Vote "YES" for this Amendment to the Texas State Constitution
Establishing a right to use and access public beaches
HJR 102 by Raymond (Hinojosa)
Background
The Texas Open Beaches Act, Natural Resources Code, ch. 61, enacted by the Legislature in 1959, grants the public a free and unrestricted right to access state- owned beaches and a right to use any public beach or larger area extending from the line of mean low tide to the line of vegetation bordering the Gulf of Mexico. The line of vegetation is defined as the seaward boundary of natural vegetation that spreads continuously inland. The act applies to all beaches to which the public has acquired a right of use or an easement under principles of Texas common law.
The act prohibits the construction of a barrier that interferes with the free and unrestricted right to access and use any public beach subject to the public beach easement. The commissioner of the General Land Office must enforce the open beaches law strictly to prevent encroachments against public access to beaches. The act also authorizes the commissioner to adopt rules regulating construction that would limit public access to and use of the beach landward of and bordering a public beach up to the first public road generally parallel to the beach, or to within 1,000 feet of mean high tide.
The line of vegetation, and therefore the public beach, can shift because of erosion, storms, or construction of seawalls and other manmade barriers. The Natural Resources Code defines how beach boundaries may be determined when there is no clearly marked line of vegetation and in other instances, such as areas adjacent to certain seawall structures.
Digest
Proposition 9 would amend the Texas Constitution by adding Art. 1, sec. 33 to establish the public’s unrestricted right to use, and have access to and from, public beaches. The right would be dedicated as a permanent public easement.
A public beach would be defined as a state-owned beach bordering on the seaward shore of the Gulf
of Mexico, extending from the mean low tide to the landward boundary of state-owned submerged land. It also would include any larger area from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public had acquired a continuous right of use or an easement under Texas common law.
The Legislature could enact laws to protect the right of the public to access the beach and to protect the easement from interference and encroachments. The constitutional provision would not create a private right of enforcement.
The ballot proposal reads: “The constitutional amendment to protect the right of the public, individually and collectively, to access and use the public beaches bordering the seaward shore of the Gulf of Mexico.”
Supporters say
Proposition 9 would strengthen the Open Beaches Act in two respects — by enshrining it in the Texas Constitution and by putting it to a public vote to demonstrate the extent of support among Texas voters for open beaches. The amendment would not change current practices but would highlight core principles in current law that have been accepted and acknowledged in common law and in state statutes.
In addition to securing open beaches against any future legislative or judicial action that could undermine this important legal principle, approval of Proposition 9 would be a vote of support for open beaches in Texas. The state has numerous valuable natural coastal resources that Texans are able to access and enjoy. A vote to secure open beaches would send a strong message that the state’s residents wish to preserve access to these resources for present and future generations. Adding the amendment to the first article in the Constitution, the Texas Bill of Rights, would affirm that access to and use of public beaches in Texas is a fundamental right.
While weather events and natural processes along the coast have put some property owners in the difficult situation of not being able to build new structures or losing structures that end up on public beaches due to erosion, this is a risk that a beachfront property owner assumes and is fully aware of when buying or building a house adjacent to a public beach. Earnest money contracts, deeds, and title policies all contain provisions alerting owners to the risks of natural events moving the line of vegetation and potentially causing their private structures to become located on a public beach. Owning a home near the beach is inherently risky, as hurricanes and other weather events can irreparably damage a house or change the boundaries of the public beach.
Opponents say
The Open Beaches Act already provides too much authority to the state to restrict the right of private landowners to enjoy their property. Placing this statute in the Constitution would validate and entrench overbearing state practices that effectively punish property owners for events beyond their control.
Proposition 9 would lock into the Constitution a law that has allowed the state to force property owners to remove structures that end up on the public beach when it shifts due to weather events and erosion. The state historically has assumed a public easement on property located on public beaches without compensating property owners when the vegetation line shifts. Many homes along the Gulf Coast were in existence before erosion or winds and storm surge from weather events, such as hurricanes, moved the line of vegetation, leaving their homes and other structures on the public beach.
Source: House Research Organization
Earlier this year I sent a multi page lettter to Jerry Paterson at the Texas General Land Office. I recommended that the State enforce the Texas Open Beaches Act (TOBA), I have also recommended that the City of Galveston take action to provide building codes to mitigate damage from tropical storms. This amendment is a step in the right direction.
