Long Tran v. City of Haskell, Texas

Opinion filed September 26, 2024

In The

Eleventh Court of Appeals
__________

No. 11-23-00186-CV
__________

LONG TRAN, Appellant
V.
CITY OF HASKELL, TEXAS, Appellee

On Appeal from the 39th District Court
Haskell County, Texas
Trial Court Cause No. 12689

MEMORANDUM OPINION
Appellant, Long Tran, sued Appellee, the City of Haskell, under Article 1,
Section 17 of the Texas constitution for the alleged “temporary taking” of his
property—four dilapidated structures,1 which the City ordered to be condemned,

1
The “structures,” all of which are situated in the City of Haskell, consist of two residential
properties located at 1306 North Avenue G (“Md Part (60 x 140) of Lot 3, Block 2, Robertson and Day
Addition, [City of] Haskell, Haskell County, Texas”) and 1308 North Avenue G (“Northwest Corner (50 x
140) of Lot 3, Block 2, Robertson and Day Addition, [City of] Haskell, Haskell County, Texas”), and two
although its condemnation orders were quickly rescinded, and the structures
remained. The City filed a plea to the jurisdiction and two amended pleas. After a
hearing, the trial court granted the City’s pleas. In a single issue, Tran contends that
the trial court erred when it granted the City’s pleas because Article 1, Section 17
requires that a city provide adequate compensation for “temporary takings.” We
affirm.
I. Factual Background
The Haskell City Council addressed the dilapidated conditions of Tran’s
properties during several public hearings and council meetings in the first few
months of 2022.
In January, the council held public hearings concerning Tran’s properties and
determined, unanimously, that the residential properties located on Avenue G should
be condemned. As for Tran’s commercial buildings located on First Street, the
council granted Tran thirty days to submit a plan to repair the buildings, otherwise
the buildings would also be condemned.
At a public hearing in February, the council again addressed the status of the
Avenue G properties. On each Friday for two weeks before this hearing, the council
published notice of the purpose of this hearing in the Haskell Star, the local
newspaper. Debra Bartley appeared at this public hearing and stated that she was
present “for the property owner” and that the owner “wanted to see if he could get
extra time to fix the structures.” The council decided to allow Tran until the next
council meeting (two weeks later) to submit a “repair plan” for the Avenue G
properties. Regarding the First Street commercial buildings, the council determined
and ordered that they should be demolished within thirty days. The minutes for this

