Case: 21-40750     Document: 00516555481         Page: 1     Date Filed: 11/23/2022




           United States Court of Appeals
                for the Fifth Circuit                                  United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                      November 23, 2022
                                  No. 21-40750                           Lyle W. Cayce
                                                                              Clerk

   Richard Devillier; Wendy Devillier; Steven Devillier;
   Rhonda Devillier; Barbara Devillier; et al,

                                                           Plaintiffs—Appellees,

                                      versus

   State of Texas,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                               No. 3:20-CV-223


   Before Higginbotham, Southwick, and Higginson, Circuit
   Judges.
   Per Curiam:
         The State of Texas appeals the district court’s decision that Plaintiffs’
   federal Taking Clause claims against the State may proceed in federal court.
   Because we hold that the Fifth Amendment Takings Clause as applied to the
   states through the Fourteenth Amendment does not provide a right of action
Case: 21-40750         Document: 00516555481               Page: 2       Date Filed: 11/23/2022

                                           No. 21-40750


   for takings claims against a state, 1 we VACATE the district court’s decision
   for want of jurisdiction and REMAND with instructions to return this case
   to the state courts. The Supreme Court of Texas recognizes takings claims
   under the federal and state constitutions, 2 with differing remedies and
   constraints turning on the character and nature of the taking; 3 nothing in this
   description of Texas law is intended to replace its role as the sole determinant
   of Texas state law. 4 As such, this Court lacks jurisdiction to review these
   claims. 5




           1
              See Hernandez v. Mesa, 

 (2020) (“[A] federal court’s authority
   to recognize a damages remedy must rest at bottom on a statute enacted by Congress.”);
   Azul–Pacifico, Inc. v. City of Los Angeles, 

 (9th Cir. 1992) (holding that a
   takings plaintiff has “no cause of action directly under the United States Constitution”),
   cert. denied, 

 (1993).
           2
                See City of Baytown v. Schrock, 

, 178 (Tex. 2022) (“Under our
   [federal and state] constitutions, waiver occurs when the government refuses to
   acknowledge its intentional taking of private property for public use. A suit based on this
   waiver is known as an ‘inverse condemnation’ claim.”); see also Gutersloh v. Texas, No. 93-
   8729, 

, 

, *1 (5th Cir. 1994) (unpublished per curiam) (“[The
   State] . . . admits, the courts of the State of Texas are open to inverse condemnation damage
   claims against state agencies on the basis of the Fifth Amendment, as applied to the states
   through the Fourteenth Amendment, as well as on the basis of the Texas Constitution and
   laws.”).
           3
             See Allodial Ltd. P’ship v. N. Tex. Tollway Auth., 

, 683–84 (Tex.
   App.—Dallas 2005, pet. denied) (noting that Texas courts apply a two-year limitations
   period to takings claims for “damaged” property and a ten-year limitations period to
   takings claims for “taken” property).
           4
             See, e.g., San Jacinto River Auth. v. Medina, 

, 623 (Tex. 2021),
   reh’g denied (Sept. 3, 2021) (“[T]he owner of private property may bring a common-law
   action for inverse condemnation.”).
           5
            Mitchell v. Advanced HCS, L.L.C., 

 (5th Cir. 2022) (noting that
   federal-question jurisdiction will lie over state-law claims only if “resolving a federal issue
   is necessary to resolution of the state-law claim” (quoting Lamar Co., L.L.C. v. Miss.
   Transp. Comm’n, 

 (5th Cir. 2020))).




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