The rule of capture provides that a landowner is not liable for groundwater pumping except in the case of willful waste, malice or subsidence. However, this well-established Texas rule may be subject to change as the Texas Supreme Court heard Oral Arguments in the case facing the Court today. The Petitioners in this case urged the Court to overturn the century-old precedent in favor of a new rule that would place the judiciary in the role of water arbiter. The Texas Justice Foundation has submitted an Amicus Brief on behalf of the position of the Respondent asking the Court to reject this attempt to rewrite Texas water law, interfere with vested property rights, upset investment backed expectations of landowners across the State, and create a new tort cause of action that will almost surely lead to a flood of lawsuits.
Property rights form the foundation of a free society.
As the guardian of those rights, the Court should, as a matter of sound policy and judicial restraint, carefully avoid abrogating settled property rights. Allan E. Parker, Jr., a former Professor of Education Law, is President of the Texas Justice Foundation. TJF is a non-profit, public interest litigation group representing people at no charge in cases of limited government, free markets, property rights, and parental rights.