EMINENT DOMAIN

Recent Appeals from Takings
Condemnation Cases Decided by the
Houston Courts of Appeals

Houston Opinions
RECENT TAKINGS CASES FROM THE
TEXAS SUPREME COURT

FKM Partnership, Ltd. v. Bd. of Regents of Univ. of
Houston System, No. 05-0661 (Tex. Jun 6, 2008)
(Phil Johnson) (condemnation, implications of
reduction of amount of land to be taken on land
owner's recovery of fees, partial nonsuit)
PR Investments and Special Retailers, Inc. v. Texas,
No. 04-0431  (Tex. Feb. 15, 2008)(Justice Willett)
(condemnation proceeding, effect of change in
plans for condemned property,jurisdiction of trial
court)
Canyon Regional Water Authority v. Guadalupe-
Blanco River Authority, No. 06-0873 (Tex. May 16,
2008) (Opinion by
Justice Paul Green)
(intergovernmental dispute over easement for water
extraction from lake, condemnation power)
AIC Management v. Crews, No. 05-0270 (Tex. Jan
25, 2008)(
O’Neill) (condemnation, sufficiency of
legal description, UDJA, jurisdiction of
Harris County
Civil Courts at Law) from Harris County; 1st district
(
01-03 01178-CV, ___ S.W.3d ___, 02-03-2005) (Opinion of
the First Court of Appeals - by Higley)
The Court reverses the court of appeals' judgment and
remands the case to the trial court.
Justice O'Neill delivered the opinion of the Court.
Justice
Willett filed a concurring opinion.
City of San Antonio v. TPLP Office Park Properties,
218 S.W.3d 60 (Tex. 2007)
Terms: condemnation | inverse condemnation claim | eminent domain | taking | compensation |
taking of private property for public use | condemnation suit | proceeding | eminent domain power
Inverse Condemnation
To recover on an inverse condemnation claim, a property owner must establish that (1) the State or other
governmental entity intentionally performed certain acts, (2) resulting in the taking, damaging, or destruction of its
property, (3) for public use.  Whether particular facts are enough to constitute a taking is a question of law.

Synopsis of taking by eminent domain and claim for compensation:

A governmental unit exercises its power of eminent domain through the process referred to as condemnation.
See City of Houston v. Boyle, 148 S.W.3d 171, 178 (Tex. App. -- Houston [1st Dist.] 2004, no pet.). Condemnation
is the procedure by which the sovereign exercises its right to take property of a private owner for public use,
without consent, upon the payment of just compensation. Id.; A.C. Aukerman Co. v. State, 902 S.W.2d 576, 578
(Tex. App.--Houston [1st Dist.] 1995, writ denied). "Inverse condemnation occurs when (1) a property owner seeks
(2) compensation for (3) property taken for public use (4) without process or a proper condemnation proceeding."
Boyle, 148 S.W.3d at 178; A.C. Aukerman Co., 902 S.W.2d at 577.

A landowner whose property has been taken, damaged, destroyed for, or applied to public use without adequate
compensation may bring an inverse condemnation claim pursuant to article I, section 17 of the Texas
Constitution. Boyle, 148 S.W.3d at 177. The constitution provides in part, "No person's property shall be taken,
damaged or destroyed for or applied to public use without adequate compensation being made, unless by the
consent of such person. . . ." Tex. Const. art. I, § 17; Boyle, 148 S.W.3d at 177; see also Tex. Parks & Wildlife Dep't
v. Callaway, 971 S.W.2d 145, 148 (Tex. App.-- Austin 1998, no pet.) ("An 'inverse condemnation' proceeding is the
avenue of relief available when property has been taken or damaged for public use without compensation or a
proper condemnation proceeding, and the property owner wishes to recover compensation for his loss."). The
Texas Constitution therefore waives governmental immunity from suit and liability "for the taking, damaging or
destruction of property for public use." Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980); Boyle, 148
S.W.3d at 177. "To demonstrate that a constitutional inverse condemnation has occurred, the landowner must
show that (1) the State intentionally performed certain acts in the exercise of its lawful authority (2) that resulted in
a 'taking' of property (3) for public use." Boyle, 148 S.W.3d at 177; see also Steele, 603 S.W.2d at 791-92; City of
Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 308 (Tex. App.- Houston [1st Dist.] 2001, pet. denied).
To be compensated for impairment of access, a landowner must prove he suffered a material and substantial
impairment of access to his land. State v. Heal, 917 S.W.2d 6, 10 (Tex. 1996); see also City of Waco v. Texland,
446 S.W.2d 1, 2 (Tex. 1969). In order to show material and substantial impairment, the property owner must
establish (1) a total temporary restriction of access, (2) a partial permanent restriction of access, or (3) a partial
temporary restriction of access due to illegal or negligent activity. State v. Schmidt, 867 S.W.2d 769, 775 (Tex.
1993); City of Austin v. Avenue Corp., 704 S.W.2d 11, 13 (Tex. 1986). The "material and substantial test"
acknowledges situations in which the access for which the property was specifically intended is rendered
unreasonably deficient even though normal access remains reasonably available. Heal, 917 S.W.2d at 10.

