Steele v. City of Houston

• Decision Date: 16 July 1980
• Docket Number: No. B-8366,B-8366
• Citation: 603 S.W.2d 786,23 Tex.Sup.Ct.J. 507
• Parties: Waltraud H. STEELE et al., Petitioner, v. CITY OF HOUSTON, Respondent.
• Court: Texas Supreme Court

Page 786

603 S.W.2d 786

Waltraud H. STEELE et al., Petitioner, v. CITY OF HOUSTON, Respondent.

No. B-8366.

Supreme Court of Texas.

July 16, 1980.

Rehearing Denied Sept. 12, 1980.

Michael A. Lamson, Houston, for petitioner.

Robert M. Collie, Jr., City Atty., Frank L. Mauro, John H. Helm and William T. Fiddes, Asst. City Attys., Houston, for respondent.

POPE, Justice.

Waltraud Steele, Jutta Mozingo, and Robert Ingram sued the City of Houston for damages which they say they sustained when officers of the Houston Police Department caused the destruction of their home and belongings while attempting to recapture three escaped convicts who had taken refuge in the house. Mozingo and Ingram were married at the time of the events upon which this action is based. The trial court rendered a summary judgment against the plaintiffs, and the court of civil appeals has affirmed. 577 S.W.2d 373. We reverse the judgments of the courts below and remand the cause for trial.

Plaintiffs alleged their action under the Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19, as a nuisance, and as a destruction of their property for which they are entitled to compensation under Article I, Section 17, ¹ of the Texas Constitution. The City of Houston specially excepted to the pleadings, urging that it had governmental immunity to the action and that section 14 of the Tort Claims Act preserved its immunity. Though the trial court did not rule on the City's special exceptions, plaintiffs amended their pleadings and again alleged that the City's actions constituted a taking of their property without due process of law and without compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution and of Article I, Section 17, 1 of the Texas Constitution.

The City then moved for summary judgment on the ground that plaintiffs had not alleged an action either under the Tort Claims Act or under a nuisance theory. The trial court sustained this motion, and the court of civil appeals affirmed. That court also held that plaintiff had failed to state a nuisance action and that section 14(1) of the Tort Claims Act preserved the City's immunity from liability for an intentional tort.

The attack upon plaintiffs' pleadings by means of a motion for summary judgment operated to deny them an opportunity to amend defects in their pleadings. Plaintiffs would have had a right to amend had the trial court sustained City's exceptions to their pleadings. Harold v. Houston Yacht Club, 380 S.W.2d 184 (Tex.Civ.App. Houston 1964, no writ); Caperton v. Thorpe, 240 S.W.2d 329 (Tex.Civ.App. Eastland 1951, no writ); 3 McDonald, Texas Civil Practice § 10.14.4 (1970). Under some situations it has been held error to grant a motion for summary judgment without affording an opportunity to amend. Andrews v. Austin Motor Truck Co., 259 S.W.2d 772 (Tex.Civ.App. Austin 1953, no writ); 4 McDonald, Texas Civil Practice § 17.26.8 (1971). We do not, however, in reversing the judgments below, place our decision upon the absence of an opportunity to amend because no point is presented which asks us to do so.

It is our opinion that the plaintiffs asserted a cause of action against City of Houston whether the challenge to the pleadings is by exceptions or motion for summary judgment. Plaintiffs, by carrying forward their pleadings into the allegations of their affidavit controverting the motion for summary judgment, stated that their property was destroyed and that they are entitled to adequate compensation under Article I, Section 17 of the Texas Constitution. That section provides:

No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money . . . .

Plaintiffs Mozingo and Ingram alleged that they were married and living in a house in Houston during October, 1975. They had rented the house from plaintiff, Waltraud H. Steele. Several days before October 10, a group of prisoners escaped from either the Texas Department of Corrections or from some other detention unit. On October 10, Ingram's wife was confined in the hospital, and he was there with her. In their absence, the Houston Police Department discovered that the prisoners had taken refuge in the house. Plaintiffs alleged further that persons in the Police Department discharged incendiary material into the residence in a manner designed to cause and for the purpose of causing the residence to catch fire. They alleged further that after the residence was burning and the Houston Fire Department arrived, the residence was permitted to burn. They stated that the destruction of their house and all of their personal property entitled them to recover under Article I, Section 17, of the Texas Constitution.

