Carol Severance v. Jerry Patterson ( 2012 )

Case: 07-20409 Document: 00511862849 Page: 1 Date Filed: 05/21/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 21, 2012
No. 07-20409 Lyle W. Cayce
Clerk
CAROL SEVERANCE
Plaintiff-Appellant
v.
JERRY PATTERSON, Commissioner of the Texas General Land Office;
GREG ABBOTT, Attorney General for the State of Texas;
KURT SISTRUNK, District Attorney for the County of Galveston, Texas
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
Per Curiam:
The Texas Supreme Court answered our certified questions in this case,
see Severance v. Patterson, 566 F.3d 490, 503-04 (5th Cir. 2009), by declaring
that Texas law does not recognize a “rolling easement” created by avulsive
events affecting the dry beach of Galveston's West Beach. Severance v.
Patterson, No. 09-0387, Tex S.Ct. April 19, 2012, op. on reh. For the panel
majority, this answer reifies the claim of appellant Severance to an
“unreasonable” seizure violative of the Fourth Amendment in the State's
assertion of an easement (and related regulatory violations) on her beachfront
Case: 07-20409 Document: 00511862849 Page: 2 Date Filed: 05/21/2012
No. 07-20409
property following Hurricane Rita. (Judge Wiener continues to dissent on this
portion of the prior and present dispositions.)
Because the potential existence of this constitutional claim is now
confirmed, the district court’s judgment against Severance predicated on FED.
R. CIV. P. 12(b)(1) and (6) must be reversed.
Based on submissions from both parties following the state Supreme
Court's ruling and its remission of the case to this court, we are unpersuaded
that the case is likely moot. At the same time, what issues must now be
determined, aside from attorneys' fees accruing to the appellant, is unclear.
Therefore, the case is REVERSED and REMANDED for further proceedings in
connection with Severance’s Fourth Amendment claim.
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