DeVillier v. Texas

P R E L I M I N A R Y P R I N T
Volume 601 U. S. Part 2
Pages 285–293
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
April 15, 2024
REBECCA A. WOMELDORF
reporter of decisions
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OCTOBER
TERM, 2023
285
Syllabus
DeVILLIER et al. v. TEXAS
certiorari
to the united states court of appeals for
the fth circuit
No. 22–913. Argued January 16, 2024—Decided April 16, 2024
Richard DeVillier and more than 120 other petitioners own property north
of U. S. Interstate Highway 10 between Houston and Beaumont, Texas.
The dispute here arose after the State of Texas took action to use por-
tions of I–10 as a food evacuation route, installing a roughly 3-foot-tall
barrier along the highway median to act as a dam. When subsequent
hurricanes and storms brought heavy rainfall, the median barrier per-
formed as intended, keeping the south side of the highway open. But
it also fooded petitioners' land to the north, causing signifcant damage
to their property. DeVillier fled suit in Texas state court. He alleged
that by building the median barrier and using his property to store
stormwater, Texas had effected a taking of his property for which the
State must pay just compensation. Other property owners fled similar
suits. Texas removed the cases to federal court, where they were con-
solidated into a single proceeding with one operative complaint. The
operative complaint includes inverse-condemnation claims under both
the Texas Constitution and the Takings Clause of the Fifth Amendment.
As relevant, Texas moved to dismiss the federal inverse-condemnation
claim, arguing that a plaintiff has no cause of action arising directly
under the Takings Clause. The District Court denied Texas' motion,
concluding that a property owner may sue a State directly under the
Takings Clause. The Fifth Circuit reversed, holding “that the Fifth
Amendment Takings Clause as applied to the states through the Four-
teenth Amendment does not provide a right of action for takings claims
against a state.” 53 F. 4th 904 (per curiam).
Held: DeVillier and the other property owners should be permitted to
pursue their claims under the Takings Clause through the cause of ac-
tion available under Texas law. The Takings Clause of the Fifth
Amendment states: “nor shall private property be taken for public use,
without just compensation.” The Court has explained that “a property
owner acquires an irrevocable right to just compensation immediately
upon a taking ” “[b]ecause of `the self-executing character' of the Tak-
ings Clause `with respect to compensation.' ” Knick v. Township of
Scott, 588 U. S. 180, 192 (quoting First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U. S. 304, 315). The
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286 D
eVILLIER v. TEXAS
Syllabus
question here concerns the procedural vehicle by which a property
owner
may seek to vindicate that right. Constitutional rights do not
typically come with a built-in cause of action to allow for private en-
forcement in courts, see Egbert v. Boule, 596 U. S. 482, 490–491, and so
they are asserted offensively pursuant to an independent cause of action
designed for that purpose, see, e.g., 42 U. S. C. § 1983. DeVillier relies
on First English and other cases to argue that the Takings Clause cre-
ates by its own force a cause of action authorizing suits for just compen-
sation. But those cases do not directly confront whether the Takings
Clause provides a cause of action. It would be imprudent to decide
that question without frst establishing the premise in the question pre-
sented that no other cause of action exists to vindicate the property
owner's rights under the Takings Clause. Texas state law does provide
an inverse-condemnation cause of action by which property owners may
seek just compensation against the State based on both the Texas Con-
stitution and the Takings Clause. This case therefore does not present
the circumstance in which a property owner has no cause of action to
seek just compensation. The Court therefore remands so that DeVillier
and the other property owners may proceed through the cause of action
available under Texas law. Pp. 291–293.
53 F. 4th 904, vacated and remanded.
Thomas, J., delivered the opinion for a unanimous Court.
Robert J. McNamara argued the cause for petitioners.
With him on the briefs were Andrew H. Ward, Christen
Mason Hebert, Daniel H. Charest, E. Lawrence Vincent, and
Charles Irvine.
Aaron L. Nielson, Solicitor General of Texas, argued the
cause for the State of Texas. With him on the brief were
L ano ra C. Pe t t i t, Pr i ncipa l Deputy Sol icitor Genera l,
Natalie D. Thompson, Kateland R. Jackson, and Sara B.
