## I n the Court of Appeals Second Appellate D istr ict of Texas at Fort Worth

___________________________ No. 02

- 21

- 00123

- CV

___________________________

On Appeal from County Court at Law No. 3 Tarrant County, Texas Trial Court No. 2016

- 000171 -3
Before Kerr, Womack, and Wallach, JJ. M emorandum O pinion by Justice Kerr 

### T HE 

### S TATE OF 

### T EXAS 

### , Appellant

V



### . J OSE 

### M ANUE L 

### G ONZALEZ 

### , Appellee2 MEMORANDUM OPINION
After the Fort Worth Police Department (FWPD) s eized appellee Jo se Manu e l
Gon zalez ’ s property, Go n z alez su ed the State of Texas and t he City of Fort Worth fo r

an unconstitu tional takin g und er the Texa s Constitutio n and f or various other
violations of the Texas Cons titution. Gonzale z sett led his claims against the City and
later took a default judgment against the State for $1 1 2,000 in damages and $ 87,000 in trial and app ellate attorney ’ s fees

. The S tat e has appeale d

. I n f ive issues, it a rgues that the tr ial court abused its discretion by denying the State ’ s new

- trial motion and by refusi ng to set aside the default judgment because (1) the tri al cour t lack ed jurisdiction over Gon za lez ’ s takings
cla im and over the Sta te ; (2) the State had no notice of the tria l that resu l ted in the default judgment; (3) the evidence is insufficient to suppo rt the default judgment; ( 4) Gon zalez ’ s takin gs claim fa il s as a legal matte r because the State is not li abl e for
the Cit y ’ s o r FWP D ’ s actions; and (5) no legal authority supports the attorne y ’ s

- fees
award , or al ternat ively, the evidence is in sufficient to support the award.
For reasons exp lained belo w, we s ustain the State ’ s third, fourth, and fifth
i ssues . We will thus reverse t he d efault judgment a nd render judgment dismissing
Gonzalez ’ s takings claim and ordering that Go n zalez take not hing on his remaining
claim s .3 I. Backg round
In Decemb er 2014, FW PD

— pursuant to a search warran t— seized sus pected

sto len bu i lding mater ials from Gonz alez ’ s business , JM Gonzal ez Roofing. FWPD impoun d ed the property in the City ’ s impound l ot
. In May 2015, the State of T e xas , by and th r ough the Tarrant Co unty D istrict
Attorne y, filed an action unde r Article 47.01a of the Tex as Code of Cri minal
Procedure in justice court 1 t o det er min e who had the s uperior right to possession of
the se ized prop erty
. 2 See Tex. Co d e C rim

. Proc. A n n. ar t. 47

. 01a

. After a h earing at which Gonzalez did not appea r , t he j usti ce co urt or dered the se ized property to be
for feited and r elea se d to FWPD for use and disposition in accordance with Article

1 The case wa s styled “ Th e St a te of Texa s v. All Items on Exhibi t A .”

2 Chapter 47 of the Texas Code of Cri minal Procedure

— entitle d “ Disposition of Stolen P roperty”—p rotects a person ’ s claimed interes t in s ei zed proper ty. Ci ty of Dal las v. VSC, LLC , 3 47 S.W .3d 2 31 , 234 ( Tex

. 20 11)

. See ge nerally Tex. Co d e C rim. Proc. A nn. arts. 47.01

– .12

. When , as here, no c rimi nal action relating t o the s eized , all egedly stolen property is pending , Art i cle 47 .0 1a pr ovides a p roced ure f or det ermi ning whe t her someo ne cla imi ng an intere st in th at pr oper ty has a superior right to possession

. See Tex. Code Crim. Pro c An n. art. 47 .01a

. Any pe rson or entity with a property inte rest may assert that interest w ith the court , an d a judge “ may hold a he a ring to dete r mine the right to p ossess ion of th e prop erty. ” I d. ar t. 47.0 1a( a)

. D uring that he aring “ any interested person may prese nt e vidence sh owin g that the proper ty w as not acquired b y theft or an other offense or that the person is e n titled to p osses s the property.” Id. art. 47.0 1a( c). An in dividu al pr ov ing the supe rior right to the property is entitled to its re turn , subject to t he S tate ’ s use of it in prosecuting rel ated crim es . See i d. art s . 47.01 a (a)(1)

– (a)(2),

. 04. If the prope rty is never claime d and the gov e rnment s ells it, the pro perty ’ s t rue ow ner ma y rec ove r the proceeds. Id. ar ts. 47.06, .07.4 47 .01a. S ee id. Go n zalez app ealed t he order to cou nty court for a trial de novo

. 3 See id.
art. 47.12 (b) ; see also Tex . R . Civ. P. 506.3.
I n cou nty court , Gonz alez answ ered an d cou nterc la i me d agai nst the State for damage s to the seized pro perty , alleging that t he S tate ’ s storage of t he property caused
it to de t eriorate “ to the point [ of being ] worthless.” 4 Al though the counterclaim did

not state a specific cause of action, it a llege d that t he State ’ s use or non use of tangible
prop erty cause d the damage

