Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-22-00589-CV

Renee Kirchoff CHAPA, in her official capacity as County Commissioner of Jim Wells County, 

Texas; and Jim Wells County, Texas,

Appellants

v.

WYATT RANCHES OF TEXAS, LLC,

Appellee

From the County Court, Jim Wells County, Texas

Trial Court No. 22-04-61861-CV

Honorable Michael Ventura Garcia, Judge Presiding

Opinion by: Lori I. Valenzuela, Justice

Sitting: Patricia O. Alvarez, Justice

Irene Rios, Justice

Lori I. Valenzuela, Justice

Delivered and Filed: May 10, 2023

AFFIRMED IN PART; REVERSED AND RENDERED IN PART

In the underlying lawsuit, appellee, Wyatt Ranches of Texas, LLC (“Wyatt Ranches”), 

alleged various causes of action against appellants who, in turn, filed a plea to the jurisdiction. 

Renee Kirchoff Chapa, in her official capacity as County Commissioner of Jim Wells County, 

Texas; and Jim Wells County, Texas (collectively, “appellants”), appeal from the trial court’s 

denial of their plea to the jurisdiction. We affirm the trial court’s order denying appellants’ plea 

to the jurisdiction based on Wyatt Ranches’ negligence claim, reverse the trial court’s order 

denying appellants’ plea to the jurisdiction based on Wyatt Ranches’ trespass and inverse
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condemnation claims, and render judgment dismissing Wyatt Ranches’ trespass and inverse

condemnation claims.

BACKGROUND1

Wyatt Ranches owns real property in Jim Wells County, Texas, located along County Road 

352. The property is known as the Perez Ranch. Chapa is a Jim Wells County Commissioner who 

supervises and directs county employees in her precinct to conduct certain operations. These 

operations include, but are not limited to, maintaining public roadways and clearing brush or tree

limbs on county rights-of-way that might cause an obstruction to passing motorists. Oftentimes 

(as in this case), motor-driven equipment is used to cut and clear the brush. Additionally, hydraulic 

grapplers, trucks, and trailers are used to cut down, destroy, and haul off the remnants of the brush 

and trees.

On or about December 21, 2021, Chapa directed county employees under her control and 

command to cut down forty-nine trees located on the Perez Ranch. To accomplish this, the county 

employees left the public right-of-way and entered onto the Perez Ranch and proceeded to cut 

down and remove trees located entirely on ranch property. Also destroyed were trees that were 

partially located on the property and five outdoor waterproof security cameras positioned in the 

trees. Wyatt Ranches contended none of the destroyed trees obstructed or otherwise impeded the 

public right-of-way. 

Wyatt Ranches alleged the destruction of the trees was done without notice or consent and 

Chapa never contacted the landowner to confirm or identify which trees were on private property 

and which trees were on the right-of-way before cutting down the forty-nine trees. Wyatt Ranches 

argued the destruction and removal of the trees was accomplished with motor-driven equipment, 

1 The background facts are taken from Wyatt Ranches’ first amended petition.
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including but not limited to, motor-driven chain saws, hydraulic grapplers, trucks, and trailers, all 

of which were operated by employees of Jim Wells County and/or at Chapa’s direction. 

Wyatt Ranches sued appellants for trespass to real property and negligence and gross 

negligence. Wyatt Ranches sued Jim Wells County for inverse condemnation. Finally, Wyatt 

Ranches alleged claims under the Texas Tort Claims Act (the “TTCA”). Appellants filed a joint 

plea to the jurisdiction asserting immunity was not waived under the TTCA and that Wyatt 

Ranches’ pleadings do not support a constitutional inverse condemnation claim. Various 

responses and replies were filed. The trial court conducted a hearing, and later signed an order 

denying appellants’ plea to the jurisdiction. This accelerated appeal ensued.

GOVERNMENTAL IMMUNITY UNDER THE TTCA

On appeal, appellants argue the TTCA does not waive their immunity from Wyatt Ranches’ 

tort claims for two reasons. First, appellants note that the TTCA’s immunity-waiver provision

requires any property damage to “arise” from “the operation or use of a motor-driven vehicle or 

motor-driven equipment.” See TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A). Appellants

contend the County’s use of motor-driven equipment was merely ‘incidental,” and the “gravamen”

of Wyatt Ranches’ complaint was a negligent failure “to confirm or identify which trees were on 

private property and which trees were on the right-of-way” of the county road. Second, appellants 

contend the facts alleged by Wyatt Ranches amount to a trespass—a tort that falls within the 

TTCA’s intentional-tort exclusion. See id. § 101.057. 

