Texas Takings Liability for Police-Caused Emergency Destruction, with Post-Reversal Reelection of Remedies (Baker v. City of McKinney)

Court: U.S. Court of Appeals for the Fifth Circuit (Per Curiam)
Date: May 22, 2026
Case: Baker v. City of McKinney, Texas, No. 25-40396 (not designated for publication)

1. Introduction

This appeal arises from extraordinary property damage inflicted during a police response to an active hostage crisis inside homeowner Vicki Baker’s residence in McKinney, Texas. In July 2020, City police used armored vehicles, gas grenades, and explosives to resolve the emergency; the parties agreed the officers “acted unimpeachably,” yet Baker’s home and personal property were severely damaged and the City refused compensation.

Baker sued in federal court asserting takings claims under both the federal Constitution and Article I, § 17 of the Texas Constitution, including a federal damages path via 42 U.S.C. § 1983. After Baker initially obtained a jury verdict and elected to recover under § 1983, the Fifth Circuit in Baker v. City of McKinney, 84 F.4th 378 (5th Cir. 2023) (“Baker I”) reversed on the federal takings theory, recognizing a necessity exception to the federal Takings Clause and vacating the § 1983 judgment—while expressly not reaching the Texas constitutional claim.

On remand, Baker sought to “re-elect” her remedy to recover under the Texas Constitution. The City objected and argued the district court should decline supplemental jurisdiction over the remaining state claim. The Fifth Circuit’s 2026 opinion addresses (i) supplemental jurisdiction after federal-claim elimination, (ii) Texas takings liability for emergency police destruction, (iii) the availability of post-reversal reelection under Texas’s one satisfaction rule, and (iv) objections to the damages proof.

2. Summary of the Opinion

The Fifth Circuit affirmed the district court’s final judgment for Baker on her Texas takings claim. Key holdings:

  • Supplemental jurisdiction: The district court did not abuse its “wide discretion” in retaining supplemental jurisdiction over the Texas takings claim after the federal claims were eliminated, especially given the case’s age and the completed jury trial.
  • Texas takings liability: The district court correctly applied Texas law; Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980) controlled and supported compensation for innocent property owners whose property is destroyed by police during an emergency response.
  • Necessity defense: The City’s attempt to import the federal “necessity exception” from Baker I did not defeat the Texas claim; the Fifth Circuit read Steele as precluding the City’s necessity defense on these facts.
  • Consent defense: The City forfeited any “consent” defense by inadequately raising it and failing to show how Baker or her daughter’s actions established consent under Article I, § 17.
  • Reelection of remedy: The district court properly allowed Baker to change her election after her elected § 1983 recovery was reversed, relying on the equitable nature of Texas’s one satisfaction rule.
  • Damages proof: The City failed to show Texas law barred Baker’s evidence (including testimony and repair/replacement estimates) for damages; the court rejected the City’s insistence on a strict “fair market value only” measure for the personal property items at issue.

3. Analysis

3.1 Precedents Cited

A. Prior proceedings and the federal “necessity exception”

  • Baker v. City of McKinney, 84 F.4th 378 (5th Cir. 2023) (“Baker I”)
    The Fifth Circuit’s earlier decision recognized “the existence of a necessity exception to the Takings Clause” and held no federal compensation was required where it was objectively necessary to damage property in an active emergency to prevent imminent harm. Critically for the 2026 appeal, Baker I also stated that because Baker elected § 1983, the court did not reach the Texas constitutional claim—leaving it intact for remand litigation.
  • Baker v. City of McKinney, 93 F.4th 251, 251 (5th Cir. 2024) (per curiam) and Baker v. City of McKinney, 145 S. Ct. 11, 11 (2024) (mem.)
    These rehearing and certiorari dispositions supplied procedural finality to Baker I without altering the posture: federal recovery reversed; state claim unresolved.

