Chief Justice JEFFERSON delivered the opinion of the Court, joined by Justice HECHT, Justice MEDINA, Justice WILLETT, and Justice LEHRMANN.
We deny the motion for rehearing. We withdraw our opinion of July 1, 2011 and substitute the following in its place.
Urban blight threatens neighborhoods. Either as a risk to public health or as a base for illicit activity, dilapidated structures harm property values far more than their numbers suggest. Cities must be able to abate
Today we hold that a system that permits constitutional issues of this importance to be decided by an administrative board, whose decisions are essentially conclusive, does not correctly balance the need to abate nuisances against the rights accorded to property owners under our constitution. In the context of a property owner's appeal of an administrative nuisance determination, independent court review is a constitutional necessity. We affirm the court of appeals' judgment, but on different grounds.
Heather Stewart bought a home in Dallas. Between 1991, when Stewart abandoned her house, and 2002, when the City demolished it, the Stewart home was a regular stop for Dallas Code Enforcement officials. Although utilities were disconnected and windows boarded up, the home suffered vandalism in 1997 and was occasionally occupied by vagrants. Stewart did little to improve the property, apart from building a fence to impede access, and she consistently ignored notices from the City. Inspectors returning to the home often found old notices left on the door.
In September 2001, the Dallas Urban Rehabilitation Standards Board ("URSB" or "Board"), a thirty-member administrative body that enforces municipal zoning ordinances, met to decide whether Stewart's property was an urban nuisance that should be abated. Stewart's neighbor, who had registered complaints on six prior occasions, testified that a fallen tree on Stewart's property had done $8,000 damage
On October 17, 2002, a City inspector found that Stewart had not repaired the property, and on October 28, the City obtained a judicial demolition warrant. The City demolished the house four days later.
Before the demolition, Stewart appealed the Board's decision to district court, but the appeal did not stay the demolition order. See TEX. LOC. GOV'T CODE § 54.039(e). After the demolition, Stewart amended her complaint to include a due process claim and a claim for an unconstitutional taking. The trial court, on substantial evidence review, affirmed the Board's finding that Stewart's home was an urban nuisance and awarded the city $2,266.28 in attorneys fees. It then severed Stewart's constitutional claims and tried them to a jury. At the close of trial, the City moved unsuccessfully for a directed verdict on the grounds that the Board's nuisance determination was res judicata, precluding Stewart's takings claim. The jury rejected the City's contention that Stewart's home was a public nuisance and awarded her $75,707.67 for the destruction of her house.
The court of appeals affirmed but held that the Board's nuisance finding could not be preclusive because of the brief delay between the nuisance finding and the house's demolition. 360 S.W.3d at 518.
Texas law permits municipalities to establish commissions to consider violations of ordinances related to public safety. See TEX. LOC. GOV'T CODE §§ 54.032-.041; see also id. §§ 214.001-.012.
The Local Government Code authorizes substantial evidence review of standards commissions' decisions. TEX. LOC. GOV'T CODE §§ 54.039(f), 214.0012(f). The same standard governs review of State agency determinations under the Texas Administrative Procedure Act. See TEX. GOV'T CODE §§ 2001.174-.175 ("If the law authorizes review of a decision in a contested case under the substantial evidence rule or if the law does not define the scope of judicial review, a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence...." (emphasis added)). Substantial evidence review is limited in that it requires "`only more than a mere scintilla,' to support an agency's determination." Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex.2000) (quoting R.R. Comm'n v. Torch Operating Co., 912 S.W.2d 790, 792-93 (Tex.1995)); see also W. Wendell Hall, Standards of Review in Texas, 38 ST. MARY'S L.J. 47, 290-92 (2006) (describing substantial evidence review as applied to Texas administrative agencies). Substantial evidence review "gives significant deference to the agency" and "does not allow a court to substitute its judgment for that of the agency." Torch Operating, 912 S.W.2d at 792. As such, "the evidence in the record actually may preponderate against the decision of the agency and nonetheless amount to substantial evidence." Tex. Health Facilities Comm'n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex.1984).
As a general matter, we have held that some agency determinations are entitled to preclusive effect in subsequent litigation. See, e.g., Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78 (Tex.2007) (applying res judicata to orders of the Texas Workforce Commission). Today, we must decide whether the Board's determination that Stewart's house was an urban nuisance,
A. Eminent Domain and Inverse Condemnation
A city may not take a person's property without first paying just compensation. TEX. CONST. art. I, § 17(d).
Act approved Feb. 8, 1860, 8th Leg., R.S., ch. 51, § 2, 1860 Tex. Gen. Laws 60, 61, reprinted in 4 H.P.N. Gammel, The Laws of Texas 1822-1897, at 1422, 1423 (Austin, Gammel Book Co. 1898) (emphasis added).
Frequently, however, the government takes property without first following eminent domain procedures. In these cases, Texas law permits inverse condemnation suits, which are actions commenced by the landowner seeking compensation for the government's taking or damaging of his or her property through means other than formal condemnation. See, e.g., City of Houston v. Trail Enters., Inc., 300 S.W.3d 736 (Tex.2009). While these cases are initiated by the landowner rather than the State, they are substantially similar to condemnation suits in most other ways. See John T. Cabaniss, Inverse Condemnation in Texas—Exploring the Serbonian Bog, 44 TEX. L.REV. 1584, 1585 n. 3 (1966) (While the parties are reversed, "[t]he rules of evidence and measure of damages... are much the same.").
Our earliest cases gave the Legislature extensive leeway in defining the remedies for a taking. In Buffalo Bayou, we held that
26 Tex. at 599. This decision, however, came at a time when sovereign immunity was thought to apply even to takings claims. See Ex parte Towles, 48 Tex. 413, 447-48 (1878) (Gould, J., dissenting) (noting that the Legislature had assumed, and the Court had recognized, the State's sovereign immunity from inverse condemnation suits). Moreover, at the time of Buffalo Bayou, the Takings Clause of the Texas Constitution was generally thought not to be self-executing. See Cabaniss, 44 TEX. L.REV. at 1586-87 & n. 16.
Our decision in Steele v. City of Houston, 603 S.W.2d 786 (Tex.1980), brought significant change to this area of law. In Steele, the Houston Police Department, attempting to apprehend escaped fugitives who had taken refuge in Steele's property without his knowledge, destroyed his property. Steele, 603 S.W.2d at 789. When Steele sued the City under the Takings Clause, the City moved for summary judgment on the basis of its immunity from suit. Id. at 788. The trial court granted summary judgment and the court of civil appeals affirmed. Id. Reversing, we wrote:
Id. at 791 (emphasis added). Steele recognized that the Takings Clause is self-executing—that it alone authorizes suit, regardless of whether the Legislature has statutorily provided for it. See id. Takings suits are thus, fundamentally, constitutional suits and must ultimately be decided by a court rather than an agency. Agencies, we have held, lack the ultimate power of constitutional construction. See Central Power & Light Co. v. Sharp, 960 S.W.2d 617, 618 (Tex.1997) (holding that constitutional claims need not be brought before an agency because "the agency lacks the authority to decide [those] issue[s]"); 1 RONALD L. BEAL, TEXAS ADMINISTRATIVE PROCEDURE & PRACTICE § 9.3.1[c] (2011) ("No Texas agency has been granted the power to engage in constitutional construction, and any such attempt by the legislature to vest such power would raise serious and grave issues of a separation of powers violation."); but cf. TEX. CONST. art. XVI, § 50(u).