commercial buildings located at 414 North First Street (“The East 25 Foot of Lot 4, Block 19, Original
Town of Haskell, Haskell County, Texas”) and 416 North First Street (“The East 15 Feet of Lot 3, and West
5 feet of Lot 4, Block 19, Original Town of Haskell, Haskell County, Texas”).
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hearing also note that although notice of the January public hearings had been sent
to Tran via United States Postal Service, the notice was not claimed and was returned
to sender.
At the next council meeting in late February, the council again discussed the
status of the Avenue G properties. The minutes note that Tran did not attend,
although he sent written comments about these properties to the council for
consideration at the February public hearing. The minutes further state that Tran
later e-mailed the city administrator, and the city administrator replied and requested
that he attend the February council meeting. The council announced at its February
meeting that it had already granted an extension to Tran and this was the second
meeting that addressed his properties in which he had not attended. At the
conclusion of its meeting, the council ordered that the Avenue G properties should
be condemned.
However, the council rescinded both condemnation orders at its April
meeting. The agenda and minutes for the April meeting show that the City’s code
enforcement officer had resigned, which the City believed could affect its legal
position should litigation commence based on its condemnation orders. As a result,
and according to the minutes, the council concluded that rather than proceeding
through the entire process again with a new code enforcement officer, it would prefer
to work with Tran to preserve the properties; however, the council still needed a
“repair plan” from him.
Tran alleges that he first became aware of the condemnation orders on May 8,
from the contents of a letter that was taped to the front door of one of the properties.
He filed the underlying lawsuit on May 16, 2022, and asserted claims for an illegal
taking of property in violation of Article 1, Section 17 of the Texas constitution,
inverse condemnation, due process violations, and violations of the Texas
Administrative Procedure and Practice Act.
3
The City filed its original plea to the jurisdiction, and contended, among other
things, that to the extent Tran (1) alleges the condemnation orders alone constitute a
taking, (2) seeks a de novo review of those orders, or (3) alleges those orders were
arbitrary and capricious and violated his rights under the due course of law or due
process provisions of the Texas constitution, his claims are moot because the
condemnation orders were rescinded. The City also contended that to the extent
Tran’s allegations could be construed as a regulatory-takings claim, he had failed to
obtain a final decision from the City concerning the construction of the regulations
that were applicable to his property, and therefore his claims were not ripe for
adjudication.
The City later filed its first amended plea to the jurisdiction, in which it
contended that the trial court lacked subject-matter jurisdiction over Tran’s claims
because his claims were moot or not ripe, and his operative pleading did not
sufficiently allege a taking or a claim for property damages. The City also attached
evidence to its amended plea that consisted of the agendas and minutes of the council
meetings mentioned above. In response, Tran asserted that, because the City
condemned his properties, the fair market value of the properties decreased, and the
properties were vandalized. Tran also asserted that, while the properties were
subject to the City’s condemnation orders, this prevented him from enjoying access
to and the free use of his properties.
Tran thereafter filed an amended petition in which he re-urged his loss-of-fair-
market-value and destruction-of-property arguments which, according to Tran, the
City knew or should have known would occur if it condemned the properties.
Expanding on his contention that the City’s condemnation orders had prevented him
from accessing and freely using his properties, Tran also alleged that the orders
prevented him from renting and selling these properties at the “peak” of the real
estate market—thereby causing him to lose significant revenue—which he claimed
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he intended to do when the orders were in effect. Tran further alleged that the
condemnation orders lacked merit because the properties were in reasonably good
condition at the time, and that the council’s findings—that the properties were a
public nuisance, were hazards to the public’s health, safety, and welfare, and could
not be reasonably repaired—were arbitrary and capricious. Tran sought between
$100,000 and $200,000 in damages.
The City then filed its second amended plea to the jurisdiction in which it re-
urged that the trial court lacked subject-matter jurisdiction over Tran’s claims
because his claims were moot or not ripe, and his amended pleading did not
sufficiently allege a taking or a claim for property damages; the City also contended
that its evidence conclusively disproved Tran’s allegations.
After a hearing, the trial court granted the City’s original, first amended, and
second amended pleas to the jurisdiction and dismissed Tran’s lawsuit with
prejudice. Tran filed a motion for new trial, which the trial court denied after a
hearing. This appeal followed.
II. Standard of Review
Before a court may dispose of a case, it is essential that the court possess
subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54
(Tex. 2000). Whether a trial court has subject-matter jurisdiction is a question of
law that we review de novo. Harris Cnty. v. Annab, 547 S.W.3d 609, 612 (Tex.
2018) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004)). Ripeness is an element of subject-matter jurisdiction. Mayhew v. Town of
Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) (citing State Bar of Tex. v. Gomez, 891
S.W.2d 243, 245 (Tex. 1994)). Consequently, we also review that discrete question
de novo. Id. (citing Tex. Ass’n of Business v. Tex. Air Control Bd., 852 S.W.2d 440,
444–45 (Tex. 1993)).

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A plea to the jurisdiction is a dilatory plea and a proper method by which to
challenge a trial court’s subject-matter jurisdiction. Weatherford Int’l, LLC v. City
of Midland, 652 S.W.3d 905, 912 (Tex. App.—Eastland 2022, pet. denied) (citing
Blue, 34 S.W.3d at 554). The purpose of a plea to the jurisdiction is to defeat a
pleaded cause of action without reaching the merits. Id. A plea to the jurisdiction
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); City of
Merkel v. Copeland, 561 S.W.3d 720, 723 (Tex. App.—Eastland 2018, pet. denied).
When the plea challenges the existence of jurisdictional facts, we must move beyond
the pleadings and consider evidence when necessary to resolve the jurisdictional
issues, even if the evidence implicates both subject-matter jurisdiction and the merits
of a claim. Clark, 544 S.W.3d at 770–71 (citing Blue, 34 S.W.3d at 555). In such
cases, the standard of review mirrors that of a traditional summary judgment. Id. at
771 (citing Miranda, 133 S.W.3d at 225–26).
If the plaintiff’s factual allegations are challenged with supporting evidence
necessary to the consideration of the plea, the plaintiff must raise at least a genuine
issue of material fact to overcome the challenge to the trial court’s subject-matter
jurisdiction and avoid dismissal. Id. (citing Miranda, 133 S.W.3d at 221). When
we determine whether a material fact issue exists, “we must take as true all evidence
favorable to the plaintiff, indulging every reasonable inference and resolving any
doubts in the plaintiff’s favor.” Id. We cannot, however, disregard evidence that is
necessary to show context, nor can we disregard evidence and inferences
unfavorable to the plaintiff if reasonable jurors could not. Id. (citing City of Keller v.
Wilson, 168 S.W.3d 802, 811–12, 822–23, 827 (Tex. 2005)).
III. Analysis
Tran argues that the rescinded condemnation orders constitute temporary
regulatory takings of his property for which he is entitled compensation under the
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Texas constitution. He reasons that because (1) the Texas takings clause is broader
than its federal counterpart, (2) the federal takings doctrine recognizes that a taking
that is temporary in its duration can be compensable, and (3) he alleges that the City
temporarily “took” his properties for a public purpose, which resulted in damage to
the properties’ value, we should conclude that he has properly alleged a takings
claim under the Texas constitution and has, therefore, invoked the trial court’s
subject-matter jurisdiction to decide this case.
The City responds that (1) Tran has failed to plead sufficient facts that
demonstrate a taking, (2) he has failed to plead sufficient facts that demonstrate the
City “took” his properties when it knew damages would flow from its actions, and
(3) his claims are not ripe for judicial review. We agree with the City.
The Texas constitution provides that “[n]o person’s property shall be taken,
damaged, or destroyed for or applied to public use without adequate compensation
. . . .” TEX. CONST. art. 1, § 17(a). The Texas Supreme Court has acknowledged
that this provision of our constitution is broader than its federal counterpart 2
“because it contains the additional verbs ‘damaged,’ ‘destroyed,’ and ‘applied’—
each of which creates a claim with its own distinct scope.” Tex. Dep’t of Transp. v.
Self, 690 S.W.3d 12, 25 (Tex. 2024) (citing City of Dallas v. Jennings, 142 S.W.3d
310, 313 n.2 (Tex. 2004)); see also Steele v. City of Houston, 603 S.W.2d 786, 789–
91 (Tex. 1980); 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).
The Texas constitution waives governmental immunity with respect to
liability under the takings clause. See City of Houston v. Carlson, 451 S.W.3d 828,