. See Tex. Civ. Pr ac. & Rem. Code Ann. § 101.021 (2)

. The Tarrant County DA answered with a g eneral denial and a plea to the jurisdict ion

a rgu in g that immunity barred Gonzalez ’ s cla im a gai n st Ta rrant Count y and that
Gonz alez had f ail ed to affirmativel y demonstrate a waiver of t hat immunit y. In May 201 7, G onz alez filed a third

- party pet ition , naming the “ State of Tex as ”
and th e C it y as third -p arty defendants and asserting negligence a nd n egligence per se cl aims against them

. Gon zalez amended his third

- part y petition three months later to
include a takin g s c l aim under th e Texas Constituti on . See Tex . Const. art. I, § 17 (a)

. I n response to Gonz alez ’ s third

- party petition , th e Ta rrant Cou nty D A specia lly
ap peared and answer ed on the Sta te ’ s behalf

. In it s sp ecial appearance, t he Tarr ant

3 Appe als from jus tic e- court heari ngs un der Article 47.01a must b e heard by a
c ounty court or statutory county court. Id. art. 47.12( b ). Such an ap peal i s g ov ern ed by the a pplicable procedural rul es fo r jus tice

- co urt civil appeals t o a cou nty cour t or st atutory count y cour t. Id.

4 The pleading did not con t ain a certificate of service, but the file stamp show ed that it was e

- filed.5 County D A a rgued t hat alth ough G onz alez had named the State of T e xa s as a third

party defenda nt and had served t he State in accordance with T exas Rules of Civi l
P roc edu re 21 and 21 a, 5 see Tex. R. Civ

. P. 21, 21 a, he had not prop erly served the
State be cause he did not comply with th e Texas Tort Claims Act , whi ch requires

c itati on i n a suit against the S tate to be served on the Texas Secre tary of State , 6 s ee Tex. Civ. Pra c. & Rem. Code A nn. § 101.1 02 (c )

. I n May 2018, Gon zalez agai n amended his thir d

- party petition an d his
counterclaim s to drop h is negligenc e cla ims and to alleg e that the State ’ s and the City ’ s se izure and inadequ ate st orage 7 of his property we re u nconstitu t ional takin g s

u nd er the Texa s Constitution and viol ated the Texa s Consti tutio n ’ s due

- proc ess, d ue

course

- of

- law , and equa l

- p rotect ion p r ovisi on s, as wel l as the Texas Con s titutio n ’ s
pro tections against u nreason able se arch and s eizure

. See Tex . Co ns t. art. I, § § 3, 3a, 9,
17 (a) , 19

. Gon zalez also requ e sted a d ecl aration that th e City and th e Sta te had
violated his c onstitutional rights and sought damages for the fai r

- mar ket value of t he materials, which he estimate d was about $150, 000

.

5 The Ta rra nt County DA did no t specif y which s tate ent ity Gonz alez had
s erved.

6 Gonz alez had served citation only on the City

.

7 G onzalez a lleged that the State and the Cit y “ allo wed the building m at eria ls to b e destroyed by failing to adequate ly pro tect such from the eleme nts. ”6 After a med ia ti on in M arch 201 9, Gonzalez and t h e City settled : the City agreed

to pay G on za le z some $46,000 and to retur n “ all or p a rt of t he property ” to him in
full and f inal settlement of his claims against the C i ty. When Gonzale z retrieved h is
propert y from t he City , he a ck nowledged that he had be e n allowed to inspect the
pr operty and to retrieve all the i tems that he w ished t o retrieve , and he agreed to take
those items as is. Regarding those items that Gonzalez chose no t to re t ri eve

— whether
because they had been da maged by exp osure to the elements or because he did not want them

— Gonzalez relinqui shed an y clai m to those it em s and understo o d that the
Ci ty would dispos e of them as it sa w f i t. In April 2019, the trial court g ranted
Gon z a lez ’ s motion to dis miss hi s claim s aga i ns t the City.
In ea r ly 2020, the Tar rant County DA f iled a notice of nonsuit a skin g the trial

court to sign an order nonsuiting the Chapter 47 c a se and move d to be remov ed as
the State ’ s co unsel o f rec ord on Gonz a lez ’ s counter claim s and third

- party c laims. In
its removal motion, the D A explained that as a r esu lt o f Gonzalez ’ s d ismissing his
third

- party claim s against the City and the D A ’ s non suitin g the Chapter 4 7 cr iminal
proce eding, only Gon z alez ’ s civil claims against the State remain ed