Texas has generally recognized this rule. Agency findings in eminent domain cases are subject to de novo trial court review, and inverse condemnation plaintiffs bring their cases in the same manner as any other civil case. The City and the dissents urge us to insulate one type of takings claim from the protections of Steele: those in which an agency has first declared the property a nuisance. We do
B. The Police Power and Nuisance Abatement
A maxim of takings jurisprudence holds that "all property is held subject to the valid exercise of the police power." City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 804 (Tex.1984) (citing Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, 478 (1934)). Based on this principle, we have long held that the government commits no taking when it abates what is, in fact, a public nuisance. See City of Texarkana v. Reagan, 112 Tex. 317, 247 S.W. 816, 817 (1923). Nuisance determinations are typically dispositive in takings cases.
Our precedents make clear that nuisance determinations must ultimately be made by a court, not an administrative body, when the property owner contests the administrative finding. See City of Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871 (1949); City of Texarkana v. Reagan, 112 Tex. 317, 247 S.W. 816 (1923); Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810 (1923); Stockwell v. State, 110 Tex. 550, 221 S.W. 932 (1920).
Stewart's home was declared an urban nuisance according to similarly broad terms. The Local Government Code's nuisance definition prohibits buildings that are "dilapidated," "substandard," or "unfit for human habitation." TEX. LOC. GOV'T CODE § 214.001(a)(1). Like the application of the phrase "contagious disease of citrus fruits," these terms require more than rote application by an agency; they require an assessment of whether the particular conditions—citrus canker in one case, foundation damage in another—meet the general statutory terms. Judicial review in nuisance cases requires the application of general statutes to specific facts.
We adopted this view of Stockwell in Crossman, writing that Stockwell refused to "sustain the validity of [a] statute, in so far as its effect was to deny a hearing before the courts on the question as to whether or not the particular trees involved constituted a nuisance which ought to be summarily destroyed." Crossman, 247 S.W. at 813. That is, judicial review was necessary in Stockwell because a general statutory term had to be applied to specific facts. We wrote:
Id. at 813 (emphasis added). To read this as negating a property owner's right to full judicial review is to reject the opinion's clear language.
Reagan is particularly on point. There, a statute in the form of the City's charter gave the City the power to abate "dilapidated" buildings as nuisances, and the City destroyed Reagan's property pursuant to this authority. The district court concluded that the City's determination was res judicata. We disagreed, holding that a court must determine whether a building is "in fact" a nuisance:
Reagan, 247 S.W. at 817 (emphasis added). JUSTICE GUZMAN suggests that the problem in Reagan was that the statute was not "circumscribed to specific conditions that constitute a nuisance in fact" but rather
Finally, in Lurie, we stated that "[i]t has been repeatedly held that the question whether property is a public nuisance and may be condemned as such is a justiciable question to be determined by a court." Lurie, 224 S.W.2d at 874. We referred to the "important principle" announced by Stockwell, Crossman, and Reagan that "the property owner is not to be deprived of his right to a judicial determination of the question whether his property is a public nuisance to be abated by demolition." Id. at 875. Rather than give Lurie and its antecedents a needlessly narrow cast, we should take their broad statements of principle at face value.
The City doubts Lurie's continuing validity, relying on two cases from this Court which, it says, undermine the notion that a claim under the Takings Clause necessitates de novo trial court review. In Brazosport Savings & Loan Ass'n v. American Savings & Loan Ass'n, we held that substantial evidence review was appropriate where the plaintiff asserted that the State's issuance of a charter to a third party infringed on the plaintiff's due process property rights. 161 Tex. 543, 342 S.W.2d 747, 752 (1961). Then, in City of Houston v. Blackbird, we held that there was no right to a de novo trial after the city council had levied assessments against landowners' property for the costs of paving improvements. 394 S.W.2d 159, 162-63
Neither Brazosport nor Blackbird concerns nuisance determinations, and thus each says little about Lurie's specific holding. Moreover, both predate our decision in Steele, which recognized an implied constitutional right of action for takings claims. Steele, then, undermined their vitality insofar as they give broad deference to the Legislature's determinations of remedial schemes for property rights violations. Finally, and most fundamentally, Blackbird and Brazosport do not concern agency decisions that directly determine substantive constitutional rights. Rather, they are due process cases alleging improper agency actions implicating property interests. See Blackbird, 394 S.W.2d at 161 (petitioners arguing that Houston did not follow the law in levying assessments against their property); Brazosport, 342 S.W.2d at 749 (respondent arguing that the agency acted "contrary to law and ... rules"). Blackbird and Brazosport hold that in such cases, due process requires a right of appeal but note that substantial evidence review will usually be sufficient. See Blackbird, 394 S.W.2d at 163 (holding that agency action levying property assessments may only be overturned because it is "arbitrary or [is] the result of fraud"); Brazosport, 342 S.W.2d at 751 (holding that due process requires "a right of judicial review" where agency action affects property rights). So long as the agency complies with the requirements of due process, its substantive decision does not directly adjudicate a constitutional claim.
In Blackbird, for example, the Court made clear that a city has the power to assess property owners for improvements to their properties, but noted that an improperly supported assessment may run afoul of the Texas Constitution. Blackbird, 394 S.W.2d at 162. To the extent the Court held that the case implicated the Takings Clause, it was because of a belief that an improper assessment might constitute a taking. Id. The suit in Blackbird was thus not a takings suit but, instead, was a statutory suit contesting the assessments' grounds. See id. at 160. It alleged that the agency failed to follow the law, a violation of due process. See, e.g., Bennett v. Reynolds, 315 S.W.3d 867, 873 (Tex. 2010) (noting that arbitrary deprivations of property are violations of due process); Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 446 (Tex.2007) ("Due process requires that the application of Texas law be neither arbitrary nor fundamentally unfair."). This differs significantly from Stewart's takings suit, which deals with whether her property was taken without just compensation. For these reasons, the cases cited by the City do not displace our holding in Lurie. See Sheffield Dev. Co., Inc. v. City of Glenn Heights, 140 S.W.3d 660, 674 (Tex.2004) ("Prior decisions need not be reaffirmed periodically to retain authority.").
The City also relies on two federal cases for the proposition that Lurie has been undermined by the rise of the administrative state. See Freeman v. City of Dallas, 242 F.3d 642, 649 (5th Cir.2001) (en banc) (suggesting that plenary court review of nuisance determinations is "fundamentally at odds with the development of governmental administrative agencies"); Traylor v. City of Amarillo, 492 F.2d 1156, 1158 (5th Cir.1974) (suggesting that Crossman was "decided at a time when the constitutional basis for public regulatory powers was more primitive" (internal quotations omitted)). However, neither of these cases squarely addresses the issue currently before us, and neither directly addresses Lurie at all. Traylor was a case about whether a judicial nuisance determination must precede a property's demolition,
Freeman, too, is not directly on point. In Freeman, the petitioners, whose property was demolished, did not seek judicial review of the URSB's decision, and so the scope of that review was not at issue. Freeman, 242 F.3d at 646-47. Rather, Freeman considered whether the Fourth Amendment requires that a judicial warrant precede the permanent abatement of a nuisance. Id. at 647. Freeman cited our cases only to reject an analogy, apparently raised by the petitioners, between warrant requirements and judicial review of nuisance determinations. Id. at 649 (noting that the Texas judicial review cases "say nothing about employing the Warrant Clause" in this context). We do not believe the Circuit intended to decide the specific question before us today.
