(Image: Bernards south of Lubbock as seen from the west side of Highway 87 looking east)
The frustrated owners of a convenience store next to a delayed road project south of Lubbock are making a unique legal argument of inverse condemnation claiming their rights under the Texas Constitution have been violated.
Philip and Herrlinda Thrash own Bernards – a gas station, convenience and liquor store alongside U.S. Highway 87 at Farm to Market Road 41. They’re suing TxDOT, the Texas Department of Transportation.
Work on a new overpass over FM 41 started in October 2021. Crews are no longer working on it and there’s no timeline for getting it finished.
It’s not impossible to get to Bernards driving south on Highway 87. But drivers must go an extra mile south to turn around and another mile to get back.
Ordinarily, a state agency such as the Texas Department of Transportation has strong legal protections. But the attorney for Bernards, Brian Heinrich, thinks he can defeat TxDOT in court and make the agency pay for lost profits at the store.
TxDOT says the lawsuit has no merit and has asked a judge to throw it out.
Unconstitutional taking
The lawsuit filed in December under the name of Bernards’ parent company, FamFive Holdings, LLC, cited the Texas constitution.
“No person’s property shall be taken, damaged or destroyed or applied to public use without adequate compensation being made, unless by consent of such person …,” the lawsuit said.
The project was “unduly” or “negligently” delayed – all while cutting off access to customers for Bernards, the lawsuit claimed.
“The Property has been taken and/or damaged,” it said. The property includes profits.
Inverse condemnation
Sometimes the state will take property from someone for a public project. The word for that is condemnation. The government is required to pay the owner to make up for it.
This is a case of inverse condemnation, Heinrich told LubbockLights.com.
“The reason this is an inverse condemnation case is because it’s not being instituted by the state. It’s being instituted by the landowner against the state,” Heinrich said.
“But the end result is the same,” he said.
TxDOT took property temporarily but for an unreasonable amount of time, Heinrich said. Because it’s based on constitutional rights, TxDOT cannot so easily get the lawsuit tossed out of court.
It doesn’t matter if TxDOT meant to cause a problem, he added.
“It’s not about intent,” he said.
“Was this project done prudently? Was it done in an expeditious way, or was it unduly delayed?” Heinrich said.
TxDOT responds in court
TxDOT filed a response in Lubbock’s 72nd District Court, saying in part, Bernards has “no vested interest” in the traffic along Highway 87 or FM 41.
“The Texas Supreme Court has previously stated highways are primarily for the benefit of the traveling public and are only incidental for the benefit of those who are engaged in business along its way,” the TxDOT response said. “Business owners must necessarily assume the risk of the changing currents of travel.”
TxDOT conceded there would be a problem if it were impossible to get to Bernards.
“A landowner is entitled to compensation when a public improvement destroys all reasonable access, thereby damaging the property,” TxDOT said. But that’s not the case, according to TxDOT.
TxDOT claimed it’s up to Bernards to prove there was no reasonable access. Limited access would not be enough.
The response for TxDOT, filed by the office of Texas Attorney General, asked a judge to either throw out the case or make Bernards restate its legal claims.
This project has a history
In late January, LubbockLights.com reported the bridge project stopped – leaving Bernards in the middle of a construction zone with no progress in a year.
TxDOT fired Allen Butler Construction in July, and so far, has not replaced the contractor.
TxDOT cited three problems in removing the company – including environmental deficiencies. As part of our previous story, a source in the company said the blame rests with TxDOT, not Allen Butler.
(Allen Butler no longer owns the company and sold it before this issue happened.)
TxDOT wanted to change the project without paying more money, the source said.
Thrash disputes previous claims
The source claimed there was always access of some sort, also saying TxDOT mandated at least one way in and out.
However, in a recent email to LubbockLights.com, Philip Thrash disputed our source.
“I do not believe they accurately represented the conditions of the time,” Thrash said. He included pictures in support of his claim that there was no reasonable access.
(Slideshow: Bernards at Highway 87 at FM 41 in Lubbock County during an earlier phase of road construction, images courtesy of Philip Thrash)
Those pictures showed barricades in two places which prevented people from using FM 41 at all in trying to reach Bernards.
There’s more.
Thrash and his wife live east of the store. When FM 41 was blocked, they couldn’t go to work.
“We were given permission to use farmland adjacent to the property to access the store. Even so, as if to merely aggravate, in November of 2021 a twenty-yard mound of dirt was placed in the path to deter our ability to use that path as an entry point,” Thrash said.
Thrash also claimed barricades were put up inconsistently when comparing the north side of the project to the south.
The barricades made it very difficult for customers coming from Lubbock or coming from the west. Most customers live to the west, but the store is on the east side of the construction project.
But for those coming up from the south and wanting to go west, the barricades did not require the same length of detour. In other words, Thrash wonders if this was less about safety and more about blocking access to the store.
Looking ahead
TxDOT would not comment on anything related to Bernards because of the lawsuit. TxDOT previously said a new contractor will finish the project. But there is no timetable for that yet.
A tentative schedule in the court docket indicates the lawsuit, if it’s not settled, goes to trial in the summer of 2025.
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