U.S. CONST. amend V (“nor shall private property be taken for public use, without just
2

compensation”).

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830 (Tex. 2014); City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236 (Tex. 2011).
Such claims are predicated on a viable allegation of taking; however, if a takings
claim is not properly pleaded, the State retains its governmental immunity. Carlson,
451 S.W.3d at 830 (citing Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468,
476 (Tex. 2012)); see Schrock, 645 S.W.3d at 176 (“When government action falls
short of a constitutional taking, immunity bars many such claims.”). Similarly, if
the State retains its immunity, its political subdivisions, such as the City, also retain
and may assert governmental immunity. Harris Cnty. v. Sykes, 136 S.W.3d 635,
638 (Tex. 2004); Weatherford, 652 S.W.3d at 911–12. We must sustain a properly
raised plea to the jurisdiction if a plaintiff fails to sufficiently allege a taking. See
Hearts Bluff Game Ranch, 381 S.W.3d at 491–92. Although the factfinder 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.” Self, 690 S.W.3d at 26 (quoting Mayhew, 964 S.W.2d
at 933).
“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). Inverse-condemnation lawsuits
are actions commenced by the property owner who seeks compensation for the
government’s taking or damage to his property through means other than formal
condemnation. City of Dallas v. Stewart, 361 S.W.3d 562, 567 (Tex. 2012); see City
of Houston v. Trail Enters., Inc., 300 S.W.3d 736, 736–37 (Tex. 2009). To assert an
inverse-condemnation claim, a party must plead: (1) the government intentionally
performed an act in the exercise of its lawful authority; (2) that resulted in the taking,
damage to, or destruction of the party’s property; (3) for public use. See Self, 690
S.W.3d at 26 (citing Sw. Bell Tel., L.P. v. Harris Cnty. Toll Rd. Auth., 282 S.W.3d

