Supreme Court of Texas

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No. 21-1008

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Gabriel Rodriguez and Irene Rodriguez,

Petitioners,

v.

City of Robinson, Texas, 

Respondent

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On Petition for Review from the

Court of Appeals for the Tenth District of Texas

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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 
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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 
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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 
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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