State Sen. Mayes Middleton last week introduced an amended beach bill after backlash over an initial one opponents said would erode rights in Texas’ Open Beaches Act, but the new language didn’t quell objections.
Middleton on March 10 filed Senate Bill 2550, relating to the line of vegetation determination after a severe storm, according to the bill. That determination matters because, under the Texas Open Beaches Act, the public has free and unrestricted right to access Texas beaches, which are located on what is commonly referred to as the “wet beach,” from the water to the line of average high tide, according to the Texas General Land Office.
Altering how that determination is made could be detrimental to beach-goers, who might have difficulty discerning whether they’re allowed on sands near a beachfront property owner’s houses, opponents worry.
The dry sandy area that extends from the “wet beach” to the natural line of vegetation is usually privately owned but may be subject to the public beach easement. The line of vegetation might shift because of wind, and wave and tidal actions caused by storms and hurricanes.
According to the law Middleton’s bill seeks to change, the Texas Land Commissioner might, by order, suspend action on conducting a line of vegetation determination for a period of up to three years from the date the order is issued if the commissioner determines that the line of vegetation was obliterated as a result of a meteorological event.
“For the duration of the order, the public beach shall extend to a line 200 feet inland from the line of mean low tide as established by a licensed state land surveyor,” according to current law.
Middleton’s bill would erase the words “public beach” from the language and replace it with “line of vegetation,” according to the bill.
Middleton’s office didn’t respond to requests for comment explaining the bill Wednesday.
That change in language worries open-beach advocates such as former Texas General Land Office Commissioner Jerry Patterson.
“Line of vegetation determines the easement to the beach; it doesn’t allow the local government, whether it’s the park board or the city, to determine building setback lines and things of that nature. That might be a problem,” Patterson said.
If the senator’s intent was to create a definitive public beach during that period that the commissioner has suspended the line of vegetation, Patterson doesn’t have a problem with the bill, he said.
“The commissioner would suspend the determination of the line of vegetation because there is no line of vegetation after a meteorological event,” Patterson said. “If it’s just to suspend the determination and just say it’s 200 feet from the mean low tide line, I don’t have a problem with it.”
The other concern open-beach advocates have is the provision laid out regarding prima facie evidence, which means at first sight in Latin and refers to the notion that Texans are presumed to have the right to the state’s beaches.
“The determination of the location of the line of vegetation by the commissioner as provided by Section 61.0171 does not constitute prima facie evidence of the landward boundary of the area subject to the public easement,” according to the amended language of SB-2550.
That phrase troubles Patterson, he said.
“Even during that three-year period, would the beach-goer have to sue to prove that the line of vegetation is where it is?” he said.
The purpose of the three-year suspension was to benefit beachfront property owners, Patterson said.
“After a hurricane, the beach will be gone — but it will recover,” he said. “If you make the determination too soon, that works to the detriment of the property owner.
“The beach is going to grow back to some extent, so let’s wait. It probably won’t grow back to where it was before, but let’s wait and see.”
Those concerns are shared by beach advocate Jackie Cole, former Galveston city councilwoman and member of the beach and dune ad hoc committee. She might support the bill if the language in that paragraph was removed, saying it’s the same worrisome language that appeared in SB-434.
The objective of these bills isn’t to deny anyone access to the beach, argues Sen. Richard Hayes, who filed SB-2550’s companion bill in the house, HB 4712.
“The objective is to better enable beachfront property owners to maintain and restore their properties after weather events that cause erosion of sand dunes, vegetation and improvements,” he said.
“As many of you have experienced, it is extremely difficult to obtain permits from the GLO following a storm. These two bills place the burden of proof on the GLO instead of the landowner to establish the line of vegetation.
“GLO has worked against landowner’s rights. It is time to recognize the law of Texas and not the agency’s wishes.”
Middleton already damaged the trust voters placed in him with the first bill, “fixing” it with new language isn’t going to do anything…except show that he hopes voters can be tricked into believing the bill (and it’s motive) has been substantially changed when it has not.
We should be worried!! The new version does basically the same thing as SB 434 in that it removes the determination of the public easement from the commissioner with this section:
“(c) The determination of the location of the line of vegetation by the commissioner as provided by Section 61.0171 does not constitute prima facie evidence of the landward boundary of the area subject to the public easement.”
