DeVillier v. Texas
Tx DOT installed barriers on I10 that flooded private land. Landowners sued for compensation under the 5th Amendment. Paxton stopped the landowners' cases from going forward by initially arguing that the 5th was not self-executing because there is no statutory basis for an action against the state. He then reversed his position, siding with the defendants, when the case reached the Supreme Court.

🚨WIN: Today we secured a unanimous 9-0 win at the U.S. Supreme Court in a case protecting the ability of Texas to handle compensation disputes under State law for any allegedly taken property. 

For as long as Texas has been Texas, it has recognized that property rights are… https://t.co/9XQiDzHw40

— Attorney General Ken Paxton (@KenPaxtonTX) April 16, 2024

Ken, you lost this case. @IJ won it.

You can tell because you asked the Supreme Court to affirm the 5th Cir. ruling below, but the Supreme Court *vacated* the 5th Cir. ruling.

Compare your brief to the Supreme Court’s decision:https://t.co/2Xb69VvMwF pic.twitter.com/yaXBHTj6nW

— Patrick Jaicomo (@pjaicomo) April 16, 2024

THREAD: This “Community Note” is false. It cites as its source a press release from the legal group that lost on the only question before SCOTUS.
⁰SCOTUS agreed with Texas's arguments & ordered the plaintiffs to seek redress through existing state law, which is what Texas urged. https://t.co/8f0jA7hhK9

— Texas Attorney General (@TXAG) April 17, 2024

"If Texas had won today, the Supreme Court would have affirmed [the Fifth Circuit's] ruling. Instead, the Court did the opposite: Today's ruling makes clear that Texas can be sued under the Fifth Amendment and that the claims Texas wanted thrown out will instead go to trial in that same federal district courtin other words, after Texas spent untold amounts of time and taxpayer dollars trying to get Richie's Fifth Amendment claims dismissed, Richie will get to litigate his Fifth Amendment claims. The party that gets what he wants is the party that won. What Texas did is called losing. Only a politician would claim to have won a case he lost."
https://ij.org/press-release/no-texas-did-not-win-at-the-u-s-supreme-court-today/

Except Texas did win. Andrew Wimer is Director of Media Relations for the Petitioners' law firm-a spin doctor. The Petitioners can still sue. They just have to use the Texas cause of action. They were arguing that the Fifth Amendment was self-executing, i.e., it creates its own cause of action. The Petitioners are the ones who lost and are trying to spin it.

The petitioners did exactly what they had to do under Texas law.

Paxton had the case removed to federal courts and filed a motion to dismiss the lawsuit (August 2020) on grounds that it has sovereign immunity on any and all Fifth Amendment claims. Only when the case went before Supreme Court did he change his tune (i.e., no more sovereign immunity arguments) and said Texas law lets the plaintiffs have a cause of action under the Fifth Amendment.

I'm confused by all of the community notes.

Nm. It is confusing.

According to the USSC opinion:

Quote:

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On remand, DeVillier and the other property owners should be permitted to pursue their claims under the Takings Clause through the cause of action available under Texas law.

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That's pretty much what Paxton said in his X post. Which is odd because Texas is the one who removed the case to Federal Court in the first place.

I may be wrong, but it appears Texas tried, once the case was in Federal Court, to assert that a plaintiff had no valid direct claim under the Takings clause and that it must be under 42 USC 1983, which precludes claims against the state (which is kind of stupid since the state is who is responsible for many of those claims, but I digress). I think the USSC sidestepped deciding that issue and sent the whole mess back to state court where it began in the first place.

The Texas argument sounds like circular logic. I don't think this is gaslighting per se, but I do think the AG's office, IF they were the ones involved with the suit from the beginning, isn't telling the whole story.

I have a case against TxDOT before the Texas Supreme Court at this moment. The oral arguments were held on 11/30/23. The decision of the court is expected to be issued any Friday now. In short, TxDOT's employee "contractor" came on to my property and using motorized equipment cut down 22 hundred year old trees that they mistakenly thought were in the highway easement.

We sued in state district court under the tort claims act and as an inverse condemnation. The state claimed/claims they have sovereign immunity since it was a contractor…. we disagree as the "contractor" employee was ultimately paid by the state and directly instructed by another TxDOT employee to remove the trees. The state claims that the incident was not inverse condemnation since they did not intend to take my property….they thought it was in the easement and they had the right to cut them down.

The state district court ruled in our favor on both issues. TxDOT appealed to the circuit court of appeals and the appeals court ruled in TxDOT's favor on the inverse condemnation issue and in our favor on the sovereign immunity issue. Both sides then appealed the respective losing parts of the appeals court decision to the Texas Supreme Court which then agreed to hear the case and address both issues.