Baumgardner, Assistant Solicitors General, Ken Paxton, At-
torney General, Brent Webster, First Assistant Attorney
General, and J. Andrew Mackenzie, Assistant Attorney
General.
Deputy Solicitor General Kneedler argued the cause for
the United States as amicus curiae urging affrmance.
With him on the brief were Solicitor General Prelogar, As-
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Cite
as: 601 U. S. 293 (2024)
287
Opinion of the Court
sistant Attorney General Kim, Principal Deputy Assistant
At
torney General Boynton, Anthony A. Yang, William B.
Lazarus, John L. Smeltzer, and Alisa B. Klein.*
Justice Thomas delivered the opinion of the Court.
Richard DeVillier alleges that the State of Texas took his
property for stormwater storage. He sought just compensa-
tion under the Takings Clause of the Fifth Amendment, ar-
guing that the Constitution itself authorized him to bring
suit. We granted certiorari to decide whether “a person
whose property is taken without compensation [may] seek
redress under the self-executing Takings Clause even if the
*Briefs of amici curiae urging reversal were fled for the American
Farm Bureau Federation by Paul Beard II, Susan V. Warner, Ellen Steen,
and Travis Cushman; for the Atlantic Legal Foundation by Lawrence S.
Ebner and Nancie G. Marzulla; for the Chamber of Commerce of the
United States of America by Jeremy C. Marwell, Andrew R. Varcoe, and
Jonathan D. Urick; for the National Association of Realtors® et al. by
Brett A. Shumate and William J. Strench; for the Pacifc Legal Foundation
et al. by Deborah J. La Fetra, Robert H. Thomas, Kathryn D. Valois,
Elizabeth Milito, and Ilya Shapiro; for James W. Ely, Jr., et al. by Thomas
G. Saunders, David Tryon, and Jay Carson; for Ilya Somin et al. by Caro-
line C. Lindsay and Anastasia P. Boden; and for Ernest A. Young by
Gregg J. Costa.
Briefs of amici curiae urging affrmance were fled for the State of
Minnesota et al. by Keith Ellison, Attorney General of Minnesota,
Liz Kramer, Solicitor General, and Michael Goodwin and Colin O'Dono-
v an, Assistant Attorneys General, and by the Attorneys General for
their respective States as follows: Steve Marshall of Alabama, Treg Taylor
of Alaska, Raúl Labrador of Idaho, Theodore E. Rokita of Indiana,
Jeff Landry of Louisiana, Lynn Fitch of Mississippi, Michael T. Hilgers
of Nebraska, Matthew J. Platkin of New Jersey, Josh Stein of North
Carolina, Drew Wrigley of North Dakota, Dave Yost of Ohio, Gentner
Drummond of Oklahoma, Ellen F. Rosenblum of Oregon, Alan Wilson
of South Carolina, Sean Reyes of Utah, and Jason S. Miyares of
Virginia.
Felicia H. Ellsworth and Eric L. Hawkins fled a brief for Carlos M.
Vázquez as amicus curiae.
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eVILLIER v. TEXAS
Opinion of the Court
legislature has not affrmatively provided them with a cause
of
action.” Pet. for Cert. i. That question assumes the
property owner has no separate cause of action under which
to bring a claim based on the Takings Clause. But, that is
not the case here. Texas law provides a cause of action that
allows property owners to vindicate their rights under the
Takings Clause. We therefore vacate and remand so that
DeVillier's claims may proceed under Texas' state-law cause
of action.
I
Richard DeVillier and more than 120 other petitioners own
property north of U. S. Interstate Highway 10 between
Houston and Beaumont, Texas.
1
The State of Texas under-
took several projects to facilitate the use of that portion of
the highway as a food-evacuation route. It installed a
roughly 3-foot-tall barrier along the highway median to act
as a dam, preventing stormwater from covering the south
side of the road.
