In City of Dallas v. Stewart, No. 09-0257 (Tex. July 1, 2011), the Supreme Court of Texas (Court) held in a 5-4 decision that an appointed city board’s determination that a building is a public nuisance should not be given deference by a court, but should be reviewed de novo (“from the beginning”).  The opinion may mean that appointed city officials may no longer make substandard building and other nuisance determinations.

In the case, a person abandoned a house.  The house fell into disrepair, had been inhabited by vagrants, and suffered from numerous code violations.   The city building standards board determined that the house was an urban nuisance and ordered its demolition. Before the demolition, the owner appealed the board’s decision to the trial court.  (The appeal did not stay the demolition, and the house was demolished.) 

After the demolition, the owner added due process and taking claims to her suit.   The trial court judge affirmed the board’s decision to demolish.  However, a jury decided that the home was not a public nuisance, that the demolition worked a “taking” by the city of the property, and awarded the owner damages.  The city appealed the issue of whether the board’s decision that the house was a public nuisance precluded a finding of a taking. 

Local Government Code Chapter 214 defines a building as a nuisance if it is “dilapidated, substandard, or unfit for human habitation.”  Local Government Code Chapter 54 authorizes a city to create a board to determine violations of public safety ordinances like those in Chapter 214.  Pursuant to Chapter 214, a property owner is entitled to notice and a hearing before the board on the issue of demolition, and is given a limited appeal of a decision to a trial court. That statutory appeal is based on deference to the board’s decision under what is known as the “substantial evidence” standard of review.  However, the Court concluded that the statutory appeal does not comply with the Texas Constitution’s “takings” clause.

That clause provides that the government may not take a person’s property without just compensation.  All takings claims are limited by the rule that the abatement of a public nuisance is not a taking.  The twist in this case is that the Court added the requirement that the nuisance determination be made by a court rather than an appointed administrative body.  In other words, a city board’s decision that a piece of property is a “nuisance” should not be given deference, but should be reviewed de novo by a court similar to eminent domain cases:

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 that determination under a substantial evidence standard, were not entitled to preclusive effect in Stewart's takings case, and the trial court correctly considered the issue de novo.

Multiple cities and the attorney general filed briefs in support of the City of Dallas, to no avail.  The City of Dallas is seeking a rehearing of the case, and the League will provide amicus support in that effort.  In addition, numerous cities and the International Municipal Lawyers Association will be filing briefs.

Until the rehearing is decided, many cities have brought their substandard structure and other nuisance ordinance enforcement to a halt.  And many city attorneys have asked the Texas Municipal League for guidance.  Perhaps the safest course of action, which is also impractical, would be to have an elected judge (or at the very least an appointed municipal court judge in a court of record) bless every nuisance action that could be considered a taking.  In any case, the League will monitor and participate in the rehearing process.  If that process results in a favorable opinion, the issue may once again be settled.  If not, the issue will certainly go through the League’s legislative policy development process, and may even require a constitutional amendment to fix.

If your city has halted nuisance abatement activities based on the opinion, please send an e-mail to JJ Rocha at  The e-mail should include your name, title, contact information, and a brief but specific description of how the opinion will affect your city.  The information may be used in the League’s amicus brief on the motion for rehearing.

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.

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