Source: Burris and Wheelchair & Scooter Express, LLC v. Metro of Harris County (Tex.App.-
Houston [1st Dist.] Aug. 14, 2008)(Keyes) (inverse condemnation case, taking, ingress easement)
AFFIRM TC JUDGMENT: Opinion by
Justice Keyes  
Before Justices Taft, Keyes and Alcala
01-06-00981-CV James R. Burris and Wheelchair & Scooter Express, L.L.C. v. Metropolitan
Transit Authority
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge:
Hon. Jack Cagle  
In this inverse condemnation suit, appellants, James R. Burris and Wheelchair & Scooter Express,
L.L.C., ("WSE") appeal the trial court's order that granted summary judgment in favor of appellee,
Metropolitan Transit Authority of Harris County, Texas ("METRO").
Because appellants still retain full access to the Property from San Jacinto via Wichita, as well as
egress onto San Jacinto, we conclude that closure of appellants' entrance off of San Jacinto did
not amount to a material and substantial impairment. ... appellants' claims are not compensable.

EMINENT DOMAIN / INVERSE CONDEMNATION APPEALS
FROM HOUSTON COURTS OF APPEALS

Speedy Stop Food Stores, Ltd v. Reid Road Municipal Utility District No. 2 (Tex.App.- Houston
[14th Dist.] Feb. 3, 2009)(Frost)(condemnation case, testimony as to value of easement)
REVERSED AND REMANDED: Opinion by Justice Frost  
Before Justices Frost, Seymore and Guzman
14-07-00225-CV        Speedy Stop Food Stores, Ltd. v. Reid Road Municipal Utility District No. 2
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Roberta Anne Lloyd  
Dissenting Opinion by Justice Seymore  

The State of Texas, City of Rosenberg v. Bhalesha (Tex.App.- Houston [14th Dist.] Nov. 6,
2008)(Yates)(inverse condemnation,
material and substantial impairment standard not satisfied,
no compensable taking;  order denying plea to the jurisdiction reversed)
REVERSED AND RENDERED: Opinion by
Justice Brock Yates  
Before Justices Brock Yates, Anderson and Brown
14-08-00098-CV The State of Texas and The City of Rosenberg, Texas v. Badruddin Bhalesha,
and Samina Bhalesha--Appeal from 400th District Court of Fort Bend County
Trial Court Judge: Clifford J. Vacek

State of Texas v. Clear Channel Outdoor (Tex.App.- Houston [1st Dist.] Sep. 11, 2008)(Bland)
(inverse condemnation, state's plea to the jurisdiction overruled)
AFFIRM TC JUDGMENT: Opinion by
Justice Bland  
Before Justices Taft, Jennings and Bland
01-07-00353-CV        The State of Texas v. Clear Channel Outdoor, Inc.
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court
Judge:  Hon. Jack Cagle

SWBT v. Harris County (Tex.App. - Houston [1st Dist.] Aug. 26, 2008)(Yates)
(
inverse condemnation claim, utility easement, compensable taking, jurisdiction of Harris County
county courts, order granting plea to the jurisdiction reversed)
REVERSED AND REMANDED: Opinion by Justice Brock Yates  
Before Justices Brock Yates, Anderson and Brown)
14-07-00401-CV        Southwestern Bell Telephone, L.P v. Harris County
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judges:
Jacqueline Lucci-Smith | Gary Block

State of Texas v. Clear Channel Outdoor (Tex.App.- Houston [14th Dist.] July 31, 2008)(Frost)
(eminent domain, inverse condemnation, plea to the jurisdiction overruled)
AFFIRMED: Opinion by Justice Frost  
Before Justices Fowler, Frost and Seymore
14-07-00369-CV   The State of Texas v. Clear Channel Outdoor, Inc.
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge:  Ed Landry    

Harris County Hospital District v. Textac Partners I (Tex. App.- Houston [14th Dist.] May 1, 2008)
(Fowler) (eminent domain, condemnation)
REVERSED AND REMANDED: Opinion by Justice Fowler  
Before Justices Hudson, Fowler and Guzman
14-06-00437-CV Harris County Hospital District v. Textac Partners I, A Texas General
Partnership, Houston ISD, Houston Community College,
City of Houston, and Harris County
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Judge Gary Michael Block  

