Will Texas' Open Beaches Soon Close?

Land Commissioner: Ruling Could 'Gut' Texas Open Beaches Act

Published On: Oct 10 2011 07:08:28 PM CDT   Updated On: Jul 19 2011 12:57:27 PM CDT
GALVESTON, Texas -

Could parts of Texas public beaches could soon turn private? Local 2 Investigates is looking into a quiet court ruling that is threatening to change the state's historic open beaches rule. That rule makes every Texas beach open to the public.

One beach house on Galveston's west end could change all that. 

The house stands out because erosion after Hurricane Ike and other storms moved the vegetation line. The home now is between that vegetation line and the ocean. The state said that puts it on public property -- on the public's beach. But the owner fought back.

"What we're talking about is property that is private one day, and then the government claims after the storm all of the property is now public because the beach grass is now gone from that property," said J. David Breemer, an attorney for the Pacific Legal Foundation, who represents homeowner Carol Severance. "They say because it's sandy, it's ours."

Severance sued the state. Later, the Texas Supreme Court made a ruling in her favor. The court said the public property line and easement cannot move because of a catastrophic storm. That means the home is still on private property.

Texas Land Commissioner Jerry Patterson calls the court decision a game changer.

"Everyone would have a claim and say the easement doesn't apply," Patterson said. "It could end open beaches in Texas."

Patterson says if the ruling stands, it would "gut" the Texas Open Beaches Act. He calls that act a "Texas tradition."

"The state of Texas has no interest in taking their property," Patterson said from his office in Austin. "If anyone is taking it, it's Mother Nature."

Imagine Galveston where all the beach area is public. Under this idea, there would be lines dividing what's public and what's private. It could be different beach to beach, house to house. It could permanently change the entire Texas coast.

"You're going to have private beach versus public beach situations," Galveston Mayor Joe Jaworski, said. "That's just not right."

Jaworski said it's potentially "devastating" for the island. Along with shrinking the public's beach, any confusion over what's public and what's private could end state help when it comes to rebuilding beaches. Patterson's land office already nixed a $40 million beach re-nourishment project in Galveston. Patterson said taxpayer money couldn't be used to build a beach on potentially private property.

"I wanted to be able to say, 'Baby, Galveston is back,'" said Jaworski. "And when that got yanked, it was a terrible blow."

Beach visitor Keith McPherson said he sees both sides of the debate, but he said it still should be the public's beach.

"That's one of the risks you take," McPherson said. "A hurricane comes in and the beach may move 50 yards."

Last month, Severance sold her home to the Federal Emergency Management Agency in the Hurricane Ike buyout program. The state argued that should mean the case is closed and the ruling should be invalid. However, Breemer said the reason Severance had to sell was because of the state's unfair property line.

The Texas Supreme Court is currently reconsidering the case. A final ruling could come as soon as late August.