B. Supplemental jurisdiction standards

  • Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008)
    Provided the standard of review: abuse of discretion for retaining supplemental jurisdiction when all federal claims have been dismissed.
  • Enochs v. Lampasas Cnty., 641 F.3d 155, 161 (5th Cir. 2011)
    Supplied the key framing: supplemental jurisdiction is “flexible,” and district courts have “wide discretion” to retain state claims once federal claims are eliminated. The Fifth Circuit relied on this discretion, emphasizing the case’s long duration and the completed trial.
  • Dickinson v. Auto Ctr. Mfg. Co., 733 F.2d 1092, 1102 (5th Cir. 1983)
    Cited for appellate jurisdiction under 28 U.S.C. § 1291.

C. Standards of review and state-law determinations

  • Williams v. Manitowoc Cranes, L.L.C., 898 F.3d 607, 614 (5th Cir. 2018) (new trial motions: abuse of discretion)
  • U.S. ex rel. Babalola v. Sharma, 746 F.3d 157, 160 (5th Cir. 2014) (summary judgment: de novo)
  • Tewari De-Ox Sys., Inc. v. Mountain States/Rosen, Ltd. Liab. Corp., 757 F.3d 481, 483 (5th Cir. 2014) and Martone v. Robb, 902 F.3d 519, 523 (5th Cir. 2018) (Rule 12(b)(1)/(6): de novo)
  • Shepherd ex rel. Est. of Shepherd v. City of Shreveport, 920 F.3d 278, 283 (5th Cir. 2019) (state-law determinations: de novo), citing Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991).
  • United States v. Capistrano, 74 F.4th 756, 769 (5th Cir. 2023) (jury instructions: abuse of discretion/harmless error)

D. Texas takings doctrine and “police destruction” cases

  • Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980)
    The cornerstone precedent. Like Baker, the Steele plaintiffs alleged police destroyed their home and personal property while trying to recapture dangerous fugitives. The Texas Supreme Court held they properly alleged a claim under Article I, § 17 and emphasized a key distinction: even if police action was justified under police power, “innocent third parties are entitled by the Constitution to compensation for their property.” The Fifth Circuit treated Steele as controlling and as defeating the City’s attempt to avoid liability via a necessity defense.
  • Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 477 (Tex. 2012)
    Cited for the general proposition that Texas takings case law is “consistent with federal jurisprudence,” which the City invoked to argue that Baker I should carry over. The Fifth Circuit, however, read later Texas authority as emphasizing meaningful textual and doctrinal differences.
  • Tex. Dep't of Transp. v. Self, 690 S.W.3d 12, 25 (Tex. 2024)
    Used to underline that Article I, § 17 “protects against more types of government action than its federal counterpart,” consistent with its broader text (“taken, damaged, or destroyed”). The court also referenced Self in rejecting rigid damages-proof arguments (replacement-cost estimates appeared in the factual background of Self and the claim was deemed “viable”).
  • City of Baytown v. Schrock, 645 S.W.3d 174, 182 (Tex. 2022) (Young, J., concurring)
    Cited for the proposition that federal and Texas takings clauses “are not the same,” reinforcing the Fifth Circuit’s refusal to treat the federal necessity exception as dispositive of the Texas claim.
  • Commons of Lake Hou., Ltd. v. City of Hou., 711 S.W.3d 666, 676 (Tex.), cert. denied, 146 S. Ct. 299 (2025)
    Cited to explain “inverse” condemnation. Also notable: in a footnote, the Fifth Circuit observed the Texas Supreme Court had cited Baker I without adopting the federal necessity exception for Texas claims—supporting the Fifth Circuit’s view that the City could not simply transplant Baker I into Texas constitutional analysis.

E. One satisfaction rule and reelection after reversal

  • Malvino v. Delluniversita, 840 F.3d 223, 233 (5th Cir. 2016)
    Central to the reelection question. Malvino explains that when a plaintiff prevails on both federal and Texas causes of action for the same injury, federal courts apply Texas’s one satisfaction rule, requiring an election to prevent double recovery. Crucially, Malvino also supports allowing a changed election when the elected claim is later reversed, stressing the rule’s “equitable nature” and the absence of double-recovery risk.