In August 2017, Hurricane Harvey brought heavy rain-
fall to southeast Texas. The new median barrier per-
formed as intended, keeping the south side of the highway
open. But, it also fooded petitioners' land to the north,
displacing them from their homes, damaging businesses,
ruining crops, killing livestock, and destroying family heir-
looms. The same thing happened during Tropical Storm
Imelda in 2019. As depicted, the median barrier kept the
south side of the highway open (on the left side of both
pictures) by holding back stormwater, which then sub-
merged property north of the highway (on the right side
of both pictures):
1
Because this case comes to us at the pleading stage, we assume the
truth of the facts alleged in the operative complaint. See, e.g., Swierkie-
wicz v. Sorema N. A., 534 U. S. 506, 508, n. 1 (2002).
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Opinion of the Court
Figure 1
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Figure 2
Because heavy rainfall is not uncommon in southeast
Texas, the median barrier will continue to cause fooding on
DeVillier's land during future storms.
DeVillier fled suit in Texas state court. He alleged that,
by building the median barrier and using his property to
store stormwater, Texas had effected a taking of his prop-
erty. DeVillier argued that he was therefore entitled to just

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290 D
eVILLIER v. TEXAS
Opinion of the Court
compensation under both the United States and Texas Con-
s
tituti ons. Other proper ty owners fi led similar suits.
Texas removed the cases to federal court, where they were
consolidated into a single proceeding with one operative
complai nt. The operative complai nt includes inverse-
condemnation claims under both the Texas Constitution and
the Takings Clause of the Fifth Amendment. See Knick v.
Township of Scott, 588 U. S. 180, 186 (2019) (“Inverse
condemnation is a cause of action against a governmental
defendant to recover the value of property which has been
taken in fact by the governmental defendant” (internal quo-
tation marks omitted)).
As relevant, Texas moved to dismiss the federal inverse-
condemnation claim, arguing that a plaintiff has no cause of
action arising directly under the Takings Clause. It con-
tended that only Rev. Stat. § 1979, 42 U. S. C. § 1983, provides
a vehicle to assert constitutional violations, and § 1983 does
not authorize claims against a State. DeVillier did not dis-
pute that he intended to bring his federal claim directly
under the Fifth Amendment. Instead, he responded that
the Takings Clause is “self-executing,” which, he argued,
means that the Clause itself provides a cause of action for
just compensation.
The District Court denied Texas' motion, concluding that
a property owner may sue a State directly under the
Takings Clause. The Court of Appeals disagreed. In a
one-paragraph opinion, it “h[eld] that the Fifth Amendment
Takings Clause as applied to the states through the Four-
teenth Amendment does not provide a right of action for
takings claims against a state.” 53 F. 4th 904 (CA5 2023)
(per curiam).
We granted certiorari to decide whether a property owner
may sue for just compensation directly under the Takings
Clause. 600 U. S. ––– (2023). We now vacate and remand
for further proceedings.

Cite
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291
Opinion of the Court
II
The
Takings Clause of the Fifth Amendment states: “nor
shall private property be taken for public use, without just
compensation.” We have explained that “a property owner
acquires an irrevocable right to just compensation immedi-
ately upon a taking ” “[b]ecause of `the self-executing charac-
ter' of the Takings Clause `with respect to compensation.' ”
Knick, 588 U. S., at 192 (quoting First English Evangelical
Lutheran Church of Glendale v. County of Los Angeles, 482
U. S. 304, 315 (1987)). Texas does not dispute the nature of
the substantive right to just compensation. This case pre-
sents only a question regarding the procedural vehicle by
which a property owner may seek to vindicate that right.
Constitutional rights do not typically come with a built-
in cause of action to allow for private enforcement in courts.
See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead,
constitutional rights are generally invoked defensively in
cases arising under other sources of law, or asserted offen-
sively pursuant to an independent cause of action designed
for that purpose, see, e.g., 42 U. S. C. § 1983. DeVillier ar-
gues that the Takings Clause is an exception. He relies on
First English Evangelical Lutheran Church of Glendale v.
County of Los Angeles to assert that the just-compensation
requirement of the Takings Clause is “self-executing ” and
that “[s]tatutory recognition [is] not necessary” for takings
claims because they “are grounded in the Constitution itself.”