. The DA c la ime d

t hat its authority is ge nera lly li mited to cri minal matters and that it could not represent th e State in ci vil ma tters unl es s authorized by s tatute. See Tex. Gov ’ t Code Ann. § 44.3 20(a). T he DA asserted that because Ch apter 47 does not authoriz e the D A to

r epre sent the S tate i n civil cases , the DA could not represent the St ate in defending against G on zale z ’ s civil c l ai ms and thus a sked to be remo ved as counsel of record on7 tho se claims. Accor ding to the DA, only the attorney general may act o n t he S t a t e ’ s be ha l f in civil matters. At the hearing on the Tarrant County DA ’ s notice of no nsuit and remova l
motion , the DA explained that t h e St ate had never c lai med an in terest in the p roperty

a nd r ep resented that the settlement b etween Gonzalez a n d the C i ty had deter mined
the super ior

- ri ght

- to

- pos session issue , which resolve d the C h a pt er 47 ca se . Th e City agreed that the su perior

- ri g ht

- to

- possession is su e h ad been reso lved.
In May 2020, t h e trial c ourt signed a n order re flect ing t he parties ’ representatio n s re g a rdi n g the superior

- right

- to

- posses sion issue and dismissing the Chapter 47 proceedi ng without pr ejudice. Th e trial court also gran ted the removal
motion

. T he trial court removed the DA as counsel for Gon z a lez ’ s civ i l cl aims against
the State, st ayed the ca se for 3 0 days , and ordered that a copy of the order b e sent “ to the Texas Attorney General Ken Pax ton so that he may h a v e an o pp ortuni t y to
appear on b ehalf of the S tate of T exa s in this lawsuit. ” T he T arr a nt County DA emailed a cop y of the trial c our t ’ s order to an assi stant AG , 8 but the AG ’ s of fi ce did

no t enter an appearance
. In earl y July 2020, G o n zalez wrote to the trial cour t to request tha t th e cas e be
set for trial the week of Novem ber 2, 2 020 , c o py ing “ Mr. Ken Paxton, Office of the
Attorne y Gener a l , PO B o x 12548, Austin , TX 78711

- 2548 ” via certifi ed mai l , return

8 N o ci tat ion wa s served on the AG.8 receip t request ed

. A re turn ed green card indicated that th e lett er was received in the
AG ’ s “ mail center
. ” The AG still did not appear.
On S eptember 21, 2020, t he trial court set th e c ase for a j ury trial on Nove mber
2 , 202 0, but nothing in the recor d indicates tha t th e trial

- setting order was sent to the
AG ’ s o ffice. On No vembe r 2 , Gon z alez moved to waive a j ury and to try the case to
the bench o n No vember 24, 2020. The motion lac ke d a cer t ific a t e of service to
i ndicate that the AG ’ s o ffice was se rved with t he motion. T he tri al c ourt si gned an
ord er gra nting the mot ion and reset t ing the case f or a November 24 bench trial

. The
trial court also signed a sepa r ate trial

- setti ng o rder ref l ec ting th e n ew t ri al date. The

recor d does not show whether either order was sent to the AG ’ s office in Au stin. Instead, the trial

- court clerk mailed the trial

- settin g order to the “ The State of Te xas, 401 B elkn a p, Fort Wor th, TX 76196

. ” 9 Ac cording t o the trial cour t ’ s d ocket s h eet, th e trial

- setting order was ret urned to the c le r k.
On No vember 24, 2020, the trial cour t called the case to t rial and sta ted on the
record t hat “ this mat ter was forwar d ed to the Attor ney General ’ s o ffice, and the
T exas Attorn ey Ge nera l has refused to ma ke an appear ance i n th e ca se. ” During his testimony, Go nzalez insisted t hat the bu i lding materials that the S tate had seized were

not st olen , th at he was not e ngaged in a cri minal enterprise a t the time of the s eizure,
and that he was ne ver ar res ted for any crime

. Gonz ale z expla ined that as part of his

9 This i s the Tarrant County DA ’ s s treet address, but the suite number is missing.9 set tlemen t wit h the City , the City had paid him $47,000 and had allowed him to

re trieve the materials

. Bu t only about 25 pe rcent of the materials were still usable
because “ [t]he re s t of [t hem] h ad been ruin ed ove r the years of exposur e to t he

w eather. ” Gon z alez testified th at the materials ’ market value w as $1 96,0 00 , that he
had received $47,000 f rom the C ity , and that the value o f the materials that he
retrieved w as $37,000

. Takin g th ose a mou nts i nto account, Gonz alez claimed that he

wa s “ o ut ” abou t $1 12,000 “ more or less

. ” Gon zale z ’ s attor ney s then testified to trial and appel late attorn ey ’ s fe es. O n January 21, 20 21, t he trial court si gned a fina l ju dgm ent in G onzalez ’ s fa vor

a gain st the Stat e f o r $112,000 in damage s , $3 0 ,000 in trial attor ney ’ s fees , and $57, 000 in conditional ap p ellate attorney ’ s fees

. 10 The judgment did not award any
decl aratory relief. Four days later, the A G a ppeared on th e Sta te ’ s behalf and later timely moved
for a n ew tri al a nd to set aside the judg ment as void for lack of s ubjec t

- matter jurisdi ction. 11 See Te x. R. Civ. P. 329b (a)

. After a non evid entiary hearing, t he trial

court orally denied the m o tion , and the S ta te has ap pealed

.