A. Standard of Review

Sovereign immunity protects the State of Texas and its agencies and subdivisions from suit 

and from liability. PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296, 301 (Tex. 2019). 

“[G]overnmental immunity provides similar protection to the political subdivisions of the state, 

such as counties, cities, and school districts.” Harris Cnty. v. Annab, 547 S.W.3d 609, 612 (Tex. 
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2018). The TTCA waives immunity when the plaintiff states a claim for conduct that violates the 

statute. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). “A 

jurisdictional plea may challenge the pleadings, the existence of jurisdictional facts, or both.” Id. 

When, as here, a jurisdictional plea challenges the pleadings, we determine if the plaintiff alleged

facts affirmatively demonstrating subject-matter jurisdiction. Tex. Dep’t of Parks & Wildlife v. 

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the pleadings liberally in favor of the 

plaintiff and look to the pleader’s intent. Id. “Where the pleadings generate a ‘fact question 

regarding the jurisdictional issue,’ a court cannot sustain the plea to the jurisdiction.” Ryder 

Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 927 (Tex. 2015).

“If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s 

jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one 

of pleading sufficiency and the plaintiff[] should be afforded the opportunity to amend.” Miranda, 

133 S.W.3d at 226-27. “If the pleadings affirmatively negate the existence of jurisdiction, then a 

plea to the jurisdiction may be granted without allowing the plaintiff[] an opportunity to amend.” 

Id. at 227. Thus, to defeat a plea to the jurisdiction, the plaintiff suing the governmental entity or 

its officers must plead facts that, if true, “affirmatively demonstrate” that governmental immunity 

either does not apply or has been waived. Id. at 226. Whether a court has subject-matter 

jurisdiction is a question of law we review de novo. Id.

B. County’s Use of Motor-Driven Equipment

A governmental unit is liable for:

(1) property damage, personal injury, and death proximately caused by the 

wrongful act or omission or the negligence of an employee acting within his scope 

of employment if:

(A) the property damage, personal injury, or death arises from the 

operation or use of a motor-driven vehicle or motor-driven 

equipment; and
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(B) the employee would be personally liable to the claimant 

according to Texas law; . . ..

TEX. CIV. PRAC. & REM. CODE § 101.021(1) (emphasis added).

Although the TTCA waives immunity for property damage that “arises from the operation 

or use of . . . motor-driven equipment,” id.; “not all uses of motor-driven equipment are sufficient 

to waive immunity.” San Antonio Water Sys. v. Overby, 429 S.W.3d 716, 722 (Tex. App.—San 

Antonio 2014, no pet.). The damage must “rise from” such use. The TTCA does not define “arises 

from.” The Texas Supreme Court has defined this standard as a “nexus between the operation or 

use of the motor-driven vehicle or equipment and a plaintiff’s injuries.” Ryder Integrated 

Logistics, 453 S.W.3d at 928 (citation omitted); LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 

835 S.W.2d 49, 51 (Tex. 1992) (“The phrase ‘arises from’ requires a nexus between the injury 

negligently caused by a governmental employee and the operation or use of a motor-driven vehicle 

or piece of equipment.”). 

“This nexus requires more than mere involvement of property.” Dallas Area Rapid Transit 

v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003) (“Whitley’s injuries did not arise from the use of the 

bus. Rather, his injuries arose from the bus driver’s failure to supervise the public, which is 

insufficient to waive immunity under the Tort Claims Act.”). Instead, “the equipment’s use must 

have actually caused the injury.” Tex. Nat. Res. Conservation Comm’n v. White, 46 S.W.3d 864, 

869 (Tex. 2001). Thus, the operation or use of motor-driven equipment “does not cause injury if 

it does no more than furnish the condition that makes the injury possible.” Whitley, 104 S.W.3d 

at 543 (citation omitted); Ryder Integrated Logistics, 453 S.W.3d at 928 (“In other words, even 

where the plaintiff has alleged a tort on the part of a government driver, there is no immunity 
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waiver absent the negligent or otherwise improper use of a motor-driven vehicle.”).2 The Supreme 

