Texas Municipal Power Agency v. Kirk A. Johnston , 405 S.W.3d 776 ( 2013 )

Opinion issued February 28, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00873-CV
———————————
TEXAS MUNICIPAL POWER AGENCY, Appellant
V.
KIRK A. JOHNSTON, Appellee
On Appeal from the 12th District Court
Grimes County, Texas
Trial Court Case No. 32402
OPINION
Kirk A. Johnston sought temporary and permanent injunctive relief against
the Texas Municipal Power Agency (“TMPA”) to prohibit TMPA from, among
other things, entering onto his property to conduct surveys and inspections and
attempting to condemn a portion of his property. TMPA filed a plea to the
jurisdiction, and the trial court denied the plea. In two issues, TMPA contends that
the trial court erred in denying its plea to the jurisdiction because (1) Johnston’s
petition did not present a justiciable controversy and (2) governmental immunity
barred Johnston’s claims against it.
We reverse and render.
Background
TMPA and Johnston own adjacent properties in Grimes County. TMPA
desired to raise the water level in a sediment pond (“SP-50”) located on its
property, but to do this, it needed to obtain “an impoundment easement and a flood
easement” on a portion of Johnston’s property. On April 26, 2012, TMPA’s
counsel sent Johnston a letter concerning its request to conduct surveys and
inspections of this portion of Johnston’s property. The letter reflected that TMPA
and Johnston had previously been in contact regarding the survey work and that
Johnston had, on April 13, 2012, “declined to provide TMPA representatives and
contractors with access to [his] property to conduct these surveys and inspections.”
The April 26, 2012 letter asked for Johnston’s “cooperation in the scheduling of
the proposed survey work and inspections.”
The letter also included the following paragraph:
While it is TMPA’s desire to work with you to resolve this matter
amicably, you should understand that if you continue to withhold
2
consent to the survey and inspections, then TMPA may have no
choice but to avail itself of its legal remedies. Should TMPA elect to
resort to legal proceedings, I anticipate that it will seek (1) injunctive
relief to allow the surveyors and consultants to enter onto the
property, (2) a judgment declaring that TMPA has the right, consistent
with the authorities referenced above [two cases stating that TMPA
has, in conjunction with its eminent domain power, the authority to
enter onto property to survey the property in preparation of exercising
this power], to enter upon and survey and inspect the property, and
(3) the recovery of reasonable and necessary attorneys’ fees incurred
in securing declaratory relief.
The letter stated that TMPA was willing to make its representatives available for a
meeting with Johnston and his counsel. TMPA’s counsel requested that Johnston
provide an answer regarding “whether [he] will cooperate in the scheduling of the
survey and inspection” by May 2, 2012. The letter also included a “Temporary
Right of Entry” form to be executed by Johnston and TMPA, which granted
TMPA a “temporary right of entry over, under, and across” Johnston’s property.
The form stated that the right of entry was for
the purposes of performing survey work and non-invasive inspections
and assessments relating to the analysis of the proposed easement
boundaries and potential impacts associated with the acquisition of
easement rights in connection with TMPA’s plans to raise the water
level in an existing sediment pond, referred to as SP-50, the dam for
which is constructed on land adjoining the Property.
On May 2, 2012, Johnston filed an original petition and application for
temporary and permanent injunction. Johnston alleged that TMPA had informed
him that it intended to obtain an easement on his property “for the stated purposes
of economically developing and landscaping [TMPA’s own] 723.10 acre property
3
in order to sell it to a private individual or entity for a market price elevated by the
condemnation.” Johnston asserted that TMPA lacked authority to exercise its
eminent domain powers to condemn a portion of his property and that TMPA “has
no legal access to the property for any purpose.” He alleged that, by its actions,
TMPA “is threatening to condemn the property owned by the Plaintiff when it is
without statutory authority to condemn the land or any interest in it.”
Johnston sought the following relief:
• On hearing, a temporary injunction be issued requiring
Defendant TMPA to (i) cease and desist from its attempts to
gain access, survey, study, assess, bore, drill, dig, excavate,
clear, and destroy vegetation on Plaintiff’s land and (ii) to
comply with all applicable constitutional sections and statutory
limitations and requirements, including the constitutional
prohibition of taking property for economic development in
order to sell the land and easements, to private persons or
entities.
