Cousins Richie Devillier, 56, left, and Steve Devillier, 59, look around Steve's flooded house on Devillier Road on Friday, Sept. 20, 2019, in Winnie. While water has started to go down on the south side of the Interstate Highway 10, the north side of the highway was still under deep water.
Yi-Chin Lee, Staff / Houston Chronicle
Beaumont Enterprise
Courtney Pedersen, Staff writer
The nation's highest court could decide whether or not the Texas Department of Transportation is at fault for the destruction of a Winnie man's family farm.
On Tuesday, the United States Supreme Court will decide if it will take up the case of Richie Devillier, who sued the Texas Department of Transportation in May 2020 for destroying his family farm.
Institute for Justice Attorney Suranjan Sen said the main issue in this case is whether states are immune to the adage, "You break it, you buy it."
"The U.S. Constitution says no, that if Government breaks it, foreseeably if somebody decides, 'Hey, we need to bulldoze your house to put in a new road or new school ... that the government has to pay you,'" Sen said. "But Texas is saying not that they're immune from that substance, but that procedurally ... they don't have to go into court for it. We are arguing that they they can't invoke that here."
Devillier, a fourth generation farmer and rancher, said that his family's land never flooded before Tropical Storm Harvey.
He believes that flooding is because the Texas Department of Transportation chose to keep the area on the other side of a barrier on Interstate 10 from flooding.
In the late 1990s, the Texas Department of Transportation renovated Interstate 10, which borders Devillier's family farm, by elevating the highway and putting an impermeable concrete barrier down the middle, according to the Institute for Justice.
The project took Interstate 10, which previously was just two asphalt lanes on each side of a ditch, and widened the freeway's profile, making it three lanes in each direction with shoulders and a "continuous concrete" median, Devillier said.
The road bed was raised an average of 18 inches, and 32 inches of concrete was poured on each side, separating east bound from west bound, he said.
After the flooding in 2017, Deviller and his family went to the Texas Department of Transportation directly to try to get them "to remedy the problem, fix the drainage and admit their wrongdoing." But the department was not receptive, he said.
Texas Department of Transportation Management Analyst Sarah Dupre said the organization is "unable to speak on pending litigation." In response to questions from the Houston Chronicle in 2019, she said a concrete barrier was required there by law.
"We talked to several law firms along the way and a few of them were interested in it, but none of them would do it on contingency, and we were wiped out," Devillier said. "We didn't have flood insurance. We were trying to recover and just just put our lives back again. We didn't have money to spend millions of dollars on a lawsuit potentially. We were gut punched over it and just kept trying to move forward and rebuild and move on."
Then Tropical Depression Imelda hit and they were flooded again.
"It's like I got a message from God, like not a tap on the shoulder but more like a baseball bat to the back of your head, saying, 'Wake up dude, you have to you got to fix the issue, something has to be done,'" Devillier said. "I was filled with resolve to not let this go until (we got it solved)."
Devillier and his family eventually began working with Burns Charest LLP to sue the Texas Department of Transportation. Now, with the Institute for Justice, the family is petitioning the Supreme Court to review it.
Sen said the court is putting on a conference Tuesday, which means they will meet and decide if they want to grant the petition or if they want to think about it more. Devillier and his team will likely hear something on Monday.
"We're asking the Supreme Court, our lawyers are asking the Supreme Court to resolve this difference once and for all, for everyone under the Constitution across the country," Devillier said. "This is not a this is not a Devillier family issue. This is not a one Winnie, Texas issue. It's not even a Texas state issue. This affects everyone that lives under the Constitution of the United States and if they can do it to us, they can do it to anyone that lives in this country with without redress. They can take and not pay for."