NUMBER 13-24-00492-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CAMERON COUNTY JUDGE EDDIE
TREVINO, IN HIS OFFICIAL CAPACITY,
AND CAMERON COUNTY, TEXAS, Appellants,
v.
THOMAS R. TEPPER, Appellee.
ON APPEAL FROM THE 357TH DISTRICT COURT
OF CAMERON COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Peña, West, and Fonseca
Memorandum Opinion by Justice Peña
This inverse-condemnation suit involves beachfront property on South Padre
Island. Pro se appellee Thomas R. Tepper purchased his property in 2006 when the
building setback line and line of vegetation (LOV)1 were the same. Later, the building
setback line was amended landward of the LOV, but Tepper received a permit
grandfathering him in under the 2006 line—allowing him to build up to the LOV. Cameron
County currently has an erosion protection program that applies at the setback line.
Tepper complains that Cameron County does not provide erosion protection for his
property between the LOV and building setback line, causing damage to his property.
Appellants Cameron County Judge Eddie Trevino, in his official capacity, and
Cameron County, Texas (collectively referred to as the County), appeal the trial court’s
denial of its plea to the jurisdiction in favor of Tepper. Among its three issues, the County
asserts the trial court erred in denying its plea to the jurisdiction because Tepper failed to
plead a proper inverse-condemnation claim and thus the County maintained immunity.2
We reverse and render because we agree that Tepper has failed to plead a cognizable
takings claim.
I. BACKGROUND
Since 1991, the Legislature has charged Texas counties along the Texas Gulf
Coast with the development of local level coast planning and management documents.
In 1994, the County established its “Cameron County Public Beach Access and Dune
Protection Plan”3 which prohibited structures seaward of a building setback line located
1 “‘Line of vegetation’ means the extreme seaward boundary of natural vegetation which spreads
continuously inland.” TEX. NAT. RES. CODE § 61.001(5).
2 We do not address the County’s remaining issues because the failure to properly plead an inverse
condemnation claim is dispositive. See TEX. R. APP. P. 47.1.
3 The 1994 plan’s stated purpose was to “embrace the intent of SB 1053 so that public beach
access and use along all Cameron County beaches are guaranteed in perpetuity by provision of adequate access points, to ensure that Cameron County will be protected from flood losses, and additionally to assure that the integrity of the beach/dune system is maintained and enhanced while recognizing landowner’s
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240 feet landward of the LOV. In 2006, the County amended its program and adopted the
Texas General Land Office’s (GLO) guidelines which eliminated the 240-foot setback line
so that the setback and LOV were the same. The justification for this amendment was
that the “the public will benefit from the elimination of the 440-foot building line from the
County’s [1994] Plan in that the change . . . will promote economic development in the
area adjacent to the beach within the County’s jurisdiction.” The amended building
setback allowed for “maximum seaward development,” prompting Tepper to purchase
three beachfront lots on South Padre Island in 2008 with plans to develop condominiums.
However, in 2013, the GLO conducted an erosion analysis which indicated that,
should the County continue permitting seaward development along the 2006 setback line,
continued shoreline retreat will necessarily and unavoidably demand
substantial local financial commitments to maintain the current shoreline
position. Because project costs are likely to exceed the capacity of the city
to manage alone, and due to limited state and federal funds for recurrent
beach management capital costs, Cameron County will likely be a critical
financial partner in paying for future beach nourishment and dune protection
projects.
Thus in 2019, the County adopted an Erosion Response Plan (ERP) which imposes a
230-foot building setback line landward from the LOV with the goal of creating a dune
conservation zone (DCZ) between the setback line and public beach to accommodate
natural dune migration. The ERP prohibits construction within this setback line, absent an
exemption from the County.
Prior to the ERP’s enactment in August 2019, Tepper asked local officials whether
a permit application for habitable structures would be grandfathered in under the 2006
setback line. The County confirmed Tepper’s permit would be considered under the 2006
private property rights, and affording mitigating options to the landowner that would protect dunes, while not unreasonably restricting private land use.”
