Texas Department of Transportation v. Mark Self and Birgit Self

Supreme Court of Texas
══════════
No. 22-0585
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Texas Department of Transportation,
Petitioner,

v.

Mark Self and Birgit Self,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Second District of Texas
═══════════════════════════════════════

Argued November 30, 2023

JUSTICE BUSBY delivered the opinion of the Court.

Mark and Birgit Self sued the Texas Department of
Transportation (TxDOT), among other defendants, for negligence and
inverse condemnation after employees of a TxDOT subcontractor cut
down trees on the Selfs’ property outside the boundaries of the State’s
right-of-way easement. The court of appeals held that TxDOT’s
evidentiary plea to the jurisdiction failed on the negligence cause of
action but should have been granted on the cause of action for inverse
condemnation.
We disagree. As to negligence, the Selfs have not shown either
that the subcontractor’s employees were in TxDOT’s paid service or that
other TxDOT employees operated or used the motor-driven equipment
that cut down the trees, as required to waive immunity under the Tort
Claims Act. Regarding inverse condemnation, however, the Selfs have
alleged and offered evidence that TxDOT intentionally directed the
destruction of the trees as part of clearing the right-of-way for public
use. We therefore reverse the court of appeals’ judgment, render
judgment dismissing the negligence cause of action, and remand the
cause of action for inverse condemnation to the trial court for further
proceedings.

BACKGROUND

The Selfs own a tract of rural land that adjoins a portion of Farm-
to-Market Road 677 in Montague County and extends to the centerline
of that road. The State has a right-of-way easement that reaches fifty
feet from the centerline of the road in each direction and thus burdens
part of the Selfs’ property. The Selfs’ predecessors constructed a fence
along the edge of the easement, but the Selfs hired a contractor to
remove this decaying fence and construct a new fence. The Selfs offered
evidence that they instructed the fence contractor to “set the fence two
to three feet on [the Selfs’] side of the [right-of-way] easement” to
preserve large trees that had grown along the original fence and allow
“the trees and fence [to] be maintained.” As a result, a strip of the Selfs’
property two to three feet wide outside the new fence was not burdened
by the State’s right-of-way easement.

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TxDOT started a highway maintenance project and, as part of
that project, contracted with T.F.R. Enterprises, Inc. (TFR) to remove
brush and trees from the right-of-way. Their contract provided that
“[t]rees to be removed shall be marked by the State,” either on the plans
or with an X painted on the trunk, “PRIOR TO WORK BEING
PERFORMED.” After TxDOT expressed concern about TFR’s ability to
complete the project on time, TFR notified TxDOT that it would increase
its production by “adding a separate tree removal crew.” TFR
subcontracted with Lyellco Inc. to remove the trees.
Following TxDOT’s revised instruction to TFR to “clear
everything between the fences,” Lyellco workers cut all trees up to the
Selfs’ fence line. After the Selfs complained, an email between TxDOT
employees acknowledged that a TxDOT inspector “did direct the
contractor to cut the trees down, but they were on the state highway side
of the fence.”
The Selfs sent a letter to TxDOT and attached a survey they had
obtained, which showed that twenty-eight oaks and elms with trunk
diameters ranging from eighteen to thirty-nine inches were removed
near their fence line—thirteen of which were wholly outside the State’s
right-of-way and seven of which were partly outside it. TxDOT indicated
in its interrogatory answers that it conducted “no surveys . . . in
association with this project” and “TxDOT is not aware of any
communications with [the Selfs] prior to clearing or maintaining of trees
or vegetation on this project.”
The Selfs obtained multiple estimates of the cost to replace the
twenty felled trees that had been located wholly or partly outside the

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right-of-way with trees up to twenty inches in diameter (the largest
commercially available), and they sought $251,000 from TxDOT to
compensate them for this cost. TxDOT rejected their claim by letter,
explaining that the Attorney General’s Office investigated the matter
and concluded that TxDOT committed no act of negligence.
The Selfs sued TxDOT, contractor TFR, and subcontractor Lyellco
for removing trees from the Selfs’ land. They alleged two causes of
action against TxDOT: negligence and inverse condemnation.
TxDOT filed a plea to the jurisdiction asserting immunity from
both causes of action. Regarding negligence, TxDOT argued that the
Selfs had not shown a TxDOT employee negligently damaged the trees
by operating or using motor-driven equipment. See TEX. CIV. PRAC. &
REM. CODE § 101.021(1). The Selfs responded that sovereign immunity
was waived because (1) the Lyellco employees who removed the trees
were TxDOT “employees” within the meaning of Section 101.001, and
(2) other TxDOT employees exercised such control over the motor-driven
equipment used to remove the trees that they “operated or used” that
equipment within the meaning of Section 101.021.
Turning to inverse condemnation, as relevant here, TxDOT
conceded that it directed TFR to remove the trees up to the fence line
but argued that the Selfs failed to offer evidence that TxDOT intended
to have trees removed from property outside its right-of-way. TxDOT
pointed to undisputed evidence that the trees were on the state highway
side of the fence and that the fence was not located at the edge of the

4
right-of-way. 1 The Selfs responded that TxDOT acted with sufficient
intent by countermanding the contract and ordering its contractor to
remove all trees up to the fence, and they pointed to the TxDOT
employee’s email acknowledging that a TxDOT inspector “did direct the
contractor to cut the trees down.”
The trial court denied TxDOT’s plea to the jurisdiction, and the
court of appeals affirmed in part and reversed in part. As to the
negligence cause of action, the court of appeals ultimately concluded
there was a fact issue on whether the Texas Tort Claims Act waived
immunity, holding: (1) the trial court erred in identifying a factual
dispute regarding whether TxDOT operated or used motor-driven
equipment under Section 101.021; but (2) the trial court correctly
identified a fact issue about whether the Lyellco employees who did use
the equipment were TxDOT “employees” under Section 101.001 rather
than employees of an independent contractor. 683 S.W.3d 62, 73-88
(Tex. App.—Fort Worth 2022). Regarding the cause of action for inverse
condemnation, the court of appeals reversed the trial court’s judgment
and held there was no evidence that TxDOT intentionally destroyed the
Selfs’ property. See id. at 88-91. Both TxDOT and the Selfs filed
petitions for review, which we granted.

1 TxDOT also asserted that it thought the right-of-way ran to the fence

line, but the evidence it cited does not support that assertion. In any event,
our inverse condemnation analysis would be no different if TxDOT had
provided such evidence.