Moreover, neither Traylor nor Freeman addresses the Texas Constitution, under which we decide today's case. See Freeman, 242 F.3d at 654 (reaching its holding under the Fourth Amendment alone); Traylor, 492 F.2d at 1159 n. 4 ("We intend no reflection on the continuing validity under state law of the Texas decisions cited by appellants...."). Indeed, the Freeman dissent notes that "judicial oversight of public nuisance abatement ... is required by Texas jurisprudence." 242 F.3d at 665 (Dennis, J., dissenting) (citing Lurie, 224 S.W.2d at 874).
We consider today not only our Takings and Due Process Clauses, which are generally regarded as functionally similar to their federal counterparts, but also our Separation of Powers Clause, which has no explicit federal analogue. See TEX. CONST. art. II, § 1 ("The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy...."). As in most states, separation of powers principles are ingrained in the Texas Constitution, while they are merely implied in the United States Constitution. See Harold H. Bruff, Separation of Powers Under the Texas Constitution, 68 TEX. L.REV. 1337, 1340 (1990); see also Neil C. McCabe, Four Faces of State Constitutional Separation of Powers: Challenges to Speedy Trial and Speedy Disposition Provisions, 62 TEMP. L.REV. 177, 185 (1989) ("The principle of separation of powers has evolved along parallel but distinctly different paths on the state and federal levels." (internal quotations omitted)). The scope of separation of powers is a function of governmental structure, and because of the differences between Texas and federal government, its requirements at the state level are different. This is especially true given its explicit treatment in our constitution. See Bruff, 68 TEX. L.REV. at 1348 (noting that the "prominence of Texas's constitutional command has given the separation-of-powers doctrine a special vigor in a number of respects"). In particular, the fragmentation of Texas's executive branch "attenuates" the accountability of our administrative agencies. Id. at 1346 ("The structure of Texas government permits the ties between a particular agency and each of the three branches of the state government to be weaker—sometimes far weaker—than they would be in the federal government."). Accountability is especially weak with regard to municipal-level agencies such as the URSB, which are created by cities that "typically lack the separation of powers of the state and federal governments."
C. Agencies and Constitutional Construction
JUSTICE GUZMAN laments that we "miss[ ] the crux of the constitutional issue" before us. See 361 S.W.3d at 589. We agree that the "correct inquiry" is whether Stewart was afforded due process, id. at 590, but we cannot accept that the centrality of personal property rights, explicitly protected by two provisions of our constitution, has no bearing on the procedural requirements placed on an administrative agency when it adjudicates a question of direct constitutional import. Our opinion emphasizes the importance of an individual property owner's rights when aligned against an agency appointed by a City to represent the City's interests.
In a takings case, a nuisance finding generally precludes compensation for the government's destruction of property. That is so because due compensation is typically a matter "determined by whether the conduct of the sovereign is classified as a noncompensable exercise of the police power or a deprivation of property through eminent domain." Cabaniss, 44 TEX. L.REV. at 1584 n. 1. The nuisance determination, therefore, cannot be characterized as somehow apart from the takings claim, because the only sense in which such a determination is significant—its only meaning—is that it gives the government the authority to take and destroy a person's property without compensation. Nuisance findings are "determination[s]—
Moreover, though the value determination that the board of commissioners makes in an eminent domain suit is wholly factual, based on market conditions and similar factors, it is given no weight on appeal to the trial court. The value determination the URSB made here, however, was largely a determination of law based on the application of statutory standards to historical facts. Such a determination is less, not more, appropriate for deferential agency review.
This is especially true because of the constitutional nature of the nuisance inquiry. In Steele, we observed that the law had "moved beyond the earlier notion that the government's duty to pay for taking property rights is excused by labeling the taking as an exercise of the police powers," Steele, 603 S.W.2d at 789, because the line between police power and takings is "illusory" and requires "a careful analysis of the facts ... in each case of this kind." Turtle Rock, 680 S.W.2d at 804; see also Parking Ass'n v. City of Atlanta, 515 U.S. 1116, 1118, 115 S.Ct. 2268, 132 L.Ed.2d 273 (1995) (Thomas, J., dissenting) (referring to the "fact-specific nature of takings claims"). Because a nuisance determination is an exercise of the police power, it, like any other determination regarding the police power, "is a
Cases from the United States Supreme Court provide further guidance. In a recent line of cases, that Court has reinvigorated the constitutional fact doctrine,
The Supreme Court has required constitutional fact review primarily in the context of the First and Fourth Amendments. In those areas, facts tend to be deeply intertwined with legal issues, necessitating independent review. In Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), the Supreme Court noted that where "the relevant legal principle can be given meaning only through its application to the particular circumstances of a case," it is "reluctant to give the trier of fact's conclusions presumptive force...." The Miller Court considered whether it was required to defer to a trial court's determination that a confession was voluntary. Id. at 105-06, 106 S.Ct. 445. The Court rejected that approach, holding that voluntariness was a fact-specific, but nonetheless legal, determination. Id. at 116, 106 S.Ct. 445 ("[T]he admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant's will was in fact overborne."). Similarly, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 567, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995), the Court held that determinations of whether an activity constitutes free speech, protected by the First Amendment, carry with them "a constitutional duty to conduct an independent examination of the record as a whole, without deference to the trial court." This independent review is required because "the reaches of the First Amendment are ultimately defined by the facts it is held to embrace," and so a reviewing court "must thus decide for [itself] whether a given course of conduct falls on the near or far side of the line of constitutional protection." Id. And in
Id. at 695-96, 116 S.Ct. 1657 (citations omitted) (emphasis added).
Takings claims also typically involve mixed questions of fact and law. See Mayhew, 964 S.W.2d at 932-33. An analysis of whether a structure is a nuisance requires fairly subtle consideration. There are initial questions of historical fact—whether or not the structure had foundation damage, for example. These questions are within the competence of the administrative agency and are accorded deference. But the second-order analysis, which applies those historical facts to the legal standards,
Indeed, we have held that an agency's adjudicative power is strongest where it decides purely statutory claims and weakest where it decides claims derived from the common law. Compare Emps. Ret. Sys. of Tex. v. Duenez, 288 S.W.3d 905, 910 (Tex.2009) (refusing to construe a statute to permit an agency to decide subrogation claims because those
Many agencies make decisions that affect property interests—such as licensure and rate setting—but in so doing they do not actually engage in constitutional construction. See 1 BEAL, TEXAS ADMINISTRATIVE PROCEDURE & PRACTICE § 9.3.1[c]. Rather, constitutional challenges to agency decisions typically deal not with the substance of the agency's decision but, rather, with the procedures that the agency followed in making it. See, e.g., Blackbird, 394 S.W.2d 159; Brazosport, 161 Tex. 543, 342 S.W.2d 747. The rules governing such procedural challenges are already well established. Kennedy, 514 S.W.2d at 239. Thus, all that is before the us today is agency authority to actually decide substantive constitutional claims.
III. Response to Motion for Rehearing
The City and a number of amici
These arguments overlook three key facts. First, takings claims must be asserted on appeal from the administrative nuisance determination. Although agencies have no power to preempt a court's constitutional construction,
Second, property owners rarely invoke the right to appeal.
Third, and perhaps most importantly, de novo review is required only when a nuisance determination is appealed. Thus, the City need not institute court proceedings to abate every nuisance. Rather, the City must defend appeals of nuisance determinations and takings claims asserted in court by property owners who lost before the agency. Given these considerations, we disagree with the City's and the amici's characterization of the effects of our holding.