• On final hearing and trial, Defendant be permanently enjoined
from accessing, surveying, studying, assessing, inspecting,
occupying, boring, drilling, digging, erecting, excavating,
clearing, cutting, staking, destroying, or condemning Plaintiff’s
535 acres or any part or interest therein. Further, on final
hearing, Defendant be permanently enjoined and required to
comply with the order preventing its attempts to condemn
Plaintiff’s land to gain access, to survey, study, assess, bore,
drill, dig, excavate, clear, and destroy vegetation on Plaintiff’s
535 acres or any part thereof.
• Plaintiff have judgment against Defendant TMPA for civil
damages suffered due to any actions taken by TMPA in
violation of the constitutional prohibitions and restrictions and
the statutory limitations and restrictions.
4
In response, TMPA filed a plea to the jurisdiction. TMPA asserted that
because its Board of Directors (“the Board”) had “neither declared the existence of
a public purpose or necessity for the filing of a condemnation proceeding to
acquire a property interest from Plaintiff nor authorized the initiation of such a
condemnation proceeding,” which is a statutory prerequisite to the initiation of a
condemnation proceeding, Johnston’s “allegations and claims confirms the absence
of a justiciable controversy.” TMPA contended that, because the Board had not
authorized a condemnation proceeding, no real or substantial controversy existed
between the parties, and thus the question of whether TMPA had a permissible
public purpose for seeking to condemn a portion of Johnston’s property was not
ripe for judicial resolution.1 TMPA also argued that no real and substantial
controversy existed because it had not entered Johnston’s property, it had not
threatened to enter Johnston’s property without his permission or a court order, and
it was not currently seeking a court order authorizing entry onto the property.
1
TMPA attached an affidavit from Wanda Callahan, the assistant secretary to the
Board , who certified that
the minutes and other records of the TMPA Board of Directors’
meetings contain no record of the adoption by the Board of Directors
of any motion, order, or resolution or any other action declaring the
existence of a public purpose or necessity for the filing of a
condemnation proceeding to acquire any property interest owned by
Kirk A. Johnston or otherwise authorizing the filing of such a
proceeding.
5
TMPA asserted that Johnston was seeking an anti-suit injunction prohibiting
it from initiating condemnation proceedings but that Johnston “cannot show any
entitlement to relief” on this basis. TMPA attached an e-mail from Johnston’s
counsel, which stated:
[Johnston] is extremely interested in buying the 723.10 acre TMPA
property, but does not wish to do so under the threat of condemnation.
Therefore, I have filed the attached cause of action [Johnston’s
original petition] on this date in hopes that he and TMPA can work
out their differences outside the threat of TMPA taking back part of
the land it sold to Mr. Johnston.
TMPA also asserted governmental immunity from suit and liability, and it argued
that Johnston had not pleaded any applicable waiver of immunity.
In his response to the plea to the jurisdiction, Johnston stated that TMPA had
initially informed him that it desired to raise the level of the sediment pond
“partially to cover chemically or radioactively contaminated sediment and soil
which was part of TMPA’s lignite mining efforts, but primarily for a beautification
and landscaping program which would increase the land it owns as well as the sale
price of its 723 acres of land surrounding [the sediment pond].” Johnston asserted
that his property would be “inundated and flooded” if TMPA was allowed to
condemn the property and raise the level of the sediment pond. Johnston also
alleged that he began negotiations to purchase the 723-acre tract from TMPA in
spring 2006, but these negotiations were ultimately unsuccessful. In January 2012,
6
TMPA sent Johnston a copy of the Landowners’ Bill of Rights and an initial offer
to purchase and an appraisal of the relevant portion of Johnston’s property.
Johnston contended that he was entitled to injunctive relief because TMPA’s
proposed condemnation of his property exceeded its statutory eminent domain
authority and was “entirely void.” He also argued that a justiciable controversy
existed because, by delivering a condemnation appraisal, initial offer, and a copy
of the Landowners’ Bill of Rights, TMPA had “invoked the condemnation
procedures” of Texas Property Code Chapter 21. He contended that he had the
right to prevent his property “from being inundated and flooded by seeking
injunctive relief.” He further argued that “once it becomes clear that the agency
lacks the discretion to exercise [its] eminent domain authority, the taking claim has
ripened.”
