Second of five pieces on claims for damages against the Mexican State. The first covered the concept, its constitutional basis and its origin. This one looks at irregular administrative activity, the element on which every claim turns, with the cases the law covers and the cases it excludes.
The problem
Article 109 of the Constitution does not oblige the State to compensate every damage it causes. It obliges it to compensate damage caused "by reason of its irregular administrative activity". Every claim is decided, first of all, on that phrase. If the conduct that produced the damage was irregular, the route is open. If it was regular, the claimant has no compensation through this route even though the loss is real. That is why this piece is devoted entirely to what the statutes mean by irregular activity, how the courts have read it and what the claimant has to prove.
The statutory definition
The federal statute defines irregular administrative activity in the second paragraph of its Article 1 (our translation):
"...that which causes damage to the property and rights of private parties who have no legal obligation to bear it, because there is no legal basis or legal justification that legitimizes the damage in question."
The Jalisco statute adopts the same definition in Article 2, section I, with a useful addition: irregular activity may consist of an "action or omission". The federal statute does not use that word, but the federal courts have read irregular activity as including omissions, as explained below.
The definition has two parts. The first is damage that the private party has no legal obligation to bear. The second explains when that is the case: when there is no legal basis and no justification that legitimizes the damage. The definition is built around the damage and its lack of justification; the conduct of the public servant is outside the inquiry. What gets examined is whether the legal order authorized the administration to produce that result in that person's property. If it did, the private party has to bear it. If it did not, the damage is unlawful and compensation is due.
Irregular is not the same as illegal
A frequent mistake is to assume that having an administrative act annulled is enough to be entitled to compensation. Both statutes rule that out expressly: the nullity or voidability of an administrative act "does not in itself presuppose a right to compensation" (Article 20 of the federal statute; Article 17 of the Jalisco statute in similar terms).
The federal courts have developed the distinction. The First Collegiate Court in Administrative Matters of the First Circuit held that the concept of irregularity "is narrower than that of illegality": all irregular activity is illegal, but not every act declared invalid is irregular activity. Illegality refers to acts issued within the authority's powers, though with defects; irregularity arises when the act was issued with no power to issue it, or in complete disregard of the applicable rules, and caused damage the private party had no obligation to bear (thesis I.1o.A.108 A (10a.), registry 2009577). The Second Chamber of the Supreme Court had already held that an annulment ordered in administrative litigation does not necessarily imply irregular activity by the State entity (thesis 2a. V/2015 (10a.)).
An example makes the difference visible. A tax assessment is annulled because the authority did not properly state the basis for its jurisdiction. The taxpayer who paid gets a refund with inflation adjustment and interest through the tax route; that fact alone does not give him a patrimonial injury to claim as State liability. A closure order executed with no order at all, or an attachment levied on the property of someone who was not a party to the proceeding, is different: there the act took place outside any power and the damage it caused has no basis.
Regular activity is not compensated
The reverse of the rule matters just as much. The Second Chamber of the Supreme Court has held, as binding precedent, that the constitutional regulation of State liability "excludes the regular or lawful administrative activity of State entities", and that extending the institution to the normal acts of the administration could only be done by constitutional amendment (jurisprudence 2a./J. 99/2014 (10a.), registry 2008114). The full Court had explained earlier that the constitutional legislator first considered a broad objective liability system, in which any damage would be enough for compensation, and then decided to restrict it to acts performed irregularly (jurisprudence P./J. 43/2008, registry 169428).
In practice this excludes a wide category of harm: the properly executed public works project that closes a street for months and cuts the sales of the shops along it; an inspection or verification carried out as the law provides; expropriation, which has its own compensation regime; traffic restrictions; a zoning change approved through the proper procedure. All of them cause real losses. None of them is irregular, and the private party has a legal obligation to bear them.
