The Supreme Court of Texas will hear oral arguments on November 19, 2009, in a case in which a Galveston property owner has challenged the constitutionality of the Texas Open Beaches Act. In her lawsuit against the Commissioner of the Texas General Land Office, the Attorney General for the State of Texas, and the District Attorney for Galveston County, Carol Severance claimed that the enforcement of a public easement would constitute a seizure in violation of the Fourth Amendment and a taking without just compensation in violation of the Fifth Amendment.
A previous article summarized the history of the case, which originated in the United States District Court for the Southern District of Texas (case number 4:06-cv-02467). After Judge Kenneth Hoyt dismissed the lawsuit, Ms. Severance appealed. The United States Court of Appeals for the Fifth Circuit sent the case (Fifth Circuit docket number 07-20409) to the Texas Supreme Court because two members of a three-judge panel concluded that it was impossible to determine the respective property rights of Ms. Severance and the State of Texas without a definitive construction of the Open Beaches Act.
The role of the Pacific Legal Foundation in the case has generated some controversy. The dissenting opinion of the Fifth Circuit panel’s third member, Judge Jacques Wiener, Jr., assailed “the quixotic adventure of a California resident who is here represented by counsel furnished gratis by the Pacific Legal Foundation.” On April 27, 2009, the Pacific Legal Foundation responded with a news release in which it defended its quest to protect the “fundamental human right to own private property.”
An electronic copy of the Ms. Severance’s Brief on the Merits (case number 09-0387) is currently available through the Electronic Briefing -- 2009 page of the Texas Supreme Court’s website. The website indicates that the Texas Supreme Court has granted the state officials’ request for an extension of the time in which to file their brief.
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