City of Baytown v. Alan Schrock

Supreme Court of Texas
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No. 20-0309
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City of Baytown,
Petitioner,

v.

Alan Schrock,
Respondent

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On Petition for Review from the
Court of Appeals for the Fourth District of Texas
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Argued October 27, 2021

JUSTICE YOUNG, joined by Justice Lehrmann, Justice Blacklock,
and Justice Busby, concurring.

Respondent Schrock invoked the Takings Clauses of both the
United States and Texas Constitutions. As the Court notes, however,
the arguments before us treat the two as substantively
indistinguishable and address only the contours of the federal Takings
Clause. We are thus left with just one question to answer: whether the
challenged conduct constituted a taking under the Fifth Amendment. I
join the Court’s opinion and its judgment because I agree with the Court
that no federally cognizable taking occurred here.
Whether the City’s challenged actions (or other governmental
actions like them) might constitute a taking under the Texas
Constitution, therefore, remains an open question. This situation is not
novel. Parties frequently litigate takings cases as if the two Takings
Clauses were the same. For that reason (and maybe others), judicial
opinions also sometimes have described the two clauses as if they were
the same. I write separately today to emphasize one key point: They are
not the same.
I

I find Justice Busby’s observation in Jim Olive Photography v.
University of Houston to be inescapably true. While our cases frequently
emphasize the substantial similarities between how both constitutions
protect citizens from takings, “the Texas Takings Clause provides
broader protection in certain areas.” 624 S.W.3d 764, 780 (Tex. 2021)
(Busby, J., concurring). Specifically, “the Texas Constitution requires
compensation for more types of government action than its federal
counterpart,” id. at 777 (emphasis added), because “the obvious textual
differences between the clauses” unambiguously reflect our Framers’
determination to protect more than the Fifth Amendment does, id. at 780.
The Fifth Amendment concludes this way: “nor shall private
property be taken for public use, without just compensation.” U.S.
Const. amend. V. Our State’s Bill of Rights, by contrast, says this: “No
person’s property shall be taken, damaged, or destroyed for or applied
to public use without adequate compensation . . . .” Tex. Const. art. I,
§ 17(a) (then adding further restrictions). The Texas Constitution, in
other words, says everything that the U.S. Constitution does, but makes

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two significant additions. First, it adds the verbs “damaged, or
destroyed” to “taken.” Second, not content with predicating a taking on
property being taken “for public use,” our Constitution adds that it may
also count as a taking if the property is “applied to public use.”
Beyond these express textual differences, the historical
development of our Constitution further establishes that the federal and
Texas provisions are not coterminous. The Fifth Amendment’s spare
use of “taken” long antedated the drafting of our Constitution. Every
Texas Constitution from 1836 to 1869 used only the verb “taken,” just
like the Fifth Amendment.1 Sometimes the text of our Constitution and
the U.S. Constitution align, as with the Texas Constitution’s Contracts
Clause (in the section of our Bill of Rights that immediately precedes
the Takings Clause).2 This Court found the alignment of the Contract
Clauses to be significant. The meaning of the federal Contracts Clause
was fixed by the time our 1876 Constitution was enacted, we observed;
our Framers’ decision to copy that language essentially verbatim meant
that they had chosen to also accept that provision’s settled meaning.
Travelers’ Ins. Co. v. Marshall, 76 S.W.2d 1007, 1023 (Tex. 1934). If

1 Like its predecessors, the 1869 Constitution provided only that “no
person’s property shall be taken or applied to public use without just
compensation being made, unless by the consent of such person.” Ft. Worth &
R.G. Ry. Co. v. Jennings, 13 S.W. 270, 270 (1890) (quoting Tex. Const. of 1869,
art. I, § 14). See also Tex. Const. of 1866, art. I, § 14; Tex. Const. of 1861, art.
I, § 14; Tex. Const. of 1845, art. I, § 14; Repub. Tex. Const. of 1836, Declaration
of Rights, cl. 13. See also Jim Olive Photography, 624 S.W.3d at 780 (Busby,
J., concurring) (noting case law that has acknowledged the textual differences).
2 Compare U.S. Const. art. I, § 10 (“No State shall . . . pass any . . . Law
impairing the Obligations of Contracts . . . .”) with Tex. Const. art. I, § 16 (“No
. . . law impairing the obligation of contracts, shall be made.”).