10 The ju dgme nt stated that the “ Defendant State of Texa s [had] pre viously ap pe are d by and thr ough the Tarra nt Cou nty Distr ic t Attorney ’ s Offic e [,] who
w

ith d r ew [,] after which the Court pro vided n otice to the Texas Attorney General to represent t he State of T e xas h erei n [,] b ut [it has] not undertaken to represent the Stat e of Texas. ”

11 T h e State ’ s new

- tria l motion w as not verifie d an d was un acc o mpa ni e d by aff i d avit s or any other eviden c e .10 II. The St ate ’ s Issue s In fi ve issu es, t h e State argue s tha t the trial co urt a b used it s dis cretion by denying i ts new

- trial m otio n and by refusing to set aside the default judgment because (1) the tria l cou r t la cked jurisdicti on over Gon za lez ’ s takings clai m an d ov er the State ; (2) t he Stat e did not have prop er notice of trial; ( 3) the evidence is legally and factu ally
insufficient to suppo rt the default judgment; (4 ) Gon z al ez ’ s takings cla im fails a s a lega l mat ter be ca use th e S tate is not liable for the C i ty ’ s or F WPD ’ s action s; and (5) no autho rity supports the attorne y ’ s

- fee s award , or al ternat ively, the evidenc e is legally and f actua ll y in sufficient to support the award. Becaus e the State ’ s fir s t , third,
and fourth issue s at tack the trial court ’ s subjec t

- ma tter jur isdictio n over G on zalez ’ s tak ing s claim, 12 we address t hose issues fi rst. S ee Tex. R. App. P. 47.1. We wil l t hen
address the State ’ s remaining issues to determine whether the t ri al court o ther wi se abu sed its discretio n by d e ny ing the State ’ s new

- trial moti on a nd by failing to set aside
the default judgment

. II I
. Standard of R eview
We review a trial cou rt ’ s order d enyin g a motion for new trial or t o set aside a default judgment for an abuse of di screti on. See In re Mar riage of S andoval , 619 S.W.3 d 716, 721 (Te x. 2 021); Leas e Fin. Gr p

. , LLC v. Childers , 310 S. W.3 d 120, 124 (Tex. App.

— Fort Worth 2010, no p et
. )

. A tr ial cou rt abuses i ts discretion if i t acts without

12 T he S tate doe s not challenge the trial court ’ s subje ct

- ma tter jurisdi ctio n over Gon z a le z ’ s other claims

.11 reference to any guiding rul es or princi ples

— that is, if its act is arbitrary or

unre asonable. Low v. H enry , 221 S.W.3d 609, 6 14 (Tex. 2007); Cire v. Cummings , 134 S.W.3d 835, 838

– 39 (Tex. 2004). Fo r examp le, a tria l court abuses its discret ion if it fails to analyze the law correctl y or m isappl ies the law to es tablished facts , In re
Dawso n , 550 S.W.3d 625, 628 (Tex. 2018) (orig. pro ceeding) ; Iliff v. Ili ff

, 339 S.W.3d 74, 78 (Tex. 2011), or if it s d ecision is so arbitrary a nd unreasonable th at it amounts to a clear and pr ejudicial er ror of law , In re Olshan Foun d. Repair Co., LLC , 328 S.W. 3d 883, 888 (T ex. 2010) (ori g. proc eeding ).
IV
. Sub jec t- Matter Jurisdiction Over Gonzale z’s Takings Claim A “ takings ” claim is rooted in the takings clause of the Texas Constitution

— Ar ticle I, S ec tion 1 7— whic h provides, in pertinent part, that “[n]o pe rson ’ s property sha ll be taken , damag ed, or d estroyed for or app lied to public use without adeq uate compensatio n b eing m ade, unless by the consent of such person.” Tex . Const. art. I, § 17 (a) ; see Cit y of Dal l as v. Jennings , 142 S.W.3d 310, 313 n.2 (Tex. 2 004) (noting that “taking,” “d amagi ng , ” and “ destructi on” of one ’s property are three distinct claims arising u nder A rti cle I, S ection 17, but the term “taking” has become use d as
shorthand to refe r t o all thr ee types of claims). The Sta te arg ues in pa rts of its firs t an d
third issue s and in its fo ur th issu e that the t ria l co urt erred by n ot setting aside the default judgm e nt because th e trial court lacked subjec t- matt er jurisdiction over12 Gon za lez ’ s takings c laim. 13 Wi thi n its first issue, the State a rgues t hat Go nz alez ’ s takings claim w as not r ipe w hi le the underlying C hap ter 47 case was pen ding but then
became moot once tha t case was res olved. 14 The Sta te argues in its third and fourth
issue s that sovereign immunity bars G onz alez ’ s taking s claim bec au se Gon z alez fai led

to allege and prov e s uffi cient facts to support a v iable takings claim agai nst the S tate
. Because the State ’ s third and fourth issue s are di spositive of Gon z alez ’ s takings claim,

w e do not address the r ipe ness and mo otne ss arguments raised in the State ’ s fir st
issu e. See Te x. R. A pp. P. 47.1.