That the URSB's nuisance determination cannot be accorded preclusive effect in a takings suit is compelled by the constitution and Steele, by Lurie and its antecedents, by the nature of the question and the nature of the right. The protection of property rights, central to the functioning of our society,
Because we believe that unelected municipal agencies cannot be effective bulwarks against constitutional violations, we hold that the URSB's nuisance determination, and the trial court's affirmance of
We affirm the court of appeals judgment. TEX.R.APP. P. 60.2(a).
Justice JOHNSON, delivered a dissenting opinion, joined by Justice WAINWRIGHT, Justice GREEN, and Justice GUZMAN.
Justice GUZMAN delivered a dissenting opinion, joined by Justice WAINWRIGHT, Justice GREEN, and Justice JOHNSON.
Justice JOHNSON, joined by Justice WAINWRIGHT, Justice GREEN, and Justice GUZMAN, dissenting.
The finding by Dallas's Urban Rehabilitation Standards Board (URSB) that Heather Stewart's property was a nuisance, when affirmed by the trial court, should have determined the nuisance question and precluded its relitigation. Because the Court holds otherwise, I respectfully dissent.
Statutory requirements afford significant safeguards to property owners whose property a city seeks to abate as a public nuisance. See TEX. LOC. GOV'T CODE chs. 54, 214. Stewart does not claim that Dallas's ordinances failed to comply with those requirements; neither does the Court. Stewart simply claims that she is constitutionally entitled to an entirely new consideration of whether her property was a nuisance—a trial de novo—instead of the consideration by the URSB with judicial review under the substantial evidence standard. The Court agrees; I do not.
The statutory framework providing abatement of public nuisances is detailed and comprehensive. The Local Government Code specifies that municipalities may provide for abatement of certain types of buildings:
Id. § 214.001(a). A city governing body is authorized to appoint a building and standards commission to hear cases concerning alleged violations of ordinances. Id. § 54.033(a). The commission is afforded independence in fulfilling its functions: members are removable only for cause on written charge and the member is entitled to a public hearing on the removal issue. Id. § 544.033(c). The commission must adopt rules and procedures for use in hearings and provide "ample opportunity for presentation of evidence and testimony by respondents or persons opposing
B. The Hearings
Pursuant to the Local Government Code and Dallas's ordinances, the URSB gave Stewart notice of the alleged code violations regarding her property. The URSB then held an evidentiary hearing concerning the allegations that Stewart's house was an urban nuisance.
Dallas's ordinance defined "urban nuisance" as follows:
DALLAS TEX.CODE § 27-3(24). See TEX. LOC. GOV'T CODE § 214.001(a)(1). After hearing evidence on September 24, 2001, the commission found based on a preponderance of the evidence that Stewart's house was an urban nuisance as defined in section 27-3(24) of the Dallas City Code. Stewart did not appear at the hearing, but after the order was entered she requested a rehearing and filed a plan for repairing the house to remedy the specified code violations. The URSB held another hearing on September 23, 2002. The transcript of the second hearing shows that Stewart and her mother appeared and gave testimony contesting the nuisance allegations. The City presented evidence that no substantial repairs had been made to Stewart's property since the first hearing. As a result of the second hearing the URSB affirmed its September 24, 2001 order.
C. The Lawsuits
As she was authorized to do by statute and Dallas's ordinances, Stewart timely appealed to the district court. She made several arguments before the district court, but she did not, at that time, argue review of the URSB's determination under the substantial evidence standard violated her constitutional rights. She alleged that (1) the URSB's decision was not reasonably supported by substantial evidence; (2) the URSB actions denied her "due process of law and the right to equal protection of the law, as guaranteed by the Constitutions of the United States and the State of Texas in that [Stewart] has not been served an order specifying in detail the findings of the Board" (emphasis added); (3) the URSB exceeded its statutory authority because it did not apply the correct standards in making its ruling; (4) the procedures of the URSB were unlawful in that Stewart was denied the right to cross-examine a city expert witness and a third party witness; and (5) the URSB ignored the evidence and its decision was arbitrary, capricious, and an abuse of discretion.
After the City demolished the property, Stewart amended her pleadings to allege that (1) the URSB's decision was not reasonably supported by substantial evidence; (2) there were "Errors in Procedure and
After the trial court severed the administrative appeal from her other claims, Stewart pled that she was entitled to damages for the wrongful destruction of her property based on "constitutional claims associated with" the City's destruction of her home. As the basis for damages, she alleged generally that demolition of the property as a public nuisance was wrongful, and her claims were brought under "the Texas Constitution, Article 1, Sections 17 and 19." She specified that the bases for her general claim of unconstitutionality were (1) the property was not a nuisance in fact and its destruction "violated the protections afforded Plaintiff by the Texas Constitution and Texas Government Code"; (2) whether her property was a nuisance was a justiciable question to be determined only by the district court or jury trying the case; and (3) Dallas did not give proper notice before demolishing the property, which violated her right to due process. She sought damages for value of the property and mental anguish.
The district court was authorized by statute to conduct a substantial evidence review, and to "reverse or affirm, in whole or in part, or ... modify the decision brought up for review." TEX. LOC. GOV'T CODE § 214.0012(f). After severing Stewart's appeal of the URSB's order from her constitutional claims, the court affirmed the URSB order without altering or modifying it. Stewart did not appeal that ruling.
In this severed matter the trial court submitted two liability questions and damages questions contingent on "Yes" answers to the liability questions. The first liability question, question one, charged the jury to find from a preponderance of the evidence if Stewart's property constituted a public nuisance at the time it was demolished by the City. The second liability question, question three, asked if the city failed to comply with section 27-13 of its ordinances in proceeding with the demolition of Stewart's property. Stewart's only objection to the charge was to request that the court define "public nuisance" in question one according to the definition in Dallas's ordinance. The jury answered question one "No" and found the market value of the structure was $75,707.67 at the time it was demolished. Regarding Stewart's due process claim, the jury answered question three "No." Stewart moved the trial court to render judgment in her favor on the verdict of the jury, which it did. Thus, as to the nuisance issue the jury charge submitted the same question to the jury that the URSB previously answered, and the jury made its findings by a preponderance of the evidence—the same standard by which the URSB made its findings.
II. The Court's Holding
The Court recognizes and agrees that the government does not commit a taking when it abates a public nuisance. 361 S.W.3d at 566. But the Court allows Stewart to circumvent the URSB's determination that her house was a nuisance and the trial court's affirmation of that determination pursuant to its substantial evidence review despite the fact that Stewart
Stewart and the Court mainly base their positions on City of Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871 (1949) and several cases preceding Lurie: City of Texarkana v. Reagan, 112 Tex. 317, 247 S.W. 816 (1923), Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810 (1923), Stockwell v. State, 110 Tex. 550, 221 S.W. 932 (1920). Based on these cases the Court holds that the URSB's determination that Stewart's house was an urban nuisance as defined by the City ordinance—which reflects the statutory definition—could not stand absent "full judicial review." 361 S.W.3d at 570.
In Lurie, Aneeth Lurie refused to tear down two buildings she owned after the city council determined the buildings were nuisances. Lurie, 224 S.W.2d at 873. An ordinance provided that if an owner failed to comply with an order of the city council, "the city attorney `shall file suit in the proper court against such owner and obtain the necessary orders and process of said court to enforce the orders of the city council.'" Id. The ordinance did not provide for judicial review of the council's determination that a property was a nuisance. Pursuant to the ordinance, the city attorney sued Lurie to enforce the council's order. Id. The trial court submitted the issue to the jury, which found only one of the two buildings was a nuisance. Id. The trial court granted a JNOV, rendered judgment that both buildings were nuisances, and ordered their demolition. Id. The court of appeals reversed for jury charge error. Id. In this Court, the City argued that the trial court should not have even submitted the issues to the jury. Id. at 873-74. Rather, it argued the trial court should have rendered judgment for the City, or alternatively, instructed a verdict for the City because it had introduced substantial evidence reasonably supporting the council's findings. Id. Relying on Crossman and Reagan, this Court rejected the City's argument for application of the substantial evidence rule:
Lurie, 224 S.W.2d at 876 (emphasis added). Thus, the Court's refusal to afford preclusive effect to the council's determination that a property was a nuisance, or to afford substantial evidence review of the council's determination, occurred in the absence of a statute or ordinance providing for substantial evidence review. Id.