What has to be proven
When it decided acción de inconstitucionalidad 4/2004, the full Supreme Court set out the three elements of State liability: damage, understood as a loss or impairment of property, which must be actual, economically measurable and individualized in one or more persons; attribution of that damage to the public administration as the effect of its irregular activity; and the causal link between the two. The collegiate courts add a fourth: that none of the grounds that exclude liability is present (thesis I.4o.A.36 A (10a.), registry 2003140). Each deserves a look.
The damage
Article 4 of the federal statute requires that the damage and losses claimed, including personal injury and moral damage, be "actual, measurable in money, directly related to one or more persons, and unequal to that which may affect the general population". Article 4 of the Jalisco statute asks that they be certain, measurable in money, directly related to one or more persons and disproportionate to what may affect the general population.
Each adjective rules something out. Hypothetical damage, or future and uncertain damage, is not actual. Damage that cannot be translated into an amount is not measurable. Diffuse damage felt by a whole neighborhood or a whole city is neither individualized nor unequal to the general population. What the rule does cover is moral damage and injury to physical integrity, with the quantification rules and caps that the fourth piece addresses.
The causal link
Article 21 of the federal statute (Article 24 in Jalisco) distinguishes two situations. When the cause of the damage is identifiable, the cause-and-effect relationship between the injury and the irregular conduct "must be reliably proven". When it is not, or when several events or several actors were involved, the claimant must prove sole causation or concurrence by identifying precisely the facts that produced the result, examining the original or supervening circumstances that may have mitigated or aggravated the damage. Where concurrence is established, compensation is apportioned among those who caused the damage according to their share, and the part attributable to the claimant himself is deducted (Articles 27 and 28 of the federal statute; 31 and 32 of the Jalisco one).
The burden of proof
Article 22 of the federal statute allocates the burden clearly. The claimant has to prove the State's liability, that is, the damage, the irregularity of the conduct and the link between them. The State has to prove, where it raises them, the participation of third parties or of the claimant himself, that the damage is not a consequence of its irregular activity, that it derives from events that were unforeseeable or unavoidable given the state of science or technology, or force majeure. The Jalisco statute, in Articles 25 and 26, adds to the entity's burden proving that the damage is not disproportionate to what affects the general population.
This allocation is why a claim is won or lost in the first days. Photographs of the site, the report filed with the authority, the insurer's record, documented medical care and, where the case calls for it, an expert opinion are what the claimant uses to meet his burden. Without them the irregularity may be obvious and the claim will still fail.
The service standard
To decide whether conduct was irregular, the courts have used a functioning test. The Fourth Collegiate Court in Administrative Matters of the First Circuit defined irregular activity as "that which, by action or omission, fails to meet the average standards of functioning of the activity or service", and added that the institution covers what French doctrine calls faute de service: the abnormal functioning of a public service through failure or deficiency (thesis I.4o.A.35 A (10a.), registry 2003143). The same criterion states that what matters is the objective occurrence of the damaging event attributable to the State, and not the motivation of the public servant involved.
The practical question, then, is whether the service worked the way it normally should under the rules that govern it and its own protocol. That formulation is what brings omissions in: failure to maintain a road or a facility, failure to mark a work site, failure to supervise where the law requires it. In each case the claimant has to identify the statute, regulation or manual that set the standard that was breached; without that reference, an omission is hard to qualify as irregular.
Cases the law covers
With those elements in hand, some characteristic cases of irregular administrative activity can be listed. They are listed as types, because the outcome of each claim depends on the evidence.
Public works and infrastructure. The sinkhole or the unmarked trench that damages a vehicle or injures someone; the badly executed project that floods or cracks a neighboring building; the open drain on a public street. The irregularity lies in execution or maintenance below the required standard.
Public health services. Deficient medical care at a public institution is a characteristic case of abnormal functioning of a service: a diagnosis missed with the means available, a procedure performed without following the protocol, no follow-up. Personal injury and moral damage are quantified under the statute's rules.