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anything, the Framers’ decision to add “damaged, or destroyed” to the
Texas takings guarantee in 1876 must be even more intentional.3
The additional language—especially “damaged, or destroyed”—
seems potentially relevant to cases like this one. Schrock alleges that
the City essentially held his property hostage by refusing to provide him
access to utilities (a City monopoly) until he discharged the obligations
of third parties. The denial of utilities arguably has the systematic and
predictable effect of at least “damag[ing]” and possibly “destroy[ing]” the
residential property. It may not quite be “your money or your life”—but
“your money or your property” is still a powerful threat. Comply with
our demand, in other words, or watch your property disintegrate
because of our action.
A city making such demands would be acting for the public, too.

3Indeed, while the 1876 Constitution was still relatively young, this
Court commented on the language added to Takings Clause:
Under the provisions of other constitutions which merely
provided compensation to the owner for property taken for public
use, it had been a question whether or not one whose property
was immediately and directly damaged by a public
improvement, though no part of it was appropriated, could
recover for such damage . . . . The insertion of the words
‘damaged or destroyed’ in the section [of the Constitution]
quoted was doubtless intended to obviate this question, and to
afford protection to the owner of property, by allowing him
compensation, when by the construction of a public work his
property was directly damaged or destroyed, although no part of
it was actually appropriated.
Trinity & S. Ry. Co. v. Meadows, 11 S.W. 145, 145–46 (Tex. 1889); see also
DuPuy v. City of Waco, 396 S.W.2d 103, 108 (Tex. 1965) (“It was the injustice
of requiring an actual taking which explains the inclusion for the first time in
the Constitution of 1876 of the requirement that compensation be paid for the
damaging of property for public use.”).

4
“Persuading” someone to pay a third party’s debt to the public clearly
advantages the public fisc. The City also concedes that its ordinance
was a violation of state law all along. The legislature forbade
municipalities from conditioning access to utilities on the payment of
other people’s debts. Tex. Loc. Gov’t Code § 552.0025. Perhaps the
legislature did so from a sense of fairness. But also—just perhaps—it
sought to prevent local governments from sliding into takings.
Had the Texas Constitution been presented as an alternative
rather than duplicative source of law, today’s case may have turned out
differently. Or maybe not. We cannot know for sure until we have a
case like this one that includes arguments tailored to our state
constitutional law. It is clearly true that the Texas Takings Clause is
broader than the federal Takings Clause—but how much broader, and
under what circumstances?
We cannot meaningfully answer those questions unless litigants
undertake substantial additional work beyond invoking federal takings
doctrines. To analyze a Texas constitutional claim, we would need
comprehensive briefing from the parties (and, I would hope, from amici)
on the precise scope of the right to compensation that the Texas
Constitution affords. Antecedent questions concerning the nature of the
property interests at issue, and whether they can support a claim under
our Constitution, also would likely require careful attention.
But here, just as Justice Busby observed in Jim Olive Photography,
the absence of any “conten[tion] that the [takings] analysis should be
any different under the Texas Constitution” means that this Court
cannot proceed. 624 S.W.3d at 782. Like the plaintiff in Jim Olive

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Photography, Schrock noted only that Texas’s “takings case law is
consistent with federal jurisprudence,” then treated the two Takings
Clauses as indistinguishable. This pattern is almost routine. Despite
this Court’s recognition of differences between the two Takings Clauses,
the distinction often goes undrawn. When that happens, the Court loses
any basis to assess whether any material distinction exists between the
two Takings Clauses under the facts of that case.4 Indeed, in City of
Houston v. Carlson, 451 S.W.3d 828 (Tex. 2014), which plays a significant
role in today’s decision, it likewise appears that the plaintiffs treated
the federal and state takings claims as identical. So, therefore, did the
Court. See id. at 831 (citing Hearts Bluff Game Ranch, Inc. v. State, 381
S.W.3d 468, 477 (Tex. 2012), for the proposition that Texas takings
jurisprudence is consistent with federal jurisprudence).
As Chief Judge Sutton has put it, all too often lawyers “rais[e] the
federal claims and rarely address[] in any detail, if . . . at all, a
counterpart state constitutional claim. State judges referee the game.
They do not play it, and they thus cannot rely on state constitutional
grounds never raised.” Jeffrey S. Sutton, Who Decides?: States as
Laboratories of Constitutional Experimentation 128–29 (2022). In an
appropriate case, a party may well show that the Texas Constitution
requires compensation in circumstances in which the United States
Constitution does not.