Similarly, in the cases upon which Lurie relied—Stockwell, Crossman, and Reagan—there was no statute or ordinance providing for judicial review. See Stockwell, 221 S.W. at 934; Crossman, 247 S.W. at 811; Reagan, 247 S.W. at 816-17. Lurie and its predecessor cases stemmed from the Court's refusal to recognize a non-judicial nuisance finding as conclusive. See Lurie, 224 S.W.2d at 875; see also Reagan, 247 S.W. at 817 (refusing to uphold an ordinance that "makes final the determination of the city council on the question as to whether or not the building under investigation is a nuisance"); Crossman, 247 S.W. at 813 ("Another vice of this ordinance is that it purports to make the action of the city commissioners, in declaring the building a nuisance, final."). These cases expressed the Court's position that such an approach subjected property rights to disposition by officials "exercising, not judicial powers, but purely executive powers." Stockwell, 221 S.W. at 934.
Since those cases were decided, however, the Legislature has enacted statutes authorizing substantial evidence judicial review of similar types of decisions. See TEX. LOC. GOV'T CODE § 54.039(f) ("The district court's review shall be limited to a hearing under the substantial evidence rule."); id. § 214.0012(f) ("Appeal in the district court shall be limited to a hearing under the substantial evidence rule."). The City of Dallas has incorporated the statutory standard into its ordinance. See DALLAS TEX.CODE § 27-9(e). Thus, in the matter before us, unlike the situations in Lurie, Stockwell, Crossman, and Reagan, statutes and an ordinance provide a definition of nuisance, procedures for giving notice of and determining whether property falls within the definition of nuisance, judicial review of the nuisance determination, and the standard to be used in any judicial review. See Cedar Crest #10, Inc. v. City of Dallas, 754 S.W.2d 351, 353 (Tex.App.-Eastland 1988, writ denied) (distinguishing Lurie on these grounds).
Although the Court recognizes that Lurie involved the absence of a statutory basis for substantial evidence review, in a footnote of its opinion the Court concludes that the basis of the Court's holding was not statutory; instead, Lurie focused on the special nature of the right being protected. 361 S.W.3d at 571 n. 15. I agree that the right involved in Lurie was special: it was the constitutional right of a private property owner to be secure from governmental taking of private property without compensation. See Lurie, 224 S.W.2d at 874. But the Court subsequently squarely held substantial evidence review valid as applied to this same right.
In City of Houston v. Blackbird, 394 S.W.2d 159 (Tex.1965), the City of Houston passed an ordinance that levied assessments against property owners for improvements made to streets abutting their properties. Id. at 161. The amount of the assessments were based on the city council's determination that the property owners would receive special benefits from the proposed improvements. Id. The property owners filed suit in district court seeking de novo review of the council's determination that their property would be especially benefitted by the improvements. Id. On appeal, this Court concluded that the validity of the amount of the assessments involved the takings clause of the
Id. at 162-63 (emphasis added) (citations omitted). As the Court noted, the Legislature "precluded judicial review of such acts to the extent of its constitutional power" and the Legislature did not intend to provide "dissatisfied property owners a de novo review thereof." Id. at 163. The Court upheld that choice by the Legislature, even though the takings clause was the basis for the property owners' challenge, just as it underlies Stewart's challenge.
Similarly, the Court held in Brazosport Savings and Loan Ass'n v. American Savings and Loan Ass'n that parties claiming an agency's decision infringed their vested property rights in franchises had a right to judicial review, but the right was limited to "prov[ing] their allegations that the Commissioner's action was illegal or without support in substantial evidence." 161 Tex. 543, 342 S.W.2d 747, 752 (1961).
The Court discounts the holdings of Blackbird and Brazosport by reading them as "due process cases alleging improper agency actions implicating property interests." 361 S.W.3d at 572. But in Blackbird the Court squarely addressed the issue as one involving the takings clause of the Texas Constitution. Id. at 163. The only real distinction between Blackbird and Lurie is that Lurie involved the taking of real property, whereas Blackbird involved the taking of money by means of requiring payment of an assessment. But they are both property takings claims, nonetheless. And the result in Blackbird depended on the city council's fact-based finding that the abutting landowners' property was especially benefitted by the paving. The Court nevertheless holds that findings of the URSB cannot survive because review was by the substantial evidence standard even though the URSB's decision did not entail interpretation of law or the constitution. And the Court does so despite Stewart's failure to challenge any part of the process provided in Dallas's ordinances as being unconstitutional or violating statutes. Her specific complaint was about the post-hearing, pre-demolition notice required by section 27-13 of Dallas's ordinances, and the jury found against her on that question. She neither complains of how the due process question was submitted to the jury nor challenges the jury's finding on it. To the contrary, she moved for judgment on the verdict without excepting or excluding the due process finding from her motion.
The Court also states that Blackbird and Brazosport "both predate our decision in [Steele v. City of Houston, 603 S.W.2d 786], which recognized an implied constitutional
In Steele, police sought to flush and capture fugitive prisoners by starting a fire in the house where the fugitives were hiding. 603 S.W.2d at 789. The house burned and the owners sought compensation from the city. Id. The case did not involve the propriety of an administrative process involving a limited definition of what comprised a public nuisance and provisions for notice, presentment of evidence, opportunity for rehearing, judicial review of findings and determinations, and even judicial authority to modify the administrative order. See id. at 792. Rather, it involved whether the police's burning of the property came within the doctrine of great public necessity. See id. ("The defendant City of Houston may defend its actions by proof of a great public necessity."). That doctrine recognizes that a governmental entity may destroy property "[i]n the case of fire, flood, pestilence or other great public calamity, when immediate action is necessary to save human life or to avert an overwhelming destruction of property." Id. at 792 n. 2.
In contrast to Steele, where the question was whether an emergency existed and property was destroyed without prior proceedings to determine the public nuisance question, statutorily authorized abatement proceedings involve quasi-judicial determinations occurring before destruction of the property and affording procedural and substantive safeguards to property owners. See TEX. LOC. GOV'T CODE § 54.034. Situations involving determining whether property was previously destroyed because of great public necessity are different from situations involving destruction of property following proceedings pursuant to statutes and ordinances requiring advance notice, a hearing with the opportunity to challenge the public nuisance determination before destruction, and review by a court empowered to set aside or modify the final order. In my view Steele is inapposite. See, e.g., Crossman, 247 S.W. at 814; Stockwell, 221 S.W. at 935. The Court simply displaces a permissible Legislative decision to prescribe a particular type of judicial review and oversight of the determination that property was a nuisance and the administrative remedy.