Court has described the threshold as something more than actual cause but less than proximate 

cause. Ryder Integrated Logistics, 453 S.W.3d at 928-29. “Accordingly, a plaintiff can satisfy 

the ‘arising from’ standard by demonstrating proximate cause.” Id. at 929 (noting, “[t]his is 

particularly appropriate in the context of the TTCA, which only reaches injuries ‘proximately 

caused by the wrongful act or omission or the negligence of an employee.’”). The components of 

proximate cause are cause in fact and foreseeability. Id. 

In their plea to the jurisdiction, appellants contended Wyatt Ranches did not allege its 

injuries arose because County employees were negligent in how they used motor-driven 

equipment. Instead, according to appellants, Wyatt Ranches complained Chapa never contacted 

them to confirm or identify which trees were on private property. Therefore, any injury arose from 

alleged negligence in identifying the property line and not from the use of motor-driven equipment. 

On appeal, appellants argue the use of a chain saw to remove trees should not trigger immunity 

because the true nature of Wyatt Ranches’ claim is the erroneous judgment concerning the 

boundary between the county right-of-way and private property.

Appellants do not dispute that the equipment used by the County to remove the trees was 

motor-driven. See White, 46 S.W.3d at 868 (“‘Equipment,’ which is not specially defined either 

by the Tort Claims Act or an opinion of this Court, generally means ‘[t]he articles or implements 

2 See City of Laredo v. New Yorkers Apparel, Inc., No. 04-04-00887-CV, 2005 WL 1458248, at *4 (Tex. App.—San 

Antonio June 22, 2005, no pet.) (mem. op.) (“use of the motor-driven equipment to remove the pavement and base 

did not actually cause the flooding. Instead, the flooding was actually caused by the condition of the sidewalk and 

road as it existed after the removal. Although the condition may have been negligently created by the City, the motordriven equipment did no more than furnish the condition that made the injury possible. Accordingly, the City’s 

immunity is not waived.”); Ector Cnty. v. Breedlove, 168 S.W.3d 864, 867 (Tex. App.—Eastland 2004, no pet.) 

(“Although the Breedloves attempted to bring their claim within the waiver of Section 101.021(1)(A) by phrasing 

their claim in terms of Ector County’s ‘use’ of motor-driven equipment, Ector County’s use of motor-driven equipment 

only furnished the condition-the increased grade and misplacement of culverts—that caused the flooding of their 

home. The use of the motor-driven equipment did not cause the Breedloves’ injury within the meaning of the waiver 

language in Section 101.021(1)(A).”).
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used for a specific purpose or activity.’ [citation omitted] “‘Motor-driven’ means, quite simply, 

driven by a motor.”). Nor do appellants dispute that the motor-driven equipment was used by the 

County to remove trees from Wyatt Ranches’ property. LeLeaux, 835 S.W.2d at 51 (citation 

omitted) (“‘[o]peration’ refers to ‘a doing or performing of a practical work,’ . . . and ‘use’ means 

‘to put or bring into action or service; to employ for or apply to a given purpose’. . ..”). Finally, 

appellants do not argue that the individuals operating the motor-driven equipment were not

“employees” of the County. See TEX. CIV. PRAC. & REM. CODE § 101.001(2) (“‘Employee’ means 

a person, including an officer or agent, who is in the paid service of a governmental unit by 

competent authority, but does not include an independent contractor, an agent or employee of an 

independent contractor, or a person who performs tasks the details of which the governmental unit 

does not have the legal right to control.”). The dispute is thus narrowed to whether Wyatt Ranches 

alleged facts affirmatively demonstrating subject-matter jurisdiction—i.e., the motor-driven 

equipment actually caused the injury. We return to the components of proximate cause. 

