Debating What's More Sacred in Texas: Private Land or Public Beaches

Texas has long prided itself on its Open Beaches Act, which guarantees public access to beaches along most of the state’s 367-mile Gulf Coast.

But public beach advocates say a recent Texas Supreme Court decision — which is supported by the front-runner in the race to be the state's next land commissioner — and a growing property rights movement could endanger that guarantee. They fear that as beaches face impacts from coastal erosion, rising sea levels and the threat of powerful storms, private property rights could take precedence over access to public beach access.

“We have two rock-solid principles: public access to public beaches, and the right of private owners to exclude others from the property which is theirs,” said David Abraham, a law professor at the University of Miami. “They’re always in tension, but if we face issues like sea-level rise and increasingly severe storms, there’s going to be less stability in that balance.”

For decades, the Open Beaches Act — which was voted into the Texas Constitution in 2009 — was a signal to coastline property owners that if erosion or a storm wiped out the public beach behind them, their homes could become state property. In the past several years, the General Land Office, the state agency that deals with coastal issues, has taken 18 properties for such reasons, reimbursing owners $50,000 each.

After Hurricane Rita hit Texas in 2005, Carol Severance sued the state after it said her Galveston property was now in the public domain. In 2010, the Texas Supreme Court ruled in her favor, saying the property remained private because the beach had been wiped out through an “avulsive” event, like a big storm — rather than “imperceptible” coastal erosion.

Public beach advocates say the decision went too far. Rob Nixon, chairman of the Surfrider Foundation’s South Texas chapter, said it “sets up unrestricted development of the coast, which is going to ultimately put the Texas taxpayer and public on the dime for bailing all these people out.”

But many private property rights advocates hailed the ruling. Among the supporters is George P. Bush, a Republican widely expected to win the November election to head the General Land Office.

“I don’t believe that the state should take land” in the event of storms, Bush said recently during an event hosted by The Texas Tribune. He added that landowners whose property has been taken were not compensated enough, and that there are many other places along the coast that the public can access without threatening private property interests.

The current land commissioner, Jerry Patterson, who was named in the Severance lawsuit, has excoriated the Severance ruling as weakening public access in a “Californication of Texas beaches.” As a result of the decision, the General Land Office canceled a $40 million beach nourishment project in Galveston for fear of illegally spending public money on private land.

Patterson said he feared more similar projects would have to be abandoned.

“What we have now is these private property owners who think they have won,” Patterson said. “If they expected a beach renourishment, it ain’t happening. They’ve lost.”

Attorney General Greg Abbott, the Republican candidate for governor and a former Supreme Court justice, also blasted the Severance decision in a 2010 request for the Supreme Court to rehear the case, writing that "with the stroke of a pen, a divided Court has effectively eliminated the public's rights on the dry beach.”

After rehearing the case, the court issued the same ruling two years later. Abbott’s campaign did not respond to requests for comment for this article.

Whether the court decision will extend from Galveston to the entire Texas coast is not clear. Bush has said that he believes it should, but that would probably have to be resolved by another court case.

It remains unclear how to distinguish between storm events and coastal erosion. Storms can contribute to accelerated erosion, but the Severance decision said that only in the case of storms can private property remain private after the public beach has been destroyed.

“You have a storm, and then you have erosion after the storm for a couple of years,” said Joseph Kalo, a professor at the University of North Carolina School of Law, imagining a common scenario. “And the question is, how do things kind of work out then?”