Devillier v. State of Texas ( 2023 )

Case: 21-40750 Document: 00516603930 Page: 1 Date Filed: 01/10/2023
REVISED 1/10/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
November 23, 2022
No. 21-40750 Lyle W. Cayce
Clerk
Richard Devillier; Wendy Devillier; Steven Devillier;
Rhonda Devillier; Barbara Devillier; et al,
Plaintiffs—Appellees,
versus
State of Texas,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 3:20-CV-223
Before Higginbotham, Southwick, and Higginson, Circuit
Judges.
Per Curiam:
The State of Texas appeals the district court’s decision that Plaintiffs’
federal Taking Clause claims against the State may proceed in federal court.
Because we hold that the Fifth Amendment Takings Clause as applied to the
states through the Fourteenth Amendment does not provide a right of action
Case: 21-40750 Document: 00516603930 Page: 2 Date Filed: 01/10/2023
No. 21-40750
for takings claims against a state, 1 we VACATE the district court’s decision
and REMAND for further proceedings. Nothing in this opinion is intended
to displace the Supreme Court of Texas’s role as the sole determinant of
Texas state law. 2
1
See Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020) (“[A] federal court’s authority
to recognize a damages remedy must rest at bottom on a statute enacted by Congress.”);
Azul–Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (holding that a
takings plaintiff has “no cause of action directly under the United States Constitution”),
cert. denied, 506 U.S. 1081 (1993).
2
The Supreme Court of Texas recognizes takings claims under the federal and
state constitutions, with differing remedies and constraints turning on the character and
nature of the taking. See City of Baytown v. Schrock, 645 S.W.3d 174, 178 (Tex. 2022)
(“Under our [federal and state] constitutions, waiver occurs when the government refuses
to acknowledge its intentional taking of private property for public use. A suit based on this
waiver is known as an ‘inverse condemnation’ claim.”); see also Gutersloh v. Texas, No. 93-
8729, 25 F.3d 1044, 994 WL 261047, *1 (5th Cir. 1994) (unpublished per curiam) (“[The
State] . . . admits, the courts of the State of Texas are open to inverse condemnation damage
claims against state agencies on the basis of the Fifth Amendment, as applied to the states
through the Fourteenth Amendment, as well as on the basis of the Texas Constitution and
laws.”); Allodial Ltd. P’ship v. N. Tex. Tollway Auth., 176 S.W.3d 680, 683–84 (Tex. App.—
Dallas 2005, pet. denied) (noting that Texas courts apply a two-year limitations period to
takings claims for “damaged” property and a ten-year limitations period to takings claims
for “taken” property).
2