine my surprise when I heard that the State of Texas had joined forces with Oregon Attorney General Ellen Rosenblum to argue that even though the U.S. Constitution’s Takings Clause requires the federal government to pay just compensation when it takes private property, and even though the Fourteenth Amendment makes the Takings Clause applicable to state and local governments, the method for receiving that compensation rests entirely with Congress or each individual state.

In other words, Texas Attorney General Ken Paxton wants us all to know that the State of Texas will pay just compensation when they take private property, but only Congress or the Texas legislature can determine how they’ll actually go about paying for what they take. They can make it easy – if they want to. Or they can make it difficult – if they want to. The choice is up to them.

Apparently that’s Oregon’s position too.  That shouldn’t make any Oregon property owner feel warm and fuzzy. 

Fortunately, the United States Supreme Court has decided to take up the case.  And if the Court’s past precedents are any indication, it isn’t likely to go too well for Paxton and Rosenblum.

SCOTUS grants petition for review. 

The name of the case is Devillier v. State of Texas.  Richard Devillier and a number of other property owners had their land flooded and damaged when the Texas Department of Transportation elevated portions of Interstate-10 just south of the Devillier property and installed a permanent concrete barrier in the median barrier.

You know the result – the raised highway and barrier created a dam that flooded all the property north of the freeway, converting dry ranchland to a lake. 

From a “takings” standpoint, this isn’t a particularly complicated fact pattern. There are cases in many jurisdictions, including the Supreme Court, where government has been ordered to compensate property owners when their actions have led to flooding on property. But Texas decided to fight. 

A Texas-sized Twist on the Takings Clause. 

Devillier and property owners up and down the highway filed suit in Texas state court.  After being sued, Texas first round of defense was something positively Orwellian.

Rather than defending each suit or asking the state trial courts to combine the claims, Texas used a federal statute to transfer the cases to federal court.  Once in federal court, Texas filed a motion to dismiss all of the cases on the ground that Congress had not created a process for asserting takings claims against state governments.

Texas acknowledged that Congress authorized lawsuits for constitutional rights violations against the federal government or local governments, but not state government.  Therefore, the federal court had no jurisdiction to hear the lawsuit which was only in federal court because Texas had the case removed from state court and transferred to federal court!

See a Catch-22 for the property owners?  If they sue in state court, the state will remove the case to federal court and then inform the judge that the federal court doesn’t have jurisdiction.

If the property owner sues in federal court, the state will claim that they have sovereign immunity from federal court jurisdiction under the Eleventh Amendment, a murky area of the law, and even if they don’t, Congress hasn’t created a process for suing for takings that applies to states.  In other words, Texas argument amounts to heads I win, tails you lose.

That doesn’t seem right does it?  It sure doesn’t, especially when Texas acknowledges that if they take private property the Constitution obligates them to pay for it.  But according to Texas that only applies if Congress (or Texas) decides to create a process for property owners to force them to pay.

That means that even though Texas acknowledges that the Takings Clause applies to them, they will only pay property owners if they decide to pay them.  They claim this isn’t a problem because they’ve already done that.  But what if they change their mind?

Texas’ position certainly can’t be the law.  No wonder Oregon joined in making this argument.

Fortunately, the Texas property owners are fighting back.  The property owners argue that the Constitutional right to just compensation is self-executing, meaning that a property owner can demand payment and sue to recover it (if need be) regardless of whether Congress or a state passes a law to provide for compensation. 

This is a correct interpretation, and the only one that makes sense.  After all, the Supreme Court has highlighted the importance of the Takings Clause and property rights many times over the years.  Here’s what the Court said in 1897:

“Due protection of the rights of property has been regarded as a vital principle of  republican institutions. “Next in degree to the right of personal liberty,” Mr. Broom in his work on Constitutional Law says, “is that of enjoying private property without undue interference or molestation.” (p. 228.) The requirement that the property shall not be taken for public use without just compensation is but “an affirmance of a great doctrine established by the common law for the protection of private property. It is founded in natural equity, and is laid down by jurists as a principle of universal law. Indeed, in a free government almost all other rights would become worthless if the government possessed an uncontrollable power over the private fortune of every citizen.”

Chicago, Burlington & Quincy RR v. City of Chicago, 166 US 226 (1897).

In a perfect world, property owners wouldn’t have to fight overly aggressive bureaucrats and government lawyers.  If the government needed land, it would exercise its eminent domain authority and pay just compensation for the land taken.  Of all places in the United States where you’d think they would appreciate this thinking, Texas is at the top.  It’s too bad they’ve fallen in line with Oregon.

The Devillier case will be argued soon, and the Supreme Court will issue a decision this term.  I suspect they’ll do the right thing for property owners.

The opinions expressed in this post are those of the author and do not represent the opinions or positions of any party represented by the OPOA Legal Center on any particular matter.