13 In the remainder of the State’s first issue, it contends that Go nz alez did not properly serv e cit at ion o n t he State. Th i s is a c halle nge to the trial c ourt ’s p ersonal jurisdiction over a par ty, not the trial cou rt ’s subject -m atter jurisdiction over a claim. See In re E.R. , 385 S.W.3d 552, 563 (Tex. 2012) (“ Personal jurisdiction, a vit al
co mp o nent of a valid ju d gme n t, is de p endent ‘ upon cita tion issued an d served in a manner provided for by la w.’ If service is inv a lid, it is ‘o f no effect ’ and cannot establish the trial court ’ s jurisdiction over a party. ” (ci tations om itted)) ; Tex. D ep ’t of Tra nsp. v. Sel f

, No. 0 2-21- 0024 0-CV , 2022 WL 1259094 , at *6 (Tex. App.

— Fort Worth Apr. 28, 2022, no pet. h.) (mem. op. on reh ’ g) ( explaining that we address sub ject

matter jurisdiction on a claim

- by

- claim basis ). Within its third issu e, the State a rgu es th at no evidence support s G onzalez ’s takings claim , which i s effecti vely a challenge to the trial court ’s s ubject

- matter jur isdiction over that clai m. See, e.g. , City of San Antonio v. Polloc k , 284 S.W.3d 809, 8 20

– 21 (Tex. 2 009) (concluding that beca use “ the re w as no e vidence of a c ompens abl e taking ,” city was immune from plaintiffs ’ takings claim ).

14 The S tate also asserts tha t Gonzalez l acked standing bec ause his claims were not ripe. Al though standing also implicates subject

- matter jur is dic tion, standing focu s es on who ma y bring an actio n , whi le r i peness exami nes when an action may be br ought. Patt erson v. Planned Parenthood of Hous . & Se. Tex., Inc

. , 971 S.W.2d 439 , 442 (Te x. 1998 ). We note that a f ter ex amining the State ’ s arguments, the St ate ’s standing a rgum ent is actually one of ripeness

. See id.13 Unle ss t he St ate cons en ts to su it , so vere ign im m unity shield s the State from lawsuits for damages and deprives a tr i al cou rt of subject -m atter jurisdict ion over suit s again st the St ate
. 15 See H earts Bluff Ga me Ranch, I n c. v. S t ate , 381 S.W.3d 468 , 4 76 ( Tex. 2012); Tex . Dep’t of Pa rks & Wildlife v. Mi ra nda , 133 S.W. 3d 217, 224 ( Te x. 20 04 ) (op

.

on r eh ’ g)

. But so ver eig n immunity does not p rotect the State from a claim unde r the
Texas Con stitution ’ s takings claus e. State v. Brownlo w , 319 S.W .3d 649 , 6 52 (Tex . 2010)

. Even s o, the Stat e retains i ts immuni ty w hen a plaintiff does not plea d and prove sufficient facts to establish a viable takings claim. See Heart s Bluff , 3 81 S.W .3d at
491 (hol ding that trial court did not have jurisdicti on over d ispute bec aus e pr operty

o wner di d not plea d a nd prove sufficien t f a cts to establis h a viable takings claim) ; City of Justin v. Wesolak , No. 02

- 15

- 00379

- CV, 2016 WL 298 9568 , at *4 (Te x. App.

— Fort
Worth May 19, 2016, no pet.) (mem. op. ) ( “ When a pl ain t iff fa ils to allege a valid taking s claim, governmental im m unity continues to apply, and a trial court is without subject

- matter jurisdiction. ”)

. A valid takings clai m requires (1) that a g overn mental entity intentionally performed certain act s in the exer ci se o f it s lawful au thority; (2) that such acts resulted in taking , da maging, or de st roying the plaintiff ’ s property; and (3) that the taking was for public use. See , e .g. , Wesola k , 2016 WL 2 98 9568, at
*4 (citing Gen. Serv s. Comm ’n v. Lit tle

- Tex Insul atio n Co. , 39 S.W.3d 59 1, 59 8 (Tex.
2001 ) ).