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ANALYSIS

Sovereign immunity protects the State and its agencies and
subdivisions from suit and liability, PHI, Inc. v. Tex. Juv. Just. Dep’t,
593 S.W.3d 296, 301 (Tex. 2019), thereby depriving trial courts of
subject-matter jurisdiction over suits against them unless the State
consents. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
224 (Tex. 2004). Immunity is properly asserted in a plea to the
jurisdiction, id. at 225-26, which “may challenge the pleadings, the
existence of jurisdictional facts, or both.” Alamo Heights Indep. Sch.
Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). We review the grant or
denial of a plea to the jurisdiction de novo, “determin[ing] whether the
plaintiff’s pleadings, construed in favor of the plaintiff, allege sufficient
facts affirmatively demonstrating the court’s jurisdiction to hear the
case.” Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex.
2012). “If evidence central to the jurisdictional issue is submitted, it
should be considered in ruling on the plea to the jurisdiction” as
“[e]vidence submitted with the plea may rebut the pleadings and
undermine [the] waiver of immunity.” Id.
The parties’ petitions present the following issues for our decision.
In determining whether the Tort Claims Act waives TxDOT’s immunity
from the negligence cause of action, the first issue we must consider is
whether the Lyellco employees are TxDOT “employees” as defined by
Section 101.001 of the Civil Practice and Remedies Code. The second
issue is whether other TxDOT employees “operated” or “used” the motor-
driven equipment under Section 101.021 by exercising direct and
mandatory control over its use. Regarding the cause of action for inverse

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condemnation, the issue before us is whether there is some evidence that
TxDOT acted with the required intent when it destroyed the Selfs’ trees.
We address each issue in turn.

I. The Tort Claims Act does not waive immunity from the
Selfs’ negligence claim.

As relevant here, the Tort Claims Act waives a governmental
unit’s immunity from suit and makes it liable for “property damage . . .
proximately caused by . . . the negligence of an employee acting within
his scope of employment” if the damage “arises from the operation or use
of . . . motor-driven equipment” and “the employee would be personally
liable to the claimant according to Texas law.” TEX. CIV. PRAC. & REM.
CODE § 101.021(1). The Selfs contend that their negligence claim falls
within this waiver for two reasons.

A. “Employee” under Section 101.001

First, the Selfs argue that the employees of subcontractor Lyellco
who cut down the trees are TxDOT “employees” as defined by Section
101.001, and thus their use of motor-driven equipment to destroy the
trees waives immunity under Section 101.021. Section 101.001(2) of the
Texas Civil Practice and Remedies Code provides that
“Employee” [1] means a person, including an officer or
agent, who is in the paid service of a governmental unit by
competent authority, but [2] does not include an
independent contractor, an agent or employee of an
independent contractor, or a person who performs tasks
the details of which the governmental unit does not have
the legal right to control.
The court of appeals did not address the first part of the
definition: whether the Lyellco employees were “in the paid service of a

7
governmental unit by competent authority.” Rather, the court focused
on the exclusions listed in the second part of the definition and evaluated
whether the Lyellco employees fell into one of the excluded categories,
concluding they did not. 683 S.W.3d at 81-88. In so doing, the court
conducted the familiar employee-versus-independent-contractor
analysis that Texas courts have long used in this and other legal
contexts, 2 focusing on whether there was evidence that TxDOT
exercised sufficient control over Lyellco’s employees performing the tree
removal that they should be considered “employees” of TxDOT. See id.
In a footnote, the court observed that TxDOT had argued on rehearing
that Lyellco employees were paid by TFR and thus were not in the “paid
service of a governmental unit.” The court concluded that TxDOT
waived this argument by failing to raise it previously and thus declined
to “address TxDOT’s eleventh-hour issue.” Id. at 86 n.7.
This last conclusion was error for two reasons. First, TxDOT’s
“paid service” argument was not waived and should have been
considered. As subject-matter jurisdiction is never presumed and
cannot be waived, see Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 443-44 (Tex. 1993), the issue can “‘be raised for the first
time on appeal by the parties or by the court,’ [and] a court is obliged to
ascertain that subject matter jurisdiction exists regardless of whether

2 See, e.g., JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 865 (Tex.

2021); Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex.
2002); City of Houston v. Ranjel, 407 S.W.3d 880, 890-92 (Tex. App.—Houston
[14th Dist.] 2013, no pet.); Olivares v. Brown & Gay Eng’g, Inc., 401 S.W.3d
363, 377-78 (Tex. App.—Houston [14th Dist.] 2013), aff’d, 461 S.W.3d 117 (Tex.
2015); EGBT Tex. Pipeline, L.P. v. Harris County Flood Control Dist., 176
S.W.3d 330, 336-38 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d).

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the parties have questioned it.” Univ. of Tex. Sw. Med. Ctr. at Dallas v.
Loutzenhiser, 140 S.W.3d 351, 358-59 (Tex. 2004) (citations omitted).
Thus, an appellate court’s review of a plea to the jurisdiction is not
limited to the grounds set forth in the governmental unit’s plea in the
trial court. Dallas Metrocare Servs. v. Juarez, 420 S.W.3d 39, 41 (Tex.
2013) (“[A]n appellate court must consider all of a defendant’s immunity
arguments, whether the governmental entity raised other jurisdictional
arguments in the trial court or none at all.”); see also Rusk State Hosp.
v. Black, 392 S.W.3d 88, 95-96 (Tex. 2012).
Second, the first part of Section 101.001(2) defines “employee” as
a person in the “paid service of a governmental unit by competent
authority,” and the second part then narrows that category with various
exclusions. Under this definition, if the Lyellco employees were not in
TxDOT’s “paid service,” they cannot qualify as TxDOT employees even
if they do not fall within any of the exclusions. Accordingly, the court of
appeals should have addressed the parties’ dispute regarding “paid
service.” See Harris County v. Dillard, 883 S.W.2d 166, 167 (Tex. 1994)
(holding because there was “no dispute that Skeen was not in the paid
service of Harris County,” he was “therefore not an ‘employee’, within
the meaning of the Tort Claims Act,” and not reaching the exclusions);
Marino v. Lenoir, 526 S.W.3d 403, 406 (Tex. 2017) (concluding first that
Lenoir was “in the paid service” of a governmental unit and then
considering whether she was nonetheless excluded from the “employee”
definition by one of the statute’s exceptions). 3

