Supreme Court of Texas

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No. 20-0309

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City of Baytown,

Petitioner,

v.

Alan Schrock, 

Respondent

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On Petition for Review from the

Court of Appeals for the Fourth District of Texas

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Argued October 27, 2021

JUSTICE YOUNG, joined by Justice Lehrmann, Justice Blacklock,

and Justice Busby, concurring.

Respondent Schrock invoked the Takings Clauses of both the 

United States and Texas Constitutions. As the Court notes, however, 

the arguments before us treat the two as substantively 

indistinguishable and address only the contours of the federal Takings 

Clause. We are thus left with just one question to answer: whether the 

challenged conduct constituted a taking under the Fifth Amendment. I 

join the Court’s opinion and its judgment because I agree with the Court 

that no federally cognizable taking occurred here.
2

Whether the City’s challenged actions (or other governmental 

actions like them) might constitute a taking under the Texas 

Constitution, therefore, remains an open question. This situation is not 

novel. Parties frequently litigate takings cases as if the two Takings 

Clauses were the same. For that reason (and maybe others), judicial 

opinions also sometimes have described the two clauses as if they were 

the same. I write separately today to emphasize one key point: They are 

not the same. 

I

I find Justice Busby’s observation in Jim Olive Photography v. 

University of Houston to be inescapably true. While our cases frequently 

emphasize the substantial similarities between how both constitutions 

protect citizens from takings, “the Texas Takings Clause provides 

broader protection in certain areas.” 624 S.W.3d 764, 780 (Tex. 2021) 

(Busby, J., concurring). Specifically, “the Texas Constitution requires 

compensation for more types of government action than its federal 

counterpart,” id. at 777 (emphasis added), because “the obvious textual 

differences between the clauses” unambiguously reflect our Framers’ 

determination to protect more than the Fifth Amendment does, id. at 780. 

The Fifth Amendment concludes this way: “nor shall private 

property be taken for public use, without just compensation.” U.S. 

Const. amend. V. Our State’s Bill of Rights, by contrast, says this: “No 

person’s property shall be taken, damaged, or destroyed for or applied 

to public use without adequate compensation . . . .” Tex. Const. art. I, 

§ 17(a) (then adding further restrictions). The Texas Constitution, in 

other words, says everything that the U.S. Constitution does, but makes 
3

two significant additions. First, it adds the verbs “damaged, or 

destroyed” to “taken.” Second, not content with predicating a taking on 

property being taken “for public use,” our Constitution adds that it may 

also count as a taking if the property is “applied to public use.” 

Beyond these express textual differences, the historical 

development of our Constitution further establishes that the federal and 

Texas provisions are not coterminous. The Fifth Amendment’s spare 

use of “taken” long antedated the drafting of our Constitution. Every 

Texas Constitution from 1836 to 1869 used only the verb “taken,” just 

like the Fifth Amendment.1 Sometimes the text of our Constitution and 

the U.S. Constitution align, as with the Texas Constitution’s Contracts 

Clause (in the section of our Bill of Rights that immediately precedes 

the Takings Clause).2 This Court found the alignment of the Contract 

Clauses to be significant. The meaning of the federal Contracts Clause 

was fixed by the time our 1876 Constitution was enacted, we observed;

our Framers’ decision to copy that language essentially verbatim meant 

that they had chosen to also accept that provision’s settled meaning. 

Travelers’ Ins. Co. v. Marshall, 76 S.W.2d 1007, 1023 (Tex. 1934). If 

1 Like its predecessors, the 1869 Constitution provided only that “no 

person’s property shall be taken or applied to public use without just 

compensation being made, unless by the consent of such person.” Ft. Worth & 

R.G. Ry. Co. v. Jennings, 13 S.W. 270, 270 (1890) (quoting Tex. Const. of 1869, 

art. I, § 14). See also Tex. Const. of 1866, art. I, § 14; Tex. Const. of 1861, art. 

I, § 14; Tex. Const. of 1845, art. I, § 14; Repub. Tex. Const. of 1836, Declaration 

of Rights, cl. 13. See also Jim Olive Photography, 624 S.W.3d at 780 (Busby, 

J., concurring) (noting case law that has acknowledged the textual differences). 

