GALVESTON - A federal appeals court Monday ruled that the Texas Open Beaches Act is unconstitutional in the case of a Galveston Island property, a ruling that puts the fate of Texas public beaches in doubt.

The 5th U.S. Circuit Court of Appeals sent the case back to Houston federal district court for retrial, but said that few issues were left to be decided.

"What issues must now be determined, aside from attorneys' fees accruing to the appellant, is unclear," the three-judge panel said in a three-paragraph opinion.

Chief Circuit Judge Edith Jones and Circuit Judge Edith Clement relied on an April advisory opinion by the Texas Supreme Court that essentially said the Open Beaches Act does not apply on West Galveston Island if the beach is rapidly eroded by storms, known as avulsion, rather than slowly eroded.

Circuit Judge Jacques Wiener Jr. dissented.

The majority said that a provision in the Open Beaches Act that allows the public beach to move landward with erosion, known as a rolling easement, did not apply to property owned by San Diego attorney Carol Severance. Severance filed suit in Houston federal court to prevent the Texas General Land Office from forcing her to remove her house from the public beach as required by the Open Beaches Act. The district court threw out the lawsuit.

The appeals court disagreed, saying that forcing her to remove the house was an unreasonable seizure in violation of the Fourth Amendment to the U.S. Constitution.

Texas General Land Office spokesman Jim Suydam declined comment until agency attorneys had time to review the decision.

Rolling easement 'dead'

The attorney who represented Severance, David Breener of the California-based Pacific Legal Foundation, said, "Severance is gratified that, after six years, the rolling easement is dead in Texas and its enforcement now recognized as a violation of her constitutional property rights."

Continued here:

Appeals court orders retrial in Galveston Open Beaches Act case