3 See also Maldonado v. City of Pearsall, 977 F. Supp. 2d 646, 651-52

(W.D. Tex. 2013) (“[I]f a defendant fails to satisfy the ‘paid employment’ prong,

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Turning to whether Lyellco’s employees were in TxDOT’s “paid
service,” TxDOT argues in its briefing for a strict “paycheck test”: a
requirement that the person receive payment directly from the
governmental unit. At oral argument, however, TxDOT conceded that
this test is too narrow. We agree and reject such a test.
One problem with a paycheck test is that the statute does not
include the phrase “paid by a governmental unit.” Instead, it uses the
broader phrase “in the paid service of a governmental unit by competent
authority.” That choice of words must be given meaning. Additionally,
the definition specifically excludes independent contractors, agents or
employees of independent contractors, and persons who perform tasks
the details of which the governmental unit does not have the legal right
to control. Many of these excluded persons and entities—for example,
employees of independent contractors—would not receive a paycheck
directly from the governmental unit. But excluding employees of
independent contractors in the second part of the definition indicates
that they could fall under the “paid service” umbrella of the first part.
Thus, a strict “paycheck test” would render this exclusion superfluous.
Relatedly, the phrase “by competent authority” indicates that some
person or entity other than the governmental unit itself can be made
competent—perhaps by law or contract—to place others in the unit’s
paid service. This phrase must likewise be given meaning.
A paycheck test would also be subject to easy manipulation in a
manner inconsistent with the concepts that the Legislature concluded

a court need not address whether the governmental unit had the right to
control the details of his assigned tasks.”).

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should be the focus of whether immunity is waived, including control
and negligent operation of motor-driven equipment. See TEX. CIV. PRAC.
& REM. CODE §§ 101.001(2), 101.021(1). As long as a governmental unit
took steps to ensure its employees’ paychecks did not come directly from
the unit, its immunity would not be waived under a paycheck test
regardless of how much control it exerted over their negligent operation
of motor-driven equipment.
Moreover, the cases cited by TxDOT (1) stand for the limited
proposition that “paid service” excludes unpaid volunteers, which we do
not have in this case, and (2) themselves indicate that “paid service” has
a broader meaning than the paycheck test. For example, in Harris
County v. Dillard, we held that “a volunteer reserve deputy subject to
being called into service” but who had not been called into service “was
not in the paid service of Harris County at the time of the accident.” 883
S.W.2d at 167 (emphasis added). And in Murk v. Scheele, we similarly
held that a University of Texas medical student was not in the paid
service of the university because he received no monetary benefit other
than medical professional liability insurance coverage. 120 S.W.3d 865,
867 (Tex. 2003). Murk indicates that the question is instead whether
“part of” the person’s compensation “was ultimately paid by” the
governmental unit, id. (emphasis added), which suggests that direct
payment from the unit is not necessary to paid service.
As discussed below, the facts of this case do not require us to
define the precise contours of what constitutes “paid service.” But the
parties identify some cases from our courts of appeals that have
addressed whether particular people meet this statutory requirement

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when they do not receive payment directly from a governmental unit, as
well as cases that have addressed similar issues in other legal contexts.
For example, two courts have held that workers are in the paid
service of a governmental unit when the unit pays them through a
staffing company based on timesheets they submit or when a contractor
bills the unit for reimbursement of the workers’ wages. 4 TxDOT also
cites a case addressing when an entity is an employer under the Labor
Code, arguing that this can be a helpful analogy in defining paid service
under the Tort Claims Act. See Risk Mgmt. Strategies, Inc. v. Tex.
Workforce Comm’n, 464 S.W.3d 864, 871-73 (Tex. App.—Austin 2015,
pet. dism’d) (holding trusts employed caregivers when management
company paid their wages and processed payroll but trusts reimbursed
company for their services). In City of Bellaire v. Johnson, for instance,
we concluded that a worker was “a person in the service of a political
subdivision who has been employed as provided by law” 5 for purposes of
workers’ compensation coverage because he “was paid by the City
through [a staffing company], and on the basis of the hours he reported
to the City.” 400 S.W.3d 922, 923 (Tex. 2013).
We do not endorse using any of these approaches to define “paid
service” in Section 101.001(2) today, as doing so is not necessary to
decide this case. Instead, we simply note that these authorities may

4 See Nickerson v. Pineda, No. 13-17-00346-CV, 2019 WL 2041774, at

*4 (Tex. App.—Corpus Christi–Edinburg May 9, 2019, pet. denied) (staffing
company); Miers v. Tex. A&M Univ. Sys. Health Sci. Ctr., 311 S.W.3d 577,
580-81 (Tex. App.—Waco 2009, no pet.) (reimbursement).
5 TEX. LAB. CODE § 504.001(2).

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provide a useful starting point as courts and litigants attempt to develop
a more comprehensive test for “paid service” in future cases.
Here, the relationship between TxDOT and Lyellco’s employees is
far removed from the kinds of payment relationships that courts have
concluded amounts to paid service. TxDOT did not have any contractual
relationship with subcontractor Lyellco, which was retained by TxDOT’s
contractor TFR. And the TFR–Lyellco subcontract specifies that “the
payment provisions of the Contract between [TxDOT] and [TFR] are not
a part of this Subcontract and specifically are not incorporated by
reference.” Indeed, the record indicates that TxDOT paid TFR for tree
removal services on a per-tree basis, while TFR paid Lyellco on a per-
day basis. 6 There is no indication that these prices were substantially
similar. Nor is there any indication that TxDOT made payments that
“flowed through” TFR and Lyellco to Lyellco’s employees to compensate
them for their work, that TxDOT had any role in determining how much
Lyellco’s employees were paid, that any payment by TxDOT was a
prerequisite to TFR’s obligation to pay Lyellco or Lyellco’s obligation to
pay its employees, or that TxDOT had any reimbursement obligation
regarding subcontracted labor.

6 More specifically, TxDOT paid TFR for tree removal based on “unit

pricing”—that is, a per-tree price based on each tree’s diameter. The total
contract price was $335,907.50, subject to TxDOT-approved adjustments for
“additional trees to be removed (not on plans).” After TFR hired Lyellco to
conduct tree removal, Lyellco obtained payment by presenting TFR with “an
invoice every Monday for all Work performed and completed through the
previous week.” The record contains an invoice from Lyellco to TFR for “Tree
Removal” performed on July 20 through 24, with the amount due calculated by
multiplying a base rate of $1,500 per day by the number of work days.

