law-Texas-Open-Beaches-Act |

HOUSTON CASE LAW ON OPEN BEACHES ACT

The Texas Open Beaches Act

The Open Beaches Act protects the public's rights of access to and use of public beaches. If the public has
acquired an easement or right of use by prescription, dedication, or custom, the Act provides a means of
enforcing the public's rights. Tex. Nat. Res. Code Ann. § 61.011(a) (Vernon 2001). The Texas Open Beaches
Act states,

It is declared and affirmed to be the public policy of this state that the public, individually and collectively, shall
have the free and unrestricted right of ingress and egress to and from the state-owned beaches bordering on
the seaward shore of the Gulf of Mexico, or if the public has acquired a right of use or easement to or over an
area by prescription, dedication, or has retained a right by virtue of continuous right in the public, the public
shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of
mean low tide to the line of vegetation bordering on the Gulf of Mexico.

Id.

The Act provides that the appropriate official "shall file" a suit to enforce the public's rights. Tex. Nat. Res. Code
Ann. § 61.018(a) (Vernon Supp. 2009). The Act states,

Any county attorney, district attorney, or criminal district attorney, or the attorney general . . . shall file in a
district court of Travis County, or in the county in which the property is located, a suit to obtain either a
temporary or permanent court order or injunction, either prohibitory or mandatory, to remove or prevent any
improvement, maintenance, obstruction, barrier, or other encroachment on a public beach, or to prohibit any
unlawful restraint on the public's right of access to and use of a public beach or other activity that violates this
chapter.

Id. (emphasis added).

The Act defines "public beach" as follows:

[A]ny beach area, whether publicly or privately owned, extending inland from the line of mean low tide to the line
of vegetation bordering on the Gulf of Mexico to which the public has acquired the right of use or easement to
or over the area by prescription, dedication, presumption, or has retained a right by virtue of continuous right in
the public since time immemorial, as recognized in law and custom. . . .

Id. § 61.001(8) (Vernon 2001).

The Act includes a notice provision to people who purchased property in the counties on the Gulf of Mexico. Id.
§ 61.025 (Vernon Supp. 2009). The notice provisions warns that a structure that becomes seaward of the
vegetation line as a result of natural processes may be removed. Id. In pertinent part, section 61.025 requires a
notice in substantially the following form:

DISCLOSURE NOTICE CONCERNING LEGAL AND ECONOMIC RISKS OF PURCHASING COASTAL REAL
PROPERTY NEAR A BEACH
. . . .
· IF YOU OWN A STRUCTURE LOCATED ON COASTAL REAL PROPERTY NEAR A GULF COAST BEACH, IT
MAY COME TO BE LOCATED ON THE PUBLIC BEACH BECAUSE OF COASTAL EROSION AND STORM
EVENTS.
· AS THE OWNER OF A STRUCTURE LOCATED ON THE PUBLIC BEACH, YOU COULD BE SUED BY THE
STATE OF TEXAS AND ORDERED TO REMOVE THE STRUCTURE.

· THE COSTS OF REMOVING A STRUCTURE FROM THE PUBLIC BEACH AND ANY OTHER ECONOMIC LOSS
INCURRED BECAUSE OF A REMOVAL ORDER WOULD BE SOLELY YOUR RESPONSIBILITY.

Brannan v. State of Texas (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Opinion on rehearing by Alcala)
(
Open Beaches Act, effect of moving line of vegetation on existing houses on beach, takings claim)
AFFIRM TC JUDGMENT: Opinion by
Justice Alcala     
Before Chief Justice Radack, Justices Alcala and Hanks
01-08-00179-CV  Angela Mae Brannan, Individually and as Independent Executrix of the Estate of Bob Albert
Brannan, Deceased, et al v. The State of Texas, et al    
Appeal from 239th District Court of Brazoria County
Trial Court Judge: Hon. Patrick Edward Sebesta








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