Here’s the latest in a case we’ve been following for a long time.

In Baker v. City of McKinney, No. 25-40396 (May 22, 2026), the U.S. Court of Appeal for the Fifth Circuit, in an unsigned per curiam opinion approved of the property owner’s “reelection of remedy” to ask for relief under the Texas Constitution, after the original section 1983 just compensation claim was rejected.

You remember this case, one of those “SWAT takings” claims that actually succeeded in the district court. The Fifth Circuit, however, said that the Fifth Amendment doesn’t require compensation if the government is validly exercising its police power, and the U.S. Supreme Court (over the mild objections of two Justices) denied cert.

But that wasn’t the end of the road:

After our court denied panel and en banc rehearing, see Baker v. City of McKinney, 93 F.4th 251, 251 (5th Cir. 2024) (per curiam), and the Supreme Court denied Baker’s petition for writ of certiorari, see Baker v. City of McKinney, 145 S. Ct. 11, 11 (2024) (mem.), this case returned to the district court. In December 2024, Baker filed a “Reelection of Remedy,” requesting the district court “reenter judgment pursuant to Article I, Section 17 of the Texas Constitution.” The City opposed Baker’s reelection and moved to dismiss her Texas takings claim, arguing that the district court should decline to exercise supplemental jurisdiction. In June 2025, the district court granted Baker’s reelection of remedy, denied the City’s motion to dismiss, and entered final judgment in favor of Baker. The City timely appealed the district court’s opinion and order, final judgment, and other filings in favor of Baker on her Texas takings claim.

Slip op. at 3.

With the federal claim gone, the City asserted that the district court should not have continued to exercise its (supplemental) jurisdiction over the remaining state law claim. Often, we see federal courts, when asked to consider state law claims after the federal claims go away, back off. But not here.

The Fifth Circuit first considered the question of whether there was a Texas taking. The court noted that the standards for liability “are not the same.” Slip op. at 6. The court also noted that the Texas Supreme Court has affirmed that the Texas Constitution may require compensation even if the government has destroyed property in the course of apprehending criminal suspect. See Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980). Slip op. at 6-7. So yes, a property owner who has suffered damage resulting form a police power action may recover for a taking under the Texas Constitution.

The Fifth Circuit also rejected the city’s claim that Baker didn’t properly reelect her state law remedy after remand:

The district court plainly instructed the jury on Baker’s federal and state takings claims, and our court has explained that, “[w]hen a plaintiff prevails on both federal and Texas state law causes of action for the same injury, federal courts apply Texas’s one satisfaction rule, which requires the prevailing party to elect between the alternative claims for purposes of recovery.” Malvino v. Delluniversita, 840 F.3d 223, 233 (5th Cir. 2016) (citation omitted). Baker was given the choice to make such an election and chose to pursue relief via § 1983, see Baker I, 84 F.4th at 382, and the City fails to identify “any authority holding that [Baker] cannot change h[er] election” in this case, where “the [§ 1983] claim [s]he elected to recover on [wa]s reversed” in Baker I, Malvino, 840 F.3d at 233. The “equitable nature” of Texas’s “one satisfaction rule counsels against such a stringent approach,” as there is no risk of “double recovery” for Baker post-Baker I. Id. at 233–34. As such, we do not disturb the district court’s application of Texas reelection of remedies law.

Slip op. at 7-8.

It’s good to see the courts approve what both looks like justice as well as dogged lawyering by Baker’s counsel.

Baker v. City of McKinney, No. 25-40396 (5th Cir. May 22, 2026) (per curiam)