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For these reasons, we hold that Lyellco’s employees were not in
TxDOT’s paid service as required by Section 101.001(2), and therefore
they are not TxDOT employees whose operation or use of motor-driven
equipment could provide the basis for a waiver of immunity under
Section 101.021 of the Tort Claims Act. Because we hold that Lyellco’s
employees were not in TxDOT’s paid service, we do not address whether
those employees fall within one of Section 101.001(2)’s exclusions.

B. “Operation or use” under Section 101.021

The Selfs next argue that even if Lyellco’s employees who cut
down the Selfs’ trees do not qualify as employees in TxDOT’s paid
service, immunity is waived under Section 101.021 because other
TxDOT employees “operated” or “used” the motor-driven equipment that
cut down the trees by exercising direct and mandatory control over its
use. In reviewing this argument, we apply our conclusion in LeLeaux v.
Hamshire-Fannett Independent School District that a governmental
unit’s employee must negligently operate or use the motor-driven
equipment to satisfy this immunity waiver. 835 S.W.2d 49, 51 (Tex.
1992).
As noted above, Section 101.021(1) requires that the property
damage be caused by the employee’s negligence and that it arise from
the operation or use of a motor-driven vehicle or piece of equipment. We
explained in LeLeaux that the statutory phrase
“arises from”, requires a nexus between the injury
negligently caused by a governmental employee and the
operation or use of a motor-driven vehicle or piece of
equipment. While the statute does not specify whose
operation or use is necessary—the employee’s, the person
who suffers injury, or some third party—we think the more

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plausible reading is that the required operation or use is
that of the employee. This requirement is consistent with
the clear intent of the Act that the waiver of sovereign
immunity be limited.
Id.
But as the court of appeals explained in detail, there is a split in
authority on what it means for a government employee to “operat[e] or
use” a motor-driven vehicle or equipment as required by LeLeaux. Must
the employee be physically manning the controls of the vehicle or
equipment to “operate” or “use” it, or is it sufficient if the employee
exercises direct and mandatory control over the person at the controls?
The courts of appeals in County of Galveston v. Morgan, 882 S.W.2d 485
(Tex. App.—Houston [14th Dist.] 1994, writ denied), and City of El
Campo v. Rubio, 980 S.W.2d 943 (Tex. App.—Corpus Christi–Edinburg
1998, pet. dism’d w.o.j.), held that an employee of a governmental unit
can exercise such direct and mandatory control over motor-driven
vehicles or equipment that even though a private third party is
physically at the controls, the employee is operating or using the
equipment for purposes of Section 101.021.
Morgan involved a dump truck that contacted an electrical line.
The truck’s driver was an employee of a third-party contractor, but
county employees acted as spotters who told the driver when to move
forward and when to stop. Morgan reasoned:
There is no requirement [in Section 101.021] that the
vehicle in question be a county vehicle, only that a county
employee “used” or “operated” the vehicle. [LeLeaux, 835
S.W.2d at 51.] “Operation” refers to “a doing or performing
of a practical work,” and “use” means “to put or bring into
action or service; to employ for or apply to a given purpose.”

15
[Id.] The spotters in question were county employees.
They were a necessary part of the job. The spotters told
the truck driver when to move forward, how far to move,
when to raise his bed, how far to raise it, when to lower his
bed, and when to stop. The movement of the truck and the
laying of the gypsum was within the spotters’ sole
discretion. If a driver moved his truck contrary to the
spotters’ direction, he could be fired. Although the spotters
were not the drivers of the trucks, the spotters “used or
operated” the trucks by exercising complete control over
their “use or operation.”
882 S.W.2d at 490.
Rubio involved a police officer who arrested a driver for driving
with a suspended license. After arresting the driver, the officer ordered
the driver’s wife, who was not a licensed driver, to follow him in the
family’s vehicle to the police station and allegedly showed the wife how
to operate the vehicle by demonstrating the use of the gas and brake
pedals. When the officer pulled onto the highway, the wife followed him
as ordered and was struck by another car. Noting that LeLeaux defined
“use” broadly to include “bring into action” or “apply to a given purpose,”
980 S.W.2d at 946, the court concluded that the officer used the family’s
vehicle. Id. at 947.
Other courts of appeals have declined to follow Morgan and
Rubio, requiring instead that the government employee physically use
the motor-driven equipment to trigger Section 101.021’s waiver. See 683
S.W.3d at 75-80 (collecting cases). Because it is undisputed that
employees of Lyellco—not TxDOT—physically used the motor-driven
equipment to remove the trees, TxDOT would retain its immunity under
this line of cases.

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This split may be a manifestation of the tension the Selfs identify
between LeLeaux’s reading of the statute and its plain text, which as
LeLeaux acknowledges does not expressly require the employee to use
or operate the motor-driven equipment. In PHI, Inc. v. Texas Juvenile
Justice Department, we recently explained that it was error for the court
of appeals to require that a government employee be actively operating
the vehicle at the time of the incident, as “no court has the authority,
under the guise of interpreting a statute, to engraft extra-statutory
requirements not found in a statute’s text.” 593 S.W.3d at 305.
As with the “paid service” issue, however, the facts of this case do
not require us to resolve the split. As the court of appeals observed, the
actions of TxDOT’s employees did not rise to the level of control that
cases like Morgan and Rubio determined was sufficient to create a fact
question on whether they were operating or using the equipment. See
683 S.W.3d at 80-81. The record indicates that TxDOT gave instructions
to TFR to clear trees beside the highway within certain parameters.
TFR then contracted with Lyellco to have Lyellco employees physically
remove the trees. These facts are not analogous to Morgan and Rubio,
which involved very precise direction by a government employee in close
physical proximity to the equipment being operated.
For these reasons, we hold that the Tort Claims Act does not
waive immunity for the Selfs’ negligence claim. Accordingly, the court
of appeals erred in affirming the trial court’s order denying TxDOT’s
plea to the jurisdiction regarding that cause of action, which must be
dismissed.

17
II. Evidence that TxDOT intentionally directed the trees’
destruction supports the Selfs’ claim for inverse
condemnation.

