Full Opinion (html_with_citations)

          Supreme Court of Texas
                             ══════════
                              No. 21-1008
                             ══════════

               Gabriel Rodriguez and Irene Rodriguez,
                               Petitioners,

                                    v.

                        City of Robinson, Texas,
                               Respondent

   ═══════════════════════════════════════
               On Petition for Review from the
       Court of Appeals for the Tenth District of Texas
   ═══════════════════════════════════════

      JUSTICE BUSBY, joined by Justice Lehrmann, concurring in the
denial of the petition for review.

      The Rodriguez family sued the City of Robinson for inverse
condemnation after the city’s sewer system backed up repeatedly,
damaging their home. I agree with the court of appeals’ judgment that
the Rodriguezes failed to allege a viable claim for inverse condemnation,
and thus the city was entitled to dismissal on its plea to the jurisdiction.
But not all of our precedents have been clear about the reasons why that
conclusion is correct in this case. I write not to criticize the court of
appeals, therefore, but to explain why it is important for courts hearing
suits for property damage caused by public works to analyze two
questions separately: whether the government (1) engaged in
affirmative conduct and (2) did so with the required intent.
      “The protection of one’s right to own property is said to be one of
the most important purposes of government.          That right has been
described as fundamental, natural, inherent, inalienable, not derived
from the legislature and as preexisting even constitutions.” Eggemeyer
v. Eggemeyer,
554 S.W.2d 137, 140
 (Tex. 1977). The Texas Constitution
helps to ensure that government fulfills this purpose by providing a
robust right to compensation—and waiver of immunity—if a person’s
property is “taken, damaged, or destroyed for or applied to public use.”
TEX. CONST. art. I, § 17(a); see Steele v. City of Houston,
603 S.W.2d 786, 791
 (Tex. 1980).
      “When the government takes private property without first
paying   for   it,   the   owner   may   recover   damages     for   inverse
condemnation.” Tarrant Reg’l Water Dist. v. Gragg,
151 S.W.3d 546, 554
(Tex. 2004). The elements of a claim for inverse condemnation are that
(1) the government intentionally performed certain acts (2) that resulted
in taking, damaging, or destroying the property for, or applying it to,
(3) public use. See, e.g., Gen. Servs. Comm’n v. Little-Tex Insulation Co.,
39 S.W.3d 591, 598
 (Tex. 2001).
      “[W]e have sought objective indicia of intent in particular contexts
to determine whether property has been taken or damaged in
furtherance of the public interest.” Gragg,
151 S.W.3d at 555
. This case
presents one such context: the government’s conduct is not itself a
taking, damaging, or destruction of property, but a property owner
alleges that the government is responsible for eventually causing such




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harm. See City of Dallas v. Jennings,
142 S.W.3d 310, 313
 (Tex. 2004).
In that context, a property owner suing for such compensation must
show that the government (1) engaged in an affirmative act or course of
conduct that resulted in the taking, damaging, destruction, or
application of property; and (2) did so with the necessary intent—that
is, with knowledge that either (a) the conduct is causing identifiable
harm or (b) specific property damage is substantially certain to result.
See Harris Cnty. Flood Control Dist. v. Kerr,
499 S.W.3d 793, 799-800
(Tex. 2016); Jennings,
142 S.W.3d at 314
. These requirements ensure
that the damage occurred for “public use” because the government was
aware of the harm “and yet determine[d] that the benefit to the public
outweigh[ed]” it. Jennings,
142 S.W.3d at 314
; see also Kerr,
499 S.W.3d at 806-07
. They also help to draw the line between negligence claims
against the government—which are generally barred by immunity
unless a waiver applies—and takings. See Gragg,
151 S.W.3d at 554
.
      A substantial body of this Court’s precedent uses these
requirements to distinguish cases in which a taking “results from either
the construction of public works or their subsequent maintenance and
operation” from cases in which the government’s conduct is “mere
negligence which eventually contributes to the destruction of property”
but does not constitute a taking. City of Tyler v. Likes,
962 S.W.2d 489, 505
 (Tex. 1997). Although I agree with the ultimate holding of the
majority in the court of appeals that the allegations in this case fall into
the latter category, analyzing the affirmative conduct and intent
requirements separately points the way to the correct reason for that
conclusion.   I explain below what our precedent requires owners to




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allege and ultimately prove in cases seeking compensation for property
damage resulting from public works. In addition, I write to emphasize
that courts should first identify the affirmative conduct in question (if
any) before examining whether the government engaged in it with the
required intent.
         Less than ten years after our present Constitution was written,
we held that the broadening of our Takings Clause to cover “damaged”
property “was doubtless intended to meet all cases in which, even in the
proper prosecution of a public work or purpose, the right or property of
any person, in a pecuniary way, may be injuriously affected . . . or its
use by the owner restricted by the public use to which it is wholly or
partially applied.” Gulf, Colo. & Santa Fe Ry. v. Fuller,
63 Tex. 467, 469
(1885); see Gulf, Colo. & Santa Fe R.R. v. Eddins,
60 Tex. 656, 661-63
(1884). 1 Thus, “[i]f by the construction of a railway or other public work
an injury peculiar to a given property be inflicted upon it”—“that
is, . . . an injury[] not suffered . . . only in common with other property
or rights in the same community or section”—“then such property may
be said to be damaged.” Fuller,
63 Tex. at 470
. And just a few years
later,    we   observed     that   the   Takings     Clause    “is   sufficiently
comprehensive to include damages resulting from the operation of public
works, as well as those which are inflicted by their construction merely.”
Gainesville, H. & W. R. Co. v. Hall,
14 S.W. 259, 261
 (Tex. 1890); see also
Likes,
962 S.W.2d at 504-05
.



