FederalJudicialLocal NewsFederal Lawsuit Accuses Texas Land Commissioner of Trampling Private Property Rights

A recent order from the General Land Office shifting public beach boundaries has captured private property in Surfside Beach and prompted a federal lawsuit alleging an unconstitutional taking.
May 24, 2021
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Access to sun, surf, and sand drew long-time Texan and surfer Charles Sheffield to Surfside Beach on the Texas Gulf Coast where he purchased residential property for personal use and rental income. 

However, Sheffield is now crying foul over a recent order from the Texas General Land Office (GLO) that makes portions of his beachfront property a public beach.

Following damage wrought by Hurricane Laura and Tropical Storm Beta in 2020, GLO conducted surveys of the Texas coast last January, and in March 2021 Commissioner George P. Bush issued a new order declaring that the “landward boundary of the public beach” now extends “to a line 200 feet inland” for a two-year period.

Unfortunately for Sheffield and Surfside Beach resident Merry Porter, the new line encroaches on their beachfront properties and in some instances passes through their residential structures, prompting a federal lawsuit with the U.S. District Court for the Southern District of Texas.

“The state can’t suddenly just redraw public beach property boundaries so as to convert a private residential lot into an area open for public use,” said J. David Breemer, a senior attorney at Pacific Legal Foundation, which filed the lawsuit. 

The Texan Tumbler

According to Jeffrey McCoy, also representing Sheffield and Porter in the case, the newly declared public beach boundaries will infringe on the private property rights of these residents.

“Under this order, and under the state law governing public beaches, the property owners could not remove anybody from the area immediately around the home, and they could not remodel these homes,” McCoy explained to The Texan.

McCoy noted that there had been no public comment period or notification of a potential change prior to the March 29 order from GLO, and his clients were caught by surprise.

“Under the new orders, these owners cannot even post signs indicating this is private property, and if someone is injured while on the properties it could result in opening owners up to liability.”

The purpose of the 1959 Texas Open Beaches Act is to guarantee free public access to beaches along the Gulf of Mexico, and the law tasks the GLO with monitoring and protecting state beaches in addition to ensuring public access. Under the statute, the state essentially owns the land extending from the “line of mean low tide to the line of vegetation (LOV) bordering on the Gulf of Mexico.”

The act prohibits construction on public beaches and limits rebuilding or remodeling of properties impacted by storms, and along with the order GLO published a memo stating that while certain repairs for homes within the new boundaries would be permitted, owners could not “repair, replace, or construct a slab of concrete, fibercrete, or other impervious material,” and could not “construct a room addition or increase the size of the structure’s footprint.”

The GLO memo notes that the temporary new boundaries will give the beach and natural line of vegetation time to recover. The agency also notes that the order includes a three-year suspension of the ability for the commissioner to request that the Texas Attorney General’s Office file a suit to remove any home from the public beach. 

However, the Pacific Legal Foundation filing references a 2012 Texas Supreme Court decision in Severance v. Patterson ruling that the state cannot take private property for a public beach when a storm moves the LOV. Instead, the state must first prove there is a public right to the property in a court of law or purchase the property.

Breemer and McCoy say the latest ruling violates precedent set in Severance v. Patterson. Both Bush and Texas Attorney General Ken Paxton have been named defendants in the case.

“This illegal and unconstitutional move offends the rights of Texans like Sheffield and Porter to freely use, enjoy, and protect their beachfront homes,” said Breemer. “The land commissioner must abandon this illegal attempt to grab private coastal property for public use without just compensation, due process, or respect for Texas law.”

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Holly Hansen

Holly Hansen is a freelance writer living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.