Johnston then filed a supplement to his original petition which stated:
Subject to and without waiving the pleadings and prayer in Plaintiff’s
Original Petition and his Response to Defendant’s Plea to the
Jurisdiction, Plaintiff now asserts that the Defendant “TMPA” has
objected to the Court’s exercise of jurisdiction over the claims
asserted in Plaintiff’s Original Petition and Application for Temporary
and Permanent Injunction (the “Application”) because, as a political
subdivision of the State of Texas, TMPA alleges it enjoys immunity
from suit and that it has not waived such immunity with respect to the
claims asserted in the Application. However, Plaintiff claims in his
Application for equitable relief that such claims are in part based upon
the violation of his constitutional rights under Article I Section 19 and
Article I Section 17 [of the Texas Constitution], whereby the TMPA
has denied or attempted to deny the Plaintiff’s constitutional rights of
property and privileges by denying him due process pursuant to the
7
due course of the law and the taking, damaging and/or destruction of
his real and personal property by fraudulent, illegal and void actions.
Such unconstitutional actions and statutory violations by TMPA are
not protected by either sovereign or governmental immunity and are
specifically subjected to the jurisdiction of this Court and its equitable
authority, since equitable remedies such as injunctive relief are
available to prevent or enjoin constitutional and statutory violations.
The trial court held a hearing on TMPA’s plea to the jurisdiction. As
exhibits, the trial court admitted TMPA’s “no records certificate” from Wanda
Callahan, the April 26, 2012 letter from TMPA’s counsel to Johnston, and the e-
mail from Johnston’s counsel to TMPA’s counsel with Johnston’s original petition
and application for injunctive relief attached. Johnston objected to the admission
of the no-records certificate on the basis of hearsay, but the trial court overruled
this objection. No witnesses testified at this hearing. The trial court denied
TMPA’s plea to the jurisdiction, and this interlocutory appeal followed. See TEX.
CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Vernon Supp. 2012) (allowing
party to take interlocutory appeal from denial of plea to jurisdiction filed by
governmental unit).
Plea to the Jurisdiction
In its first issue, TMPA contends that the trial court erred in denying its plea
to the jurisdiction because Johnston’s petition did not present a justiciable
controversy. In its second issue, TMPA contends that the trial court erred in
8
denying its plea to the jurisdiction because governmental immunity barred
Johnston’s claims.
A. Standard of Review
We review a trial court’s ruling on a plea to the jurisdiction de novo. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
When reviewing a trial court’s ruling on a jurisdictional plea, “we first look to the
pleadings to determine if jurisdiction is proper, construing them liberally in favor
of the plaintiffs and looking to the pleader’s intent,” and “we consider relevant
evidence submitted by the parties when necessary to resolve the jurisdictional
issues raised.” City of Waco v. Kirwan, 298 S.W.3d 618, 621–22 (Tex. 2009). In
considering this jurisdictional evidence, we “take as true all evidence favorable to
the nonmovant” and “indulge every reasonable inference and resolve any doubts in
the nonmovant’s favor.” Id. at 622. We do not adjudicate the substance of the
case but instead determine whether a court has the power to reach the merits of the
claim. City of Houston v. S. Elec. Servs., Inc., 273 S.W.3d 739, 744 (Tex. App.—
Houston [1st Dist.] 2008, pet. denied) (citing Bland Indep. Sch. Dist. v. Blue, 34
S.W.3d 547, 554 (Tex. 2000)). If the pleadings affirmatively negate the existence
of jurisdiction, the plea to the jurisdiction may be granted without allowing the
plaintiff an opportunity to amend his pleadings. Miranda, 133 S.W.3d at 227. If
9
the relevant evidence is undisputed or fails to raise a fact issue as to jurisdiction,
the trial court rules on the plea as a matter of law. Id. at 228.
B. Justiciable Controversy
TMPA contends that no justiciable controversy exists because the dispute
between it and Johnston is not ripe for adjudication.
Ripeness is an element of subject matter jurisdiction. City of Anson v.
Harper, 216 S.W.3d 384, 390 (Tex. App.—Eastland 2006, no pet.) (citing State
Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994)). The basis for the
ripeness doctrine is the separation of powers provision in Article II, section 1 of the
Texas Constitution, which “prohibits courts from issuing advisory opinions
because that function is reserved to the executive branch.” Id. (citing Mayhew v.
Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)).
In considering whether a plaintiff’s claim is ripe, we consider whether, at the
time the lawsuit is filed, the facts are sufficiently developed so that an injury has
occurred or is likely to occur, rather than being contingent or remote. Harris Cnty.
Mun. Util. Dist. No. 156 v. United Somerset Corp., 274 S.W.3d 133, 139 (Tex.
App.—Houston [1st Dist.] 2008, no pet.) (quoting Waco Indep. Sch. Dist. v.
