Inverse condemnation in Texas — a taking the government never filed papers for

Eminent domain is what happens when the government files a condemnation case and pays. Inverse condemnation is what happens when it takes the property and does not.

The claim arises directly under article I, § 17 of the Texas Constitution, which provides that no person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation. That constitutional footing gives the claim two advantages nothing else in suits against Texas government has: no Tort Claims Act notice deadline, and no Tort Claims Act damages caps.

What the claim is

A governmental entity took, damaged or destroyed your property for a public use, and did not pay you.

Where the right comes from

Article I, § 17 of the Texas Constitution, which waives immunity for a claim within its terms. The elements come from Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980), and the intent requirement from City of Dallas v. Jennings, 142 S.W.3d 310 (Tex. 2004).

What a plaintiff has to prove

1. The governmental entity intentionally performed certain acts;
2. Those acts resulted in a taking, damaging, or destruction of the plaintiff's property; and
3. The acts were for a public use.

Intent — the element that decides the case

The first element is not intent to injure. It is intent as to the consequences, and Jennings supplies the test: a taking requires that the entity either knew the specific act was causing identifiable harm, or knew that the harm was substantially certain to result.

Negligence is not a taking. A city truck that hits a fence, a maintenance failure, a mistake in engineering — these produce a tort claim, if any, and immunity ordinarily bars it. A plaintiff who pleads that the government was careless has pleaded itself out of the constitutional claim and into the Texas Tort Claims Act, where the notice deadline and the caps apply.

This is the pivot of nearly every inverse condemnation case, and it explains a strange feature of the pleading: a plaintiff must insist the government did it on purpose.

The three ways property gets taken

Physical appropriation. The government occupies the land, runs a road or a line across it, or takes possession without a condemnation suit.

Physical damage. Flooding is the classic case — a drainage project, a detention pond, a highway embankment that redirects water onto private land. The property is not occupied, but it is damaged.

Regulatory taking. A regulation deprives the owner of all economically beneficial use, or goes so far in restricting use that it functions as an appropriation. This is the hardest of the three, and a diminution in value, even a large one, is not enough.

How long you have to file

There is no limitations statute for a constitutional takings claim. Texas courts borrow one, and the period depends on which kind of taking is alleged.

A physical taking: ten years, by analogy to the adverse possession period in CPRC § 16.026. The reasoning is that the government acquires by taking what a private party would acquire by adverse possession, so the periods should match. Accrual runs from when the property is “actually and visibly appropriated.”

A damaging claim: two years under CPRC § 16.003(a), from the date of the damage.

Recurring flooding complicates the accrual question, because each flood may be a new injury or evidence of one permanent condition. A plaintiff who waits to see whether it happens again is taking a risk with the clock.

What has to happen before you file

No Tort Claims Act notice. This is the practical difference that matters most. A takings claim arises under the constitution and does not depend on the statutory waiver in CPRC § 101.021, so the six-month notice requirement in CPRC § 101.101 does not apply — and a shorter municipal charter notice deadline does not either.

Administrative remedies, where the entity has a statutory compensation scheme that covers the claim.

What the claim pays

Adequate compensation — the fair market value of what was taken, or the diminution in the property's market value where it was damaged rather than appropriated.

No Tort Claims Act caps. The $250,000 and $100,000 limits in CPRC § 101.023 belong to the statutory tort waiver and have nothing to do with a constitutional taking.

Interest, from the date of the taking.

No attorney's fees, absent a separate statute providing them. This is the claim's weak point, and it means small takings are often not worth pursuing.

Who can be sued

The governmental entity — the state, a department, a county, a city, a drainage or water district, a transit authority, any entity with the power of eminent domain.

Not the individual officials, who are not the taking party.

Immunity, and why the claim survives it

Governmental immunity bars most suits against Texas government unless the legislature waives it. Article I, § 17 is self-executing, and a valid takings claim is an exception the legislature never had to create — the constitution waives immunity for it directly.

That is why the pleading standard is strict. A plaintiff who cannot plead a viable taking has no waiver at all, and the case goes out on a plea to the jurisdiction rather than on the merits. Courts examine takings pleadings closely for exactly this reason: the pleading is the jurisdiction.

Common defenses

• The act was negligent, not intentional — the most common and most effective answer.
• No public use.
• The regulation left economically viable use of the property.
• A valid exercise of the police power to protect health and safety, which is not compensable.
• Limitations, on the borrowed period.
• The claim is a tort in constitutional clothing, barred by immunity.

What people get wrong

You do not file a Tort Claims Act notice. Doing so is harmless, but believing you needed it — and concluding you are barred because you missed six months — costs claims that were good for ten years.

The caps do not apply. A taking is compensated at value, not at $250,000.

Negligence is fatal. Pleading that the city was careless converts a live constitutional claim into a barred tort claim.

Losing value is not a regulatory taking. The regulation has to deprive the property of economically viable use, or go far enough to function as an appropriation.

Fees are not recoverable. Unlike a formal condemnation, where an owner may recover fees in certain circumstances, an inverse condemnation plaintiff generally pays their own.

Where it came from

Texas has protected property against uncompensated taking since 1876, and the state's provision is broader than the federal one: article I, § 17 covers property "taken, damaged, or destroyed," where the Fifth Amendment speaks only of taking. The word "damaged" is why flooding cases work in Texas.

Steele v. City of Houston in 1980 gave the claim its modern shape, holding that the constitutional provision itself waives immunity and stating the three elements. Jennings in 2004 added the requirement that has governed ever since — that the entity knew the harm was occurring or was substantially certain to result — and in doing so drew the boundary between a taking and a tort.

That boundary is the whole subject. On one side is a constitutional claim with a ten-year deadline, no notice requirement and no cap. On the other is a statutory tort claim with six months' notice, a hard cap, and immunity waiting behind it. Nearly every inverse condemnation case is an argument about which side the facts fall on.

Common questions

How long do I have to file an inverse condemnation claim in Texas?

Ten years for a physical taking, borrowed from the adverse possession statute. Two years for a claim that the government damaged rather than appropriated the property.

Do I have to give the government six months' notice?

No. The Tort Claims Act notice requirement does not apply to a constitutional takings claim.

Do the Tort Claims Act damages caps apply?

No. Compensation is the value of what was taken or the loss in market value.

The city flooded my land. Is that a taking?

It can be, if the city knew the flooding was occurring or was substantially certain to result from what it built. If it was merely negligent, it is not.

Can I get my attorney's fees?

Generally no, unless a separate statute provides for them.

Is a zoning change that lowers my property value a taking?

Rarely. A regulatory taking requires deprivation of all economically viable use, or a restriction that functions as an appropriation.

Where these rules live

• CPRC § 16.026 — Adverse possession: ten-year period
• CPRC § 16.003 — Two-year limitations period
• CPRC § 101.021 — Governmental liability under the Tort Claims Act
• CPRC § 101.023 — Limitation on amount of liability
• CPRC § 101.101 — Tort Claims Act notice
• CPRC § 37.004 — Subject matter of a declaratory judgment