DeVillier v. Texas

Summary

Owners of property north of U. S. Interstate Highway 10 adversely affected by the flood evacuation barrier constructed by Texas should be permitted on remand to pursue their Takings Clause claims through the cause of action available under Texas law.

Text

PRELIMINARY PRINT 
Volume 601 U. S. Part 2 
Pages 285–293 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
April 15, 2024 
REBECCA A. WOMELDORF 
reporter of decisions 
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NOTICE: This preliminary print is subject to formal revision before 
the bound volume is published. Users are requested to notify the Reporter 
of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
[email protected], of any typographical or other formal errors.

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 DeVILLIER 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 
Lanora C. Pettit , Principal Deputy Solicitor General, 
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 
Attorney 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-
van , 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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288 DeVILLIER 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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Cite as: 601 U. S. 293 (2024) 289 
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 DeVILLIER v. TEXAS 
Opinion of the Court 
compensation under both the United States and Texas Con-
stitutions. Other property owners filed similar suits. 
Texas removed the cases to federal court, where they were 
consolidated 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. 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 as: 601 U. S. 293 (2024) 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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292 DeVILLIER 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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Cite as: 601 U. S. 293 (2024) 293 
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

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• #1

  PRELIMINARY PRINT Volume 601 U. S. Part 2 Pages 285–293 OFFICIAL REPORTS OF THE SUPREME COURT April 15, 2024 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to not…

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  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-exe…

• #3

  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 amic…

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  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. Page Proof Pend…

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  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 Page Proof Pending Publication 290 DeVILLIER v. TEXAS Opinion of the Court …

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  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, 31…

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  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…

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  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 proce…