# S upreme C ourt of T exas

══════════ No. 2 0

- 03 09

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City of Baytown , Petitioner ,

v

. Alan Schrock , Respondent

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

═══════════════════════════ ══ ══════════
Argue d October 27, 2021

J USTICE Y OUNG , joined by Justice Lehrmann , Justice Black lock, and Justice Bu sby, 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 a s substantively indistinguishable and address only the contours of the federal Takings Cl ause. 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 occurre d here.2 Whether the Cit y ’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 Busb y ’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 Claus e 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 makes3

two significant additi ons. 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 Const itution. 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 Contra ct Clause s to be significant

. T he 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 Photog raphy , 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. Cons t. 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 la nguage

— 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 oblig ations 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 prope rty” 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:

U nder the provisions of other constit utions 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

re cover for such damage

. . . . The insertion of the words ‘damaged or destroyed’ in the section [of the C onstitution] quoted was doubtless intended to obviate this question, and to afford protection to the owner of property , by allowing him compensation , w hen 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 part y ’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. G ov’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 sou rce of law, t oda y ’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 federa l 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, an d 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 differen t under the Texas Constitution” means that this Court cannot proceed. 624 S.W.3d at 782. Like the plaintiff in Jim Olive6

Photography , Schrock noted only that Texas’s “takings case law is consistent with federal jurisprudence,” then treated the two Taking s 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 mater ial 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 toda y ’s decision, it likewise appears that the plaintiffs treated

t he 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 federa l 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 requi res 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 c laim
under the Texas Constitution: how a plaintif f ’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 plaintif

f ’ 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 element s of damages and causation

may be important to prevent an unintentional Takin gsization of the rest of the law . Nearly any complaint about governmental action can be contorted into some allegation of a taking . R igorous and serious requir ements for establishing causation and damages will en sure that worthy claims, but only worthy c laims, will both proceed and merit full compensation

. A s with the question of whether the Cit y ’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 cou ld 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

consequenc es (if any) of a plaintif f ’s own conduct on a takings claim’s8

viability and remedy. Our law, after all, recognizes several avenues to limit or preclude damages because of a plaintif f ’ s conduct. For exa mple, 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 stat utory proportionate responsibility regime). In some contexts, plaintiff s may have a duty to mitigate damage s 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 4 8 1, 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, In c . 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 damage s 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 t akings claim

. Relatedly , the doctrines of caus ation may limit a plaintif f ’ s
recovery. T his 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 o f property, we have held , is whether the government’s acts “were the proximate cause of the taking or damaging of9

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]ourt s 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 plaintif

f ’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 r emote

cause

. ” Stanfield v. Neubaum , 494 S.W.3d 90, 97 (Tex. 2016) (internal quotation and punctuation omitted)

. T he 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 cause d by the defendant if the property owner

— that is, the plaintiff, not some new entrant onto the scene

— has fail ed to use objectively reasonable and

5 “ C ausation 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 W hen 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 plaintif f ’ s own decisions m ay have been responsible for the injury.” Id. at 1200

– 01.10

available efforts that would preclude property damage in the eminent

domain context. Future cases may turn on the law of causation more generally

— whether proximate cause or otherwise

— and both plaintiffs and defendants sh ould be ready to make arguments about how these doctrines affect takings claims.
Th e record in this case at least illustrate s the kind of facts that might trigger analysis relevant to the development of our jurisprudence on damages, causation, or both

. Sc hrock 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.
Pal isades 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 g overnment’s action caused the taking or damage of such property. The Fede ral Circuit has found that a lessor’s failure to mitigate barred any regulatory

- taking s claim

. Se e, 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 Cit y ’s conduct could qualify as a taking under the Texas Constitution, therefore, it is at least plausible that the Cit y ’s liability would be substantially reduced or completely eliminated by Schrock’s
actions and inactions . Schrock was no stranger to leasing property in11

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 Cit y ’s readily available mechanism to forestall any interference with his property rights because of a third part y ’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 Cit y ’s enforcement action. 8 By all appearances, he easily could have avoided any harm to his property from the Cit y ’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 Cit y ’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 divisi on 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 coll ection 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 Cit y ’s ordinance.

8 Indeed, one of the reasons that Schrock’s challenge faile d 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 recei ved the Cit y ’s second notice did he file the declaration contemplated by the Cit y ’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

— especially12 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 outstan ding utility bills by a certain date. Schrock contested the outstanding bills, participating in the Cit y ’s hearing process. Following the hearing, the City sent Schrock a second notice which reduced the amount of payment demanded but informed Schrock
tha t 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 w as imposed. When he eventually visited the Cit y ’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 Cit y ’s water department , but again declined to pay , this time out of concern that he might face more delinquent bil ls 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 stat e of increasing disrepair over less than $1,500 in dispute.

when it is undispute d 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 fail ure 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 h e 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 Cit y ’s door is a different
matter . It is true that the Cit y ’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 Cit y ’s shackles but refused to use them. Schrock likely could have avoided any restriction of his property rights

— by filing the appropriat e 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 alt ernatively would be barred from establishing any takings claim at all

. To be clear, however, I do not resolve the role that a plaintif f ’ s actions play in the assessment of the damages or causation element s. 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 analys is for my vote i n 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).