The Selfs also brought a cause of action against TxDOT seeking
compensation for inverse condemnation under Article I, Section 17 of
the Texas Constitution. The Selfs alleged that TxDOT and its agents
lacked “authority” or “consent” to enter the Selfs’ property outside the
right-of-way and that their acts in directing and implementing the
removal of trees outside the right-of-way were “physical” and
“intentional.” The Selfs also offered evidence that a TxDOT inspector
“did direct the contractor to cut the trees down.” But TxDOT responded,
and the court of appeals held, that the record “does not contain evidence
. . . that TxDOT acted with the requisite intent to support an inverse-
condemnation claim.” 683 S.W.3d at 88. To determine which position
is correct, we begin by examining the nature and requirements of a claim
for inverse condemnation.
“The protection of one’s right to own property is said to be one of
the most important purposes of government. That right has been
described as fundamental, natural, inherent, inalienable, not derived
from the legislature and as preexisting even constitutions.” Eggemeyer
v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977). The Texas Constitution
helps ensure that government fulfills this purpose by providing a robust
right to adequate compensation—and waiver of immunity—if a person’s
property is “taken, damaged, or destroyed for or applied to public use . . .
unless by the consent of such person.” TEX. CONST. art. I, § 17(a); see
Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980). Our Takings
Clause protects against more types of government action than its federal

18
counterpart, 7 as it contains the additional verbs “damaged,” “destroyed,”
and “applied”—each of which creates a claim with its own distinct scope.
See City of Dallas v. Jennings, 142 S.W.3d 310, 313 n.2 (Tex. 2004);
Steele, 603 S.W.3d at 789-791. 8
“When the government takes private property without first
paying for it, the owner may recover damages for inverse
condemnation.” Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 554
(Tex. 2004). 9 The elements of an inverse condemnation or “takings”
claim are that (1) an entity with eminent domain power intentionally
performed certain acts (2) that resulted in taking, damaging, or
destroying the property for, or applying it to, (3) public use. See, e.g.,
Sw. Bell Tel., L.P. v. Harris County Toll Rd. Auth., 282 S.W.3d 59, 62
(Tex. 2009); Gen. Servs. Comm’n v. Little–Tex Insulation Co., 39 S.W.3d
591, 598 (Tex. 2001). 10

7 U.S. CONST. amend. V (“nor shall private property be taken for public

use, without just compensation”).
8 See also City of Baytown v. Schrock, 645 S.W.3d 174, 182-84 (Tex.

2022) (Young, J., concurring); Jim Olive Photography v. Univ. of Houston Sys.,
624 S.W.3d 764, 780-82 (Tex. 2021) (Busby, J., concurring).
9 The action is “inverse” because an entity with the power of eminent

domain has not filed a statutory condemnation action to determine adequate
compensation before taking the property, so the owner initiates an action for
compensation under the Constitution. See City of Dallas v. Stewart, 361
S.W.3d 562, 567 (Tex. 2012).
10 Because takings that are threatened or completed for non-public
purposes are unlawful, property owners may obtain injunctive relief to prevent
or undo such takings. Jim Olive Photography, 624 S.W.3d at 781-82 (Busby,
J., concurring) (citing McCammon & Lang Lumber Co. v. Trinity & B.V. Ry.
Co., 133 S.W. 247, 248 (Tex. 1911)).

19
Although the Constitution does not expressly require an
intentional act, we have explained that such a requirement helps ensure
that the taking is for “public use.” See City of San Antonio v. Pollock,
284 S.W.3d 809, 820-21 (Tex. 2009). 11 An intentional act satisfying the
first element requires evidence that the entity either (a) “intended to
damage the property” or (b) “kn[ew] that [its conduct was] causing
identifiable harm” or that “specific property damage [was] substantially
certain to result from [the conduct].” Jennings, 142 S.W.3d at 313-14. 12
We explore these two Jennings standards for proving intent in more
detail below.
If a defendant files a plea to the jurisdiction showing that the
plaintiff has not alleged these elements and cannot amend its petition
to do so, or if the defendant negates an element in an evidentiary plea,
the takings claim must be dismissed. See City of Houston v. Carlson,

11 This requirement applies to both physical and regulatory takings.

For regulatory takings, the intentional acts are typically the passage of a law
or regulation or its actual or threatened application to the plaintiff’s property.
See Lowenberg v. City of Dallas, 168 S.W.3d 800, 802 (Tex. 2005); City of
Houston v. Maguire Oil Co., 342 S.W.3d 726, 742 (Tex. App.—Houston [14th
Dist.] 2011, pet. denied).
12 In Jennings, we rejected the government’s argument that it “must

necessarily intend to cause the damage,” recognizing that proof of knowledge
that the damage was “substantially certain to result” would also be sufficient.
142 S.W.3d at 314 (emphasis added). See also Schrock, 645 S.W.3d at 178 (“A
plaintiff must show that the government intended to or was substantially
certain that its actions would take or damage the property for public use.”);
Harris County Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016)
(“Generally, plaintiffs seeking recovery for a taking must prove the
government ‘intentionally took or damaged their property . . . or was
substantially certain that would be the result.” (quoting City of Keller v.
Wilson, 168 S.W.3d 802, 808 (Tex. 2005))); Gragg, 151 S.W.3d at 555.

20
451 S.W.3d 828, 830 (Tex. 2014); Miranda, 133 S.W.3d at 226-28.
Although the fact-finder may need to “resolve disputed facts regarding
the extent of the governmental intrusion on the property, the ultimate
determination of whether the facts are sufficient to constitute a taking
is a question of law.” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922,
933 (Tex. 1998).
Here, the Selfs alleged and the evidence shows that TxDOT
intended to damage the property: a TxDOT employee expressly directed
TxDOT’s agents to cut down the trees at issue, and it is undisputed at
this stage that doing so destroyed the Selfs’ personal property. The Selfs
owned the land on which the trees stood—and thus the trees
themselves—both within and outside TxDOT’s right-of-way easement.
And their survey shows that at least twenty of the felled trees were
wholly or partially outside the easement, so TxDOT cannot rely on that
easement to show consent. In addition, the record contains ample
evidence—including TxDOT’s contract with TFR—that TxDOT directed
the trees’ destruction as part of exercising its authority to maintain the
highway right-of-way for public use. 13 That is all the plain text of Article

13 As to the first element, one court of appeals has suggested that the

intentional act itself must be a proper exercise of the government’s lawful
authority. City of Webster v. Hunnicutt, 650 S.W.3d 792, 798 (Tex. App.—
Houston [14th Dist.] 2022, pet. denied). But we have not so held. Rather, we
also consider the context in which the act occurred, examining whether it is
part of a project that the government has legal authority to undertake for
public use—the third element. See State v. Hale, 146 S.W.2d 731, 736 (Tex.
1941) (“The true test is, did the State intentionally perform certain acts in the
exercise of its lawful authority to construct such highway for public use which
resulted in the taking or damaging of plaintiffs’ property . . . .”); see also Steele,
603 S.W.2d at 791.