Regarding the first component of proximate cause, “[c]ause in fact is essentially but-for 

causation.” Ryder Integrated Logistics, 453 S.W.3d at 929. “In other words, a tortious act is a 

cause in fact if it serves as ‘a substantial factor in causing the injury and without which the injury 

would not have occurred.’” Id. (citation omitted). “Because proximate cause is ultimately a 

question for a fact-finder, we need only determine whether the petition ‘creates a fact question’

regarding the causal relationship between [Chapa’s] conduct and the alleged injuries.” Id. Wyatt 

Ranches pled that by directing County employees under her control and command to cut down

forty-nine trees, Chapa caused a loss of significant value to Wyatt Ranches. These allegations 

easily satisfy the standard that Wyatt Ranches’ damages were proximately caused by “the wrongful 
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act or omission or the negligence of an employee” (Chapa) arising “from the operation or use of 

. . . motor-driven equipment.”3

 

Regarding the second component of foreseeability, Wyatt Ranches alleged the destruction 

of the trees was done without notice or consent, and Chapa did not contact the landowner to 

confirm or identify which trees were on private property and which trees were on the right-of-way 

before cutting down the forty-nine trees. “Foreseeability requires only ‘that the injury be of such 

a general character as might reasonably have been anticipated; and that the injured party should be 

so situated with relation to the wrongful act that injury to him or to one similarly situated might

3 See PHI, 593 S.W.3d at 306 (“While [the driver] had turned off and exited the van before it collided with the 

helicopter, the statute does not require in every case that the driver be in the vehicle at the precise time of the collision. 

The statute requires that the accident arise from the use or operation of the vehicle, and as explained above, we 

conclude that this language covers the allegations in question because ‘operation’ of a vehicle includes making sure it 

does not roll away after it is parked.”); Ryder Integrated Logistics, 453 S.W.3d at 929 (because the injuries would not 

have occurred but for the officer’s decision to position the headlights of his patrol car toward oncoming traffic, his 

action was a cause-in-fact of the injuries); City of Houston v. Nicolai, 539 S.W.3d 378, 390 (Tex. App.—Houston [1st 

Dist.] 2017, pet. denied) (holding police officer’s affirmative decision not to use seat belt to restrain detainee was a 

substantial factor in causing detainee’s ejection from patrol car during traffic collision); City of Houston v. Sw. Bell 

Tel. Co., No. 01-16-00734-CV, 2017 WL 3262131, at *1, *5 (Tex. App.—Houston [1st Dist.] Aug. 1, 2017, no pet.) 

(mem. op.) (Southwestern Bell alleged City’s operation of a backhoe was negligent because City’s employees failed 

to ascertain what underground utilities were in the area before digging, thus damaging Southwestern Bell’s 

underground cable; court held evidence was legally sufficient to support determination that Southwestern Bell’s injury 

“arose from” operation of motor-driven equipment); Kilburn v. Fort Bend Cnty. Drainage Dist., 411 S.W.3d 33, 36 

(Tex. App.—Houston [14th Dist.] 2013, no pet.) (County undertook excavation operations to remove debris from a 

creek and grade its banks. Some of this work took place on the Kilburns’ property, on which the County’s records 

erroneously indicated it had an easement. By the time the County discovered the error in its records, the excavation 

work was substantially complete. According to the Kilburns, the County’s work damaged the creek and the 

surrounding property both aesthetically and functionally. The County alleged section 101.021(1) did not apply 

because “[t]here was nothing negligent about the operation or use of the motor-driven equipment in this case.” Court 

concluded Kilburns alleged sufficient facts to demonstrate trial court’s jurisdiction.); Doyal v. Tex. Dep’t of Criminal 

Justice-Institutional Div., 276 S.W.3d 530, 535 (Tex. App.—Waco 2008, no pet.) (holding Doyal’s petition adequately 

pled that his personal injury was proximately caused by the TDCJ’s employee’s negligence in the operation or use of 

the motor-driven cell door; thus stating a claim under section 101.021(1)); Freeman v. Harris Cnty., 183 S.W.3d 885, 

889 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (Freeman alleged facts supporting his claim that his damages 

arose from a County employee’s use of motor-driven equipment, i.e., an incinerator, and that there was proximate 

causation between the employee’s alleged negligence and the loss of Freeman’s baby’s body. Freeman alleged, among 

other things, that the County’s employees failed to follow County policy regarding the proper procedures for handling 

the baby’s body and that this failure resulted in the use of the incinerator to negligently dispose of the baby’s body 

following his autopsy. County argued that any damages suffered by Freeman were caused by the negligent acts of an 

individual employee and not by the negligent use of the incinerator, itself. Court held the trial court erred in dismissing 

Freeman’s case for lack of subject-matter jurisdiction.); City of El Paso v. W.E.B. Invs., 950 S.W.2d 166, 170 (Tex. 