4See, e.g., Jim Olive Photography, 624 S.W.3d at 771; City of Dallas v.
VSC, LLC, 347 S.W.3d 231, 234 n.3 (Tex. 2011); Sheffield Dev. Co. v. City of
Glenn Heights, 140 S.W.3d 660, 669 (Tex. 2004).

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II

One remaining question is also bound up with a takings claim
under the Texas Constitution: how a plaintiff ’s actions may play a role
in reducing or forestalling any takings liability. If future cases confirm
that the Texas Constitution’s broader scope is more than de minimis,
the plaintiff ’s ability to mitigate property damage, or even avoid it
altogether, may prove to be a key part of the analysis. Said differently,
courts must give the Texas Takings Clause its full scope—and if that
scope turns out to be substantial, the elements of damages and causation
may be important to prevent an unintentional Takingsization of the rest
of the law. Nearly any complaint about governmental action can be
contorted into some allegation of a taking. Rigorous and serious
requirements for establishing causation and damages will ensure that
worthy claims, but only worthy claims, will both proceed and merit full
compensation.
As with the question of whether the City’s conduct would qualify
as a taking under the Texas Constitution in the first place, however, we
likewise lack briefing and analysis concerning these important
subsidiary questions. Today, of course, they do not matter. Nothing
turns on whether Schrock’s own behavior might require reducing his
damages, terminating his claim on causation grounds, or having any
other effect. His federal claim could not proceed either way. But
tomorrow may bring a different case—a case in which the Texas Takings
Clause may do independent work. Future litigants in cases like that
will need to address the contours of our state constitutional text and the
consequences (if any) of a plaintiff ’s own conduct on a takings claim’s

7
viability and remedy.
Our law, after all, recognizes several avenues to limit or preclude
damages because of a plaintiff ’s conduct. For example, a plaintiff at
fault for her own injury may have her damages reduced or foreclosed
under comparative fault. See Tex. Civ. Prac. & Rem. Code §§ 33.001–
33.002, 33.012; Del Lago Partners, Inc v. Smith, 307 S.W.3d 762, 772
(Tex. 2010) (discussing the adoption of the statutory proportionate
responsibility regime). In some contexts, plaintiffs may have a duty to
mitigate damages and may be barred from recovering whatever
damages could have been prevented with care or reasonable effort. See,
e.g., JCB, Inc. v. Horsburgh & Scott Co., 597 S.W.3d 481, 486–87, 486
n.3 (Tex. 2019) (duty to mitigate damages in contract after breach of
contract); J & D Towing, LLC v. Am. Alt. Ins. Co., 478 S.W.3d 649, 677
(Tex. 2016) (duty to mitigate damages in personal property tort); Gunn
Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 858 (Tex. 1999) (duty to mitigate
damages in a Deceptive Trade Practices Act case); Moulton v. Alamo
Ambulance Serv., Inc., 414 S.W.2d 444, 449 (Tex. 1967) (duty to mitigate
damages in personal injury tort). We have not been able to explore the
extent to which these concepts, or others related to them, may interact
in the context of a Texas takings claim.
Relatedly, the doctrines of causation may limit a plaintiff ’s
recovery. This Court has previously said, for example, “[p]roximate cause
is an essential element of a takings case.” Hearts Bluff Game Ranch,
Inc. v. State, 381 S.W.3d 468, 483 (Tex. 2012). Part of the “true test” in
discerning liability for a taking of property, we have held, is whether the
government’s acts “were the proximate cause of the taking or damaging of

8
such property.” State v. Hale, 146 S.W.2d 731, 736 (Tex. 1941). Moreover,
the question of “causation is an issue to be considered by [c]ourts in
takings cases.” Hearts Bluff Game Ranch, 381 S.W.3d at 482. For an
inverse condemnation claim, the governmental entity sued must have
been the proximate cause of the harm to property rights. Id. at 483–84.5
How might a plaintiff ’s own conduct fit within this rubric? “[T]he
term proximate cause is generally defined as meaning ‘that cause which,
in natural and continuous sequence, unbroken by any new and
independent cause, produces the injury, and without which the result
would not have occurred.’” Young v. Massey, 101 S.W.2d 809, 810 (Tex.
1937). A “new and independent, or superseding, cause may intervene
between the original wrong and the final injury such that the injury is
attributed to the new cause rather than the first and more remote
cause.” Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016) (internal
quotation and punctuation omitted). The new cause “thus destroys any
causal connection” between the original wrong and the harm. Id. But
we have not addressed, and absent full briefing and argument cannot
resolve, whether a taking can be said to be proximately caused by the
defendant if the property owner—that is, the plaintiff, not some new
entrant onto the scene—has failed to use objectively reasonable and