Acts of authority with no power behind them. A closure, seizure or demolition executed with no order or outside the legal grounds; the unjustified use of force in a police operation. Here the irregularity is that the act should not have taken place at all, whatever its form.
Property in the custody of the authority. The vehicle or the goods that deteriorate, go missing or are destroyed while held in an official depot. An authority that takes property into custody assumes a duty to preserve it, and a breach of that duty is, in principle, irregular.
Omissions. Failure to maintain, to mark or to supervise where a rule imposed that duty on the entity, in the terms explained above.
Cases the law excludes
By the same logic, there are cases in which the claim does not succeed, and it is better to identify them before filing.
Damage from regular functioning. The inconvenience or loss caused by lawful conduct: the properly executed project, the inspection that was due, the expropriation, which is compensated under its own statute.
The mere annulment of an act. An illegal act annulled for defects of form or reasoning, where the private party has another route to recover what he paid or lost, does not by itself generate State liability.
Acts of God and force majeure. Article 3 of the federal statute excepts both, and also damage that is not a consequence of irregular activity, damage that could not have been foreseen or avoided given the state of science or technology at the time, and cases in which the claimant was the sole cause. Article 3 of the Jalisco statute contains equivalent exceptions, with the clarification that the state of technology is measured "at the given place and time".
The victim's fault. Where the claimant was the sole cause there is no compensation; where he contributed, his share is deducted from the total (Article 28 of the federal statute; 32 of the Jalisco one).
General damage. Harm felt by the general population, because it is neither individualized nor unequal.
Acts of concessionaires. Where the damage is caused by the activity of a public service concessionaire and does not derive from a determination imposed by the granting authority, repair is the concessionaire's responsibility; the Jalisco statute adds that the entity answers subsidiarily if the concessionaire is insolvent (Article 34; Article 30 of the federal statute).
Legislative and judicial activity. As explained in the first piece, State liability is confined to administrative activity.
One more warning for Jalisco: Article 23 of the state statute provides that manifestly inadmissible claims are dismissed outright, and that whoever files a manifestly inadmissible claim, or one declared unfounded for having been filed without cause, is fined between ten and fifty times the daily UMA (the official unit of measure used for fines). Checking the elements beforehand is not a formality.
What this means for the claim
From all of the above follows the method we use at the firm before filing. First, identify the entity that acted and the rule or standard it breached. Second, verify that the damage meets the four requirements of Article 4 and can be quantified with documents. Third, build the causal link with the evidence available and anticipate the exclusions the entity will raise. When one of those steps does not hold, we say so before the claim is filed. The third piece covers procedure: competent authority, contents of the filing, limitation periods and evidence.
What the series covers
The first piece explains the concept, the constitutional basis and the origin of the institution. This second one analyzes irregular administrative activity. The third deals with procedure; the fourth with compensation: calculation, caps and payment; the fifth with litigation strategy, common mistakes and the particular issues that arise when the claimant is a foreigner.
Legal information, not legal advice. Every case needs its own analysis. Sources: Ley Federal de Responsabilidad Patrimonial del Estado (text in force, last amended DOF 29-12-2023), Articles 1, 3, 4, 20, 21, 22, 27, 28 and 30 · Ley de Responsabilidad Patrimonial del Estado de Jalisco y sus Municipios, Articles 2, 3, 4, 17, 23 to 26, 32 and 34 · Federal Constitution, Article 109 · Supreme Court, full Court: acción de inconstitucionalidad 4/2004, jurisprudence P./J. 42/2008 and P./J. 43/2008 (Semanario Judicial de la Federación y su Gaceta, vol. XXVII, June 2008, pp. 722 and 719) · Second Chamber: jurisprudence 2a./J. 99/2014 (10a.), registry 2008114, and thesis 2a. V/2015 (10a.) · Collegiate Courts: I.1o.A.108 A (10a.), registry 2009577; I.4o.A.35 A (10a.), registry 2003143; I.4o.A.36 A (10a.), registry 2003140. Translations are ours. More on the service on our litigation page.