8
59, 62 (Tex. 2009)); City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 824 (Tex.
App.—Austin 2014, no pet.).
Although the Texas constitution does not expressly require that the taking
involve an intentional act, such a requirement helps ensure that the taking is for
“public use.” Self, 690 S.W.3d at 26 (citing City of San Antonio v. Pollock, 284
S.W.3d 809, 820–21 (Tex. 2009)). As it applies to regulatory takings, this
requirement is typically satisfied by the passage of a law or regulation or its actual
or threatened application to the plaintiff’s property. Id. at 26 n.11 (citing
Lowenberg v. City of Dallas, 168 S.W.3d 800, 802 (Tex. 2005)). “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].’” Id. at 26 (quoting Jennings, 142 S.W.3d at 313–14); see 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 [claimant’s] property
for public use.”).
In support of his arguments, Tran relies heavily on Justice Young’s concurring
opinion in Schrock. See Schrock, 645 S.W.3d at 182–88 (Young, J., concurring);
see also Jim Olive Photography, 624 S.W.3d at 780 (Busby, J., concurring). The
concurrence in Schrock emphasized that although the text of the takings clause in
the Texas constitution clearly is broader than its counterpart in the United States
Constitution, because parties have typically neglected to raise takings claims under
the Texas constitution specifically, the court has not yet been asked to determine
how much broader the Texas takings clause actually is, if at all. See Schrock, 645
S.W.3d at 184 (“We cannot meaningfully answer those questions unless litigants
undertake substantial additional work beyond invoking federal takings doctrines.”);
see also Jim Olive Photography, 624 S.W.3d at 782 (Busby, J., concurring) (noting
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that the appellant failed to contend that the takings analysis should be different under
the Texas constitution). Here, Tran’s inverse-condemnation claim is specifically
and only raised pursuant to the Texas constitution’s takings clause. See TEX. CONST.
art. 1, § 17.
Tran links the reasoning of the Schrock concurrence with the United States
Supreme Court’s opinion in Arkansas Game & Fish Comm’n v. United States, 568
U.S. 23, 32–34 (2012), in which the Court held that a temporary flooding caused by
the Corps of Engineers could be compensable under the federal takings clause. Tran
argues that because (1) the federal takings clause contemplates compensation for
“temporary takings,” and (2) the Texas takings clause is broader than its federal
counterpart, his inverse-condemnation claim that is based on the City’s “temporary”
action is thus compensable under the Texas takings clause.
The Fifth Court of Appeals addressed and rejected a similar “temporary
takings” argument. See Galovelho LLC v. Abbott, No. 05-21-00965-CV, 2023 WL
5542621, at *5–6 (Tex. App.—Dallas Aug. 29, 2023, pet. denied) (mem. op.).
Galovelho, a restaurant operator, sued Governor Abbott, Collin County, and the City
of Frisco for regulatory takings pursuant to the adoption of emergency orders related
to the COVID-19 pandemic, which restricted certain restaurant operations, including
the prohibition of dine-in services (although the emergency orders permitted take-
out, delivery, or drive-through services). See id. at *1–2. In addition to its claim for
a categorical taking under Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992), and
alternatively for a traditional taking under Penn Central Transp. Co. v. New York
City, 438 U.S. 104 (1978), Galovelho argued that, under the Texas takings clause, it
need only plead and prove some “damage” to its property to be entitled to
compensation from the government. See id. at *5.
Galovelho relied on the concurring opinions in Schrock and Jim Olive
Photography to support its argument that, as the Fifth Court of Appeals stated, “the
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damages he alleges [that resulted] from temporary restrictions [equates] to an actual
taking.” Id. at *6. In other words, Galovelho argued that in such a scenario any
damage to property, irrespective of the duration, would be compensable under the
Texas constitution. Id. at *5–6. The Fifth Court of Appeals rejected this contention
and, in doing so, quoted from the Jim Olive Photography majority opinion: “A
compensable taking does not arise whenever state action adversely affects private
property interests. Governments interfere with private property rights every day.
Some of those intrusions are compensable; most are not.” Id. at *6 (quoting Jim
Olive Photography, 624 S.W.3d at 771). The court further noted that the
concurring opinions in Schrock and Jim Olive Photography did not appear to
support Galovelho’s argument and reiterated that “Texas case law on takings under
the Texas Constitution is consistent with federal jurisprudence.” Id. Although it
acknowledged that the language of the Texas and federal takings provisions differ,
the court stated that it “await[ed] [the Texas Supreme] [C]ourt’s directive that the
provisions are to be analyzed differently when a takings claim is made for property
[that is] temporarily ‘damaged.’” Id. (emphasis added). Likewise, we deem it
prudent to show restraint and await, when raised, the Texas Supreme Court’s
guidance on this issue.
Here, Tran alleges that his properties were “damaged” merely because the
City issued condemnation orders, orders which were rescinded soon thereafter and
with no action having been taken by the City to demolish his properties. He asserts
that because these orders were issued, his property “was damaged for public purpose
and these damages include loss in market value, loss in rental value, and other such
damages.” He also alleges that after the condemnation notices were affixed to his
properties, the properties were vandalized and damaged, which forced him to expend
personal funds to repair the damage.