5 “Causation is one of several threshold conditions that must be met
before the merits of a takings case will even be considered.” Jan G. Laitos &
Teresa Helms Abel, The Role of Causation When Determining the Proper
Defendant in a Takings Lawsuit, 20 Wm. & Mary Bill Rts. J. 1181, 1191 (2012).
Causation, in this context, “requires that the defendant be a government actor
responsible for the harm alleged to be the taking of the private property
interest.” Id. Causation problems “commonly arise” when “there may have
been a government act, but the plaintiff ’s own decisions may have been
responsible for the injury.” Id. at 1200–01.

9
available efforts that would preclude property damage in the eminent-
domain context. Future cases may turn on the law of causation more
generally—whether proximate cause or otherwise—and both plaintiffs
and defendants should be ready to make arguments about how these
doctrines affect takings claims.
The record in this case at least illustrates the kind of facts that
might trigger analysis relevant to the development of our jurisprudence
on damages, causation, or both. Schrock is a landlord, and this Court
long has held that a “landlord’s duty to mitigate requires the landlord to
use objectively reasonable efforts to fill the premises when the tenant
vacates in breach of the lease.” Austin Hill Country Realty, Inc. v.
Palisades Plaza, Inc., 948 S.W.2d 293, 299 (Tex. 1997). Similarly, a
landowner “owe[s] the duty to use ordinary care to mitigate his
damages” proximately caused by a defendant’s obstruction of highway
access. Tex. & P. Ry. Co. v. Mercer, 90 S.W.2d 557, 560 (Tex. [Comm’n
Op.] 1936). Refusing to take reasonable efforts to avoid a loss of property
rights or property damage may reduce the compensation owed or even
block a claim that the government’s action caused the taking or damage
of such property. The Federal Circuit has found that a lessor’s failure
to mitigate barred any regulatory-takings claim. See, e.g., 767 Third
Ave. Assocs. v. United States, 48 F.3d 1575, 1584 (Fed. Cir. 1995). The
extent to which Texas law takes a similar view remains an open question.
Even if the City’s conduct could qualify as a taking under the Texas
Constitution, therefore, it is at least plausible that the City’s liability
would be substantially reduced or completely eliminated by Schrock’s
actions and inactions. Schrock was no stranger to leasing property in

10
Baytown.6 By the time the utility dispute arose, Schrock had at least
thirty-five other rental houses in the City. Nevertheless, Schrock failed
to avail himself of the City’s readily available mechanism to forestall
any interference with his property rights because of a third party’s debt.7
He neglected to file a declaration with the City stating that the property
here was rental property until after he received notice of the delinquent
utility bills in 2009—and after he unsuccessfully challenged the City’s
enforcement action.8 By all appearances, he easily could have avoided
any harm to his property from the City’s actions, but instead allowed a
utility-bill grievance to deprive him of use of his rental property.9

6Schrock even testified to his familiarity with the requirements of being
a Baytown landlord. His investment strategy was to buy three houses in the
area annually until he turned sixty-five. He planned to then start selling the
houses to meet his cash needs for the remainder of his life.
7 Schrock rented the mobile home on this property to lower-income
tenants since he purchased it in 1993. Although the City’s ordinance authorized
the City to put a lien on a landlord’s property and deny utility services if a
tenant failed to pay utility bills, the ordinance provided a landlord a way to
avoid such consequences: a landlord could preemptively file “with the city utility
billing division a declaration in writing specifically naming the service address
of the property and declaring such to be a rental property.” Such a declaration
would “prevent the city from using that [rental] property as security for the
water, sewer and garbage collection services” and would prevent the City “from
filing any lien on such property . . . .” For over fifteen years, Schrock neglected
to file the declaration contemplated by the City’s ordinance.
8 Indeed, one of the reasons that Schrock’s challenge failed was that
Schrock had “no rental declaration on file for the time period in question
declaring that Mr. Schrock does not wish the property to be used as security
for the utility service charges for services to the property.” Not until after
Schrock received the City’s second notice did he file the declaration
contemplated by the City’s ordinance.
9 Schrock’s claim that he did not know about the option to file a
declaration would not automatically excuse him from filing one—especially