2 Compare U.S. Const. art. I, § 10 (“No State shall . . . pass any . . . Law 

impairing the Obligations of Contracts . . . .”) with Tex. Const. art. I, § 16 (“No 

. . . law impairing the obligation of contracts, shall be made.”). 
4

anything, the Framers’ decision to add “damaged, or destroyed” to the 

Texas takings guarantee in 1876 must be even more intentional.3 

The additional language—especially “damaged, or destroyed”—

seems potentially relevant to cases like this one. Schrock alleges that 

the City essentially held his property hostage by refusing to provide him 

access to utilities (a City monopoly) until he discharged the obligations 

of third parties. The denial of utilities arguably has the systematic and 

predictable effect of at least “damag[ing]” and possibly “destroy[ing]” the 

residential property. It may not quite be “your money or your life”—but 

“your money or your property” is still a powerful threat. Comply with 

our demand, in other words, or watch your property disintegrate 

because of our action. 

A city making such demands would be acting for the public, too. 

3 Indeed, while the 1876 Constitution was still relatively young, this 

Court commented on the language added to Takings Clause: 

Under the provisions of other constitutions which merely 

provided compensation to the owner for property taken for public 

use, it had been a question whether or not one whose property 

was immediately and directly damaged by a public 

improvement, though no part of it was appropriated, could 

recover for such damage . . . . The insertion of the words 

‘damaged or destroyed’ in the section [of the Constitution] 

quoted was doubtless intended to obviate this question, and to 

afford protection to the owner of property, by allowing him 

compensation, when by the construction of a public work his 

property was directly damaged or destroyed, although no part of 

it was actually appropriated.

Trinity & S. Ry. Co. v. Meadows, 11 S.W. 145, 145–46 (Tex. 1889); see also 

DuPuy v. City of Waco, 396 S.W.2d 103, 108 (Tex. 1965) (“It was the injustice 

of requiring an actual taking which explains the inclusion for the first time in 

the Constitution of 1876 of the requirement that compensation be paid for the 

damaging of property for public use.”). 
5

“Persuading” someone to pay a third party’s debt to the public clearly 

advantages the public fisc. The City also concedes that its ordinance 

was a violation of state law all along. The legislature forbade 

municipalities from conditioning access to utilities on the payment of 

other people’s debts. Tex. Loc. Gov’t Code § 552.0025. Perhaps the 

legislature did so from a sense of fairness. But also—just perhaps—it 

sought to prevent local governments from sliding into takings.

Had the Texas Constitution been presented as an alternative 

rather than duplicative source of law, today’s case may have turned out 

differently. Or maybe not. We cannot know for sure until we have a 

case like this one that includes arguments tailored to our state 

constitutional law. It is clearly true that the Texas Takings Clause is 

broader than the federal Takings Clause—but how much broader, and 

under what circumstances? 

We cannot meaningfully answer those questions unless litigants 

undertake substantial additional work beyond invoking federal takings 

doctrines. To analyze a Texas constitutional claim, we would need 

comprehensive briefing from the parties (and, I would hope, from amici) 

on the precise scope of the right to compensation that the Texas

Constitution affords. Antecedent questions concerning the nature of the 

property interests at issue, and whether they can support a claim under 

our Constitution, also would likely require careful attention. 

But here, just as Justice Busby observed in Jim Olive Photography,

the absence of any “conten[tion] that the [takings] analysis should be 

any different under the Texas Constitution” means that this Court 

cannot proceed. 624 S.W.3d at 782. Like the plaintiff in Jim Olive 
6

Photography, Schrock noted only that Texas’s “takings case law is 

consistent with federal jurisprudence,” then treated the two Takings 

Clauses as indistinguishable. This pattern is almost routine. Despite 

this Court’s recognition of differences between the two Takings Clauses, 

the distinction often goes undrawn. When that happens, the Court loses 

any basis to assess whether any material distinction exists between the 

two Takings Clauses under the facts of that case.4 Indeed, in City of 

Houston v. Carlson, 451 S.W.3d 828 (Tex. 2014), which plays a significant

role in today’s decision, it likewise appears that the plaintiffs treated 

the federal and state takings claims as identical. So, therefore, did the 

Court. See id. at 831 (citing Hearts Bluff Game Ranch, Inc. v. State, 381 

S.W.3d 468, 477 (Tex. 2012), for the proposition that Texas takings 

jurisprudence is consistent with federal jurisprudence). 

As Chief Judge Sutton has put it, all too often lawyers “rais[e] the 

federal claims and rarely address[] in any detail, if . . . at all, a 

counterpart state constitutional claim. State judges referee the game. 

They do not play it, and they thus cannot rely on state constitutional 

grounds never raised.” Jeffrey S. Sutton, Who Decides?: States as 

Laboratories of Constitutional Experimentation 128–29 (2022). In an 

appropriate case, a party may well show that the Texas Constitution 

requires compensation in circumstances in which the United States 

Constitution does not. 