App.—El Paso 1997, writ denied) (holding that negligence of a City employee in ordering the motor-driven equipment 

to demolish the wrong building waived the City’s immunity).
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reasonably have been foreseen.’” Id. A reasonable person in Chapa’s position could have foreseen 

that directing trees to be cut down, without confirming the location of the trees, might lead to the 

destruction of trees on private property much like the destruction that ultimately occurred here. 

The alleged harm is of the very character that might reasonably have been anticipated. 

Upon consideration of these allegations, we conclude Wyatt Ranches alleged an injury 

arising from the use of motor-driven equipment for the purpose of Civil Practice and Remedies 

Code section 101.021 by demonstrating proximate cause. Accordingly, the trial court did not err 

in denying appellants’ plea to the jurisdiction based on Wyatt Ranches’ negligence claims.

C. The TTCA’s Intentional Tort Exclusion

In their plea to the jurisdiction, appellants contended the alleged conduct amounted to a 

trespass—an intentional tort—for which immunity is not waived. Although the TTCA provides a 

limited waiver of immunity for certain suits against governmental entities; see TEX. CIV. PRAC. &

REM. CODE § 101.021; it does not waive immunity for claims arising from any intentional tort. 

The limited waiver “does not apply to a claim:”

(1) based on an injury or death connected with any act or omission arising out of 

civil disobedience, riot, insurrection, or rebellion; or

(2) arising out of assault, battery, false imprisonment, or any other intentional tort, 

including a tort involving disciplinary action by school authorities.

Id. § 101.057 (emphasis added).

Trespass is an intentional tort. See Hidalgo Cnty. v. Dyer, 358 S.W.3d 698, 704 (Tex.

App.—Corpus Christi 2011, no pet.). “A trespass is usually regarded as an intentional tort in the 

sense that it involves an intent to commit an act which violates a property right, or would be 

practically certain to have that effect, although the actor may not know that the act he intends to 

commit is such a violation.” Harris Cnty. v. Cypress Forest Pub. Util. Dist. of Harris Cnty., 50 

S.W.3d 551, 554 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
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In determining whether Wyatt Ranches’ claims are barred by immunity, we look to the 

substance of the claims alleged because governmental immunity cannot be circumvented by artful 

pleading. Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 389 (Tex. 2011) (“The 

central test for determining jurisdiction is whether the ‘real substance’ of the plaintiff’s claims falls 

within the scope of a waiver of immunity from suit.”); McLennan Cnty. Water Control & 

Improvement Dist. #2 v. Geer, No. 10-17-00399-CV, 2020 WL 4218085, at *4 (Tex. App.—Waco 

July 22, 2020, no pet.) (mem. op.) (concluding trial court erred in denying defendant’s plea to the 

jurisdiction because plaintiffs’ “factual allegations encompass intentional rather than negligent 

acts”). Wyatt Ranches alleged trespass to real property as follows:

At the time the causes of action asserted herein arose, Plaintiff owned the 

Property. Defendants’ act of entering the Property and removing and destroying 

trees outside of the County Road 352’s public right-of-way was physical, 

intentional and was voluntary and constitutes a trespass to real property. Defendants 

did not have permission, consent, or authority to enter the Property outside of the 

public right-of-way, and Defendants did not have permission, consent, or authority 

to clear and remove or destroy trees located wholly or partially on the Property. As 

a direct and proximate result of above-described acts of Defendants, Plaintiff has 

been injured and sustained damages in excess of the minimum jurisdictional limits 

of this Court for which they hereby sue.

We agree with appellants’ that immunity is not waived for any claim by Wyatt Ranches 

based on the intentional tort of trespass. Therefore, the trial court erred in denying appellants’ plea 

to the jurisdiction based on Wyatt Ranches’ trespass claim. However, “a plaintiff’s negligence 

claim against a governmental unit may arise out of the same facts that would also give rise to an 

intentional-tort claim absent the governmental unit’s sovereign immunity.” Kilburn, 411 S.W.3d 

at 39 (“the fact that the employees intentionally entered the property and undertook the excavation 

work does not, standing alone, transform the Kilburns’ negligence claim into a trespass claim”). 