F. Condemnation valuation baseline (and its limits)

  • Barshop v. City of Hou., 442 S.W.2d 682, 685 (Tex. 1969)
    Cited by the City for the “general rule” that market value is determined as of the date of taking. The Fifth Circuit emphasized the City’s failure to show this “general rule” operates as an absolute bar to other evidence (like repair/replacement estimates) in the circumstances presented.

3.2 Legal Reasoning

A. Retaining supplemental jurisdiction was within “wide discretion”

The Fifth Circuit’s supplemental-jurisdiction reasoning is pragmatic and process-sensitive. Applying Mendoza v. Murphy and Enochs v. Lampasas Cnty., it found no abuse of discretion because:

  • the litigation had proceeded for years and already included a jury trial; and
  • the Fifth Circuit’s remand in Baker I did not instruct dismissal of the state claim.

The opinion implicitly treats judicial economy and fairness as decisive: after extensive federal-court investment, declining jurisdiction would simply relocate an already-fully-developed case into a new forum without the usual early-case comity benefits.

B. Texas takings: broader text, different defenses, and Steele as the controlling template

The City’s core merits argument was doctrinal convergence: because Texas takings law is “consistent” with federal jurisprudence (Hearts Bluff Game Ranch, Inc. v. State), the federal necessity exception recognized in Baker I should also defeat the Texas claim. The Fifth Circuit rejected that syllogism by emphasizing:

  • Textual breadth: Article I, § 17 covers property “taken, damaged, or destroyed,” and Texas precedent recognizes it “protects against more types of government action” than the federal clause (Tex. Dep't of Transp. v. Self).
  • Non-identity with federal doctrine: the provisions “are not the same” (City of Baytown v. Schrock (Young, J., concurring)).
  • Procedural posture: Baker I expressly did not decide the Texas claim, so it did not “undermine” the district court’s earlier Texas-law analysis.

Most importantly, the court treated Steele v. City of Houston as directly on point: police destruction of innocent owners’ property during a fugitive emergency can be “for public use” under Article I, § 17 and may require compensation even when police action is justified. The Fifth Circuit drew from Steele’s bottom line—“innocent third parties are entitled by the Constitution to compensation”—to sustain liability here.

C. Necessity and “great public necessity” under Texas law

Steele acknowledged the City “may defend its actions by proof of a great public necessity,” noting uncompensated destruction has been “occasionally justified” by “war, riot, pestilence or other great public calamity.” But Steele still allowed the constitutional claim to proceed and, as characterized by the Fifth Circuit, “rejected” the City’s proof of such a defense on the record there.

In this case, the Fifth Circuit concluded: “Steele controls and precludes the City’s efforts to invoke a necessity defense.” The functional move is significant: the court read Texas’s “great public necessity” language not as a broad immunity for emergency policing, but as a narrow and demanding defense that the City could not successfully invoke on these facts—leaving compensation as the constitutional consequence of a public-benefitting destruction imposed on an innocent owner.

D. “Consent” as a constitutional carveout—waived in practice

Article I, § 17 contains an express exception: “unless by the consent of such person.” The City argued a “consent issue” had been “overlooked,” but the Fifth Circuit held the City forfeited the defense by failing to adequately raise it and by failing to show how Baker’s conduct (or her daughter’s) constituted consent to the property damage for takings purposes.

The takeaway is procedural as much as substantive: when a constitutional text contains a built-in exception, the governmental defendant must still properly preserve and factually develop it as an affirmative defense; mere suggestion does not suffice on appeal.

E. Reelection of remedies after reversal: equity and the one satisfaction rule

The reelection issue turned on whether Baker could change her initial election (to recover via § 1983) after Baker I reversed the federal basis for that recovery. The Fifth Circuit affirmed reelection for three interlocking reasons:

  • The jury was instructed on both theories (federal and state takings), so the Texas claim had been tried and preserved in the litigation framework.
  • Texas’s one satisfaction rule is equitable and aims to prevent double recovery, not to impose forfeiture when one track disappears on appeal (Malvino v. Delluniversita).
  • No double-recovery risk remained after Baker I vacated the federal judgment; allowing reelection merely restored the remaining viable basis for a single satisfaction.