15 The exi stence of subjec t- matt er jurisdiction is a legal question that we review de novo . Harr i s Cnty. v. Annab , 547 S.W.3d 609, 612 (Tex. 2018).14 Here, the State co ntends that Gon zale z’ s ta king s claim has no legal basis
because it is not liab le for the City ’ s or F WPD ’ s actions. It argues that because
Gonzal ez has not a lleged or sho wn any int entional act s by th e Stat e or any of i ts employees relating to th e damage to his property and has not cited any s tatute by
whi ch the State has waived immunity from suit for the City ’ s or FW PD ’ s act i ons , G on zale z has failed to plead and prove suff icient fact s to est ablish a v alid t akings
claim fo r which the State ’ s sover eign immunity is waived. The State further argues that there is no evidence that Gon zale z’ s property was taken or damaged fo r public

use. A takings claim ant must p lea d and prove that the government ’ s i ntentiona l act s were the pro x im ate cause of the taking or damaging of the property. 16 See Hearts Bluff , 381 S.W. 3d at 483

– 84 . R egarding intent in the takings cont ext , t he Texas Supr eme Court has explained that
th e govern ment ’ s “mer e negligence which eventually contr ibut es to the destr uc tion of property is not a taki ng”; ra ther, the government must act intentionally. This requirement is rooted in the constitutional provi sion that a c ompensable taking occurs “only i f proper ty is damag ed or appropriated fo r or applied to pu bl ic use.” An a cciden tal destruction of propert y does not benefit the public. The public

- use limitation “i s the factor which distinguishes a negligence action fro m on e under the constitution for des truction .” For purposes of article I, s ection 17, a go ver nme ntal entity a c ts i ntentionally if it knows e ither “ that a specific act [was] causing

16 “ The governmental entity sued must have taken direct gov ernme ntal acti o n, or have been the proximat e cause, of th e harm.” Heart s Bluff , 381 S.W. 3d at 484.15 identifiable h arm” or “that the specific property damage [was] substantial ly certain to result from” the act. A govern mental enti ty is substantially c ertain that its ac tio ns will damag e pro perty only when the damage is “ne cessarily an incident to, or necessarily a con sequen tial result of the [entity ’ s] action.” The gove rnment ’ s know ledge must be determined as of t he time it acted, not with benefit of hi ndsight

. Polloc k , 284 S.W.3d at 82 0– 21 (fo otno te s omitted)

.

Here, Gon z alez pleaded that the City and the State “ without probabl e cause or
a p rope r warrant [,] seized appr oxi mately $150,0 00 of bu ilding materials f rom Go nzale z” and that t he City and the State “ allowe d the b uildin g mat erials t o be
des troyed by failing to adequately protect such from the elements. ” Gon z alez further pleaded that the City ’ s and the Stat e’ s “ ac tions and failure s” wer e “ taking [s] in
vio lation of the T exa s Constitution. ” Even c onst ruing thes e plead i ngs l iberally and in
Gonz alez ’ s favor, 17 the se facts are insufficient to plead the intent required for a
taki ngs claim a gainst the State

. At t rial, Gon zalez testified that “ the Stat e of Texas ” took hi s property and t hat his property was damaged while in th e City ’ s posse ssio n. After adding the compensation that he had received from the City to the val ue of the usable property he r etri eved , h e was still “ out ” about $112,000 . There was no evidence, however, that
the S tate ’ s actual se iz ure o f the property damag ed or de stroyed it or th at the State

17 When exam in ing whether a pl aintiff ha s alleged facts affirmatively d em onst rating the trial court ’s subject

- matter jurisdiction o ver a cla im , we must de te rmi ne if the plead ings —c onstrued l ibe rally in t he plaintiff ’ s favor and lo oking to th e plea der ’ s intent

— all ege su f ficient facts af firmatively demonstrating subject

- matter ju risdi ction. See M iranda , 133 S.W.3d at 22 6.16 knew that destruction or damage to the property while in the City ’ s storage fac ility was substantially cert ain to result fro m that se i zure . Lik ewise, there was no evidence
that the alleged damage or destruction of Gon za le z’s propert y was for a public use. See Jennings , 142 S.W.3d at 313 (“ When damage is merely the accidental result o f the
governmen t’ s act, there is no public be nefit [,] a nd the property cannot be said to be

‘ taken or damaged for public use. ’” (quoting Tex

. High way Dep ’t v. Web er , 219 S.W.2d 70 , 71 ( Tex. 1949 ))). Th e evidence was thus insufficient to support Gon zale z’ s takings
claim aga inst the State. 18
Gon z alez fa iled to p lea d and prove sufficient facts to establish a viable taki ngs cla im. See Heart s Bluff , 3 81 S .W.3d at 491

. The tr ial court thus lacked subject

- matt er jurisdiction over Gonzalez ’ s t akings claim, and we s ustain the State ’ s fourth issue and part of i ts third i ssue . V. Render Versus R e mand Normally, subject -m atter jurisdiction is challenged thr ough a plea to the jurisdiction and is deter min ed during the early sta g es of a case and certainly b efo re

18 If a plea to the jurisdiction chal len ges the e xistence of ju risdictiona l f acts , we co nsider relevant e vidence s ub m itted b y th e parties when necessar y to resolve the ju risd ic tional issues raised , as the trial court is require d to do

. Id. at 227

. If the
ev idence creates a fact question rega rdi ng th e jurisdic tiona l issue, then t he trial cou r t c annot g rant the plea t o the jurisdiction, an d the f act issue will be resolved by the factfinder. Id. at 227

– 28

. But if the relevant evidence is undisputed or fails to raise a fact question on the jurisd ict ional issue, th e tri al court rules on the plea t o the jurisdiction as a matter of law