         1 See also Jim Olive Photography v. Univ. of Hous. Sys.,
624 S.W.3d 764
,

780-81 (Busby, J., concurring) (collecting cases); Steele,
603 S.W.2d at 790
(same).




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         These principles apply to government-owned as well as
government-authorized public works, including those involving public
water and sewer projects. To that end, we recognized over one hundred
years ago that if a city “sewerage plant could not be constructed and
operated, however compelling the necessity for it, without doing injury
to the property of a citizen, then the city, the aggregate of the
citizenship, must stand the loss . . . [and] compensate the citizen for the
damage he has suffered.” Brewster v. City of Forney,
223 S.W. 175, 176
(Tex. 1920).     Damages recoverable under the Takings Clause may
include, among other things, injury to the private property’s physical
condition as well as personal discomfort and annoyance to its occupants
that rises to the level of a nuisance and therefore reduces the property’s
value.    City of Abilene v. Downs,
367 S.W.2d 153, 158
 (Tex. 1963);
Brewster,
223 S.W. at 176-77
.
         Illustrating the application of these principles, we held in
Jennings that a sewage backup into a home was not a compensable
damaging of property. Although that backup resulted from the city’s
maintenance action in clearing a clogged sewer main, there was no
intent evidence that the city knew when it unclogged the line that any
flooding damage would occur or that unclogging backups ordinarily
causes residential flooding. Jennings,
142 S.W.3d at 312, 315
.
         Similarly, we have explained that “the mere intentional operation
of a sewer system is insufficient to support” a claim of inverse
condemnation for a sewage backup. City of Arlington v. State Farm
Lloyds,
145 S.W.3d 165, 168
 (Tex. 2004).        But the reason for this
conclusion does not lie in the affirmative conduct requirement; the cases




                                     5
just discussed demonstrate that dedicating resources to the construction
or operation of an authorized public work can be a course of conduct that
satisfies the requirement.     Rather, the reason is that the intent
requirement additionally demands allegations and ultimately proof that
the government knows its conduct is causing—or is substantially certain
to cause—identifiable damage.       See
id.
 (concluding “there was no
evidence the City possessed such knowledge”).
      On the other hand, we held in Gragg that recurring flood damage
to a ranch was compensable because it resulted from the “operation as
intended” of a water district’s reservoir upstream, which repeatedly
opened its gates to release large volumes of water during periods of
heavy rain due to its limited storage capacity.
151 S.W.3d at 555-56
.
We explained that “[i]n the case of flood-water impacts, recurrence is a
probative factor in determining the extent of the taking and whether it
is necessarily incident to authorized government activity, and therefore
substantially certain to occur.”
Id. at 555
.
      Applying this precedent here shows that the Rodriguez
petitioners did not plead a viable claim for inverse condemnation,
though not for the reasons identified by the court of appeals.        The
Rodriguezes alleged that the city’s sewer backed up into their home on
two occasions due to stoppages in the city’s line and that the city “failed
to address the stoppage.” They also alleged that their home had sewage
backups on other occasions because the city “fail[ed] to construct and
maintain its sewer system” to prevent them. The Rodriguezes’ brief in
this Court confirms that this is their theory: “lack of maintenance over
the years by the City caused sewage to back up into [their] home.” They




                                    6
have not alleged that the operation of the city’s sewer system as
intended produces backups.
      Because these allegations concern nonfeasance by the city in
failing to clear stoppages and maintain the sewer system, they do not
meet the first required element: an affirmative act or course of conduct
that results in property damage. That is a sufficient basis on which to
render judgment granting the city’s plea to the jurisdiction and
dismissing the Rodriguezes’ claim for inverse condemnation, as the
court of appeals did.
      At one point in its opinion, the majority in the court of appeals
appears to combine the affirmative conduct and intent requirements to
conclude that the Rodriguezes “do not identify a specific, intentional,
governmental act.” No. 10-21-00075-CV,
2021 WL 4595743
, at *4 (Tex.
App.—Waco Oct. 6, 2021).          But the court did not address the
Rodriguezes’ allegations regarding intent. They allege, for example,
that the city “had actual knowledge at all times during the construction
of the sewer system and maintenance thereof that [the Rodriguezes’]
property would be severely damaged unless the situation was
eliminated by [the city].” And they specifically allege that the city “has
advised [the Rodriguezes] that it has been working to fix the sewer
situation but has failed to do so.”
      These allegations certainly speak to the city’s knowledge that
specific property damage is substantially certain to result. Thus, the
problem with the allegations is not that they fail “to show the requisite
intent for a takings claim,” as the majority suggested.
Id.
 Rather, it is




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that they are based on an alleged “situation” that does not meet the
affirmative conduct requirement for the reasons I have described.
      To avoid this sort of confusion, courts can begin their analysis of
a claim for damage caused by public works with the affirmative conduct
requirement: examining whether there are allegations of an affirmative
act or course of conduct that resulted in property damage.         If this
requirement is not met, then the claim for inverse condemnation fails.
If it is met, then the court can go on to consider the intent requirement:
whether there are allegations that the government knows the
affirmative act or conduct just identified is causing—or is substantially
certain to cause—identifiable property damage.
      Because the Rodriguezes failed to allege a claim for inverse
condemnation at the first step, the court of appeals properly rendered
judgment dismissing their claim. I therefore concur in the denial of their
petition for review.




                                        J. Brett Busby
                                        Justice

OPINION FILED: December 22, 2023




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