Harris County v. Clear Channel Outdoor, Inc. (Tex.App.- Houston [14th Dist.] Apr. 29,
2008)(Anderson) (condemnation of billboard, takings claim)
AFFIRMED: Opinion by Justice Anderson  
Before Justices Anderson and Boyce, Senior Justice Murphy
14-07-00226-CV Harris County, Texas v. Clear Channel Outdoor, Inc.
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Judge Gary Michael Block  
("We hold appellant, by forcing appellee to remove its billboard as part of the road project, took
appellee's private property thus entitling appellee to just compensation for the loss of that private
property.  Accordingly, we overrule appellant's single issue on appeal and affirm the judgment of
the trial court.")

Harris County Flood Control District v. Roberts (Tex.App.- Houston [14th Dist.] Apr. 3,
2008)(Frost) (
eminent domain, condemnation, billboard, leasehold interest, compensation, 5th
Amendment)
AFFIRMED: Opinion by Justice Frost
14-06-00696-CV Harris County Flood Control District v. Roger Roberts, City of Houston, Jessie R.
Lay and Unknown Oners, State of Texas, American Residential Service, Inc., Leasecomm
Corporation, Abbott Laboratories, Inc., Harris County, Texas, Houston Community College
System, Houston Independent School District
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge:
Judge Gary Michael Block

Maguire Oil Company et al v. The City of Houston (Tex.App. - Houston [14th Dist.] Jul. 24,
2007)(Seymore)(plea to the jurisdiction, ripeness, condemnation, takings claim)
Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Seymore and Guzman
14-05-01272-CV Maguire Oil Company Et Al v.
The City of Houston
Appeal from Co Civil Ct at Law No 4 of Harris County
(
Judge Roberta Anne Lloyd) - Reversed and Remanded

The State of Texas v. Fiesta Mart, Inc (Tex.App.- Houston [14th Dist.] Jul. 3, 2007)(Hudson)
(plea to the jurisdiction, condemnation)
AFFIRMED: Opinion by Justice Hudson
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-00826-CV The State of Texas v. Fiesta Mart, Inc.
Appeal from County Civil Court at Law No 3 of Harris County (
Judge Lynn M. Bradshaw-Hull)

Fort Bend County, Texas v. The Burlington Northern & Santa Fe Railway Company (Tex.App.-
Houston [14th Dist.] Jun. 21, 2007(Hudson)(condemnation, reimbursement, plea to the jurisdiction)

Motiva Enterprises LLC v. McCrabb (Tex.App.- Houston [1st Dist.] May 17, 2007)(Jennings)
(condemnation)
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Nuchia, Jennings and Higley
01-06-00701-CV Motiva Enterprises, LLC v. Audeen McCrabb, Norma Ann Euton, Connie
Mendez, Tom Mendez, Kirk McCrabb, Kathy McCrabb, Scott McCrabb, Sarah McCrabb, Joseph
McCrabb and Rebecca McCrabb--Appeal from County Civil Court at Law No 4 of Harris County
(
Hon. Judge Roberta A. Lloyd)

Howeth Investments Inc. v. City of Hedwig Village (Tex.App.- Houston [1st Dist.] Feb. 22,
2007)(Taft) (
real estate development law, plat application, failure to approve plats, regulatory
takings claim, reservation of federal claims)
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Taft
(Before Justices Taft, Alcala and Hanks)
01-05-00118-CV        Howeth Investments Inc., et al v. The City of Hedwig Village, et al.
Appeal from County Civil Court at Law No 1 of Harris County (
Hon. R. Jack Cagle)

State of Texas v. Reina (Tex.App.- Houston [14th Dist.] Feb. 20, 2007)(Frost)
(condemnation proceeding)
AFFIRMED: Opinion by Justice Frost
Before Justices Anderson, Edelman and Frost
14-05-00080-CV The State of Texas v. Teri N. Reina, James D. Reina and Catherine L. Danna
Appeal from County Civil Court at Law No 1 of Harris County (
R. Jack Cagle)

TH Investments Inc. v. Kirby Inland Marine LP (Tex.App.- Houston [14th Dist.] Feb. 1,
2007)(Fowler) (
land dispute, real property, river, tides, taking, takings claim)
AFFIRMED: Opinion by Justice Fowler
Before Justices Hudson, Fowler and Seymore
14-05-00204-CV        TH Investments Inc v. Kirby Inland Marine L.P.
Appeal from 269th District Court of Harris County (
Judge John Thomas Wooldridge)
Old Harris County Civil Courthouse
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