A Texas landowner can sue the state for flood damage to his property, U.S. Supreme Court rules

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LUFKIN — A Texas landowner may seek compensation from the state for damages to his property east of Houston, the U.S. Supreme Court ruled unanimously Tuesday.

Richie DeVillier, a landowner in Chambers County, sued the state in 2020 after his land repeatedly flooded following changes Texas made to Interstate 10. The original lawsuit argued DeVillier had a right to damages under state law and the U.S. Constitution's Fifth Amendment, which prohibits governments from taking private property for public use without compensation.

Texas officials moved the case to federal courts, then sought to dismiss it, suggested it was not a Fifth Amendment issue. Lower courts disagreed prompting the U.S. Supreme Court to take up the case.

Aaron Lloyd Nielson of the Texas Attorney General’s Office said at oral arguments on Jan. 16 that the state would accept the case if it were updated to reflect only state law.

The Supreme Court determined Texas ought to consider the case under state law, which would permit DeVillier to pursue compensation.

“And, although Texas asserted that proceeding under the state-law cause of action would require an amendment to the complaint, it also assured the Court that it would not oppose any attempt by DeVillier and the other petitioners to seek one,” Justice Clarence Thomas wrote in the opinion.

DeVillier’s lawsuit was representative of 120 other property owners who also faced significant damage during Hurricane Harvey as a result of the barrier.

A lawyer for DeVillier celebrated the ruling and suggested it could have broad implications for the property owners.

“It’s great for our clients, and great – frankly – for the citizens of Texas,” said Dan Charest, of Burns Charest in Dallas.

Charest brought the original lawsuit forward on behalf of DeVillier in 2020 and attended the arguments before the Supreme Court in January. At the very beginning of the case, Charest said he and his team joked it would make its way to the highest court and would end in a win – which is what happened, he said.

Texas’ arguments in January that the issue should be handled by state law were different from those made earlier in the case, when the state argued to have the case remanded to the federal level. This concession and further validation by the U.S. Supreme Court opens the door for any Texan whose property is damaged by the state to pursue relief in state courts, Charest said.

“The limitation on the ruling, though, is that the Supreme Court did not affirmatively state that, that the federal constitution as its own power provides a cause of action,” Charest said.

This means that while this ruling affects Texans and possibly other states with remediation under state law, it does not address whether landowners in states without similar laws can sue on the federal level. This is an issue that will have to be decided at another time, Charest said.

Attorney General Ken Paxton also claimed victory in a statement Tuesday afternoon.

“For as long as Texas has been Texas, it has recognized that property rights are crucial to a free society," Paxton said. "Under the U.S. Constitution, such claims should be pursued under state law unless Congress has said otherwise. I’m pleased the Supreme Court agreed with us unanimously that citizens should sue under Texas law.”

Charest said Paxton’s belief that the Supreme Court decision is a win for his team is demonstrably false. Charest said he would have gladly amended the original lawsuit to under state law had the states suggested that in the first place.

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