Severance v. Patterson, No. 09-0387

One of the highest-profile cases last term concerned the Texas Open Beaches Act — asking if the State could claim a “rolling easement” in a beachfront, even as that shoreline shifted inland to privately owned land.

The Court decided in favor of the landowner in November, but in response to the State’s motion for rehearing, ordered a new oral argument in the case. After that argument was held, the State noted that Ms. Severance had since sold her property and moved to dismiss the case as moot. Because this case had been certified to the Texas court by the federal court of appeals for the Fifth Circuit, the Texas court chose to step back and let the Fifth Circuit speak first about that potentially outcome-determinative mootness question.

Now, the Fifth Circuit has spoken. According to the Houston Chronicle, (( I haven’t located an online version of the order itself. )) the Fifth Circuit has decided that the case is not moot because Ms. Severance is still subject to penalties under the Texas Open Beaches Act that might turn on the status of her property.

Once the Texas Supreme Court has received the order, I would expect the case to be reinstated to the regular docket so the Court can give its final answer on the core legal questions.