. I d. at 2 28. This standar d generally mirrors that of a traditional summary judgment

. Id. ; see Te x . R. Civ. P. 166 a( c)

.17 fina l jud gme nt. Here, alt hough the State challenged th e trial court ’ s sub ject

- matter jurisdiction over G on z alez ’ s tak ings claim i n the trial court, the State did not do s o until it s new

- trial mot ion . The State ’s immunity arguments were thus not full y de veloped unti l a ppeal. Becaus e the State essential ly made its immunity argume nts for the first time on appeal, we mus t remand Gonzale z’s takings claim for furthe r proceedings on the jurisdicti onal issue

— rat her than renderin g judgment dismissing
the claim

— unles s the Sta te shows that one of three situations exist s: ( 1) Gonz alez ’ s ple adings or the record conclusively negate jurisdiction; ( 2) Gon za le z had a full and
f

air opportuni ty in the trial court to develop t he record and amend h is pleading s to sh ow jurisdictio n yet fa iled to do so; or (3) if Gon za le z did n ot hav e such an opportuni ty, he cannot show j urisdiction even if the case is rema nded to the trial

cour t and he is given t he opportunity to develop the reco rd as to jurisdiction and
amend his pl e adi ngs . See Ru sk State Hosp. v. Black , 392 S.W.3d 88, 100 (Tex. 201 2).
H ere, Gon zalez ’ s pleadings and the record conclusively negate jurisdic tion over his takings claim against the S tate : Gonz alez has not shown and cannot show that the
State ’ s taking of his property was for public use . P roperty has not been taken for
p ublic use whe n the da mage to the property is “m erely the accidental result of the
governmen t’ s act .” Jenn ings , 142 S.W .3d at 313 ; see Polloc k , 284 S.W.3d at 820 (“An
acciden tal destructio n of propert y does not benefit the public. ” ). “[ T]he absence of
the intent require d for th e first element of inverse condemnation necessarily impl ies18 that the public

- us e elem ent is also a bsent. ” City of Dallas v. Z etterlund , 261 S.W.3d 824, 833 (Tex. App.

— Dallas 2008, n o pet .) (citing Jenn ings , 142 S.W.3d at 313

– 14)

. G on zal ez has maintained tha t the City ’ s improp er sto rage of the s eized
property— not the seizure it self

— caused t he property t o be damaged or d est ro yed

. He notes in his ap p ellate brief that he is not seeking to hol d the State vicariously liable for the City ’s actions but rather for th e State ’s alleged wrongful seizure of the
property. At most, the damage and d e str uct ion to Gonzal ez ’ s property after the
State ’ s s eizure was an acc ident , which does not benefit the public. Because the pleadings and record he r e co n clusively negate jurisdiction over
Gon zalez ’ s takings claim against the S tate , we conclude that the prop er app ellate dispo s ition of that claim is re ndering judgment dismissing it

. See Ru sk State Hosp

. , 392 S.W.3d at 100

. VI
. T he State ’ s N ew -T rial M otion
T he re mainder of the State ’ s issues attac k the trial court ’ s default judgmen t against it . The State a rgue s that the trial cou rt abused its di scretion by denying the
State ’s new

- trial mot ion and refusing to s et aside the defau lt judgment bec ause the
d efault judgme nt was either void for lack o f ser vice , inv alid for lack of notice , o r w as unsupported by suff icie n t evidence or legal authorit y. Within its first issue , the State
argues that because it wa s never properly ser ved with citati on, the de fault judgment is
void and thus must be set aside. S ee Te x . R. Civ. P. 12 4. In its second, third, and fifth
issues , the S tate a lter native ly argues that t he default j udgment is invali d because it w as19 not given notice of the final trial setting (iss ue two ) or that the defaul t judgment
should be set aside beca use the evidence was insufficient to support it (

issue three)
and bec au se t here was no l egal bas is or suf ficient evi dence t o support the attorne y’sfe es award ( iss ue five ). 19
We need n ot address whether the Sta te was properly serve d or received proper notice of the trial b ecause th e question of whether any of Gonzalez ’ s other legal
theories su p port the default judgment is dis p ositive of the r est of this a ppeal

. S ee Tex.
R. App. P. 47 .1; Do lgencorp of Tex., Inc. v. Lerm a , 288 S.W.3d 922 , 9 29

– 30 (Tex. 2009) ; Wilson v . Dunn , 800 S.W.2d 833, 837

– 38 (Tex. 1990 ); c f. State v. Coo k U nited, Inc. , 469 S. W.2d 709, 712 (Tex. 1971) (deleting State of Texa s from list of enjo ined parties when temporary i njunction is sued in cou nterclaim filed in response to civil

- injunction
suit bro u ght by district attorney on behalf of the State under the pen al co de was no t

se rved on attorney general ). We thus turn to the rest of the State ’s third issue and to
its f ifth issue

. 20

19 The State does not argue the appl ica bilit y of Chapt er 39 of the Texas Civil Practice and R em edies Code, so we do not a dd ress it. See Tex. Civ. Pra c. & Rem. Code An n. §§ 39.001 –. 002 ( “ Defa ult Judg ments in C erta in Cases Defended by At torney General ”).

