The Texas Department of Transportation will have to litigate a $251,000 “takings” claim over the removal of large trees from private property during a highway maintenance project, the Texas Supreme Court said Friday in rejecting the state agency’s immunity claim.
The property owners sued for negligence and inverse condemnation after employees of a TxDOT subcontractor cut down trees outside the state’s right-of-way easement. Mark Self and Birgit Self sought compensation to plant 20 new trees to replace the destroyed oaks and elms.
Twenty-eight trees with diameters ranging from 18 to 39 inches between a fence erected by the Selfs and FM 677 were cut down during a highway maintenance project. Thirteen were wholly outside the state’s right of way and seven were partly outside it.
An email between TxDOT employees acknowledged that a TxDOT inspector “did direct the contractor to cut the trees down, but they were on the state highway side of the fence.”
The trial court denied TxDOT’s pleas to jurisdiction. The Second Court of Appeals held that TxDOT’s jurisdictional plea failed on the negligence cause but should have been granted on inverse condemnation.
A unanimous Supreme Court flipped that ruling, rejecting the Selfs’ statutory negligence claim but remanding the case for further proceedings on whether TxDOT intentionally destroyed private property for public use.
TxDOT had argued that no compensation is owed because the landowners cannot show the department knew that the trees were not in its right of way.
Justice Brett Busby, author of the court’s opinion, said TxDOT’s incorrect impression that it had the legal right to remove the trees is not sufficient reason to dismiss the case. Such a ruling “would eviscerate our constitutional bulwark against uncompensated takings,” he said.
“Many Texas and federal courts have rejected such arguments, and we join them in holding that the Constitution means what it says: the government must pay compensation when it intentionally takes private property for public use — even if the government mistakenly believes that it has a legal right to do so apart from its power of eminent domain,” Busby said.
To hold otherwise, as did the court of appeals, “would allow the government to escape liability for inverse condemnation merely by asserting that it owns or has rights to — or thought at the time of the taking that it owned or had rights to — property it intentionally took, damaged, destroyed, or appropriated for public use.”
Deciding the statutory issue, the Supreme Court said that the Selfs’ negligence cause of action is barred because they did not satisfy the sovereign immunity waiver requirements of the Texas Tort Claims Act. Busby said the Selfs have not shown either that the subcontractor’s workers were in TxDOT’s paid service or that other TxDOT employees operated or used the motor-driven equipment that cut down the trees, as required to waive immunity.
The case was argued for the Selfs by Andrew York of Barron Adler Clough & Oddo. Firm lawyers Nicholas P. Laurent and Blaire A. Knox participated in the briefing.
Philip A. Lionberger, assistant solicitor general, argued for the state.
The case number is 22-0585.