4 See, e.g., Jim Olive Photography, 624 S.W.3d at 771; City of Dallas v. 

VSC, LLC, 347 S.W.3d 231, 234 n.3 (Tex. 2011); Sheffield Dev. Co. v. City of 

Glenn Heights, 140 S.W.3d 660, 669 (Tex. 2004).
7

II

One remaining question is also bound up with a takings claim

under the Texas Constitution: how a plaintiff’s actions may play a role 

in reducing or forestalling any takings liability. If future cases confirm 

that the Texas Constitution’s broader scope is more than de minimis, 

the plaintiff’s ability to mitigate property damage, or even avoid it 

altogether, may prove to be a key part of the analysis. Said differently, 

courts must give the Texas Takings Clause its full scope—and if that 

scope turns out to be substantial, the elements of damages and causation 

may be important to prevent an unintentional Takingsization of the rest 

of the law. Nearly any complaint about governmental action can be 

contorted into some allegation of a taking. Rigorous and serious 

requirements for establishing causation and damages will ensure that 

worthy claims, but only worthy claims, will both proceed and merit full 

compensation. 

As with the question of whether the City’s conduct would qualify 

as a taking under the Texas Constitution in the first place, however, we 

likewise lack briefing and analysis concerning these important 

subsidiary questions. Today, of course, they do not matter. Nothing 

turns on whether Schrock’s own behavior might require reducing his 

damages, terminating his claim on causation grounds, or having any

other effect. His federal claim could not proceed either way. But 

tomorrow may bring a different case—a case in which the Texas Takings 

Clause may do independent work. Future litigants in cases like that 

will need to address the contours of our state constitutional text and the 

consequences (if any) of a plaintiff’s own conduct on a takings claim’s 
8

viability and remedy. 

Our law, after all, recognizes several avenues to limit or preclude 

damages because of a plaintiff’s conduct. For example, a plaintiff at 

fault for her own injury may have her damages reduced or foreclosed 

under comparative fault. See Tex. Civ. Prac. & Rem. Code §§ 33.001–

33.002, 33.012; Del Lago Partners, Inc v. Smith, 307 S.W.3d 762, 772 

(Tex. 2010) (discussing the adoption of the statutory proportionate 

responsibility regime). In some contexts, plaintiffs may have a duty to 

mitigate damages and may be barred from recovering whatever 

damages could have been prevented with care or reasonable effort. See, 

e.g., JCB, Inc. v. Horsburgh & Scott Co., 597 S.W.3d 481, 486–87, 486 

n.3 (Tex. 2019) (duty to mitigate damages in contract after breach of 

contract); J & D Towing, LLC v. Am. Alt. Ins. Co., 478 S.W.3d 649, 677 

(Tex. 2016) (duty to mitigate damages in personal property tort); Gunn 

Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 858 (Tex. 1999) (duty to mitigate

damages in a Deceptive Trade Practices Act case); Moulton v. Alamo

Ambulance Serv., Inc., 414 S.W.2d 444, 449 (Tex. 1967) (duty to mitigate 

damages in personal injury tort). We have not been able to explore the 

extent to which these concepts, or others related to them, may interact 

in the context of a Texas takings claim.

Relatedly, the doctrines of causation may limit a plaintiff’s 

recovery. This Court has previously said, for example, “[p]roximate cause

is an essential element of a takings case.” Hearts Bluff Game Ranch, 

Inc. v. State, 381 S.W.3d 468, 483 (Tex. 2012). Part of the “true test” in 

discerning liability for a taking of property, we have held, is whether the 

government’s acts “were the proximate cause of the taking or damaging of 
9

such property.” State v. Hale, 146 S.W.2d 731, 736 (Tex. 1941). Moreover, 

the question of “causation is an issue to be considered by [c]ourts in 

takings cases.” Hearts Bluff Game Ranch, 381 S.W.3d at 482. For an 

inverse condemnation claim, the governmental entity sued must have 

been the proximate cause of the harm to property rights. Id. at 483–84.5

How might a plaintiff’s own conduct fit within this rubric? “[T]he 

term proximate cause is generally defined as meaning ‘that cause which, 

in natural and continuous sequence, unbroken by any new and 

independent cause, produces the injury, and without which the result 

would not have occurred.’” Young v. Massey, 101 S.W.2d 809, 810 (Tex. 