21
I, Section 17 and our precedents require to maintain a constitutional
claim of compensation for inverse condemnation.
We have recognized certain defenses to and exceptions from
liability for inverse condemnation, but none apply here. For example,
although we have “refus[ed] to differentiate between an exercise of
police power, which excused compensation, and eminent domain, which
required compensation,” 14 we have taken into account historical
limitations on private property rights, holding that the government may
prove as a defense to compensation that it was abating a condition found
by a court to be a public nuisance 15 or was acting upon “great public
necessity,” such as conflagration or war. 16 In addition, we have
explained that the government’s exercise of express constitutional
powers inconsistent with compensation—such as the power to tax—does
not constitute a taking, 17 and Article I, Section 17 itself recognizes the
owner’s “consent” as a defense. Similarly, no compensation is owed

14 Steele, 603 S.W.2d at 789 (observing that this “dichotomy . . . has not

proved helpful in determining when private citizens affected by governmental
actions must be compensated”); see also Travelers’ Ins. Co. v. Marshall, 76
S.W.2d 1007, 1009-1011 (Tex. 1934) (rejecting argument that government has
authority “under the police power” to act contrary to the “rights, guaranties,
privileges, and restraints” in the Bill of Rights, which are expressly “excepted
out of the general powers of government” by Article I, Section 29).
15 Stewart, 361 S.W.3d at 569; City of Texarkana v. Reagan, 247 S.W.

816, 817-18 (Tex. 1923).
16 Steele, 603 S.W.2d at 792; see also Baker v. City of McKinney, 84 F.4th

378, 385-88 (5th Cir. 2023) (examining historical basis for necessity defense).
17 See Norris v. City of Waco, 57 Tex. 635, 643 (1882).

22
when the government acts on its rights under a contract to which the
parties have consented because it is not exercising sovereign powers. 18
We have also held that “mere negligence which eventually
contributes to the destruction of property is not a taking”; it is a
negligence claim on which the government is immune from suit absent
a waiver. City of Tyler v. Likes, 962 S.W.2d 489, 504-05 (Tex. 1997). In
contrast, as explained above, the Selfs have alleged and offered evidence
here that TxDOT is liable for adequate compensation because it
“intentionally perform[ed] certain acts in the exercise of its lawful
authority to [maintain the] highway for public use which resulted in the
taking or damaging of [their] property.” State v. Hale, 146 S.W.2d 731,
736 (Tex. 1941). 19
The court of appeals and TxDOT make two points in opposition to
this conclusion. Neither withstands scrutiny.
First, the court of appeals concluded that TxDOT’s intent should
be assessed under the second standard we announced in Jennings. See
683 S.W.3d at 89-90 (citing Jennings, 142 S.W.3d at 314). We disagree.
Applying the second Jennings standard is unnecessary in cases where,
as here, the intentional conduct of government agents is itself a taking,

18Little–Tex Insulation Co., 39 S.W.3d at 598-99; City of Anson v.
Harper, 216 S.W.3d 384, 392 (Tex. App.—Eastland 2006, no pet.) (“[W]hen the
State acts as a party to a contract and exercises the same rights as would a
private party, it is not acting as a sovereign, and a takings claim does not lie.”);
but cf. Harrison v. City of Sulphur Springs, 67 S.W. 515, 516 (Tex. Civ. App.—
Dallas 1902, no writ) (rejecting city’s argument of contractual consent to
physical taking of drainage channel because contract was not with property’s
true owner).
19 See also Kerr, 499 S.W.3d at 800 n.17 (quoting Hale, 146 S.W.2d at

736).

23
damaging, destruction, or appropriation of property. Such conduct
satisfies the first Jennings standard: that the government “intend[ed] to
cause the damage.” 142 S.W.3d at 314.
“[W]e have sought objective indicia of intent in particular contexts
to determine whether property has been taken or damaged in
furtherance of the public interest.” Gragg, 151 S.W.3d at 555. This
Court identified such a context in Jennings: cases in which the
government’s intentional conduct is not itself a physical taking,
damaging, or destruction of property but the conduct initiates a chain of
events that “eventually contributes to” such harm. 142 S.W.3d at 313.20
In that context, the property owner must show that the government
(1) engaged in an affirmative act or course of conduct that resulted in
the physical taking, damaging, destruction, or application of property;
and (2) did so with the necessary intent under the second Jennings
standard—that is, with knowledge that either the conduct was causing
identifiable harm or specific property damage was substantially certain
to result. Id. at 314; see also Harris County Flood Control Dist. v. Kerr,
499 S.W.3d 793, 799-800 (Tex. 2016).
These requirements ensure that when there is a causal chain
linking the intentional government conduct to the eventual property

20 See Jennings, 142 S.W.3d at 314 (addressing cases in which the
government “did not particularly desire [or intend for] the property to be
damaged” but damage was “incident to” or “a consequential result of” the
government’s intentional act); Koch v. Tex. Gen. Land Off., 273 S.W.3d 451,
459 (Tex. App.—Austin 2008, pet. denied) (“[T]he cases in which the [second]
Jennings intent standard has been applied involve circumstances in which the
governmental entity’s intentional act is not the actual physical taking or
damaging of property, but rather the cause of a physical taking or damaging
of property.”).