“[T]he dispositive inquiry is whether the employees intended the specific damages they caused.” 

Id. 
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Wyatt Ranches’ negligence claim is based on the same operative facts as its trespass claim. 

Therefore, the factual allegations in Wyatt Ranches’ petition supports its negligence claim under 

the TTCA. Compare id. at 39 (“In this case, the conduct of which the Kilburns primarily complain 

is not the County employees’ act of entering the property, and the harm is not violation of their 

property rights. . . . Construing the petition liberally in favor of the Kilburns and looking to their 

intent, we conclude that the gist of their complaint is that the County employees negligently 

performed excavation work in such a way as to cause physical damage to the Kilburns’ property.”), 

with Harris Cnty., 50 S.W.3d at 554 (concluding appellee’s petition stated a cause of action for 

intentional trespass because “the facts contained in appellee’s Second Amended Petition can only 

support a theory of intentional trespass.”). We conclude that although Wyatt Ranches’ trespass 

claim may be barred under Texas Civil Practice and Remedies Code section 101.057, its 

negligence claim is not. 

INVERSE CONDEMNATION CLAIM

Finally, Wyatt Ranches alleged a takings claim in violation of Article I, section 17 of the 

Texas Constitution. That section provides that “[n]o person’s property shall be taken, damaged or 

destroyed for or applied to public use without adequate compensation being made, unless by the 

consent of such person.” TEX. CONST. art. I, § 17(a). Neither sovereign nor governmental 

immunity shield a governmental entity from a claim based on an unconstitutional taking of 

property. Sawyer Tr., 354 S.W.3d at 390. “If, however, the plaintiff fails to allege a valid takings 

claim, the governmental entity retains its immunity from suit.” City of Floresville v. Starnes Inv. 

Group, LLC, 502 S.W.3d 859, 866 (Tex. App.—San Antonio 2016, no pet.). Whether a plaintiff’s 

allegations are sufficient to constitute a takings claim is a question of law for the trial court to 

decide. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 936 (Tex. 1998).
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“Generally, the government compensates the owner before appropriating property, either 

by paying a mutually agreed price or by paying the value as determined in a statutory 

condemnation proceeding.” Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992). “If, 

however, the government appropriates property without paying adequate compensation, the owner 

may recover the resulting damages in an ‘inverse condemnation’ suit.” Id. “An inverse

condemnation may occur when the government physically appropriates or invades the property, 

or when it unreasonably interferes with the landowner’s right to use and enjoy the property, such 

as by restricting access or denying a permit for development.” Id. The appropriated property must 

also be applied to public use. Id. 

The elements of an inverse condemnation claim are (1) a governmental entity intentionally 

performed certain acts (2) that resulted in a taking or damaging of property (3) for public use. City 

of Floresville, 502 S.W.3d at 866. A taking “cannot be established by proof of mere negligent 

conduct by the government.” Harris Cnty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 

2016). “The essential element that must exist for a taking to be compensable is that the private 

property was taken for, or applied to, public use.” State v. Gafford, No. 04-03-00168-CV, 2003 

WL 22011302, at *3 (Tex. App.—San Antonio Aug. 27, 2003, no pet.) (mem. op.). “When private 

property is damaged or destroyed merely as the result of government employees’ negligence, it is 

not taken or damaged for public use.” Id.

In its petition, Wyatt Ranches alleged as follows:

At all times described herein, Chapa and Jim Wells County (through Chapa)

were acting with the intent to cut down and destroy the forty-nine (49) trees located

on the Perez Ranch. It is clear that the destruction of the subject trees constituted

calculated and deliberate acts perpetrated by the Defendants. When Chapa gave

the directives to remove such trees, the language used included verbiage such as

“shit trees,” “trash trees,” and “ugly trees.” The fact that such adjectives were used

by Chapa when directing her crew to destroy them leaves no doubt of her intent. In

the most general of terms, Jim Wells County and Chapa have the authority to cut,

trim and remove trees to discard such brush for reasons such as clearing the rights
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of way for improved visibility and/or for prevention of brush fires or other public

purposes. What they do not have is unfettered access to go onto a person’s property

and destroy it without compensation. The Plaintiff was not and has not been 

compensated for the unlawful taking of such trees to date. The destruction and

taking of Plaintiff’s trees to provide unincumbered views, for the prevention of

brush fires or for any other use that would serve the public, exactly fits the public

use/purpose contemplated by Texas Law.