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provisions and on October 25, 2022, it issued him a “seaward-most development” permit
allowing for the construction of two multi-family buildings on his property and the
mitigation of sand between the 230-foot setback line and the LOV.
Tepper did not begin construction but instead filed the underlying inversecondemnation suit4 against the County on November 20, 2023. In his live petition, Tepper
summarized his claim as follows: “[The] County intentionally and knowingly issued
[Tepper] a bogus Hybrid Permit that denies [Tepper] of all or almost all economically
viable use of his property and creates a taking of [Tepper’s] property without just
compensation.” Tepper included the following findings from the ERP:
The County finds that the [DCZ] is a FEMA designated coastal high hazard
area for flooding during tropical storms and that any structures built within
the [DCZ] would be at risk of flooding and potential damage from storm
surge and storm waves.
FEMA has determined that in Coastal High Hazard Areas, including
the area within the [DCZ], there is a 26 percent chance that structures built
in this area will be damaged by a 100-year storm over the typical 30-year
life of a home mortgage.
Tepper thus alleged that the County issued him “a bogus Hybrid Permit that promotes
Seaward-Most Development but maintains a projected 30 years in the future Gulf Beach
shoreline location” knowing Tepper’s “seaward-most habitable structures will be located
seaward of the 230 ft [building setback line] and in harm’s way.” Tepper further alleged
the County’s action was a taking because it
knew that [Tepper’s] Hybrid Permit will cause [Tepper’s] seaward-most
habitable structures to (1) be overwhelmed by the scale of the ongoing sand
4 Tepper previously brought an inverse-condemnation claim against the County in June 2021. On
appeal from the trial court’s denial of the County’s plea to the jurisdiction in that case, this Court held Tepper failed to properly plead an inverse-condemnation claim. Trevino v. Tepper, No. 13-22-00568-CV, 2023 WL 7030596, *4 (Tex. App.—Corpus Christi–Edinburg Oct. 26, 2023, no pet.) (mem. op.) (“Tepper’s claim does not rest on an affirmative intentional action; rather, it rests on the County’s failure to implement a specific plan that would protect his future investment. Such a claim does not support a taking by inverse condemnation.”).
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deficit in the area, (2) degrade dunes and expose landward infrastructure
(not limited to Seaward-Most developments), and (3) be at risk of flooding
and potential damage from storm surge and storm waves; denying [Tepper]
of all or almost all viable economic use of his property is a Taking by the
County.
In response, the County filed a combined original answer, plea to the jurisdiction,
and motion to dismiss. The County asserted in its plea to the jurisdiction, among other
arguments, that Tepper failed to plead a proper inverse-condemnation claim. The trial
court denied the County’s plea to the jurisdiction, and this interlocutory appeal followed.
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8).
II. STANDARD OF REVIEW & APPLICABLE LAW
“Local governmental entities ‘enjoy governmental immunity from suit, unless
immunity is expressly waived.’” Lubbock Cnty. Water Control & Imp. Dist. v. Church &
Akin, L.L.C., 442 S.W.3d 297, 300 (Tex. 2014) (quoting Kirby Lake Dev., Ltd. v. Clear
Lake City Water Auth., 320 S.W.3d 829, 836 (Tex. 2010)). If a local governmental entity
enjoys governmental immunity, the trial court does not have subject matter jurisdiction.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004).
Article I, Section 17 of the Texas Constitution 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 . . . .” TEX. CONST. art.
I, § 17. “Takings may be categorized as either statutory (if the government compensates
the owner for the taking) or inverse (if the owner must file suit because the government
took, damaged, or destroyed the property without paying compensation).” Kopplow Dev.,
Inc. v. City of San Antonio, 399 S.W.3d 532, 536 (Tex. 2013).
