Texas Attorney General Ken Paxton issued an opinion on July 14, 2017 concluding that municipal tree-preservation ordinances in Texas may, in certain unspecified factual circumstances, constitute a regulatory taking under the Federal and Texas Constitutions.

The opinion, available here, cites municipal tree ordinances from ten cities, including Houston, Dallas, Austin, and San Antonio. Tex. Att’y Gen. Op. No. KP-0155 (2017). But the opinion addresses “the ordinances generally, without regard to a particular ordinance,” and draws no conclusions and makes no comments on whether these specific ordinances would constitute a taking in any particular circumstance.

The opinion discusses the two predominate tests under federal and Texas law, and in very general terms, concludes that a municipal tree-preservation ordinance meeting either test would constitute a taking.

The first test asks whether a regulation "denies all economically beneficial or productive use of land," Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992), or whether it "den[ies] all economically viable use of [the] property," Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex. 1998). In an interesting twist, the Mayhew opinion was authored by then-justice and current-governor Greg Abbott. In early June 2017, Governor Abbott announced a special legislative session that included among its agenda items, "[p]reventing cities from regulating what property owners do with trees on private land." Governor Abbott has a personal history with Austin’s tree ordinance, and went so far recently as to call the ordinance "insanity" and "socialistic" (beginning at the 5:30 mark, for approximately 75 seconds).

The second test asks whether a regulation "unreasonably interfere[s] with landowners’ rights to use and enjoy their property," Mayhew, 964 S.W.2d at 935. Under this test, courts will examine the regulation in light of the three federal Penn Central factors: (1) the economic impact of the regulation on the landowner, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action. See Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 124 (1978). Notably, the Attorney General’s opinion does not mention Murr v. Wisconsin, the U.S. Supreme Court’s recent opinion on regulatory takings for determining—under the Federal Constitution—what constitutes a landowner’s whole parcel.

The opinion concludes by saying that determining whether a municipal tree ordinance constitutes a taking would require a fact-specific inquiry into the specific property, the specific governmental action, the effect on the landowner, the weighing of private and public interests, and the "relevant circumstances specific to each case."

The Texas Legislature’s special session began July 18.