24
damage, that damage occurred for “public use” because the government
was aware harm was substantially certain “and yet determine[d] that
the benefit to the public outweigh[ed]” it. Jennings, 142 S.W.3d at 314;
see also Kerr, 499 S.W.3d at 806-07. 21 The Jennings standards also help
to draw the line between takings claims and negligence claims against
the government—which, as discussed above, are generally barred by
immunity unless a waiver applies. See Gragg, 151 S.W.3d at 554.
Unlike the facts at issue in Jennings, this case does not present a
context in which the government’s intentional conduct initiated a chain
of events that ultimately resulted in a taking of private property. Here,
TxDOT employees intended to physically destroy the trees for a public
use and directly ordered TxDOT’s agents to cut them down, which they
did. This intentional government conduct was not the cause of an
eventual taking—it was the taking. The second Jennings intent
standard serves no purpose in such cases. 22 By applying that standard

21 Several of our cases provide additional examples of causal-chain
scenarios in which the second Jennings standard is used to determine intent.
See, e.g., Kerr, 499 S.W.3d at 796-97 (applying standard when county’s
approval of “‘unmitigated’ upstream development, combined with a failure to
fully implement [a previously approved flood-control plan],” ultimately caused
flooding of plaintiffs’ homes); Gragg, 151 S.W.3d at 549 (applying standard
when construction and operation of water reservoir caused significant change
in flooding characteristics resulting in damage to plaintiff’s ranch); Jennings,
142 S.W.3d at 313 (applying standard when city’s unclogging of public sewer
led to sewage flooding plaintiffs’ home).
22 Koch, 273 S.W.3d at 459 (holding second Jennings standard
inapplicable when “the intentional act alleged is the physical taking and
dominion over the property at issue”); City of Anson, 216 S.W.3d at 393
(“[U]nlike Jennings, this is not an attenuated claim based upon unhappy
circumstance. Plaintiffs’ claim [for physical damage to their mineral estate] is
the direct result of the City’s dirt work.”); see also Maguire Oil Co., 342 S.W.3d

25
here, the court of appeals chose the wrong focus for its analysis of intent,
which contributed to another error that we discuss next.
Second, the court of appeals held the Selfs were required to prove
“that TxDOT intended to cut down those of the Selfs’ trees beyond the
right-of-way” and they failed to do so, as TxDOT simply “assumed trees
on the road side of the fence were in the right-of-way.” 683 S.W.3d at
90. Focusing on what it called the “impetus of” TxDOT’s intentional act,
the court saw “no evidence that TxDOT had any inkling that it was
damaging the Selfs’ trees when the area up to their fence was cleared.”
Id. at 91. TxDOT doubles down on this position in our Court, arguing
that it believed its instruction to clear trees between the fences would
ensure those trees were within its right-of-way easement. In TxDOT’s
view, no compensation is owed because the Selfs cannot show it “knew
that the trees at issue were . . . [not] in the right of way.”
Many Texas and federal courts have rejected such arguments, 23
and we join them in holding that the Constitution means what it says:
the government must pay compensation when it intentionally takes
private property for public use—even if the government mistakenly
believes that it has a legal right to do so apart from its power of eminent
domain. Of course, a takings claim will fail if the government’s belief
turns out to be correct. But the court of appeals’ approach would allow
the government to escape liability for inverse condemnation merely by

at 741-43 (holding second Jennings standard inapplicable to regulatory taking
given evidence of city’s intentional enforcement of ordinance); City of San
Antonio v. El Dorado Amusement Co., 195 S.W.3d 238, 245 (Tex. App.—San
Antonio 2006, pet. denied) (same given intentional approval of rezoning).
23 See, e.g., infra notes 25-27.

26
asserting that it owns or has rights to—or thought at the time of the
taking that it owned or had rights to—property it intentionally took,
damaged, destroyed, or appropriated for public use. That position finds
no support in the text of Article I, Section 17, is contrary to precedent,
and would “permit government to escape its constitutional duty to
compensate its citizens for destruction of their property.” Hansen v.
United States, 65 Fed. Cl. 76, 81 (2005).
The words of our Takings Clause do not remotely suggest that a
property owner must prove the government had a particular “impetus”
or mindset regarding whether its intentional taking of property for
public use was permissible. When the government wishes to take
property in which it has no rights, it need only exercise its power of
eminent domain by initiating a condemnation action and paying
compensation. The point of a constitutional action for inverse
condemnation is to allow private property owners to obtain
compensation for other intentional government conduct that takes,
damages, destroys, or appropriates their property for public use without
any valid legal basis other than eminent domain. See Labruzzo v.
United States, 144 Fed. Cl. 456, 473 (2019).
Nor do the “public use” element or the need to distinguish
between negligence and takings claims impel us to demand proof that
TxDOT acted in bad faith—that is, with subjective awareness that it
had no legal right to cut down the Selfs’ trees. As discussed above, these
considerations are already served by Jennings’ requirement that the
property owner prove intentional government conduct that either is a
taking itself or that the government knows is substantially certain to

27
result in a taking. And here, the Selfs have alleged and offered evidence
that TxDOT’s intentional conduct was itself a taking: it expressly
directed the trees’ destruction as part of clearing the right-of-way for
public use. Nothing more is necessary.
For these reasons, “[w]e are not persuaded that the State’s
subjective belief regarding its title to [or rights in] property, by itself,
changes or dictates the capacity in which the State acts. . . . [A]bsent
. . . a determination” that “the State is, in fact, the property owner” or
has other rights in the property, “the State’s intentional act of taking
property for public use is an exercise of its eminent domain powers” that
requires compensation. Koch v. Tex. Gen. Land Off., 273 S.W.3d 451,
458 (Tex. App.—Austin 2008, pet. denied). As we explained in City of
Dallas v. Stewart, although a government entity “commits no taking
when it abates what is, in fact, a public nuisance” as determined by a
court, the government cannot avoid paying compensation based simply
on its own declaration that the property is a nuisance. 361 S.W.3d 562,
569-570 (Tex. 2012). Thus, “[w]hether the [government] acted in good
faith in physically [taking] the [property,] or believed that [doing so] was
not a ‘taking’ of property as a constitutional matter, has no impact on
whether [its] act in taking the [property] was intentional.” Koch, 273
S.W.3d at 460. 24
This view—that the government must pay compensation when it
intentionally destroys private property for public use with the mistaken

24 In other words, “[w]hat matters is not whether the [government]
intended to violate a private property right. Rather, the requisite intent is
whether the [government] intended its physical [taking].” Labruzzo, 144 Fed.
Cl. at 474.

