The Tide May Be Turning

Historically, folks who own houses on Texas beaches have been gambling with the deck stacked against them – if a hurricane didn’t take your place outright, the State might grab whatever was left – and prevent you from rebuilding – using an easement based upon their definition of the “permanent vegetation line.” 

 

That might be about to change, based on this story in the Galveston Daily News:

Are Texas’ beaches still open to the public?

By Ian White

The Daily News

Published November 6, 2010

GALVESTON — The long-held view that Texas beaches belong to all Texans is being put to the test by an opinion delivered Friday by the state’s supreme court.
In a split decision, the court sent answers to three questions asked by the federal Fifth Circuit Court of Appeals that, if accepted, could grant superior rights to some beach-front property owners on Galveston’s West End.
But the Texas General Land Office said there’s a long way to go before legal machinations throw the act into disarray.
“This is not a decision that changes anything right now,” Jim Suydam, the GLO’s public information officer, said.
The appeals court, which sits in New Orleans, sought the Austin court’s opinion in its review of a case heard in Houston’s federal Southern Texas District Court in 2007.
That case pits petitioner and West End property owner Carol Severance against Land Commissioner Jerry Patterson, Texas Attorney General Greg Abbott and Galveston County District Attorney Kurt Sistrunk.
In the case, Severance, whose three West End beach houses ended up in the public beach easement after Hurricane Rita in 2006, claims the state’s subsequent threat to have her houses demolished violated her constitutional protection against unreasonable seizures.
Depending on its outcome, her case will either gut the act, limiting public access to the Gulf of Mexico to a few island parks, or uphold the state’s ability to maintain a public beach easement as erosion moves the coastline inland.
The district court in 2009 rejected Severance’s argument, but she appealed and the Fifth Circuit sent its questions to the state supreme court Nov. 19 that year.
In broad terms, the questions the supreme court was asked to answer were:
• Does Texas recognize a “rolling” public beach-front access easement ... in favor of the public?
• If the state does recognize such an easement, is it derived from common law or from a construction of the act?
• To what extent are Texas landowners entitled to receive compensation for limitations on their property use when such easement rolls onto it?
In a 33-page response, six members of the supreme court held that Texas cannot condemn and take private property that ends up on the public beach because of erosion because it gave up that right when it became a U.S. state.
The opinion’s conclusion said: “Land patents from the Republic of Texas in 1840, affirmed by legislation in the new state, conveyed the state’s title in West Galveston Island to private parties and reserved no ownership interests or rights to public use in Galveston’s West Beach.”
Signed by Supreme Court Justice Dale Wainwright, the opinion said: “Although existing public easements ... are dynamic, as natural forces cause the vegetation and the mean high tide lines to move gradually and imperceptibly, these easements do not migrate or roll landward to encumber other parts ... as a result of avulsive events.”
The phrase “avulsive events” is legalese for sudden occurrences, which, in this case, includes severe storms and hurricanes.
In a 21-page dissenting opinion, Justices David Medina and Debra Lehrmann wrote: “The court’s vague distinction between gradual and sudden or slight and dramatic changes to the coastline jeopardizes the public’s right to free and open beaches, recognized over the past 200 years, and threatens to embroil the state in beach-front litigation for the next 200 years.”