5th Circuit Declares Texas Open Beaches Act Partly Unconstitutional

On May 21, 2012, the 5th U.S. Circuit Court of Appeals ruled the enforcement of the Texas Open Beaches Act, as it applies to a property on Galveston Island in the case Carol Severance v. Jerry Patterson, et al., was an unreasonable seizure of property.  This ruling echoed the Texas Supreme Court ruling (discussed here) regarding a property that was ordered to be moved or razed after Hurricane Rita moved the vegetation line behind her property.  The Texas Supreme Court answered the 5th Circuit’s certified questions as follows:

Texas law does not recognize a “rolling easement” created by avulsive events affecting the dry beach of Galveston’s West Beach.  

The 5th Circuit Court of Appeals reversed and remanded the case back to Houston federal district court for retrial, with a few issues left to be decided.  Chief Judge Edith Jones, Judge Edith Clement and Judge Jacques Wiener were on the panel, with Wiener dissenting.