The taking, the damaging, or the destruction of property are often treated, more or less, as synonyms, but the terms are different and have different historical origins. The underlying basis for compensating one whose property is taken or damaged or destroyed for public use may, however, be the same, for the prohibition against uncompensated takings "was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960); Y. M. C. A. v. United States, 395 U.S. 85, 89, 89 S.Ct. 1511, 23 L.Ed.2d 117 (1969). But the terms have a scope of operation that is different.

Property that is taken is transferred from one owner to another. Recent decisions by this court have broadly applied the underlying rationale to takings by refusing to differentiate between an exercise of police power, which excused compensation, and eminent domain, which required compensation. That dichotomy, we have held, has not proved helpful in determining when private citizens affected by governmental actions must be compensated. City of Austin v. Teague, 570 S.W.2d 389 (Tex.1978); DuPuy v. City of Waco, 396 S.W.2d 103 (Tex.1965); San Antonio River Authority v. Lewis, 363 S.W.2d 444 (Tex.1963); Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1962). In City of Austin v. Teague, supra at 394, the court, in the course of holding that municipal action impressing a scenic easement upon one's property entitled the landowner to damages under Article I, Section 17, observed that the City had "singled out plaintiffs to bear all the costs for the community benefit without distributing any cost among the members of the community." In Teague, we quoted with approval from San Antonio River Authority v. Garrett Brothers, 528 S.W.2d 266, 274 (Tex.Civ.App. San Antonio 1975, writ ref'd n. r. e.), which spoke of "the doctrine that the cost of community benefits should be distributed impartially among the members of the community." See also, G., C. & S.F. R'y Co. v. Fuller, 63 Tex. 467, 470 (1885).

Neither the parties nor the courts below have regarded this case as one of eminent domain or inverse condemnation. Neither have we. We cite the cases only to show that this court has 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 police powers.

Uncompensated governmental taking of property was unlawful before Magna Carta. Section 8 of that document restated the rule that goods could not be taken without reasonable compensation. Governmental damaging of property without compensation was more recently proscribed. The Thirteenth Declaration of Rights of the Constitution of the Republic of Texas provided that "No person's particular service shall be demanded, nor property taken or applied to public use, unless by the consent of himself or his representative, without just compensation being made therefor according to law." Hartley, Digest of the Laws of Texas 42 (1849). The Texas Constitution of 1845 also confined the duty to compensate to the taking of property. Article I, Section 14, provided, "No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts shall be made, and no person's property shall be taken or applied to public use, without adequate compensation being made, unless by the consent of such person." Hartley, supra at 52. The Constitutions of 1861, 1866 and 1869 had a similar provision. State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941). The governmental duty to compensate for damaging and destroying a citizen's property first appeared in the Constitution of 1876.

The government's duty to compensate for damaging property for public use after 1876 was not dependent upon the transfer of property rights. We wrote in G., C. & Santa Fe R.R. Co. v. Eddins, 60 Tex. 656, 663 (1884):

In our present constitution, the terms used are much broader and more significant, and are as follows: "No person's property shall be taken, damaged, or destroyed for or applied to public use, without adequate compensation," etc. Const. of 1876, art. I, sec. 17.

To entitle the party to compensation under our present constitution, it is not necessary that his property shall be destroyed, nor is it necessary that it shall be even taken. It is sufficient to entitle him to compensation that his property has been damaged. The fact of being damaged entitles him to the protection extended by this constitutional provision, as fully as if his property had been actually taken or destroyed.

The court in Eddins said that, absent a taking, one could recover damages by proof that it was inflicted with special injury such as will "practically deprive him of the ordinary use and enjoyment of it . . . ." The expansion of governmental duty and the distinction between property taken and property damaged were again...