11
In any event, Schrock had even more opportunities to avoid any
loss of property rights or harm to his property. In March 2009, the City
notified Schrock that it would seek to impose a lien on his property if he
did not pay the outstanding utility bills by a certain date. Schrock
contested the outstanding bills, participating in the City’s hearing
process. Following the hearing, the City sent Schrock a second notice
which reduced the amount of payment demanded but informed Schrock
that he had fourteen days to pay before a lien would be imposed. He
decided not to pay, at least not immediately. He could have paid “under
protest,” which would have prevented the lien. Indeed, Schrock
intended to do so for several months after the lien was imposed. When
he eventually visited the City’s water department with a check to pay
the original amount of the outstanding bill—with “[p]aid under protest”
written in the memo line—a clerk informed Schrock of an additional
unpaid bill. Because Schrock only had one check with him, which he
had already filled out, Schrock left without paying anything. Seven
months later, he returned to the City’s water department, but again
declined to pay, this time out of concern that he might face more
delinquent bills for his other rental properties. Thus, rather than pay
the delinquent utilities bill under protest and seek a refund—which
would have allowed Schrock to rent the property for approximately $600
a month—Schrock allowed his property to languish in a state of
increasing disrepair over less than $1,500 in dispute.

when it is undisputed that he purchased this property for the express purpose
of renting it and owned it as part of a portfolio of rental properties. See, e.g.,
Allstate Ins. Co. v. King, 444 S.W.2d 602, 605 (Tex. 1969) (ignorance of a filing
requirement will not excuse failure to comply).

12
Even that is not all. Schrock also knew that he could have asked
the City to reinstate utility services. He actually did so in April 2012
when he asked the City to turn on water service so he could work on
mold and rat problems on the property. Schrock himself then asked the
City to turn the water service off a month later. And when the City
removed the lien in 2013, Schrock did not ask the City to turn on
municipal utility services so that he could restore the property and begin
renting it again. Instead, Schrock has continued to let his property sit
vacant.
Schrock was free to behave as he saw fit, of course. But whether
and to what extent his actions may be laid at the City’s door is a different
matter. It is true that the City’s own (unlawful) actions played a role.
Its improper denial of water service to a tenant in 2009 and the improper
lien were certainly but-for causes of some damage.10 Given a full review
of the factual circumstances here, however, Schrock had the keys to free
his property from the City’s shackles but refused to use them. Schrock
likely could have avoided any restriction of his property rights—by filing
the appropriate declaration before renting his property, paying the
utility bill under protest, or asking the City to restore utility services.
He chose not to. It may well be that a plaintiff situated like Schrock
would only be entitled to reduced compensation or alternatively would
be barred from establishing any takings claim at all.
To be clear, however, I do not resolve the role that a plaintiff ’s
actions play in the assessment of the damages or causation elements. I

10 Again, Schrock could have filed a declaration and avoided any effort by
the City to use his property as security for the unpaid utility bills of third parties.

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do not rely on any such analysis for my vote in this case. But the strong
possibility that Schrock played a considerable part in his own property
damage confirms my confidence in the Court’s bottom-line judgment. It
likewise confirms my sense that in future cases—especially cases in
which plaintiffs assert a claim that may be viable under only the Texas
Takings Clause—courts and parties should carefully address the
nuances of damages and causation, not just whether the challenged
governmental conduct, standing alone, would qualify as a taking.11
* * *
With these observations, I am pleased to join the Court’s opinion
and its judgment.

Evan A. Young
Justice

OPINION DELIVERED: May 13, 2022

11 Indeed, to the extent that these inquiries may in some cases preclude
the need to resolve whether novel and complex circumstances even qualify as
a taking under our Constitution, they would serve the values of the
constitutional-avoidance canon. As this Court has recognized, “[c]ases
attempting to decide when a regulation becomes a taking are among the most
litigated and perplexing in current law,” terming these legal battlefields “a
sophistic Miltonian Serbonian Bog.” Sheffield Dev. Co., 140 S.W.3d at 671
(quotations omitted).

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