That right was cast in doubt in 2012 when the Texas Supreme Court issued an opinion, in response to certified questions from the 5th U.S. Circuit Court of Appeals, that Texas law doesn’t recognize a “rolling easement” on public beaches.
Dutton’s bill would amend the Texas Natural Resources Code to define the “public beach” as extending from the mean low-tide line to the line of vegetation. The bill says forces of nature may shift the vegetation line, but the public retains a right of use, “by virtue of continuous right in the public since time immemorial, as recognized in law and custom.”
HB 325 continues, “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.”
The bill would create an offense if anyone created an “obstruction, barrier, or restraint” that interfered with public access. It would also require a beachfront property seller to include a statement in the contract warning the buyer about “legal and economic risks.” Among other things, the statement would warn a buyer that erosion or storms could cast the property on a public beach, and if so, the state could sue the owner to remove the house at his own expense.
H.B. 325 says it would not take effect unless voters approve Dutton’s proposed constitutional amendment in an election on Nov. 5, 2013. That proposal, in House Joint Resolution 54, defines the “public beach” like HB 325 and says, “In accordance with longstanding custom, the state holds public beaches in trust for the free and unrestricted use of the public.”
Dutton, a Houston solo, didn’t return three telephone calls seeking comment.
-- Angela Morris