Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Tuesday, August 30, 2011

What is a takings claim? (Tex. 2011)


CONSTITUTIONAL PROTECTION OF PRIVATE PROPERTY AGAINST GOVERNMENTAL TAKE-OVER (otherwise known as expropriation, nationalization)  

The Texas Constitution provides that “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by theconsent of such person.” TEX. CONST. art. I, § 17. Likewise, the United States Constitution provides “nor shall private property be taken for public use, without just compensation.” U.S. CONST. amend. V.

Exception to sovereign immunity principle: No legislative waiver of immunity required

Sovereign immunity does not shield the State from claims based on unconstitutional takings of  roperty. See, e.g., Holland, 221 S.W.3d at 643; Steele, 603 S.W.2d at 791. Whether the government’s actions are sufficient to constitute a taking is a question of law.

ELEMENTS OF UNCONSTITUTIONAL TAKINGS CLAIM

To establish a takings claim, the claimant must seek compensation because the defendantintentionally performed actions that resulted in taking, damaging, or destroying property for public use without the owner’s consent. See id. Whether a taking has occurred depends largely on definitional and conceptual issues. See 2A JULIUS L. SACKMAN, NICHOLS ON EMINENT DOMAIN §6.01[1] (3d ed. 2006).

The premise for a constitutional takings cause of action is that one person should not haveto absorb the cost of his property being put to a public use unless he consents. See Steele, 603 S.W.2d at 789. In contrast to a trespass to try title claim, which quiets title and the right of possession to property, a successful takings claim entitles a claimant to compensation, not to possession of the property. See TEX. CONST. art. I, § 17 (“No person’s property shall be taken . . . without adequate compensation being made . . . .”) (emphasis added); City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995) (stating that section 17 of the Texas Constitution waives immunity only when a claimant is seeking compensation); cf. Martin, 133 S.W.3d at 264-65 (“[a] trespass to try title action is the method of determining title to lands, tenements, or other real property.” (quoting TEX. PROP. CODE §22.001)).

SOURCE: Texas Supreme Court Opinion in Texas Parks & Wildlife Department v. The Sawyer Trust, No. 07-0945 (Tex. Aug. 26, 2011)(Opinion by Justice Phil Johnson)

RELATED LEGAL CONCEPTS: eminent domain power, condemnation of private property for public use, just compensation

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