Gibson, 22 S.W.3d 849, 851–52 (Tex. 2000)). A claim is not ripe if it concerns
“uncertain or contingent future events that may not occur as anticipated or may not
occur at all.” Id. (quoting Gibson, 22 S.W.3d at 852). A claim is also not ripe
10
when the determination of whether the plaintiff has a concrete injury depends on
contingent or hypothetical facts or upon events that have yet to come to pass. Id.
The threat of harm can constitute a concrete injury, but this threat must be “direct
and immediate” rather than “conjectural, hypothetical, or remote.” Id. This
concrete-injury requirement thus prevents a claim from being prematurely
adjudicated. City of Austin v. Whittington, 385 S.W.3d 28, 33 (Tex. App.—Austin
2007, no pet.); see also Patterson v. Planned Parenthood of Houston & Se. Tex.,
Inc., 971 S.W.2d 439, 442 (Tex. 1998) (“Ripeness thus focuses on whether the
case involves ‘uncertain or contingent future events that may not occur as
anticipated, or indeed may not occur at all.’ By maintaining this focus, the
ripeness doctrine serves to avoid premature adjudication.”). When determining
whether a claim is ripe, the court must consider not merely whether it can decide
the issue, but whether it should decide the issue. See Whittington, 385 S.W.3d at
33–34.
In City of Anson, the City desired to build a landfill on the surface of
property for which the plaintiff owned the mineral estate, and the Eastland Court of
Appeals addressed whether the plaintiff’s inverse-condemnation claim was ripe
when the City’s landfill permit application was still pending before the Texas
Commission on Environmental Quality (“TCEQ”). See 216 S.W.3d at 389–90.
The court cited two Fifth Circuit cases for the proposition that the controversy was
11
not ripe because “regulatory approval of the landfill was still pending,” and thus
the plaintiffs had not yet suffered any actual damages. Id. at 390 (citing Smith v.
City of Brenham, 865 F.2d 662, 663–64 (5th Cir. 1989) and Monk v. Huston, 340
F.3d 279, 282 (5th Cir. 2003)); see also Hubler v. City of Corpus Christi, 564
S.W.2d 816, 821–22 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.) (“It is
well settled in Texas that future plans which might result in a future taking are
merely ‘future prospects’ and, as such, cannot constitute a present taking. Even the
announcement of a projected public improvement together with preparation of
plans and maps showing the property in question within the limits of the project,
without any interference with the land owner’s use, does not constitute a present
taking.”). The Eastland Court of Appeals reasoned that the TCEQ ultimately may
or may not grant the City’s permit application, and “[u]nless and until the City
receives a permit, it cannot construct or operate a landfill.” City of Anson, 216
S.W.3d at 390. The court concluded that “[w]hat might happen if the City’s permit
application is approved does not present a ripe controversy, and the trial court does
not have jurisdiction to hear a claim based upon future events.” 2 Id.
2
This was not the end of the inquiry in City of Anson because the City had already
done some preliminary construction work on the surface estate of the property.
City of Anson v. Harper, 216 S.W.3d 384, 390 (Tex. App.—Eastland 2006, no
pet.). Therefore, the court had to address whether the trial court properly denied
the City’s plea to the jurisdiction on Harper’s inverse condemnation claim as that
claim related to actions that the City had already taken. Id. at 390–91.
12
TMPA is a municipal power agency created pursuant to Texas Utilities Code
Chapter 163 and is a political subdivision of the State. See TEX. UTIL. CODE ANN.
§ 163.054(c)(2) (Vernon 2007). As a political subdivision, TMPA thus possesses
eminent domain powers, but before TMPA can initiate condemnation proceedings,
it must first authorize the initiation of such proceedings at a public meeting by a
record vote. See TEX. GOV’T CODE ANN. § 2206.053(a)(1) (Vernon Supp. 2012).
