Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The Texas Department of Transportation destroyed a portion of Jones Road in the city of Sunset Valley when it expanded State Highway 290. To regain the vital transportation link lost in the expansion, the city constructed a substitute street. The trial court held TxDOT liable to the city for the $836,192 cost of constructing reasonably necessary substitute facilities and awarded the city approximately $857,000 in pre-judgment interest and attorneys’ fees. The trial court also granted injunctive relief on the intervenors’ equal protection claims, abating the high-mast floodlights and ordering TxDOT to post adequate signs. It also awarded Cowan and Hurwitz $9,450 in attorneys’ fees. Finally, the trial court awarded Cowan $3,648 in damages, as well as injunctive relief, based on his individual nuisance claim. The court of appeals affirmed the trial court’s judgment in part and reversed in part. It held that 203.058(a) of the Texas Transportation Code supported the city’s right to recover, but concluded that the statutory scheme required the Texas General Land Office to determine the amount of compensation that should be awarded and remanded the case accordingly. Because it upheld the judgment based on the statutory claim, the court of appeals did not address the city’s alternative constitutional or common-law claims. In all other respects, the court of appeals affirmed the trial court’s judgment. HOLDING:Reversed and rendered. Nothing in the plain language of 203.058 indicates the Legislature intended to waive immunity in situations like the one presented. That the statute imposes a financial obligation on the state does not in itself mean that the Legislature intended to create a private right of action, as evidenced by the fact that the statute expressly vests the power to determine adequate compensation in the General Land Office. In deciding whether the Legislature intended to waive TxDOT’s immunity, “we must look at whether [the] statute makes any sense if immunity is not waived.” Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1 (Tex. 2000). Clearly 203.058 does, in that it provides a mechanism by which state agencies may ensure budgetary protection when property is transferred between them. Moreover, the city is not a “state agency” within 203.058(a)’s purview. Because nothing in the statutory language indicates that the Legislature intended to waive immunity by creating a private right of action for entities like the city, the court holds that it cannot seek compensation thereunder for TxDOT’s closure of Jones Road. The city’s common-law nuisance claim is similarly foreclosed. TxDOT is immune from liability for its governmental actions unless that immunity is waived. TxDOT’s expansion of the state’s highways is a governmental function. Therefore, TxDOT cannot be liable for damage resulting from its expansion of State Highway 290 without a clear waiver of immunity. The city’s reliance on 203.058(a) of the Texas Transportation Code to establish that waiver is misplaced, and the city has asserted no other basis to support a waiver. Accordingly, TxDOT retained immunity from the city’s common-law nuisance claim. The only claim the city could potentially assert against TxDOT, then, is for an unconstitutional taking under Article I, 17 of the Texas Constitution. This court has consistently recognized that the state has a superior ownership interest in its public roads. The city’s takings claim fails as a matter of law. The court rejects the equal protection claims brought by Cowan and Hurwitz. Because Cowan failed to demonstrate that the nuisance he alleged amounted to an unconstitutional taking, sovereign immunity protects TxDOT from Cowan’s private-nuisance claim. OPINION:O’Neill, J., delivered the court’s opinion.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.