482 U. S., at 315 (internal quotation marks omitted). In
other words, the Takings Clause creates by its own force a
cause of action authorizing suits for just compensation.
The cases that DeVillier cites do not directly confront
whether the Takings Clause provides a cause of action for
just compensation. First English itself proceeded under a
state-law cause of action. Id., at 313–314, n. 8. DeVillier
also points to several takings cases where property owners
sought injunctions to prevent the Government from interfer-
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eVILLIER v. TEXAS
Opinion of the Court
ing with their property rights, such as by obtaining ease-
ments
or imposing zoning regulations. See Dohany v. Rog-
ers, 281 U. S. 362, 364 (1930); Delaware, L. & W. R. Co. v.
Morristown, 276 U. S. 182, 188 (1928); Village of Euclid v.
Ambler Realty Co., 272 U. S. 365, 384 (1926); Cuyahoga
River Power Co. v. Akron, 240 U. S. 462, 463 (1916); Norwood
v. Baker, 172 U. S. 269, 276 (1898). Because none of those
cases relied on § 1983 for a cause of action, he reasons that
those cases must have proceeded directly under the Consti-
tution. But, the mere fact that the Takings Clause provided
the substantive rule of decision for the equitable claims in
those cases does not establish that it creates a cause of action
for damages, a remedy that is legal, not equitable, in nature.
2
That said, the absence of a case relying on the Takings
Clause for a cause of action does not by itself prove there is
no cause of action. It demonstrates only that constitutional
concerns do not arise when property owners have other ways
to seek just compensation. Our precedents do not cleanly
answer the question whether a plaintiff has a cause of action
arising directly under the Takings Clause.
But, this case does not require us to resolve that question.
The question presented asks what would happen if a prop-
erty owner had no cause of action to vindicate his rights
under the Takings Clause. It would be imprudent to decide
that question without satisfying ourselves of the premise
that there is no cause of action. Our constitutional system
assigns to state offcers “a coordinate responsibility to en-
force [the Constitution] according to their regular modes of
procedure.” Howlett v. Rose, 496 U. S. 356, 367 (1990). It
therefore looks to “[t]he good faith of the States [to] provid[e]
an important assurance that `this Constitution, and the Laws
2
The signifcance of DeVillier's equitable cases is further obscured by
fundamental changes to the law of equity that postdate those decisions.
Compare Fed. Rule Civ. Proc. 2 with A. Bellia & B. Clark, The Original
Source of the Cause of Action in Federal Courts, 101 Va. L. Rev. 609,
653 (2015).
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Opinion of the Court
of the United States which shall be made in Pursuance
thereof
shall be the supreme Law of the Land.' ” Alden v.
Maine, 527 U. S. 706, 755 (1999) (quoting U. S. Const.,
Art. VI; original alterations omitted). We should not
“assume the States will refuse to honor the Constitution,”
including the Takings Clause, because “States and their
offcers are [also] bound by obligations imposed by the
Constitution.” 527 U. S., at 755.
The premise that Texas left DeVillier with no cause of ac-
tion to obtain the just compensation guaranteed by the Tak-
ings Clause does not hold. Texas state law provides a cause
of action by which property owners may seek just compensa-
tion against the State. As Texas explained at oral argu-
ment, its state-law inverse-condemnation cause of action pro-
vides a vehicle for takings claims based on both the Texas
Constitution and the Takings Clause. Tr. of Oral Arg. 38;
id., at 40 (citing Baytown v. Schrock, 645 S. W. 3d 174 (Tex.
2022)); Tr. of Oral Arg. 59–60. And, although Texas as-
serted that proceeding under the state-law cause of action
would require an amendment to the complaint, it also as-
sured the Court that it would not oppose any attempt by
DeVillier and the other petitioners to seek one. Id., at 41,
61, 64. This case therefore does not present the circum-
stance in which a property owner has no cause of action to
seek just compensation. On remand, DeVillier and the
other property owners should be permitted to pursue their
claims under the Takings Clause through the cause of action
available under Texas law.
III
The judgment of the Court of Appeals is vacated, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.

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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None