Mind the Gap: Expansion of Texas Governmental Immunity between Takings and Tort.

Authors

Jadd F. Masso

Abstract

In Jennings v. City of Dallas, the city’s wastewater collection division was dispatched to unstop a clogged sewer main but instead caused sewage to spew into the Jennings’ home with dramatic force, causing extensive damage. The Jennings subsequently filed suit against the city, alleging its actions constituted an unconstitutional taking, damaging, or destruction of their property for public use without adequate compensation in violation of Article I, § 17 of the Texas Constitution. The issue presented from the case was whether an individual citizen should be liable for such losses when the damage—as an incident to governmental action—in effect benefits the public. When a governmental entity authorizes either a continuing process of physical events or an isolated event or activity which denies an owner the use and enjoyment of their property, a taking occurs, and the owner is entitled to compensation. By imposing something closer to strict liability on governmental entities, an incentive is given to the entity to act with utmost care at all times in order to prevent negligence and avoid accidents. Texas’ waiver of sovereign immunity in relation to suits for personal injury damages caused by negligence is also incomplete and thus leaves citizens similarly unprotected. In the realm of property damage, an expanded interpretation of the takings clause would protect property owners from any damage proximately caused by governmental action. Consequently, this interpretation would eliminate the lapse in liability left by a partial waiver of sovereign immunity. The current takings and tort laws present a confusing scheme of liability that seem anything but fair, let alone logical in light of the plain words of the Texas Constitution. Legislative action clarifying the purpose of the takings clause may be the only means to effectively end decades, and in some cases centuries, of judicial confusion.

Publisher

St. Mary's University School of Law

Recommended Citation

Jadd F. Masso, Mind the Gap: Expansion of Texas Governmental Immunity between Takings and Tort., 36 St. Mary's L.J. (2005).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol36/iss2/2