F. Measure of damages: resisting a rigid market-value-only requirement

The City argued Baker’s evidence was legally insufficient because she relied on repair and replacement estimates rather than proof of “fair market value” for personal property. The Fifth Circuit rejected this as under-supported: the City cited no case establishing Baker’s evidence was unacceptable, and its principal citation—Barshop v. City of Hou.—stated only a “general rule,” not an absolute one.

The court also pointed to Tex. Dep't of Transp. v. Self, where replacement-cost estimates were part of the claim narrative and the inverse condemnation claim was deemed “viable,” undercutting the City’s suggestion that replacement-cost proof is categorically incompatible with Texas takings damages.

3.3 Impact

A. For Texas takings claims involving police emergency operations

Even though the opinion is unpublished, its analysis strongly signals that within the Fifth Circuit, Steele v. City of Houston is the governing template for Texas constitutional compensation when police destroy an innocent owner’s property in emergency operations. Municipal defendants should expect:

  • limited ability to defeat Article I, § 17 claims by pointing to federal “necessity exception” doctrine; and
  • heavy reliance on Steele by plaintiffs arguing that justified police power actions can still trigger compensation duties under the Texas Constitution.

B. For litigation strategy: pleading and preserving parallel state remedies

The case validates a key plaintiff-side strategy: plead and try Texas constitutional takings claims alongside federal theories, because a federal appellate reversal (especially on a doctrinal carveout like necessity) need not extinguish a state constitutional recovery.

C. For forum and case-management: retaining state claims after federal reversals

The opinion encourages district courts to retain state claims after federal claims fall away late in litigation, particularly after substantial investment (discovery, summary judgment, trial). It frames retention as a sensible exercise of discretion rather than an exception requiring special justification.

D. For remedies: reelection as a safety valve after appellate changes

The endorsement of post-reversal reelection under the one satisfaction rule reduces the risk that an initial election becomes a trap when the elected theory is later reversed. Practically, it prevents defendants from obtaining a windfall based on election mechanics rather than merits.

4. Complex Concepts Simplified

  • Supplemental jurisdiction: A federal court’s ability to decide state-law claims that are part of the same case as federal claims. Even if federal claims disappear, the court may keep the state claims if fairness and efficiency support it.
  • Inverse condemnation: A lawsuit brought by a property owner alleging the government effectively took or damaged property without formally condemning it or paying compensation (as described in Commons of Lake Hou., Ltd. v. City of Hou.).
  • Texas takings clause vs. federal takings clause: The Texas Constitution explicitly covers property “taken, damaged, or destroyed,” which can sweep more broadly than the federal Takings Clause (see Tex. Dep't of Transp. v. Self).
  • Police power vs. takings compensation: Government can act to protect public safety (police power). But under Texas law as applied via Steele, even rightful safety actions can still require compensating innocent owners whose property is destroyed for public benefit.
  • One satisfaction rule & election of remedies: A plaintiff can’t collect twice for the same injury under different legal theories. Courts may require choosing one “track” for recovery. But if the chosen track is later reversed, equity may allow switching to the remaining valid track (Malvino v. Delluniversita).
  • Consent exception (Article I, § 17): If the owner truly consents to the taking/damage/destruction, compensation may not be required. But it must be properly raised and proven; vague assertions won’t preserve it on appeal.

5. Conclusion

Baker v. City of McKinney affirms a consequential pairing of rules for Texas takings litigation in federal court: (1) district courts may retain supplemental jurisdiction over a Texas constitutional takings claim after federal claims are eliminated late in a long-running case; and (2) under Steele v. City of Houston, Texas’s Article I, § 17 can require compensation to innocent owners for police-caused destruction during emergency operations, notwithstanding the federal necessity exception recognized in Baker I.

The opinion also reinforces remedial flexibility: when a plaintiff’s elected federal recovery is reversed, Texas’s equitable one satisfaction rule can permit reelection to a parallel Texas remedy—ensuring one, and only one, constitutionally grounded compensation for a single injury.