The above-described intentional conduct on the part of Chapa and Jim Wells

County and its employees resulted in an unconstitutional taking of property

owned by Plaintiff—their trees and real property rights—under section 17

of the Texas Constitution without adequate compensation. Article I, Section

17 of the Texas Constitution provides a right to compensation when property is 

taken for public use. In the instant case, the Defendants performed the act of

cutting down and destroying Plaintiff’s trees, without compensation for public use.

In its plea to the jurisdiction, appellants contended the intent and public-use elements were 

absent because the pleadings do not allege facts showing (1) any taking of Wyatt Ranches’ 

property was within the authority of the county commissioner or any county employee and (2) any 

specific intent to take Wyatt Ranches’ property for public use.

In the context of an inverse condemnation claim, “the requisite intent is present when a 

governmental entity knows that a specific act is causing identifiable harm or knows that the harm 

is substantially certain to result.” Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 

2004). It is not enough that the act causing the harm be intentional. See City of Dallas v. Jennings, 

142 S.W.3d 310, 314 (Tex. 2004). In Jennings, the Texas Supreme Court explained the type of 

intent that must be shown to establish an inverse condemnation claim. The Court held it is not 

enough to show merely that the governmental entity intended to perform the act that resulted in 

the taking or the damage, because such a standard would hold the governmental entity to a stricter 

standard of liability than a private person engaging in the same acts. Id. at 313. “Such a 

requirement would also ignore the predicate of Article I, Section 17: that the damage be ‘for or 

applied to public use.’” Id. “When damage is merely the accidental result of the government’s 
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act, there is no public benefit and the property cannot be said to be ‘taken or damaged for public 

use.’” Id. 

Wyatt Ranches argued Chapa ordered the trees cut down without notice or consent, and

never contacted the property owner to confirm or identify which trees were on private property

and which trees were on the right-of-way. Even if Chapa intentionally directed employees under 

her control to destroy trees on Wyatt Ranches’ property, not every “intentional act can give rise to 

liability for an intentional taking.” Id. Based on the allegations in Wyatt Ranches’ petition, 

Chapa’s actions amounted, at most, to negligence; however, “[m]ere negligence is not the lawful 

exercise of governmental authority, and therefore, does not constitute a compensable taking.” Id.

(holding, damage or destruction that occurs “merely as the result of government employees’

negligence” is “not taken or damaged for public use”). We conclude Wyatt Ranches failed to 

allege the County acted with specific intent to take its property for public use. See Gafford, 2003 

WL 22011302, at *3 (concluding same based on plaintiff’s allegations that “[t]he entry of the 

Defendant, TxDOT, its agents, servants and employees upon Plaintiff’s land was made without 

Plaintiff’s knowledge or consent. The unlawful entry and the destruction of the trees and 

vegetation on Plaintiff’s property, without his consent or just compensation, amounts to a taking 

of his property.”). Accordingly, the trial court erred in denying appellants’ plea to the jurisdiction 

based on Wyatt Ranches’ inverse condemnation claim.

The only question then is whether Wyatt Ranches’ pleading demonstrates an incurable 

defect, or whether it should be given the opportunity to amend its pleadings. Based on the 

arguments presented, there is no indication that the defects discussed above are curable. See 

Miranda, 133 S.W.3d at 226-27. As such, we decline Wyatt Ranches’ request to remand the case 

to the trial court so it may have the opportunity to amend its pleadings.
04-22-00589-CV

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CONCLUSION

We affirm the trial court’s August 31, 2022 “Order Denying Defendant’s [sic] Plea to the 

Jurisdiction” (“the order”) based on Wyatt Ranches’ negligence claims. We reverse the order to 

the extent it denied appellants’ plea to the jurisdiction based on Wyatt Ranches’ trespass and 

inverse condemnation claims and we render judgment dismissing those claims.

Lori I. Valenzuela, Justice