The Texas Supreme Court did not issue any opinions or select new cases for argument with today’s orders list.

The Justices have a private conference next week, followed by the last (regularly scheduled) orders list of the year next Friday.

With today’s orders list, the Texas Supreme Court issued nine sets of opinions and granted three new cases for review.

This post discusses the new grants. (A post about the opinions will follow. If you want to read the raw opinions, they are collected here.)

New cases to be argued January 4, 2011

• Texas A&M University – Kingsville v. Melody Yarbrough, No. 09‑0999 (DDB).

  This case concerns the faculty-grievance procedures at Texas A&M University — which do not permit a third party to review a supervisor’s written evaluation of a tenure-track candidate — satisfy Texas Government Code §617.005, as well as some tricky sovereign-immunity questions about how those procedures can be challenged in the courts. A sleeper issue in the case may be mootness, as the plaintiff actually did receive tenure at the school.

• Lancer Insurance Co. v. Garcia Holiday Tours, Louis Garcie, Raul Garcia, Oscar Perez, II, Danielle Calhoun, Adriana Riojas, Juan Gabriel Gonzalez, Marisol Salazar, Raul Guerra, Jr., Maria E. Guerra and John A. Vela, Jr., No. 10‑0096 (DDB). Quoting from one of the briefs: “This is a business auto insurance coverage case involving passengers of a bus who allegedly contracted tuberculosis from the bus’s driver.”

  One question is whether transmission of a disease “results from the use of” the covered vehicle. Another is whether the policy’s definition of “sickness” as an element of bodily injury might include disease transmission.

• In re State of Texas, No. 10‑0235 (DDB).

  The State started to condemn a 40-acre plot of land in Travis County that will be used for the construction of one of the new toll roads (SH 130). Right before the hearing, the owner subdivided the parcel and sold off pieces to a variety of new legal owners (including LLCs through which the original owners held an interest).

  The trial court severed the original condemnation into eight separate actions. With this petition for writ of mandamamus, the State argues that severing the trial into eight parts will undermine the orderly condemnation process.

Looking ahead

These are the first three cases the Court has chosen for its three-day January argument sitting. As of now, there are no cases set for January 5, 2011 or January 6, 2011. And there is very little time left before then. (I would not be surprised to see one or both of those argument dates quietly disappear from the online calendar.)

I’ll take a closer look at this term’s statistics later, but it looks as if the Court is continuing its trend of being very choosy about which cases it sets for argument. The Court has had no shortage of candidates for grants; with today’s orders list, the Court denied review in a significant number of petitions for review and pending motions for rehearing.

With an unscheduled orders list today, the Texas Supreme Court accepted the Fifth Circuit’s certified question about the Texas homestead exemption.

The question boils down to whether there is an equitable exception that a creditor can use to defeat the Texas homestead exemption.

The parties will now have a chance to submit additional briefs in the case. The case is set for oral argument on March 1, 2011.

The Texas Supreme Court issued a quiet orders list today, with no opinions or new cases chosen for review.

With the Thanksgiving holiday next week, the next regular orders list is expected December 3, 2010.

The Texas Supreme Court issued a quiet weekly orders list today, with no opinions or new grants.

The Texas Supreme Court issued opinions in two cases with today’s orders list.

No rolling easements on Texas beaches

Carol Severance v. Jerry Patterson, Commission of the Texas General Land Office, No. 09‑0387 (DB).

This case came to the Texas Supreme Court as a certified question from the federal Fifth Circuit.

The basic question was whether or how the public easement along Texas beaches “rolls” as the beach lines change due, in this case, to an “avulsive” event, namely, Hurricane Rita. The Court answered that — at least for beaches in Galveston, and at least for hurricane-level events — the answer was no.

Justice Wainwright delivered the opinion of the Court, in which Justice Hecht, Justice Green, Justice Johnson, Justice Willett, and Justice Guzman joined.

The Court’s decision turned in large part on a distinction between avulsion, which brings a “sudden and perceptible” change in the property line through a storm or similar event, and mere erosion, which leads to change “gradually and imperceptibly.” It also rested on the particular history of land titles in Galveston, tracing back to a grant made by the Republic of Texas in 1840. (( This last wrinkle may have surprised some of the parties. The Court’s opinion says “The briefs and the record do not address the early land grant of Galveston’s West Beach.” Slip opinion, at footnote 8. ))

Because the change in this beachfront resulted from a hurricane, the Court concluded that the new beachfront did not automatically move the public easement:

In those situations, when changes occur suddenly and perceptibly to materially alter littoral boundaries, the land encumbered by the easement is lost to the public trust, along with the easement attached to that land. Then, the State may seek to establish another easement as permitted by law on the newly created dry beach to enforce an asserted public right to use private land.

The Court did not apply the same rule to smaller, more gradual changes — perhaps more for pragmatic reasons than a legal distinction:

It would be an unnecessary waste of public resources to require the State to obtain a new judgment for each gradual and nearly imperceptible movement of coastal boundaries exposing a new portion of dry beach. These easements are established in terms of boundaries such as the mean high tide line and vegetation line; presumably public use moves according to and with those boundaries so the change in public use would likewise be imperceptible. Also, when movement is gradual, landowners and the State have ample time to reach a solution as the easement slowly migrates landward with the vegetation line. Conversely, when drastic changes expose new dry beach and the former dry beach that may have been encumbered by a public easement is now part of the wet beach or completely submerged under water, the State must prove a new easement on the area.

Thus, the Court concluded that “[h]aving divested title to all such West Beach property in the early years of the Republic”:

[A] public beachfront easement in West Beach, although dynamic, does not roll. The public loses that interest in privately owned dry beach when the land to which it is attached becomes submerged underwater.

Justice Medina delivered a dissenting opinion, in which Justice Lehrmann joined. (Chief Justice Jefferson did not sit on this case.)

The dissent took issue with the Court’s distinction between erosion and avulsion, noting that “both events are natural risks known to the property owner.” The dissent suggests that the majority’s rule will unduly burden the public’s right to beach access over time because “[t]he primary movement of the coastline is through hurricanes and tropical storms.”

Grandparent visitation order overturned

In re Richard Scheller, No. 09‑1072 (per curiam) (DB)

After two young daughters lost their mother, they continued to spend time with their maternal grandparents. Eventually, however, the relationship between their father and those grandparents deteriorated, and the grandparents’ access was greatly reduced.

The grandparents sued for greater access, and the trial court awarded them visitation rights in a temporary order.

In a per curiam opinion, the Texas Supreme Court overturned the visitation order.

Relying on its own prior decision in In re Derzapf, the Court held that the grandparents had failed to meet the “high threshold” required to “overcome the presumption that a parent acts in his or her child’s best interest by proving that ‘denial . . . of access to the child would significantly impair the child’s physical health or emotional well-being.'”

Here, as in Derzapf, the Court concluded that “there is nothing in the record here to indicate anything more substantial than the children’s understandable sadness resulting from losing a family member and, according to the Pembertons, missing their grandparents.”

The Court therefore ordered the trial court to dissolve these temporary orders. The grandparents’ underlying suit continues, and they have an opportunity to present more evidence.

The Texas Supreme Court did not issue any opinions or grant any new cases for review with today’s orders list.

The next argument sitting begins November 9, 2010, and the next internal court conference isn’t scheduled until November 22, 2010 (which just precedes the Thanksgiving weekend).

The Texas Supreme Court issued six merits decisions with today’s orders list, ordered that a previously granted petition had been improvidently granted, and chose three new cases to be argued in December.

Read quick summaries and see the list of new grants