Article I, Section 17 of the Texas Constitution–discussion page

This page is available for comment and discussion regarding the page Article I, Section 17 of the Texas Constitution.

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• Jim Olive Photography v. Univ. of Hous. Sys., 624 S.W.3d 764, [1] (Tex. 2021)).

The final verb in the Texas Takings Clause, "applied," has not previously been addressed by this Court. Unlike "damaged" and "destroyed," "applied" has been included as an alternative to "taken" in each iteration of the Texas Constitution. See, e.g., TEX. CONST. of 1869 (including the phrase "taken or applied to public use"). Because takings jurisprudence has developed primarily with tangible property interests in mind, it is understandable that claims of private property being "applied to public use" have been infrequent. After all, applying and taking are functionally equivalent when the possession and ownership of physical things are at issue; for example, applying land to public use would almost always involve total appropriation or permanent physical occupation. Cf. Loretto, 458 U.S. at 441, 102 S.Ct. 3164.

Given the plain language of the "applied to public use" prong and our cases interpreting the "damaged for public use" prong, it is possible that a government entity's violation of a private author's rights in a copyrighted work could in some circumstances require compensation under Article I, Section 17 of the Texas Constitution. For example, would compensation be required if