To prevail on an inverse-condemnation claim, the owner must plead and
prove that (1) the government engaged in affirmative conduct (2) that
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proximately caused (3) the taking, damaging, destroying, or applying (4) of
specific private property (5) for a public use (6) without paying the owner
adequate compensation (7) and did so intentionally or with knowledge that
the result was substantially certain to occur.
Commons of Lake Hou., Ltd. v. City of Houston, 711 S.W.3d 666, 676 (Tex. 2025)
(footnotes omitted), cert. denied, 146 S.Ct. 299 (2025). Texas courts recognize two broad
types of takings: “(1) a physical occupation, appropriation, or invasion of property and
(2) a regulatory action that is so restrictive or intrusive ‘that it effectively “takes” the
property.’” Id. (quoting Jim Olive Photography v. Univ. of Hou. Sys., 624 S.W.3d 764,
771–72 (Tex. 2021)).
“It is well settled that the Texas Constitution waives government immunity with
respect to inverse-condemnation claims.” City of Houston v. Carlson, 451 S.W.3d 828,
830 (Tex. 2014) (citing City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236 (Tex. 2011)).
However, an inverse-condemnation claim must be predicated upon a viable allegation of
a taking and in the absence of a properly pleaded claim, the state retains immunity. Id. “If
a defendant files a plea to the jurisdiction showing that the plaintiff has not alleged these
elements and cannot amend its petition to do so, . . . the takings claim must be
dismissed.” Tex. Dep’t of Transp. v. Self, 690 S.W.3d 12, 26 (Tex. 2024). We liberally
construe the pleadings and look to the pleader’s intent. Miranda, 133 S.W.3d at 226. The
plaintiff carries the initial burden to plead facts affirmatively showing that the trial court
has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993). “If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial
court[’]s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction,
the issue is one of pleading sufficiency and the plaintiffs should be afforded the
opportunity to amend.” Miranda, 133 S.W.3d at 226–27 (citing County of Cameron v.
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Brown, 80 S.W.3d 549, 555 (Tex. 2002)). We review subject matter jurisdiction and the
sufficiency of the pleadings de novo. Carlson, 451 S.W.3d at 830.
III. DISCUSSION
Tepper has failed to plead a cognizable inverse-condemnation claim because the
County’s issuance of the 2022 permit has not taken, damaged, or destroyed his property.
See Commons of Lake Hou., 711 S.W.3d at 676. Providing Tepper with his desired permit
to build within the LOV and 2019 setback line is not a taking. It is not a cognizable physical
takings claim because the County’s action has not physically occupied, appropriated, or
invaded Tepper’s property by issuing him the permit to build. See id.; see also Lowenberg
v. City of Dallas, 168 S.W.3d 800, 801 (Tex. 2005) (per curiam) (explaining that physical
takings “are relatively rare, easily identified, and usually represent a greater affront to
individual property rights” (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan.