III. Issue Preclusion
Citing City of Houston v. Crabb, 905 S.W.2d 669 (Tex.App.-Houston [14th Dist.] 1995, no writ), the court of appeals held that Stewart was not precluded from asserting a takings claim because the nuisance issues underlying the URSB proceeding and Stewart's takings suit were not identical: the City's nuisance defense required proof "that the demolished structure was a nuisance on the day it was demolished," but the URSB "made its nuisance
Unlike the situation in Crabb, the URSB found Stewart's property to be a nuisance in two evidentiary hearings that took place a year apart—the second being a rehearing pursuant to her request. Stewart has never denied adequate notice of both hearings. The transcript of the second hearing shows that Stewart appeared, took part, and even brought a witness who testified on her behalf.
Following its September 2001 hearing, the URSB found by a preponderance of the evidence that Stewart's property was a public nuisance as defined by Dallas's ordinances and the Local Government Code and rendered an order to that effect. The Board specifically reaffirmed the 2001 findings and order on September 23, 2002—again specifically by a preponderance of the evidence—after hearing evidence from the city inspectors, Stewart, Stewart's mother, and the same neighbor who testified in September 2001. At the second hearing, Stewart did not claim that repairs had been made to the property since the first hearing or that she did not have notice of the specific problems that resulted in the determination that the property was a nuisance. She claimed that she had always intended to repair the property, but the extent to which she carried out that intent was to install a fence that she maintained restricted entry to the property. On September 26, 2002, Stewart received written notice that the City intended to demolish the property; on October 17, 2002, a city inspector re-inspected the property and determined that the code violations had not been corrected; and a week later the City's special-projects manager inspected the property and determined that no repairs had been made. On October 28, 2002, a City magistrate signed a judicial warrant authorizing demolition of the property and the demolition took place on November 1, 2002.
As previously noted, Stewart disputed the City's contention that her property was a nuisance, but she did not claim or offer evidence that there had been a substantial change in her property between the time of the URSB's September 23, 2002 finding that the property continued to be a public nuisance and the property's demolition on November 1, 2002. Nor did she seek a court order—which she could have—directing the City to defer any action until after her appeal was complete.
I would hold that under this record, Stewart's takings claim was barred by the URSB's nuisance finding and the trial court's affirming of it. See, e.g., Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78,
I would hold that the process provided to Stewart by the URSB proceedings and appellate review of those proceedings and the URSB's order by the substantial evidence standard was sufficient. In this regard I join Justice Guzman's dissent.
I would reverse the judgment of the court of appeals and render judgment that Stewart take nothing.
Justice GUZMAN, joined by Justice WAINWRIGHT, Justice GREEN, and Justice JOHNSON, dissenting.
The upsurge of abandoned buildings caused by the subprime mortgage debacle and the recent recession is well known, as are the difficulties it has caused for cities.
Today, the Court holds that "substantial evidence review of a nuisance determination resulting in a home's demolition does not sufficiently protect a person's rights under Article I, Section 17 of the Texas Constitution," and thus concludes that a party whose real property has been determined a nuisance is entitled to an absolute right to de novo judicial review of the underlying nuisance determination made by an administrative board when the person alleges a taking. By doing so, the Court misses the crux of the constitutional issue here: do the procedures created by the Legislature for abatement of urban nuisances violate the due process rights of property owners? Our nuisance precedents establish that due process does not necessitate a de novo judicial determination that a condition is a nuisance if the Legislature has both (1) properly declared that the condition in question is a nuisance and provided for its summary abatement, and (2) specified a different standard of review of such an abatement. Here, the
I. Proper Abatement of a Public Nuisance Does Not Constitute a Taking
A. Due Process
Although the Court rushes to apply the Takings Clause, the correct inquiry is whether there was proper abatement of a public nuisance, consonant with due process. As the Supreme Court has explained, proper abatement of a public nuisance does not constitute a taking. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992); Samuels v. McCurdy, 267 U.S. 188, 196, 45 S.Ct. 264, 69 L.Ed. 568 (1925) ("The exercise of the police power by the destruction of property which is itself a public nuisance ... is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner."). Due process distinguishes proper abatement of a nuisance from the improper deprivation of property. See Samuels, 267 U.S. at 196, 45 S.Ct. 264; Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810, 813 (1923) (invalidating on due process grounds an ordinance that made city commissioners' nuisance finding final); Stockwell v. State, 110 Tex. 550, 221 S.W. 932, 935 (1920) (concluding that judicial review of administrative determination of what constitutes a nuisance is required because "nothing less would amount to due process of law, without which the Bill of Rights declares no citizen shall be deprived of his property"); Bielecki v. City of Port Arthur, 12 S.W.2d 976, 978 (Tex. Comm'n App.1929, judgm't adopted) (reasoning, on review of an ordinance declaring that all dance halls located within 150 feet of residences were nuisances, that "denial of the right of a citizen to so use his property is a deprivation of the property itself, hence falls within the protection afforded by the due process clauses of both State and Federal Constitutions").
Due process is a flexible concept, and its precise requirements depend on the particular situation in question.
B. The Legislature's Authority to Abate Nuisances
For over a century, this Court has recognized the Legislature's authority to determine that a condition is a nuisance, and to provide for its summary abatement. As far back as 1876, we explained that the Legislature could declare that wooden buildings are nuisances under certain circumstances, and could so authorize their abatement. See Pye v. Peterson, 45 Tex. 312, 313-14 (1876) (holding that a city could not treat wooden buildings as nuisances absent a specific grant of such authority from the Legislature). This understanding is consistently echoed in our subsequent decisions. See Crossman, 247 S.W. at 812; Stockwell, 221 S.W. at 934 ("The State, in the exercise of its public power, may denominate certain things to be public nuisances, and because of their having that character provide for their summary abatement.").
Consequently, we have long recognized that the Legislature, pursuant to its authority to declare and abate nuisances, can confer to agencies or municipalities (by statute or grant of authority, as in a municipal charter) the ability to abate a specified nuisance, as defined by the legislative grant. See Crossman, 247 S.W. at 812; Pye, 45 Tex. at 314 (noting that the Legislature has the power to authorize municipalities to prohibit wooden buildings as nuisances). There are, however, limits to the Legislature's authority.
First, the Legislature cannot declare something a nuisance that is not so in fact. City of Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871, 874 (1949) ("`This power is limited to declaring only those things to be such nuisances which are so in fact, since even the State may not denounce that as a nuisance which is not in fact.'" (quoting Crossman, 247 S.W. at 814)); Crossman, 247 S.W. at 812 ("Not even the Legislature can declare that a nuisance which is not so in fact."). A "nuisance in fact" is a condition that "endangers the public health, public safety, public welfare, or offends the public morals." State v. Spartan's Indus., Inc., 447 S.W.2d 407, 413 (Tex.1969). It is an otherwise unoffending condition that becomes a nuisance "by reason of its circumstances or surroundings." 54 TEX. JUR.3D Nuisances § 5 (2010). In other words, the Legislature may not declare a condition to be a nuisance that, by reason of its circumstances, does not endanger public health, safety, welfare, or morals.
Second, the Legislature cannot delegate an open-ended authority to define nuisances to agencies or municipalities; rather, in authorizing abatement, the Legislature itself must define the nuisance in question. See City of Texarkana v. Reagan, 112 Tex. 317, 247 S.W. 816, 817 (1923); Stockwell, 221 S.W. at 934. That grant is further subject to a due process requirement of judicial appeal when an agency or municipality acts under such legislative authorization. See Crossman, 247 S.W. at 813; Stockwell, 221 S.W. at 935; see also Brazosport Sav. & Loan Ass'n v. Am. Sav. & Loan Ass'n, 161 Tex. 543, 342 S.W.2d 747, 750-51 (1961).
