Opinion

Hart: Open beaches ruling may sink high court careers

For generations to come, law school lectures on the topic of judicial activism will surely begin with the Texas Supreme Court's recent opinion negating the state's long-standing Open Beaches Act.

It's hard to imagine a court ruling that exemplifies legislating from the bench more perfectly than the court's recent assault on the long-standing tradition of public access to the Texas coast.

Consider this: Both procedurally and factually, no reason existed for the court to even get involved. No case was pending before it. Instead, a federal appeals court had simply presented the court with a question about state law.

The court could have remained silent. After all, the federal case involved the beach house of a California woman who was fully compensated after Hurricane Rita altered the Texas coastline and put her house square in the public easement. The home itself no longer exists.

And yet so eager was this court to make a statement for the hallowed principle of private property rights that, like an uninvited party guest, it crashed the proceedings with an opinion so preposterous that Republicans and Democrats alike are calling for the electoral defeat of the five judges who joined in the opinion: Judges Nathan Hecht, Don Willett (both of whom are up for re-election this year), Dale Wainwright, Paul W. Green and Phil Johnson.

The federal court case arose over a couple of Galveston Island homes on West Beach owned by California divorce attorney Carol Severance, who knew full well that time and Mother Nature alter the Texas coast dramatically.

Political statement

Sure enough, Hurricane Rita redrew the coastline and slapped Severance's homes so close to the shoreline they stood smack in the middle of what Texas beachgoers have always considered public property.

But not only did Severance want to cash in on taxpayer-funded disaster aid, she wanted to use the courts to make a political statement. Our Texas Supreme Court obliged.

How off-the-mark is the opinion? It has bonded together the most unusual of political bedfellows: Our gun-toting, libertarian-leaning Republican land commissioner, Jerry Patterson, and one of the most liberal, yellow-dog Democrats ever to serve in the Texas Legislature, former Sen. Babe Schwartz. Republican Attorney General Greg Abbott said the court's premise was built on nothing more solid than, well, shifting sands. It's supported by "nothing," Abbott said. "Not a single case, rule, precedent, principle, empirical study, scientific review or anything else."

'Pockmarked' beach

An outraged Schwartz said the opinion "ignores common law dating to the Justinian Code, including the Bible, where Peter dried his nets on the shore."

If it is allowed to stand, Schwartz said, private property owners will be allowed to create fences, embankments and other barriers and "create a pockmarked beachfront like no other."

Republican Judge David Medina clearly agreed with Schwartz, noting in a dissenting opinion that the majority "ignores the implied easement arising from the public's continuous use of the beach for nearly 200 years. ... The right to exclude the public from the dry beach was never in the landowner's bundle of sticks when she purchased the property."

Another dissent, written by Judge Debra Lehrmann, questioned whether the majority actually harmed property rights - of those homeowners just behind the lucky few with a beachfront location. Noted Medina: "It seems likely the court's decision restricting beach access will decrease the rental value of nonbeach-front properties and thus their property value."

No beach rejuvenation

Already, the decision has been disastrous for Galveston. Patterson halted a $40 million beach re-nourishment project since tax money can't exactly be spent hauling sand to private beaches. Whether tax money can be spent cleaning up after the next natural disaster remains to be seen.

So is the win for property rights a Pyrrhic victory for those who worship at the altar of private property rights? "It's a pretty shallow religion," Galveston City Council member Elizabeth Beeton observed. Claiming the beach for yourself because your home sits there "is very much about short-term enjoyment of what should be public."

The Texas Supreme Court has given us a needless opinion in which no one wins. The public, certainly, has lost. Without the state re-nourishing the beaches, West Galveston property owners have also lost. They will find their homes swallowed by the Gulf sooner than they ever dreamed, and their enjoyment of a private beach will be fleeting.

patti.hart@chron.com