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Although Tran has specifically raised his condemnation claim under the Texas
takings clause, as the Schrock concurrence mentions, his pleaded claims suffer the
same deficiencies as Galovelho’s. In his concurrence, Justice Young specifically
notes that to address and answer the questions of how much broader, if any, the
Texas takings clause is than its federal counterpart, and under what circumstances,
the court would need to review a case which presents “arguments tailored to our
state constitutional law.” Schrock, 645 S.W.3d at 184 (Young, J., concurring). To
do so, a litigant would need to “undertake substantial additional work beyond
invoking federal takings doctrines,” including “comprehensive briefing from the
parties . . . on the precise scope of the right to compensation that the Texas
Constitution affords.” Id. Moreover, the “[a]ntecedent 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.” Id. The concurrence
concludes that “[i]n an appropriate case, a party may well show that the Texas
Constitution requires compensation in circumstances in which the United States
Constitution does not.” Id. at 184–85.
But the circumstances to which Tran attempts to advance, and to which the
Schrock concurrence alludes and contemplates, are not present here. Tran, like
Galovelho, has not undertaken any “comprehensive briefing.” See Galovelho, 2023
WL 5542621, at *5–6 (“[R]elying largely on two recent concurring opinions by
supreme court justices, [Galovelho] simply equates the damages he alleges
[resulted] from temporary restrictions to [be] an actual taking. We do not read
either of the concurring opinions to make that same equation.”) (emphasis added);
Schrock, 645 S.W.3d at 185 (“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

12
claims, will both proceed and merit full compensation.”) (Young, J., concurring).
We agree with the Galovelho court’s analysis and rationale.
Further, in his appellate brief and his live pleading in the trial court below
Tran makes only vague and conclusory arguments and allegations regarding any
damage his properties sustained because of the City’s alleged “temporary taking.”
In fact, the entirety of Tran’s briefing focuses on the Schrock concurrence’s
suggestion that a novel issue to Texas takings jurisprudence may be viably charted
in this case. Absent an adequately explicated theory charting such a course, we
would perhaps turn to the usual federal approach to analyze Tran’s takings claim.
See, e.g., Jim Olive Photography, 624 S.W.3d at 771 (“Texas case law on takings
under the Texas Constitution is consistent with federal jurisprudence.”) (quoting
Hearts Bluff Game Ranch, 381 S.W.3d at 477) (internal quotation marks omitted).
But Tran does not assert or brief any such argument, nor does he advance the typical
takings clause jurisprudence in which the Texas and federal provisions are treated
consistently with each other.3 See Carlson, 451 S.W.3d at 831 (citing Hearts Bluff
Game Ranch, 381 S.W.3d at 477). Simply put, Tran failed to chart the course.
Accordingly, we will not address an issue or argument that is not adequately briefed
by the parties. See TEX. R. APP. P. 38.1(f), (i).
Nevertheless, even had Tran sufficiently pleaded a takings claim, his alleged
claims are not ripe for judicial review. For a regulatory-takings claim to be ripe, the
governmental entity must have rendered a final decision regarding the application of

3
Tran’s live pleading states that the City “knew or should have known” that condemning his
properties would (1) decrease the value of his properties, (2) prevent him from access, enjoyment, and the
receipt of rental revenue from the properties, (3) prevent him from selling his properties at the “peak” of
the current real estate market, and (4) result in physical invasions and vandalism. However, Tran does not
raise or address these points on appeal. See TEX. R. APP. P. 33.1. Despite this, even if these points had
been preserved, Tran’s general assertions that the City “knew or should have known” that its actions would
result in some damage to his properties (1) are insufficient to establish the requisite intentional conduct to
support a takings claim and (2) fail to describe in any particularity how the City knew or should have known
that any of the alleged damages would be incurred. See Self, 690 S.W.3d at 26 (setting out the requirements
to establish an intentional act); Schrock, 645 S.W.3d at 178 (same).
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the regulations to the property at issue. Mayhew, 964 S.W.2d at 929 (citing Suitum v.
Tahoe Reg’l Planning Agency, 520 U.S. 725, 734 (1997)). In this case, the
condemnation orders were rescinded by the City soon (within sixty days) after they
were issued. The minutes from the council’s meetings show that, because of the
resignation of the City’s code enforcement officer, it would be necessary to begin
this process anew. No condemnation orders have been reissued and no subsequent
action of any kind was taken by the City on this matter. Notably, Tran was not even
aware of the condemnation orders until May 8, nearly a month after they had been
rescinded at the April 12 council meeting. Because Tran did not obtain a final
decision from the City on his asserted claims, and based on the circumstances
presented, we conclude that Tran’s claims are not ripe for judicial review. See id. at
929.
We have reviewed the record in accordance with the applicable standard of
review and we conclude that the trial court did not err when it granted the City’s
pleas to the jurisdiction. Accordingly, we overrule Tran’s sole issue.
IV. This Court’s Ruling
We affirm the judgment of the trial court.

W. STACY TROTTER
JUSTICE

September 26, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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