The Court concludes that only a court is competent to ultimately determine whether a building is a nuisance, and that any such determination by an agency is always subject to de novo review, despite a legislative determination that the substantial evidence rule should apply. Though I agree with the Court that a nuisance determination is generally "a justiciable
In Stockwell, the commissioner of agriculture did not merely determine that the particular hedge in question was a nuisance; instead, he determined that the type of citrus disease infecting the region was a nuisance under the general, catch-all provision of the statute in question. See Stockwell, 221 S.W. at 934. In other words, the commissioner effectively set the boundaries of his own authority by defining for himself what constituted a nuisance. See id. We held that Stockwell had a right to a judicial determination of whether citrus canker was a nuisance because the Legislature had not defined it as one, not because that right exists always and in every circumstance.
Similar issues confronted this Court in Crossman. The principal due process defect in that case was that the municipality lacked authorization from the Legislature to abate the type of nuisance in question. See Crossman, 247 S.W. at 811-12. Specifically, the Legislature, through the city's charter, had defined and authorized the abatement of wooden buildings constituting a fire hazard, but had not authorized the abatement of buildings that were merely dilapidated. Id. Accordingly, we held that a city ordinance, purporting to authorize the abatement of dilapidated buildings, was invalid for exceeding the authority given to the city by the Legislature. Id. at 812.
In Reagan, we invalidated another city ordinance, holding that "this ordinance, in so far as it makes final the orders of the city council declaring the building a nuisance... is void." Reagan, 247 S.W. at 817. Once again, the municipality in question lacked proper legislative authorization defining the nuisance in question. See id. at 816 (noting that the city council was purportedly "authorized by its charter to define and abate nuisances," and questioning the validity of the charter accordingly) (emphasis added).
Finally, in Lurie, we twice recognized the Legislature's authority to declare a condition to be a nuisance. Lurie, 224 S.W.2d at 875 (noting that judicial determination that a condition is a nuisance is required unless it is "property ... within the class designated and condemned by statute ... as a nuisance"); id. at 877 ("[U]nless property is of the class condemned by statute ... as a nuisance, the question whether it is in fact a nuisance is for judicial determination.") (emphasis added). We also construed—without any doubts as to its validity—the specific statute the Legislature had enacted pursuant to that power, authorizing the abatement of defined nuisances: "dangerous or dilapidated buildings or buildings [constituting a] fire hazard." Id. at 874. We observed:
Thus, although Lurie goes on to state there is a right to judicial determination of whether a property is a nuisance, that right only arises when the Legislature or common law has not already defined the class of things in question as a nuisance. Id. at 875, 877. Of course, where the Legislature has made such a determination, due process still guarantees a qualified judicial review, but does not require that the review be de novo. Cf. City of Houston v. Blackbird, 394 S.W.2d 159, 160-61 (Tex.1965). Nor did Lurie announce any general right to de novo appeal. Instead, it simply declined the city's invitation in that case to limit appeal to substantial evidence review without guidance from the Legislature, based in part on the importance of the rights in question, but equally on the lack of legislative authorization. See Lurie, 224 S.W.2d at 875-76. Therefore, under Lurie, due process does not require that the judicial review be de novo, if the Legislature, in its grant of authority to abate a defined nuisance, has provided for a lesser standard of review. See id. at 876 (declining to apply substantial evidence review because no statute authorized doing so).
Here, the Legislature has authorized cities to abate a particular nuisance, and has specifically defined it as:
TEX. LOC. GOV'T CODE § 214.001(a)(1)-(3). This definition of what constitutes a nuisance is specific, and constitutes a nuisance in fact. See Spartan's Indus., 447 S.W.2d at 413 (observing that a nuisance in fact is a condition that "endangers the public health, public safety, public welfare, or offends the public morals"). Thus, unlike the statute in Stockwell,
As Justice Johnson notes in his dissent, the Court effectively overturns the statutory system created by the Legislature to facilitate nuisance abatement. This is especially troubling because the Legislature appears to have made every reasonable effort to draft these statutes in accordance with the relevant standards pronounced by Texas courts, including other due process requirements not at issue here. In particular, the statutes provide for: (1) notice and hearing, compare TEX. LOC. GOV'T CODE § 214.001(b)(2)-(3), with Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex.2001), (2) a chance to remedy the nuisance, compare TEX. LOC. GOV'T CODE § 214.001(d), with Crossman, 247 S.W. at 812, (3) notice to mortgagees and lienholders, compare TEX. LOC. GOV'T CODE § 214.001(h), with State Bank of Omaha v. Means, 746 S.W.2d 269, 270 (Tex.App.-Texarkana 1988, writ denied), (4) a right to judicial appeal, compare TEX. LOC. GOV'T CODE § 214.0012, with Blackbird, 394 S.W.2d at 161; Crossman, 247 S.W. at 813; Stockwell, 221 S.W. at 934-35, and (5) a clear definition of what constitutes a nuisance in this context, compare TEX. LOC. GOV'T CODE § 214.001(a)(1)-(3), with Stockwell, 221 S.W. at 934-35.
In addition, there is no need for the novel course the Court embarks on today. Although there are important substantive rights behind the procedural issue in this case—i.e., rights under the Takings Clause—creating a new procedural entitlement to protect such rights is unnecessary. The right to compensation for takings of private property is a vital one, as evidenced by its enshrinement in both the Federal and Texas Constitutions. Without reservation, I share the Court's laudable concern with preventing uncompensated takings. As such, I note that even under substantial evidence review, it is still possible to prove that an agency's or municipality's action is illegal, see Brazosport Sav. & Loan Ass'n, 342 S.W.2d at 752, which might well be relevant if an agency or municipality acts outside of its authority, as by using the nuisance procedures to actually take title to a piece of real property,
In summary, the Legislature has both (1) validly defined the nuisance in question and authorized its abatement, TEX. LOC. GOV'T CODE § 214.001, and (2) specified what standard of review applies, id. § 214.0012(f). As a result, I would conclude that the urban nuisance statutes at issue comport with our nuisance precedents, and therefore afforded Stewart due process, and thus should have precluded Stewart's takings claim.
II. The Court's Reasons for Disregarding our Nuisance Jurisprudence Fall Short
The Court circumvents our due process nuisance jurisprudence discussed above in favor of a takings inquiry. Its justifications for doing so are (1) a misreading of the extent of our holding in Steele v. City of Houston, and (2) an entirely novel application of the constitutional fact doctrine. Both of these justifications fail.
A. Misplaced Reliance on
The Court argues that the Stockwell-Lurie line of cases described above is no longer valid in light of Steele v. City of Houston, 603 S.W.2d 786 (Tex.1980). This exaggerates the scope of Steele. The Court cogently describes Steele's actual effect, which was to make clear that the Takings Clause is self-executing, thereby reversing the prior assumption that the State enjoyed sovereign immunity from takings claims. But the Court then extrapolates that Steele also precluded the Legislature from summarily abating nuisances in fact. The problem with that assumption is that Steele in no way modified or curtailed the State's police power; instead, it merely removed the shield of sovereign immunity from the exercise of that power. See id. at 791 ("The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking... of property for public use.") (emphasis added).
In fact, Steele says very little about the question in this case—in Steele, there was no due process at all, because the Houston police summarily set fire to the plaintiff's home in an attempt to flush out fugitives, id. at 789, nor was the city claiming to abate a nuisance, see generally id. Steele simply stands for the proposition that the Takings Clause is self-executing, and that sovereign immunity is waived for takings claims. See id. at 789. An important
B. The Constitutional Fact Doctrine
The Court further reaches its conclusion by a novel adoption and application of the constitutional fact doctrine. But there are two important reasons that I would decline to import that doctrine from its proper, federal context.