Here, TMPA and Johnston have previously engaged in negotiations
regarding both Johnston’s purchase of the property owned by TMPA and TMPA’s
acquisition of easement rights on a portion of Johnston’s property. These
negotiations have not been successful. In an attempt to gain access to Johnston’s
property to conduct surveys and inspections in advance of deciding whether to
exercise its eminent domain powers, TMPA’s counsel sent Johnston a letter on
April 26, 2012, requesting his cooperation in permitting access to the property. In
the letter, TMPA’s counsel stated that if Johnston continued to withhold consent to
the surveys and inspections, it “may have no choice but to avail itself of its legal
remedies,” including injunctive relief to allow entry onto the property, a
declaration that TMPA has the right to enter onto the property, and any permissible
attorney’s fees. TMPA has not filed a condemnation proceeding, and it has not
filed its own application for injunctive relief seeking access to Johnston’s property
for survey purposes. At the hearing on its plea to the jurisdiction, the trial court
13
admitted into evidence a certification from Wanda Callahan, the assistant secretary
of the Board, certifying that the minutes and records of the Board’s meetings
“contain no record of the adoption by the Board of Directors of any motion, order,
or resolution or any other action declaring the existence of a public purpose or
necessity for the filing of a condemnation proceeding to acquire any property
interest owned by Kirk A. Johnston or otherwise authorizing the filing of such a
proceeding.” 3
Johnston cites the Tyler Court of Appeals’ decision in Laird Hill Salt Water
Disposal, Ltd. v. East Texas Salt Water Disposal, Inc., for the proposition that “[i]t
is not necessary for a governing board of a condemnor to have authorized the
condemnation prior to the condemnation petition having been filed.” 351 S.W.3d
81, 89 (Tex. App.—Tyler 2011, pet. denied). This decision, however, predates
Government Code section 2206.053(a), which became effective on September 1,
2011, and which requires a governmental entity to “authorize the initiation of the
condemnation proceeding at a public meeting by a record vote” before filing a
petition under Property Code Chapter 21 to initiate such a proceeding. See TEX.
3
Johnston objected to the admission of the no-records certificate on the ground that
this document constitutes inadmissible hearsay. This document, however, proves
“the nonoccurrence or nonexistence of a matter of which a record, report,
statement, or data compilation, in any form, was regularly made and preserved by
a public office or agency” and thus falls within an exception to the hearsay rule.
See TEX. R. EVID. 803(10); see also id. 902(1) (providing that document of
political subdivision under seal is self-authenticating).
14
GOV’T CODE ANN. §2206.053(a)(1). This section thus imposes a statutory
prerequisite on entities seeking to initiate a condemnation proceeding, and
TMPA’s evidence submitted at the plea to the jurisdiction hearing indicate that this
prerequisite has not yet occurred in this case.
This case is thus analogous to City of Anson, in which the plaintiff sought
damages for inverse condemnation resulting from the planned construction of a
landfill, but the TCEQ had not yet approved the City’s permit to construct the
landfill. See 216 S.W.3d at 390–91. Similarly, here, although TMPA has
indicated its desire to use its eminent domain powers to obtain an easement on a
portion of Johnston’s property, the Board has not yet authorized the initiation of a
condemnation proceeding. Until it so authorizes such a proceeding, TMPA cannot
file a petition initiating condemnation. See TEX. GOV’T CODE ANN.
§ 2206.053(a)(1). Thus, until the Board authorizes the condemnation of Johnston’s
property and TMPA actually files a condemnation proceeding, Johnston has not
suffered a concrete injury. See United Somerset Corp., 274 S.W.3d at 139. For
example, the Board may decide not to pursue the raising of SP-50 and thus it may
decide not to authorize the initiation of a condemnation proceeding. See Tex. Bay
Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 394 (Tex. App.—Fort
Worth 2008, no pet.) (“Because the City has expressly stated that it will not use its
eminent domain power in connection with the Plan, Cherry Hill’s request for a
15
declaration regarding the use of eminent domain in connection with the Plan is not
ripe.”). Or, TMPA and Johnston may enter into renewed negotiations and come to
an agreement that allows TMPA to obtain an easement without resorting to its
eminent domain powers. Thus, it is possible that “uncertain or contingent future
events” may not occur as anticipated or may not occur at all. See United Somerset
Corp., 274 S.W.3d at 139. At the time Johnston filed his original petition and
application for injunctive relief, which is the relevant time period for determining
whether a claim is ripe for adjudication, Johnston’s injury was merely “contingent
or remote.” See id.; see also Gibson, 22 S.W.3d at 852 (“Thus the ripeness
analysis focuses on whether the case involves ‘uncertain or contingent future
events that may not occur as anticipated or may not occur at all.’”).
Johnston also cites the Texas Commission of Appeals’ decision in Lone Star
Gas Co. v. City of Fort Worth, for the proposition that an injunction is the proper
remedy for an “attempt, or threatened attempt, to take private property for public
use by virtue of eminent domain” if the eminent domain proceeding “is for any
reason void.” 98 S.W.2d 799, 801 (Tex. 1936). As TMPA notes, the court in Lone
Star Gas did not address any issue of ripeness, but instead, due to the “importance
of the question to the public at large,” considered the case “as if such threat [by the
City of Fort Worth] to institute the [eminent domain] proceeding still exists and is
imminent.” Id. at 800.
