WINNIE - A week from now, the Institute for Justice will present a question to the U.S. Supreme Court: “May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?”
In 2020, several Chambers County residents filed suit against Texas, alleging that the state’s decision to install a solid concrete traffic barrier in the highway’s median causes flooding on properties along the north side of I-10.
Styled Richard Devillier et al v. State of Texas, the case centers on the state's liability to property owners under the Takings Clause of the Fifth Amendment to the U.S. Constitution.
On its website, IJ writes that Texas can, if it needs to, turn a ranch into a lake, but the Takings Clause says it cannot do so without paying for the land.
“It was true, Texas admitted, that the Takings Clause requires the government to pay for land it takes (which includes land it makes unusable by, say, recurrent flooding),” the post states. “But Congress has never passed a statute commanding Texas to obey the Fifth Amendment—and, at least according to Texas, that means the state doesn’t have to. Amazingly, the 5th U.S. Circuit Court of Appeals agreed. In the wake of the Civil War, Congress adopted a law that allows people to sue cities and individuals who violate their rights, but that law doesn’t say anything about lawsuits against states.
"And that means that, for Texas, paying just compensation is optional. That rule is both dangerous and wrong. True, Congress never passed a law commanding Texas to follow the Constitution, but the Constitution itself commands Texas to follow the Constitution. That is why Richie has teamed up with IJ to ask the United States Supreme Court to clarify that the Constitution isn’t just a good idea—it’s the law. And states have to follow it, even when they don’t want to."
At the center of the issue is Richard DeVillier, who lives on the same patch of Texas land where his father was born – a cattle ranch that has been in his family since his great-grandfather, according to IJ.
“And, for all the time his family has worked this land, it hasn’t flooded,” IJ writes. “There has been rain—outside of Houston, there’s plenty of rain—but water flowed naturally south into the Gulf of Mexico.
“That all changed a few years ago when the Texas Department of Transportation renovated IH-10, the highway that runs just south of Richie’s ranch. The state raised the highway, but it also installed a three-foot-high, watertight concrete barrier all along the middle of it—basically a dam.”
When Hurricane Harvey hit the area in 2017, the dam worked, but DeVillier’s land, along with his neighbors’ land, spent days submerged in feet of water that could not get past the wall in the middle of the highway, causing animals and trees to die, IJ writes.
When Tropical Storm Imelda came a couple years later, the land flooded again.
“There is not an asterisk next to the Fifth Amendment that says the government doesn’t have to pay just compensation if it doesn’t want to,” said IJ Senior Attorney Robert McNamara. “The Supreme Court has repeatedly affirmed Americans’ right to just compensation is an inherent part of the Constitution. It cannot be ignored or circumvented by the government or the courts.”