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Click here for the full text of this decision FACTS:In February 1999, the Wichita Falls government passed an ordinance to demolish dangerous structures at an address owned by Johnny Levatte. Levatte filed a petition for temporary injunction and further relief, and he asked for an ex parte temporary restraining order, which was granted. The city filed a plea to the jurisdiction, which the trial court granted. Levatte did not appeal the order. In January 2001, the city demolished the structures. Almost a year later, Levatte filed another suit against the city, challenging the legality of the ordinance that allowed the demolition. His one cause of action alleged that the demolition itself violated Levatte’s Fifth and 14th Amendment rights and amounted to an unconstitutional taking of Levatte’s property. The city against filed a plea to the jurisdiction. It argued Levatte was required under Local Government Code �214.0012 to exhaust administrative remedies before filing suit. Levatte countered that his suit raised a new claim that his constitutional rights had been violated, so he was not required to exhaust administrative remedies. After further briefing, the city conceded in an amended plea that under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), exhaustion of administrative remedies is not required before a party asserts an action based on a taking without just compensation under the Fifth Amendment. Still, the city claimed the federal constitutional claim was not ripe until the property owner availed himself of available state remedies to seek and secure just compensation. Levatte did not respond to the city’s plea or brief. The trial court held a hearing on the amended plea where the city presented its arguments, and where Levatte asked for an opportunity to amend his plea to respond before the trial court dismissed the case. Levatte was given nearly a month, but he did not respond to the city’s letter brief or make the amendment. The trial court thus granted the city’s amended plea to the jurisdiction. HOLDING:Affirmed. Because the city challenged Levatte’s pleadings and not the existence of jurisdictional facts, the court examines his petition to determine whether it contains sufficient facts to affirmatively demonstrate the trial court’s jurisdiction. The court notes that it is well established that a federal takings claim is not ripe until just compensation is denied, so that for a federal takings claim to become ripe, a plaintiff has to first seek compensation through the state’s procedures, unless those procedures are inadequate or unavailable. Texas has an adequate procedure for seeking just compensation through a stat constitutionally based inverse condemnation proceeding. The court agrees with the city that Levatte’s 1999 suit for injunctive relief, which was dismissed, was not sufficient to satisfy the prerequisite of a request for and denial of just compensation under state law. The court further agrees with the city that Levatte’s pleadings, even when liberally construed, cannot be read as raining a takings claim under the Texas constitution, nor as a reservation of his federal law claim under Guetersloh v. State, 930 S.W.2d 284 (Tex.App.–Austin 1996, writ denied). The court says it is unable to construe the term “taking” in Levatte’s pleading broadly enough to include a takings claim under the Texas Constitution because, in the preceding sentence, Levatte specifically referenced only the U.S. Constitution as the basis upon which he sought relief. “In short, giving a liberal construction to Levatte’s pleadings, he raised one claim — a federal takings claim under the Fifth and Fourteenth Amendments to the United States Constitution. Because Levatte did not bring a claim under article I, section 17 of the Texas Constitution, we are constrained to hold that his federal takings claim was not ripe for adjudication.” The court agrees that the proper disposition is not to allow Levatte time to amend his pleading now. He had been afforded that opportunity once before and not taken advantage of it. OPINION:Gardner, J.; Cayce, C.J., Gardner and McCoy, JJ.

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