16
Furthermore, in Harris County v. Gordon, the Texas Supreme Court
reversed the intermediate appellate court’s decision to grant a temporary injunction
that prohibited the County from entering Gordon’s property on the ground that
Gordon has “an adequate remedy at law if it is later determined that Harris County
did not have authority to condemn for a fee simple.” 616 S.W.2d 167, 169 (Tex.
1981); In re JDN Real Estate-McKinney L.P., 211 S.W.3d 907, 915–16 (Tex.
App.—Dallas 2006, orig. proceeding) (noting that Property Code section 21.044(a)
allows trial court to award damages to property owner if condemnor did not have
right to condemn property and therefore “this statutory remedy provides a property
owner with an adequate remedy by appeal if it is later determined the condemnor
did not have the authority to condemn the property”).
Likewise, in Texas Bay Cherry Hill, Cherry Hill sought six declarations
relating to the illegality and unconstitutionality of the City’s proposed exercise of
its eminent domain power. 257 S.W.3d at 393–94. The Fort Worth Court of
Appeals, which held that Cherry Hill’s declaratory relief claims were not ripe,
noted that the trial court’s refusal to review these claims “presents no hardship to
Cherry Hill, which can assert its declaratory judgment action if and when the City
does attempt to exercise its eminent domain power.” Id. at 394. Similarly,
Johnston’s claims that TMPA lacked statutory authority to condemn his property
and that TMPA lacked a permissible public use for the property would be more
17
properly heard if and when TMPA exercises its eminent domain power by
initiating a condemnation proceeding.
We therefore conclude that Johnston’s claim for injunctive relief, at this
point, presents an “abstract, hypothetical, and remote dispute” that is not ripe for
adjudication. See id.; see also United Somerset Corp., 274 S.W.3d at 140 (holding
that when “the threatened controversy is not unavoidable,” declaratory judgment
action not ripe for adjudication); City of Anson, 216 S.W.3d at 390 (“What might
happen if the City’s permit application is approved does not present a ripe
controversy . . . .”). We hold that the trial court erroneously denied TMPA’s plea
to the jurisdiction. 4
We sustain TMPA’s first issue.5
4
Johnston also challenges TMPA’s authority to enter onto his property to conduct
surveys and inspections of the property before initiating a condemnation
proceeding. We note that “‘the authority to enter upon the land to make a
preliminary survey’ is considered ‘[a]ncillary’ to the power of eminent domain.”
Occidental Chem. Corp. v. ETC NGL Transport, LLC, 01-11-00536-CV, 2011 WL
2930133, at *4 (Tex. App.—Houston [1st Dist.] July 20, 2011, pet. dism’d)
(quoting I.P. Farms v. Exxon Pipeline Co., 646 S.W.2d 544, 545 (Tex. App.—
Houston [1st Dist.] 1982, no writ)).
5
Because we conclude that this dispute is not ripe for adjudication and thus no
justiciable controversy is presented, we need not address TMPA’s second issue:
whether it waived its governmental immunity from suit for Johnston’s claims. We
note that, generally, governmental immunity “does not shield the State from a
claim based on an unconstitutional taking of property” because “[t]he Texas
Constitution itself waives immunity for the taking, damage, or destruction of
property for public use.” Koch v. Tex. Gen. Land Office, 273 S.W.3d 451, 457
(Tex. App.—Austin 2008, pet. denied) (citing State v. Holland, 221 S.W.3d 639,
643 (Tex. 2007) and Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980));
18
Conclusion
We reverse the order of the trial court and render judgment dismissing
Johnston’s claims against TMPA.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
see also TEX. CONST. art. I, § 17. We also note, however, that “[g]overnment
action does not give rise to a cause of action under article I, section 17, ‘in the
absence of a current, direct restriction on the property’s use.’” Schriver v. Tex.
Dep’t of Transp., 293 S.W.3d 846, 850 (Tex. App.—Fort Worth 2009, no pet.)
(quoting Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992)). Thus, “while
negotiations [for the purchase of the property] are a statutorily-mandated
prerequisite to filing a condemnation action, the mere fact that a governmental
entity engages in such negotiations does not, without more, trigger a waiver of
governmental immunity under article I, section 17.” Id.
19