Agency, 535 U.S. 302, 324 (2002))). It also fails to present a cognizable regulatory takings
claim because the issuance of the permit is not “so restrictive or intrusive that it effectively
takes the property.” Commons of Lake Hou., 711 S.W.3d at 676 (citation modified). In
fact, it does the opposite as it grants Tepper permission to move forward with construction
based on the 2006 setback line rather than compel action, prohibit action, or impose
conditions for development. See Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d
468, 480 (Tex. 2012) (“We have held that a lack of a direct governmental restriction of the
owner’s use of her land . . . is dispositive in takings cases.”); see also Commons of Lake
Hou., 711 S.W.3d at 677 (“[A] regulatory taking . . . may result when the government
denies a development permit.” (emphasis added)); Town of Flower Mound v. Stafford
Ests. Ltd. P’ship, 135 S.W.3d 620, 645 (Tex. 2004) (holding town’s approval of
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development conditioned on plaintiff rebuilding abutting streets was a regulatory taking);
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933–938 (Tex. 1998) (analyzing whether
a government unit’s denial of planned development constituted a regulatory taking). While
Tepper asserts he has been denied “of all or almost all viable economic use of his
property,” he alleges no facts or legal authority to support this claim.5
Tepper claims that despite receiving the permit, his property was damaged6
because the permit fails to “provid[e] erosion and flood protection for [Tepper’s] seawardmost habitable structures.”7 However, the lack of erosion control is not a taking. See TH
Invs., Inc. v. Kirby Inland Marine, L.P., 218 S.W.3d 173, 196 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied) (holding a trial court’s judgment that land was lost to the State
by erosion and submersion of the Old River and San Jacinto River was not a taking);
Dalon v. City of DeSoto, 852 S.W.2d 530, 538 (Tex. App.—Dallas 1992, writ denied)
(holding a City’s negligence in maintaining and repairing a storm sewer along a creek,
which caused erosion to a landowner’s property, was not a taking); see also Severance
v. Patterson, 370 S.W.3d 705, 718 (Tex. 2012) (“A person purchasing beachfront property
5 The Supreme Court of Texas has explained a regulatory taking may occur when a law “(1) requires an owner to suffer a permanent physical loss or invasion of its property (sometimes called a Loretto taking), (2) completely deprives an owner of all economically beneficial use of its property (sometimes called a Lucas taking), or (3) unreasonably interferes with the owner’s right to use and enjoy its property (often called a Penn Central taking).” Commons of Lake Hou., Ltd. v. City of Houston, 711 S.W.3d 666, 677 (Tex. 2025), cert. denied, 146 S.Ct. 299 (2025). A viable taking claims under Lucas “is limited to the extraordinary circumstance when no productive or economically beneficial use of land is permitted and the landowner is left with a token interest.” Walton v. City of Midland, 409 S.W.3d 926, 932 (Tex. App.—Eastland 2013, pet. denied) (citing Sheffield Development Co. v. City of Glenn Heights, 140 S.W.3d 660, 671 (Tex. 2004)).
6 As we previously noted, “Tepper’s property has not yet been damaged. Moreover, whether the
damage is substantially likely to occur is dubious—FEMA found that there is a 26% chance that some properties in the DCZ could experience flooding in the next thirty years.” Trevino, 2023 WL 7030596, *4 (citing City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004) (holding that a taking may occur where the government knows that specific damage is substantially certain to result from its conduct)).
7 The County points out in its brief that Tepper “has not presented any authority that requires [the]
County to do so.”
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along the Texas coast does so with the risk that her property may eventually, or suddenly,
recede into the ocean.”).
In essence, Tepper’s pleadings seem to contest the County’s decision to adopt the
ERP over other options, but this Court already determined that the County failing to
implement a specific plan that would protect an individual’s future investment is not the
basis of a viable inverse-condemnation claim. Trevino v. Tepper, No. 13-22-00568-CV,
2023 WL 7030596, at *4 (Tex. App.—Corpus Christi–Edinburg Oct. 26, 2023, no pet.)
(mem. op.).
An inverse-condemnation claim must be predicated upon a viable taking
allegation, and we conclude Tepper has failed to properly plead a viable takings claim.
See Carlson, 451 S.W.3d at 830. Absent a properly pled takings claim, the County’s
immunity is not waived. See id. Accordingly, the trial court erred by denying appellants’
plea to the jurisdiction. See Miranda, 133 S.W.3d at 225–26. Moreover, Tepper’s
pleadings affirmatively negate a takings claim and we need not remand for the opportunity
to replead. See id. at 226–27. We sustain the County’s issue.
IV. CONCLUSION
We reverse the trial court’s denial of the plea the jurisdiction and render judgment
dismissing the case for lack of jurisdiction. Any pending motions are dismissed as moot.
L. ARON PEÑA JR.
Justice
Delivered and filed on the
31st day of August, 2026.
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