The 5th U.S. Circuit Court of Appeals yesterday declared the Texas Open Beaches Act unconstitutional in a case pitting private property rights against the state's enforcement of the public's right to free beach access.
In a May 21 per curiam opinion in Carol Severance v. Jerry Patterson, et al., the 5th Circuit noted that a Texas Supreme Court opinion deciding questions certified from the 5th Circuit declared, “Texas law does not recognize a ‘rolling easement’ created by avulsive events affecting the dry beach of Galveston’s West Beach.” The opinion continues, “[T]his answer reifies the claim of appellant Severance to an ‘unreasonable’ seizure violative of the Fourth Amendment. . . .”
Chief Judge Edith Jones, Judge Edith Clement and Judge Jacques Wiener were on the panel, with Wiener dissenting.
Severance owned three properties on Galveston Island in 2005, when Hurricane Rita devastated the Texas Coast. The hurricane washed away the beach, leaving one of Severance's properties seaward of the vegetation line. The Texas General Land Office in 2006 determined that property was on the public beach and offered Severance $40,000 to remove her house. Severance sued state and local officials in the U.S. District Court for the Southern District of Texas in Houston. Her first suit was dismissed, but upon appeal, a divided 5th Circuit certified questions to the Texas Supreme Court to guide a determination on Severance's claim that taking her property without just compensation violated the Fourth Amendment prohibition of unreasonable searches and seizures.
The 5th Circuit reversed and remanded the case to the U.S. district court to determine attorney’s fees for Severance.
-- Angela Morris