The Texas Supreme Court: Judicial Activists?

In gutting the Open Beaches Act, Attorney General Greg Abbott all but accuses the court of judicial activism


Did the all-Republican Texas Supreme Court engage in gratuitous judicial activism? The Texas Attorney General seems to think so.

Back in November, in a 6-2 ruling, the Supremes effectively gutted the Open Beaches Act, the half-century old law that guarantees public access to beaches from South Padre to Galveston.

Now Texas AG Greg Abbott—backed by a strange-bedfellows coalition including the Texas Surfriders Foundation, Land Commissioner Jerry Patterson and the Galveston Chamber of Commerce—is asking the Supremes to reconsider their decision in the case, Severance v Patterson. In its request for a rehearing, the office of the AG basically accuses the majority of that conservative bugaboo… judicial activism.

“With the stroke of a pen, a divided court has effectively eliminated the public’s rights on the dry beach,” says the attorney general’s request for rehearing. “[T]he majority could only cite—nothing. Not a single case, rule, precedent, principle, empirical study, scientific review, or anything else.”

Since its passage in 1959, the Open Beaches Act has guaranteed the public the right to use the so-called “dry beach” between the high-tide line and vegetation typically found in front of dunes. The state has usually treated this strip as a rolling easement. If beach erosion or storms pushed the public beach onto private, Gulf-front property, then homes could be forced to move.

Carol Severance, a San Diego attorney, sued the state after the General Land Office asked her to remove several of her houses from the public beach following Hurricane Rita in 2005. Severance was represented by the Pacific Legal Foundation, a California-based organization with an absolutist private-property rights bent.

The Supremes found that the public gave up its claim to beaches in – get this –1840 because the independent Republic of Texas conveyed land titles to private owners without mentioning the public’s historical right to use beaches. Further complicating matters, the court ruled that the public easement could shift due to normal beach erosion, but not after events such as storms and hurricanes. A dissenting opinion by Justice David Medina calls this distinction a “game of semantics” that “threatens to embroil the state in beachfront litigation for the next 200 years.”

In reaching its conclusion, the Attorney General argues that the majority had to basically ignore settled law and practice, mountains of precedent that had been reified over many decades by every branch of state government.

The Court’s divided holding, if allowed to stand, would undercut the longstanding and fundamental purpose of the easement; wholly eviscerate fixed expectations; undermine stability; produce an unworkable result in a multitude of ways; and ignore settled law in directly analogous areas without identifying any principled basis for refusing to apply those settled principles here.

And the majority would accomplish all of this according to its own views, articulated without any explanation whatsoever, of what is “fair” and “reasonable”—notwithstanding the contrary views of every branch of Texas government (legislative, executive, and judicial) for decades and the competing practice of the Texas citizenry extending back to the days of the Republic itself.

If the decision stands, one of its practical effects will be that beachfront property owners can erect mini-seawalls and fences on their privatized beaches, says Houston environmental attorney Charles Irvine.

“It was the Open Beaches Act and the rolling easement that prevented people from putting hard concrete structures on the coastline,” Irvine says. “With sea-level rise, you’ll just have seawater lapping against a concrete wall. That’s the future of Galveston Island and Bolivar Peninsula.”

The Supreme Court has yet to decide whether to rehear the case.

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