I must say, I enjoyed Land Commissioner Jerry Patterson’s op-ed on the recent Open Beaches ruling by the State Supreme Court. The man can bring the snark, I’ll give him that. Two points of interest besides that:
Texans, you see, can be such a hard-headed lot. Most of us ignorantly thought passing the Texas Open Beaches Act in 1959, and voting overwhelmingly to enshrine this right in the state’s Constitution in 2009, would keep the beaches open. With this public access came opportunities for public money.
I don’t quite understand how there could be a constitutional issue with something that was added to the Constitution. Isn’t something in the Constitution by definition constitutional? Perhaps the issue is that the litigation predated the amendment, or perhaps the amendment wasn’t on point, I don’t know. I have not seen it discussed anywhere. If someone who understands this better than I do could tell me what I’m missing, I’d appreciate it.
The Open Beaches Act isn’t dead. Breemer’s brag that the “law won” for his side is deceptive. The Texas Supreme Court affirmed that submerged lands, between mean low tide and the mean high water mark, are owned by the state. Breemer lost that argument. The Supreme Court opined that a rolling beach easement does exist in Texas common law. Breemer lost that argument too, which answers, in part, two of the three questions the Fifth Circuit Court of Appeals had for the Supreme Court.
I wouldn’t expect Patterson to note this, but someone needs to say that it was an all-Republican Supreme Court that handed this ruling down, both the parts that Patterson is touting and the parts that he thinks were wrong.