TCAA/TML Legal Defense Program: Amicus Briefs and Comments Filed

TCAA, in conjunction with the Texas Municipal League, files amicus briefs and comments in support of cities on many issues. To keep up to date on the status of these issues, go to

Civil Penalties:  Forte v. Wal-Mart Stores, Inc., No. 15-0146, in the Supreme Court of Texas. This case is on certified question from the United States Court of Appeals for the Fifth Circuit, No. 12-40854.  TML and TCAA joined an amicus brief asking the Texas Supreme Court to make clear in answering the certified questions that:  (1) the limitation on exemplary damages found in Texas Civil Practice and Remedies Code Chapter 41 does not apply to civil-penalty cases brought by the government, and (2) that the government can recover civil penalties even if it is not awarded actual damages.  The brief was filed on August 28, 2015.

Regulatory Takings:  Harris Cnty. Flood Control Dist. v. Kerr, No. 13-0303, in the Supreme Court of Texas.  In this case, the flood control district adopted flood control plans that downstream landowners claimed, coupled with upstream development, caused flooding on their property.  The appeals court concluded that the district intended to cause the flooding, which led to a successful takings claim by landowners.  At the Texas Supreme Court, the Conference of Urban Counties (CUC), the Texas Association of Counties (TAC), and the Texas Municipal League (TML) argued that the takings and nuisance claims should have been dismissed because there is no evidence of the intent element of a takings claim; at the time the flood-control measures at issue were implemented, the district did not know those measures were substantially certain to cause flood damage to landowners’ property.  The brief in support of the petition for review was filed on July 2, 2013.  A response was requested by the court on August 23, 2013. Briefs on the Merits were requested by the court on December 13, 2013.  Petition for review was granted and oral argument was heard on December 4, 2014.  The Texas Supreme Court held that the Kerrs showed sufficient evidence of a taking to go forward with their suit.  Justice Willett filed a dissent stating that the court’s holding in Kerr will encourage governmental entities to do nothing when it comes to flood control in order to escape liability in the future.  Harris County filed a motion for rehearing, and CUC, TAC, and TML filed another amicus brief on that motion.  Amici argue that allowing government inaction to support plaintiffs’ theory of the case creates new law and broadens takings liability, which undermines the purpose of government and its ability to function.  The majority opinion encourages governments to either do nothing at all to prevent public harm or to over-regulate in order to avoid liability. The brief was filed on August 28, 2015.

Takings: City of Justin v. Rimrock Enterprises, No. 15-0488, in the Supreme Court of Texas.  TML and TCAA filed an amicus brief in support of the City of Justin.  Rimrock brought a takings claim against the city after the city expanded and improved a gravel road that ran across Rimrock’s property.  The city argued that the improvements only extended as far as the city’s current easement that had been previously dedicated by implication.  Rimrock argued that the road was private, and if it was not private, then the easement only extended as far as the current gravel road.  The trial court allowed the jury to decide if the city’s use of the area beyond the already graveled road was a taking, and the jury held it was a taking.  The court of appeals affirmed.  TML and TCAA argued that the city had the right to make improvements for public use on the entire easement previously platted, surveyed, and dedicated to the city without paying for a taking under the Supreme Court of Texas’ opinion State v. NICO-WFI, L.L.C., 384 S.W.3d 818 (Tex. 2012).   The amici also argued that the court, not the jury, should make the initial takings determination as a matter of law. See City of Austin v. Travis Cnty. Landfill Co., 73 S.W.3d 234, 240-41 (Tex. 2002).   The brief was filed on August 26, 2015.