A 45 minute video of the oral arguments can be found on YouTube via the Supreme Court website.
Case is 22-585 I believe. The recent ruling by USSC makes this upcoming decision much more interesting. Do the citizens of Texas really have an avenue to be compensated under state law when their property is taken? The state Supreme Court has the opportunity to answer that question here pretty quickly. In fact one of the justices during the oral arguments stated that if there is no way for the state to compensate us for the taking/damages, then their may be a constitutional issue.

So over 70 individuals and four limited liability companies have their time and resources wasted over the last 4 years. USSC didn't even decide whether the 5th is self-executing. Such a bs waste of time and money for them and Texas taxpayers. This is why people hate lawyers.

Paxton's response appears to be a classic case of moving the goalposts.


There is plenty of receipts here outlined in the district court's memorandum which details the state's arguments at that time. The plaintiffs were arguing they had claims under both the US and Texas constitutions. Paxton wanted everything dismissed.
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https://storage.courtlistener.com/recap/gov.uscourts.txsd.1784191/gov.uscourts.txsd.1784191.50.0.pdf

Quote:

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In its motion to dismiss, the State argues that Plaintiffs' federal inverse condemnation claim should be dismissed for a number of independent reasons. First, the State contends that Plaintiffs' federal takings claim cannot be brought directly under the Fifth Amendment, but rather must be brought under 42 U.S.C. 1983. According to the State, this dooms Plaintiffs' federal takings claim because 1983 claims cannot be brought against a state actor. Second, the State argues that Plaintiffs' federal claims are barred by the applicable statute of limitations. Third, the State insists that Plaintiffs have failed to properly plead a valid federal inverse condemnation claim. I address each argument separately.

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Quote:

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The State also argues that Plaintiffs have failed to state a valid takings claim under Article I, Section 17 of the Texas Constitution. Specifically, the State avers that Plaintiffs' state constitutional takings claim fails as a matter of law because (1) they "cannot point to such evidence . . . that [the Texas Department of Transportation] knew the concrete barrier would create a dam-effect and flood property;" (2) they "failed to plead (and cannot plead) how the State made conscious decisions to release water onto their properties;" and (3) "Plaintiffs lack the pleadings to show the State's knowledge and decision-making showed it knew Plaintiffs' property would flood." Dkt. 46 at 78. I completely disagree.

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Now, somehow Paxton is cheering that the plaintiffs have an avenue under the same Texas laws he wanted the case dismissed under.


Though, if Paxton really gives a damn about individual property rights, the only possible argument centers around the value lost, rather than the state's liability in the first place. Instead, he puts them through 4 years of litigation at a huge cost for everyone.

HarleySpoon said:

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I have a case against TxDOT before the Texas Supreme Court at this moment. The oral arguments were held on 11/30/23. The decision of the court is expected to be issued any Friday now. In short, TxDOT's employee "contractor" came on to my property and using motorized equipment cut down 22 hundred year old trees that they mistakenly thought were in the highway easement.

We sued in state district court under the tort claims act and as an inverse condemnation. The state claimed/claims they have sovereign immunity since it was a contractor…. we disagree as the "contractor" employee was ultimately paid by the state and directly instructed by another TxDOT employee to remove the trees. The state claims that the incident was not inverse condemnation since they did not intend to take my property….they thought it was in the easement and they had the right to cut them down.

The state district court ruled in our favor on both issues. TxDOT appealed to the circuit court of appeals and the appeals court ruled in TxDOT's favor on the inverse condemnation issue and in our favor on the sovereign immunity issue. Both sides then appealed the respective losing parts of the appeals court decision to the Texas Supreme Court which then agreed to hear the case and address both issues.

A 45 minute video of the oral arguments can be found on YouTube via the Supreme Court website.
Case is 22-585 I believe. The recent ruling by USSC makes this upcoming decision much more interesting. Do the citizens of Texas really have an avenue to be compensated under state law when their property is taken? The state Supreme Court has the opportunity to answer that question here pretty quickly. In fact one of the justices during the oral arguments stated that if there is no way for the state to compensate us for the taking/damages, then their may be a constitutional issue.

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I watched the arguments of this case and it is very interesting. Paxton's solicitor general gamely tried to argue that the landowners should have no remedy against the state, but the justices seemed rather skeptical. Worth checking out if you are interested in this subject.

For a guy that does real estate law, hearing the solicitor general argue that the State of Texas doesn't know who owns land, and was, in essence, mislead by the property owner removing the fence, was hilarious. So, according to the AG's office, constructive notice doesn't apply to the state.