First, the doctrine is generally applied in the context of the First and Fourth Amendments, not to nuisance or takings questions, as the Court itself admits. 361 S.W.3d at 577; see, e.g., Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). The common thread in those cases is that the "fact" in question is of highly subjective intent—such as whether an alleged defamer acted with actual malice, or whether the police had probable cause. See Bose Corp., 466 U.S. at 515, 104 S.Ct. 1949 (Rehnquist, J., dissenting) (noting that the constitutional fact issue in a First Amendment case is "no more than findings about the mens rea of an author"). Also, such cases involve the development and application of complicated, constitutional legal standards. See Ornelas, 517 U.S. at 697, 116 S.Ct. 1657 (explaining that "the legal rules for probable cause and reasonable suspicion acquire content only through application," thus requiring independent review "if appellate courts are to maintain control of, and to clarify, the legal principles"). By contrast, whether a building is so dilapidated as to constitute a danger to health and safety is not a legal rule that "acquires content" only through independent judicial review. Rather, it is a rule that derives its content from the specific statute in question. See TEX. LOC. GOV'T CODE § 214.001(a)(1)-(3). Indeed, a major concern of our nuisance precedents, such as Stockwell, was to ensure that cities and agencies only act under a specific statutory definition, limited to nuisances in fact, thus rendering inapplicable here the concerns that motivated the Supreme Court to "reinvigorate" the constitutional fact doctrine.
Second, the Court's reason for applying the doctrine is disquieting, both for its unsound basis, and for the breadth of its potential application in future cases. The Court applies the doctrine merely because "[t]akings claims also typically involve mixed questions of fact and law." 361 S.W.3d at 578. But mixed questions of fact and law abound in our legal system. See, e.g., Intercont'l Grp. P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 666 (Tex.2009) (Brister, J., dissenting) ("Whether a party prevailed in litigation is a mixed question of law and fact."); Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 518 (Tex.1997) (explaining that probable cause is "a mixed question of law and fact" in malicious prosecution cases when the parties dispute the underlying facts). Under the Court's reasoning, it appears that every mixed question of fact and law that is even alleged to touch on a constitutional right is now a "question of constitutional fact." Further, it is unclear how the Court's decision can be squared with our rule that "[w]e review a trial court's decision on a mixed question of law and fact for an abuse of discretion."
The Court's decision opens the door to a host of takings challenges to agency determinations of every sort, and in every such challenge a right to trial de novo will be claimed. Judges at every level of our court system are invited by today's decision to substitute their own factual determinations for that of an agency or even a lower court. The consequences of the Court's decision will not be limited to the courtroom. As discussed above, cities are faced with complex challenges posed by a crisis level of abandoned and dangerous buildings, and one of the most important weapons provided by the Legislature to combat this problem is summary nuisance
Because the Legislature has both (1) validly defined the nuisance in question and authorized its abatement, TEX. LOC. GOV'T CODE § 214.001, and (2) specified what standard of review applies, id. § 214.0012(f), due process does not require de novo review under our precedents. The Board's finding, pursuant to that authority, as affirmed by the trial court on substantial evidence review, should have precluded Stewart's takings claim. Accordingly, I would reverse the court of appeals and render judgment that Stewart take nothing.
Justice GUZMAN, dissenting from the denial of rehearing.
Abandoned buildings, dilapidated homes and hazardous properties have in many instances become a haven for vagrants, criminal activity and potential hazards to surrounding neighborhood properties. The Court's holding and today's denial of the Motion for Rehearing in effect have essentially decimated summary nuisance abatement—a city's crucial, front-line tool to combat the detrimental effects of nuisance on the health, safety, and welfare of its citizens.
Underscoring the risk to the safety and vitality of entire communities, the City of Dallas urges this Court to vacate its holding. Twelve separate amicus briefs have been submitted in support of the Motion for Rehearing.
I believe the cities' concerns warrant closer examination. But, despite the rapid manifestation of the broad-sweeping effects I cautioned about in my dissent, this Court adheres to its untenable holding— despite long-standing precedent dictating otherwise
Because the Court's decision essentially strips municipalities of their legislatively provided tool to combat public nuisance, I would grant the motion for rehearing. Because the Court declines to do so, I respectfully dissent.
Moreover, these cases stand for a broader proposition. In each case, there was statutory authorization for the nuisance finding, and substantial evidence review was already considered the default standard. What these cases in fact stand for, then, is that a court, not an administrative agency, must apply statutory nuisance standards to the facts of a particular case.
Moreover, even if the final phrase did modify "dilapidated," that would not transform all URSB findings into findings that a property was, in fact, a nuisance "in fact." The Local Government Code's "hazard" language is exactly the same sort of "general term" that we said in Stockwell must be found by a court.
The differing treatment of decisions of the URSB and condemnation commissioners is particularly notable considering that the board of commissioners in an eminent domain case is appointed by the trial court, TEX. PROP.CODE § 21.014(a) (requiring that the commissioners be appointed by the "judge of a court in which a condemnation petition is filed or to which an eminent domain case is assigned"), and therefore could be considered its agent. Cf. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 77, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (approving of the use of magistrate judges as adjuncts to Article III courts). The agency here, though, is appointed by the City that is taking the property. DALLAS, TEX., CODE § 27-6, repealed by Dallas, Tex., Ordinance 26455 (Sept. 27, 2006).
The constitutional fact doctrine was affirmed in Crowell v. Benson, 285 U.S. 22, 56-58, 52 S.Ct. 285, 76 L.Ed. 598 (1932), where the Court held that constitutional facts must be found by a court. See also Monaghan, 85 COLUM. L.REV. at 253 (noting that in Crowell, the Court "confirmed and generalized the constitutional fact doctrine in strong terms"). After Crowell, though, the constitutional fact doctrine fell into relative desuetude. See Adam Hoffman, Note, Corralling Constitutional Fact: De Novo Fact Review in the Federal Appellate Courts, 50 DUKE L.J. 1427, 1449 (2001); see also N. Pipeline, 458 U.S. at 82 n. 34, 102 S.Ct. 2858 ("Crowell's precise holding, with respect to `jurisdictional' and `constitutional' facts that arise within ordinary administrative proceedings, has been undermined by later cases."). But see Gonzales v. Carhart, 550 U.S. 124, 165, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (approvingly citing Crowell for the proposition that the Supreme Court "retains an independent constitutional duty to review factual findings where constitutional rights are at stake").
Monaghan, 85 COLUM. L.REV. at 262 (footnote omitted); see also Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L.REV. 1787, 1844 (2005) (noting that the sociological legitimacy deficit of administrative agencies is "serious, even alarming").
Id. at 58, 52 S.Ct. 285. Crowell thus confined its holding to specifically exclude cases just like this one, where the Legislature has provided for administrative bodies to make quasi-judicial determinations as to nonjurisdictional and nonconstitutional facts, and has specified the appropriate scope of review: that of substantial evidence.
The limitation found in Crowell is germane here because, although the Supreme Court was addressing the jurisdictional fact doctrine, that doctrine is an English antecedent of the constitutional fact doctrine, Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L.REV. 229, 249 (1985), and by applying the jurisdictional fact doctrine in the American, constitutional context, the Supreme Court "both confirmed and generalized the constitutional fact doctrine in strong terms," id. at 253. "While conceding that ordinary facts could be established in the administrative process, the Court held that constitutional facts must be found by the courts." Id. (emphasis added).