We do not need Mayes Middleton messing with our public right to access the beaches, period!
I hope mayes middleton is reading this. No matter what your spin meisters say, you have lost the trust of many of the voters who put you in office. Here's one that will never trust you again.
West End beach access will be gone before you know it. Wish we could just go back in time, before the bollards and imaginary turtles.
I do not understand how constituents can tolerate the lack of communication on the part of the author of this legislation - when it is clear that the public is unclear about the intentions of the legislation! That is really being discourteous to all in his district.
For those of you who may be interested in open beaches and bills designed to privatize them, a similar instrument was filed and almost passes in 2013. It was HB 1560 and was almost as clever as these. In the 2013 version the legislators were to certify the land that still had some claim to it ( like empty white sand where a structure used to stand but was wiped out by storms—-such structures and ownership exists well into the water on the west end) as private the the state would lease that sand from the property owner in preparation for the Ike dike to be built and absolve the owners from any and all liability. Yep, one of the best kept secrets on the west end is that much of what you and I would call beach was once and is privately owned and owners can retain their ownership of sand by paying our taxing district about $8.00 a year. The downside is that similar to all property owners, those sand owners have the same legal liability as homeowners do but they don’t want you to know they are uninsured. This 2013 scheme failed mainly because Mr Patterson went straight to the committee and said the general land office would not stand for a static easement even if it were to be leased by the state. It the ruse was pretty clever, no? This current bill operates in effect pretty much like that bill did in 2013. It gets the state to define what an easement is and dissolves the chance for a moving easement
You might also want to know that Jerry Mohn was a big supporter of HB 1560 and its miraculous benefits were attested to the committee by Marie Robb. Yep, the same Marie Robb who’s been escorting Middleton around the west end over the past two years. It’s all smoke and mirrors folks just like the 2013 effort was.
The one thing you can count on is that beachfront property owners like MrZeller and his editorial are very much like Wyle Coyote: no matter how often they get blown up, they arise again in a few years with a new Acme Scheme and make another run at capturing the statutory roadrunner
Thank You Mr. Broussard for the reminder of the past, good 'ol Jerry Mohn.
This is Jackie Cole. Jerry Mohn has been openly opposing SB434.
Jackie. That’s good to know cause he was a big supporter of the 2013 HB. Thanks for the input
If the Open Beaches Act is in question, then lets amend it to make ALL Texas beaches Public only; no matter how much space they take up
ALL beaches in Texas are public. There are no private beaches and the last time I checked, anyone can walk or ride a bike from one end of Galveston Island to the other (Gulf side only, of course). There are no barriers - I know that may come as a shock to all of you who comment but don't actually go to the beach. I also find it laughable that you pick on some guy who lives in Bermuda Beach, that he wants to prevent beach access in front of his house - um...you should know, in Bermuda Beach, the beach front homes actually have a road between them and the beach, so that isn't going to happen. Oh and beach lot owners, have no rights. The City of Galveston just proved that by expanding the beach parking lot at Bermuda Beach onto several of those privately owned beach lots. You should also know that there are very few homes on the Island that are close to the wet sand, and some of those are in grave disrepair. Not good for the Island and dangerous for beachgoers. Those owners should be allowed to maintain and fix their damaged properties and that is what the proposed bill will allow them to do.
Robin. I was incorrect. It’s Spanish grant not Bermuda beach. I know in pirates one front home eroded to wet sand. The solution they used was they cut their house ( it was a str) in half to have it on the dry beach property. Erosion has an adverse impact on beach goers and homeowners alike.
Bill. Thanks for clarifying. However, Spanish Grant is the same as Bermuda Beach. All beachfront homes have a road between them and the gulf, so no one in that neighborhood could build a fence on the beach. Because SG neighborhood is an arc shape, a few homes have their side yards facing the gulf, but only one is even close to the dunes. The man you all don't agree with, does not own that property. The issue I have with these comments is that you all sound like beachfront homeowners are waging war against the public's ability to access the beach - which is overtly misleading and untrue. Anyone who goes to the beach can see that.
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