Lawmakers mull constitutional amendment on beaches

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Associated Press

Posted on March 26, 2013 at 6:32 AM

AUSTIN, Texas (AP) — A Texas House panel on Monday debated where private property rights end and public beaches begin, as lawmakers considered a proposed constitutional amendment and another measure that could reverse two contentious state Supreme Court rulings on coastline boundaries.

Rep. Harold Dutton is sponsoring an amendment and companion bill that would more clearly define boundaries for public beaches and hold them in a public trust. The amendment means the law would become impervious to future court challenges should it be approved by Texas voters and added to the state Constitution.

Both are in response to a 2010 Texas Supreme Court ruling on the Open Beaches Act that found if an act of nature erodes a beach, the landowner's right to the remaining property is not diminished by state law — even if it is now part of the beach. A federal appeals court questioned that decision, but the court reaffirmed it last year.

The ruling stemmed from a lawsuit that was filed after Hurricane Rita pounded the Texas shoreline in 2005, eroding the sand and leaving Carol Severance's home on a sandy beach along Galveston Island's West Beach. The state ordered Severance to demolish her home, saying her land was now considered a public beach. Instead, Severance sued.

Dutton, D-Houston, said Monday that since 1959, the Open Beaches Act has stated that a beach up to the vegetation line is state property and therefore open to the public.

In the Severance case, Texas argued that its right to the land automatically shifts with the sand, but the court disagreed.

Dutton said the decision effectively "turns on its head" the Open Beaches Act. He said "that's not the way Texas is willing to recognize" property rights.

"My intent was to get the Legislature to start to speak on this issue," Dutton said.

Later, he added: "We have a controversy and the Legislature has to insert itself into that controversy."

Bill Peacock, director of the Center for Economic Freedom at the Texas Public Policy Foundation, an influential conservative think tank in Austin, spoke against the bill. He argued that "under this bill, you'd basically have takings without compensation" of private property, while also "removing a check on public authorities."

Peacock said the proposal may even allow for public beaches to expand to small islands off the Texas coast, where there are no public beaches now.

Dutton said he was aware the measures could spark controversy.

"I appreciate the fact that this is a clash between private property rights and public access to the beach," he said.

Galveston City Councilwoman Marie Robb also addressed the House committee. She said past hurricanes have seen the sea surge cover all of Galveston Island and completely wash away vegetation — meaning theoretically it all could become public property under Dutton's legislation and amendment.

"The state could take the entire island," Robb said.

Rep. Joe Deshotel, a Beaumont Democrat, said no one was proposing that. "It's going to grow back," he said of the vegetation.

Still, Robb said private owners protect beachfront property and already are required by state law to provide adequate public access so everyone can use public spaces closer to the water.

"No one wants to close the beach," she said. "Everyone wants to keep the beach public. But please vote against this bill. ... The goal should be to have good public beaches for everyone to use."

The committee, which has the power to refer both measures to the full House for consideration, instead left them pending Monday evening.

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