No. WW-0661 (1959).

• Case Date: July 03, 1959
• Court: Texas

Texas Attorney General Opinions 1959. No. WW-0661 (1959). 1July 3, 1959Honorable Menton J. Murray, ChairmanConservation and Reclamation CommitteeState of TexasHouse of RepresentativesAustin, TexasOpinion No. WW-661Re: Constitutionality of House Bill 14, 56th Legislature, 2nd C.S., dealing with public use of beaches.Dear Mr. Murray:You request the opinion of this department as to the constitutionality of the committee substitute for House Bill 14 of the 56th Legislature, 2nd C.S., which deals with public use of the beaches along the open waters of the Gulf of Mexico. Construing the statute as a whole, as we are required to do under standard rules of statutory construction, we think it clear that the Act involves three types of rights in the public to use the beaches as follows:

a. Ownership.

b. Prescriptive right.

c. Rights under police power

In court proceedings involving the first two above mentioned rights the burden of proof is placed on the upland owner, a phase of the bill which we discuss further on in this opinion. We first examine the question of whether such provisions of the Bill represent an unlawful taking for public2use without compensation, and violate due process of law contrary to applicable constitutional provisions. Of course, if the public owns the property, there is no taking. If the public has an easement by prescription to use the beaches, the Act creates no new right. It recognizes such rights in the public but these may be rebutted under Section 3 by a showing that no such rights exist. There is no taking, therefore, under this phase of the Bill, since no additional property interests are granted beyond that which the public may already own. It has long been recognized in Texas that the public may acquire a prescriptive right. Of interest is the following language in the early Texas case of Compton v. Waco Bridge Company, 62 Tex. 715, 722:

"Even before the earliest settlement by white men it seems that the Indians, while yet their campfires blazed along its banks, had by use established this as a ford, where the tribes crossed and recrossed the Brazos at will. And when the Indian, obedient to his fate, moved on toward the setting sun, and the white man settled the country, this ford was continued, and continuously used as a public crossing, interrupted only by high water, until 1876. It would seem that the public by constant use had secured a right to this ford, by presumptive dedication, and also by prescription."

And see Phillips v. T. & P. Ry. Co. 296 S.W. 877 (Comm App. 1927); Perry v. Jaggers, 9 S.W. 2d 143, err. dism; T. & P. Ry. Co. v. Gaines, 27 S.W. 266. The bill next recognizes the existence of and confirms the grant to the public of certain rights arising under the police power by designating the Gulf beaches as a "coastal safety, sanitary, and defense zone," and requires the beaches to "remain open," which we interpret to mean free from barriers obstructing travel along the beaches, for certain purposes connected with the police power. As we interpret this phase of the bill, it is not based upon any ownership of or easement on the beaches in favor of the public. On the other hand it does impose burdens on any private ownership of the3beaches in favor of the public interest in matters which may be generally classed as of an emergency nature. Perhaps the leading case dealing with the constitutionality of such legislation is the case of Lombardo v. City of Dallas, 73 S.W. 2d, 475, wherein the Dallas zoning ordinance, as well as the statutes authorizing same (Articles 1011a to 1011j, V.C.S.), were upheld. Immediately at stake was the right to build a filling station in a zoned residential neighborhood. It was urged that this interference by the zoning ordinance with the use by the landowner of his property was a public taking without compensation. The same contention is urged here because of the prohibition in the bill against building obstructions on the beach. Chief Justice Cureton, in discussing the police power in the Lombardo case at page 479, adopted the following language from a decision of the Supreme Court of the United States:

"Uncompensated obedience to a regulation enacted for the public safety under the police power of the State is not taking property without due compensation, and the constitutional prohibition against the taking of private property without compensation is not intended as a limitation of the exercise of those police powers which are necessary to the tran-quility of every well-ordered community, nor of that general power over private property which is necessary for the orderly existent^ of all governments...

"We hold that the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety."

Concerning the nature of the police power of the State, 16 C.J.S. 891, Constitutional Law, Section 175 says:

"The police power is a governmental function, an inherent attribute of sovereignty, and the greatest and most powerful attribute of government. It was born with civilized

4government, and was possessed by every state before the union was formed. Although the basis of the police power lies in the constitution which regards the public welfare, safety, and health of the...