28
belief that it has a legal right to do so—is widely shared among Texas
and federal courts. Whether the claim is for a physical taking 25 or a
regulatory taking, 26 and whether the owner alleges that the

25 See, e.g., Glade v. Dietert, 295 S.W.2d 642, 643, 646-47 (Tex. 1956)

(concluding owner could obtain compensation for trees removed from property,
either by separate action or in subsequent condemnation proceeding, where
city “by inadvertence had failed to acquire the necessary additional . . . right of
way”); State v. BP Am. Prod. Co., 290 S.W.3d 345, 364-66 (Tex. App.—Austin
2009, pet. denied) (concluding owner alleged takings claim based on State’s
intentional leasing of minerals to third party notwithstanding State’s assertion
of ownership); City of Dallas v. VSC, LLC, 242 S.W.3d 584, 593 (Tex. App.—
Dallas 2008) (“The City misreads Little–Tex Insulation Co. as requiring, for a
takings claim, that the government intend to act under its eminent domain
power.”), rev’d on other grounds, 347 S.W.3d 231 (Tex. 2011); Koch, 273 S.W.3d
at 458 (rejecting argument that government mineral owner’s claim of title to
disputed materials it removed from property of plaintiff surface owner
established lack of intent for takings claim); Porretto v. Patterson, 251 S.W.3d
701, 708 (Tex. App.—Houston [1st Dist.] 2007, no pet.] (denying plea to
jurisdiction on physical takings claim where government asserted ownership
of private land and leased it to third party but later abandoned its assertion
and explaining that government cannot “claim immunity for a taking by simply
asserting title”); City of Anson, 216 S.W.3d at 391 (holding mineral owner’s
allegations and evidence established potential claim for damage caused by
city’s surface work despite city’s contention it was acting under its surface
ownership rights); Kenedy Mem’l Found. v. Mauro, 921 S.W.2d 278, 281-82
(Tex. App.—Corpus Christi–Edinburg 1995, writ denied) (holding inverse
condemnation claim survived jurisdictional plea despite State’s assertion of
title where foundation alleged that state mineral leases encroached on
foundation’s property); Harrison, 67 S.W. at 516 (concluding city took private
property by digging drainage channel where person from whom city obtained
consent proved not to be owner).
26 See, e.g., Maguire Oil Co., 342 S.W.3d at 743 (“[A] viable [regulatory]

inverse condemnation claim can be predicated on the City’s intentional but
erroneous enforcement of an ordinance that interferes with permissible
activity by the targeted entity.”); Barto Watson, Inc. v. City of Houston, 998
S.W.2d 637, 641-42 (Tex. App.—Houston [1st Dist.] 1999, pet. denied)
(allowing regulatory takings claim where city inspector improperly enforced
permit requirement to shut down sand pit that city later allowed to reopen).

29
government’s intentional conduct was itself the taking or that the
government knew its conduct was substantially certain to result in a
taking, 27 it is no answer for the government to argue “that the [property
owner’s] takings claim must be dismissed for lack of jurisdiction because
[it] had no intent to take the [owner’s property], but rather only to assert
the government’s ‘rights.’” Porretto v. Patterson, 251 S.W.3d 701, 709
(Tex. App.—Houston [1st Dist.] 2007, no pet.).
Finally, requiring property owners to show that the government
subjectively believed it had no right to take their property would
eviscerate our constitutional bulwark against uncompensated takings.
When a plaintiff alleges a state taking of property and title
to that property is in dispute, the State cannot evade its
constitutional obligations merely by asserting that it
“believes” it is acting as landowner [or exercising other
legal rights] rather than [exercising eminent-domain
power] as sovereign regardless of whether that belief is, in
fact, accurate. Otherwise, the State would be in the
position of unilaterally determining the outcome of takings
disputes simply by declaring a subjective belief—whether
right or wrong—that it thought it owned [or had rights
regarding] the property. Takings jurisprudence does not
work this way.
Koch, 273 S.W.3d at 459.
Indeed, “if the government could claim immunity for a taking by
simply asserting title [or other rights], then it need never legally
condemn land—it ‘could simply appropriate it, and the landowner would

27 See Labruzzo, 144 Fed. Cl. at 474 n.13 (“Under either” an intentional

taking or intentional conduct substantially certain to result in a taking, “the
focus is on the nature of the government’s [invasion], not the government’s
mindset about the permissibility of its [invasion].”).

30
be entitled to no compensation unless the Legislature granted him
permission to sue.’” Porretto, 251 S.W.3d at 708 (quoting Griffin v.
Hawn, 341 S.W.2d 151, 153 (Tex. 1960)). And the government could
bulldoze anyone’s house without compensation simply by asserting a
belief—even a wholly unsupported one—that it had the legal right to do
so, regardless of whether that assertion was later withdrawn or
disproved. These are the very depredations that Article I, Section 17
was adopted to guard the people of Texas against.
We conclude that the government may not avoid paying
compensation for intentionally taking, damaging, destroying, or
appropriating private property for public use by showing that it acted
under the incorrect impression that it had a legal right to do so. 28
Because the Selfs have alleged and offered evidence of each required
element of their claim for inverse condemnation, the court of appeals
erred in dismissing that claim.

28 We note that when TxDOT directed the destruction of the Selfs’ trees,

it had access to all the information it needed to determine that its easement
rights did not extend to all those trees. An owner of property rights is
presumed to know the boundaries of its property. Garcia v. Palacios, 667
S.W.2d 225, 231 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.); Allen v.
Robbins, 347 S.W.2d 362, 366 (Tex. Civ. App.—Austin 1961, no writ); see also
City of Anson, 216 S.W.3d at 393 (“The City’s chain of title establishes that it
was on actual notice of plaintiffs’ ownership interest.”). And the record shows
TxDOT had a map at its local office showing the width of its right-of-way
easement, which in any event was publicly recorded. In addition, TxDOT
identifies no authority—and we have found none—suggesting that an
easement holder is entitled to presume that a fence is located on the boundary
line of its easement.

31
CONCLUSION

The Selfs’ negligence cause of action against TxDOT is barred by
sovereign immunity because neither of the two theories offered by the
Selfs satisfies the waiver requirements of the Tort Claims Act. The Selfs
have a viable cause of action for inverse condemnation, however, as they
have raised a fact issue regarding whether TxDOT intentionally
destroyed the trees on their property for public use. We therefore
reverse the court of appeals’ judgment, render judgment dismissing the
Selfs’ cause of action for negligence, and remand their cause of action for
inverse condemnation to the trial court for further proceedings. See TEX.
R. APP. P. 60.2(c), (d).

J. Brett Busby
Justice

OPINION DELIVERED: May 17, 2024

32