1937). A “new and independent, or superseding, cause may intervene

between the original wrong and the final injury such that the injury is 

attributed to the new cause rather than the first and more remote 

cause.” Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016) (internal 

quotation and punctuation omitted). The new cause “thus destroys any 

causal connection” between the original wrong and the harm. Id. But 

we have not addressed, and absent full briefing and argument cannot 

resolve, whether a taking can be said to be proximately caused by the 

defendant if the property owner—that is, the plaintiff, not some new 

entrant onto the scene—has failed to use objectively reasonable and 

5 “Causation is one of several threshold conditions that must be met 

before the merits of a takings case will even be considered.” Jan G. Laitos & 

Teresa Helms Abel, The Role of Causation When Determining the Proper 

Defendant in a Takings Lawsuit, 20 Wm. & Mary Bill Rts. J. 1181, 1191 (2012). 

Causation, in this context, “requires that the defendant be a government actor 

responsible for the harm alleged to be the taking of the private property 

interest.” Id. Causation problems “commonly arise” when “there may have 

been a government act, but the plaintiff’s own decisions may have been 

responsible for the injury.” Id. at 1200–01.
10

available efforts that would preclude property damage in the eminentdomain context. Future cases may turn on the law of causation more 

generally—whether proximate cause or otherwise—and both plaintiffs 

and defendants should be ready to make arguments about how these 

doctrines affect takings claims.

The record in this case at least illustrates the kind of facts that 

might trigger analysis relevant to the development of our jurisprudence

on damages, causation, or both. Schrock is a landlord, and this Court 

long has held that a “landlord’s duty to mitigate requires the landlord to 

use objectively reasonable efforts to fill the premises when the tenant 

vacates in breach of the lease.” Austin Hill Country Realty, Inc. v. 

Palisades Plaza, Inc., 948 S.W.2d 293, 299 (Tex. 1997). Similarly, a 

landowner “owe[s] the duty to use ordinary care to mitigate his 

damages” proximately caused by a defendant’s obstruction of highway 

access. Tex. & P. Ry. Co. v. Mercer, 90 S.W.2d 557, 560 (Tex. [Comm’n 

Op.] 1936). Refusing to take reasonable efforts to avoid a loss of property 

rights or property damage may reduce the compensation owed or even 

block a claim that the government’s action caused the taking or damage 

of such property. The Federal Circuit has found that a lessor’s failure 

to mitigate barred any regulatory-takings claim. See, e.g., 767 Third 

Ave. Assocs. v. United States, 48 F.3d 1575, 1584 (Fed. Cir. 1995). The 

extent to which Texas law takes a similar view remains an open question.

Even if the City’s conduct could qualify as a taking under the Texas

Constitution, therefore, it is at least plausible that the City’s liability 

would be substantially reduced or completely eliminated by Schrock’s 

actions and inactions. Schrock was no stranger to leasing property in 
11

Baytown.6 By the time the utility dispute arose, Schrock had at least 

thirty-five other rental houses in the City. Nevertheless, Schrock failed 

to avail himself of the City’s readily available mechanism to forestall 

any interference with his property rights because of a third party’s debt.7 

He neglected to file a declaration with the City stating that the property 

here was rental property until after he received notice of the delinquent 

utility bills in 2009—and after he unsuccessfully challenged the City’s 

enforcement action.8 By all appearances, he easily could have avoided 

any harm to his property from the City’s actions, but instead allowed a 

utility-bill grievance to deprive him of use of his rental property.9 

6 Schrock even testified to his familiarity with the requirements of being 

a Baytown landlord. His investment strategy was to buy three houses in the 

area annually until he turned sixty-five. He planned to then start selling the 

houses to meet his cash needs for the remainder of his life.

7 Schrock rented the mobile home on this property to lower-income 

tenants since he purchased it in 1993. Although the City’s ordinance authorized

the City to put a lien on a landlord’s property and deny utility services if a 

tenant failed to pay utility bills, the ordinance provided a landlord a way to 

avoid such consequences: a landlord could preemptively file “with the city utility

billing division a declaration in writing specifically naming the service address 

of the property and declaring such to be a rental property.” Such a declaration

would “prevent the city from using that [rental] property as security for the 

water, sewer and garbage collection services” and would prevent the City “from 

filing any lien on such property . . . .” For over fifteen years, Schrock neglected 

to file the declaration contemplated by the City’s ordinance.