20 Wi th in its third issue, the State gene ral ly as serts that the evidence is l egally and factu a ll y insuffi c ient to s upport the def ault judgme nt, but i ts argument is focused on the evid ence suppo r ting Gon za lez ’s takin gs cl aim. I n its fi fth issue, the State attacks the attorney ’s- fees aw ard , in part becau se

— as G onzalez co n ce ded during oral argum ent —t her e is no l e gal ba sis for it be c ause attorney ’s fees are unavail able in a takings case , see City of San An tonio v. El D orado Amusement Co. , 195 S.W.3d 238, 249 (Tex. A pp.

— San Ant onio 2006, pet
. denied) , and the trial court ’ s j udgment did20 I n a trial to the court in which no findings of fact or conclusions of law a re filed, t he t rial court ’ s judgment implies all fi n dings of fa ct nece ssary to su pport it.
Shields Ltd. P ’ ship v. Bradb erry , 526 S.W.3 d 471 , 480 (Tex. 2017). When a re porter ’ s

rec ord is file d, these implied findings are not conclusive, and an app ellant may challenge them by raisin g issues challenging the l e gal a nd fac tual su ffici e ncy o f the evidence to support the judgment

. Id. We apply t he s ame standard when reviewing the
sufficie ncy of the evidence to support implied findings that we use to revi ew the
evi dentiary su ffic iency of jury findings or a trial co urt’ s exp res s findi ngs o f fact

. Id. We must affirm the judgment if w e can uphold it on a ny legal theory support ed by the
record. Rosemond v . Al

- Lahiq , 331 S.W.3d 764, 766 (Tex. 2011)

. W e have alre ady de termined th at G on z alez failed to plead and prove suf fi cient
facts to e stablish a viable takings claim , so we cannot aff irm the default judg ment on that legal theory . T urning to Go n za lez ’ s re maining claim s— vio lations of the Texa s Con sti tution ’ s du e- proc ess , due

- course

- of

- law , and equa l- protect ion p rovisions, a s well as th e Texas Con st itutio n’ s pro tect ions against u nreason ab le search and s eizur e—

not award Gon zale z d eclarator y relie f for which an attorney ’s

- fee s award m ight have been available , see C ity of Arlington v. Randal l , 30 1 S.W.3d 896 , 908 n.7 (Tex. App.

— Fort Worth 2009, pet. d e ni ed)

. We conclude that fairl y included in these tw o issues i s a challenge to th e t rial cour t ’s judg ment on Gon za lez ’ s ot her legal theories ( vio lations of t he Texa s Consti tution ’ s due

- process , due

- course

- of

- law , and equa l- protect ion p rovision s , a s wel l as the T exas Con s titutio n’ s pro t ections against u nreas on able sea rch and s eizure ). S ee Tex. R. A p p. P. 3 8.1(f); Dinkins v. Ca lhou n , No. 02

- 17

- 00081

- CV, 2018 WL 2248572 , at *7 n.8 (Tex. Ap p. —Fort Worth May 17, 2018, no pet. ) (mem. op.).21 we conclu de that the judg ment cannot b e u pheld on these l egal th eories ei ther
because , as the Sta t e points out, there is no priva te cause o f action ag ainst the State
for money damag es arising un der those pr ovisions of the Texas Consti tution. See , e.g. , City of Elsa v. M.A.L

. , 22 6 S.W.3d 390 , 392 (Tex. 2007 ) ; City of Beaumon t v. Bouillio n , 896 S. W.2d 1 43 , 150 (Te x. 1995 ) ; Don ohue v. Dominguez , 486 S.W.3d 50 , 56 (Tex. App.

— San An tonio 2016, pet. d e nied ) ; Turner v. Tex. Dep ’t of Mental Hea lth & Mental
Retardatio n , 920 S.W.2d 415, 41 9 (Tex. App.

— Austin 1996, writ denied ) ; Vincen t v. W.
Tex. St ate Uni v. , 89 5 S.W. 2d 469 , 475 (Te x. A pp.

— Ama rillo 1995 , no writ ). And
Gon z al ez did n ot fil e a no tice of appe a l c hallenging the trial co urt ’ s fail ure t o award
him d eclaratory relief based on these alleged co nstitutional violations

. See Tex. R. App.
P. 25.1 (c ).
We thus sustain the remainder of the State ’s third is sue and its fifth issue

. VI I. Con clusio n Having su s tained the State ’ s th ir d , fourth , and fif th issues, we revers e the trial

court ’ s default jud gment , and we r ender judgment dismissing Gon zalez ’s ta king s claim
and ordering that Gon zalez take nothing on his remaining claims

.

/s/ Elizabeth Kerr Eliz ab eth Ke rr Jus tic e Delive r ed: August 25, 2022