Potentially making it more difficult for plaintiffs to prevail on trespass claims in Texas, the Supreme Court of Texas held for the first time that a plaintiff bears the burden of proving the lack of consent in a suit for trespass. See Envtl. Processing Sys., L.C. v. FPL Farming Ltd., No. 12-0905 (Tex. Feb. 6, 2015).  Plaintiffs filed suit against their neighbor, alleging that Defendant’s underground wastewater injection was causing wastewater to migrate into the subsurface of Plaintiffs’ property.  After a prior set of appeals and a trial, a jury returned a take-nothing verdict in favor of Defendants, and further appeals followed. 

The Texas Supreme Court held that the trial court had properly charged the jury by placing on Plaintiffs the burden of proving that they had not consented to an invasion of their property.  The Court surveyed how its cases had defined trespass over time, concluding, “[w]e have never departed from the inclusion of lack of consent or authorization in the definition of a trespass.” Environmental Processing, Slip Op. at 12.  It found no persuasive indication that consent should be an affirmative defense.  The Court also addressed concerns that future plaintiffs would struggle to prove a negative, observing that the landowner or possessor is the party likely to have better access to evidence of whether or not they consented. 

Disposing of the case on this issue, the court declined to answer another critical question posed by this case: “whether Texas law recognizes a trespass cause of action for deep subsurface water migration.” Id. at 17.