8 Indeed, one of the reasons that Schrock’s challenge failed was that 

Schrock had “no rental declaration on file for the time period in question 

declaring that Mr. Schrock does not wish the property to be used as security 

for the utility service charges for services to the property.” Not until after 

Schrock received the City’s second notice did he file the declaration 

contemplated by the City’s ordinance.

9 Schrock’s claim that he did not know about the option to file a 

declaration would not automatically excuse him from filing one—especially 
12

In any event, Schrock had even more opportunities to avoid any 

loss of property rights or harm to his property. In March 2009, the City 

notified Schrock that it would seek to impose a lien on his property if he 

did not pay the outstanding utility bills by a certain date. Schrock 

contested the outstanding bills, participating in the City’s hearing 

process. Following the hearing, the City sent Schrock a second notice 

which reduced the amount of payment demanded but informed Schrock 

that he had fourteen days to pay before a lien would be imposed. He 

decided not to pay, at least not immediately. He could have paid “under 

protest,” which would have prevented the lien. Indeed, Schrock 

intended to do so for several months after the lien was imposed. When 

he eventually visited the City’s water department with a check to pay 

the original amount of the outstanding bill—with “[p]aid under protest” 

written in the memo line—a clerk informed Schrock of an additional 

unpaid bill. Because Schrock only had one check with him, which he 

had already filled out, Schrock left without paying anything. Seven 

months later, he returned to the City’s water department, but again

declined to pay, this time out of concern that he might face more 

delinquent bills for his other rental properties. Thus, rather than pay 

the delinquent utilities bill under protest and seek a refund—which 

would have allowed Schrock to rent the property for approximately $600 

a month—Schrock allowed his property to languish in a state of 

increasing disrepair over less than $1,500 in dispute. 

when it is undisputed that he purchased this property for the express purpose 

of renting it and owned it as part of a portfolio of rental properties. See, e.g.,

Allstate Ins. Co. v. King, 444 S.W.2d 602, 605 (Tex. 1969) (ignorance of a filing 

requirement will not excuse failure to comply). 
13

Even that is not all. Schrock also knew that he could have asked 

the City to reinstate utility services. He actually did so in April 2012 

when he asked the City to turn on water service so he could work on 

mold and rat problems on the property. Schrock himself then asked the 

City to turn the water service off a month later. And when the City 

removed the lien in 2013, Schrock did not ask the City to turn on 

municipal utility services so that he could restore the property and begin 

renting it again. Instead, Schrock has continued to let his property sit 

vacant. 

Schrock was free to behave as he saw fit, of course. But whether 

and to what extent his actions may be laid at the City’s door is a different 

matter. It is true that the City’s own (unlawful) actions played a role. 

Its improper denial of water service to a tenant in 2009 and the improper 

lien were certainly but-for causes of some damage.10 Given a full review 

of the factual circumstances here, however, Schrock had the keys to free 

his property from the City’s shackles but refused to use them. Schrock 

likely could have avoided any restriction of his property rights—by filing 

the appropriate declaration before renting his property, paying the 

utility bill under protest, or asking the City to restore utility services. 

He chose not to. It may well be that a plaintiff situated like Schrock 

would only be entitled to reduced compensation or alternatively would 

be barred from establishing any takings claim at all.

To be clear, however, I do not resolve the role that a plaintiff’s 

actions play in the assessment of the damages or causation elements. I 

10 Again, Schrock could have filed a declaration and avoided any effort by

the City to use his property as security for the unpaid utility bills of third parties. 
14

do not rely on any such analysis for my vote in this case. But the strong 

possibility that Schrock played a considerable part in his own property 

damage confirms my confidence in the Court’s bottom-line judgment. It 

likewise confirms my sense that in future cases—especially cases in 

which plaintiffs assert a claim that may be viable under only the Texas 

Takings Clause—courts and parties should carefully address the 

nuances of damages and causation, not just whether the challenged 

governmental conduct, standing alone, would qualify as a taking.11

* * *

With these observations, I am pleased to join the Court’s opinion 

and its judgment. 

Evan A. Young

Justice

OPINION DELIVERED: May 13, 2022

11 Indeed, to the extent that these inquiries may in some cases preclude 

the need to resolve whether novel and complex circumstances even qualify as 

a taking under our Constitution, they would serve the values of the 

constitutional-avoidance canon. As this Court has recognized, “[c]ases 

attempting to decide when a regulation becomes a taking are among the most 

litigated and perplexing in current law,” terming these legal battlefields “a 

sophistic Miltonian Serbonian Bog.” Sheffield Dev. Co., 140 S.W.3d at 671 

(quotations omitted).