593 S.W.3d 175
Tex.2019Background
- KMS Retail Rowlett, LP (petitioner/property owner) challenged the City of Rowlett’s condemnation, alleging the taking violated the Texas Constitution’s Takings Clause (Art. I, § 17) as amended in 2009.
- Justice Blacklock wrote a dissent arguing the Court’s precedent gives undue deference to government condemnors, shifts the burden to property owners, and limits defenses to three labels: fraud, bad faith, and arbitrariness.
- The 2009 amendment to Art. I, § 17 added that takings are valid only if they are for the “ownership, use, and enjoyment” by the State, a political subdivision, or the public at large, and barred transfers to private entities for primary economic development.
- Blacklock ties the amendment to reaction against Kelo v. City of New London and contends the amendment rejects the pre-Kelo deference to legislative determinations of “public use.”
- He argues the condemnor (government) should bear the burden to prove compliance with the amended constitutional text, courts should apply the text de novo without deference to municipal declarations, and property owners should be free to raise any constitutional defense (not only the three labeled defenses).
- Blacklock would vacate the majority’s approach and remand for application of the amended constitutional standard, but he concurred with the majority on statutory necessity under Local Gov’t Code §251.001 and the disposition under Gov’t Code §2206.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning and effect of the 2009 Art. I, § 17 amendment | KMS: The taking is not for public ownership, use, and enjoyment as required by the amended Clause | City: Precedent allows deference to legislative/municipal determinations of public use; statutory necessity is committed to the municipality | Blacklock: Amendment requires courts to apply the text; no deference; remand for application of amended Clause |
| Burden of proof in condemnation | KMS: City must prove the taking is constitutional (public use) | City: Precedent shifts burden to property owner to prove fraud, bad faith, or arbitrariness | Blacklock: Government (condemnor) should bear the burden like any plaintiff; reject burden-shifting |
| Scope of constitutional defenses available to property owner | KMS: May challenge the taking under the full text of Art. I, § 17 (not limited labels) | City: Courts limit defenses to fraud, bad faith, arbitrariness under precedent | Blacklock: Reject artificial limitation; owners may raise any arguments that show noncompliance with the constitutional text |
| Deference to municipal necessity determinations under statute | KMS: Constitutional limit remains even if statutory necessity is shown | City: Statutory language (Local Gov’t Code §251.001) commits necessity to the governing body—judicial deference required | Blacklock: Agrees statutory necessity is entitled to deference under §251.001, but constitutional public-use claims must be judicially decided without deference; concurs in majority’s statutory rulings |
Key Cases Cited
- City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012) (criticizing deferential treatment of property rights)
- Kelo v. City of New London, 545 U.S. 469 (2005) (Supreme Court’s broad “public purpose” takings rationale that motivated Texas’s 2009 amendment)
- City of Austin v. Whittington, 384 S.W.3d 766 (Tex. 2012) (courts determine public use; guidance on public-use inquiry)
- Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline-Tex., LLC, 363 S.W.3d 192 (Tex. 2012) (rejecting mere assertions of public use)
- FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619 (Tex. 2008) (formulation of ‘‘fraud’’ defense in condemnation context)
- Cramer v. Sheppard, 167 S.W.2d 147 (Tex. 1942) (constitutional text should be applied according to its plain meaning)
- Housing Auth. of Dallas v. Higginbotham, 143 S.W.2d 79 (Tex. 1940) (historical deference to legislative declarations of public use)