On April 16, 2024, the U.S. Supreme Court decided DeVillier v. Texas, No. 22-913, holding that owners of property north of U.S. Interstate Highway 10 adversely affected by the flood evacuation barrier constructed by Texas should be permitted on remand to pursue their Takings Clause claims through the cause of action available under Texas law.

This case involves several projects the State of Texas undertook to facilitate the use of a portion of land north of U.S. Interstate Highway 10 as a flood-evacuation route, including a 3-foot-tall highway median to act as a dam. When heavy rainfall occurred in southeast Texas, the median barrier worked as designed, keeping the highway open, but it flooded the land of property owners to the north, displacing them from their homes and damaging businesses and property.

Alleging that this flooding worked a taking under the United States and Texas constitutions, a group of local landowners filed an inverse-condemnation suit against the State of Texas in state district court, arguing they were entitled to just compensation. Texas removed to federal court, and moved to dismiss the operative complaint, arguing that a plaintiff has no cause of action arising directly under the Takings Clause of the Fifth Amendment. The State argued that takings claims can only be brought under 42 U.S.C. 1983, and since Texas, which is not a “person,” cannot be sued under the statute, the claims could not be brought at all. The district court denied Texas’ motion, but the Fifth Circuit Court of Appeals disagreed, holding that the Takings Clause, as applied to the States through the Fourteenth Amendment, does not provide a right of action for takings claims against a State.

The Supreme Court vacated and remanded. Writing for the Court, Justice Thomas observed that the Court had granted certiorari to decide whether “a person whose property is taken without compensation [may] seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action.” That question assumed that the property owner had no separate cause of action to vindicate his right to just compensation under the Takings Clause. That was not the case here, because Texas law provides an inverse-condemnation cause of action by which property owners may seek just compensation under the Texas Constitution and the Takings Clause. Thus, the Court remanded to allow the property owners to pursue their claims through the cause of action available under Texas law.

Justice Thomas delivered the unanimous Opinion of the Court.

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