Opinion
NO. 01-17-00870-CV
11-21-2019
PEDESTRIAN BEACH, LLC; MERRY PORTER, INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF BROOKS PORTER, DECEASED; ANGELA MAE BRANNAN, INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF BOB ALBERT BRANNAN, DECEASED; RUSSELL AND JUDY CLINTON; RUSSELL CLINTON AS ADMINISTRATOR OF THE ESTATE OF ELIZABETH CLINTON, DECEASED; REG APLIN AND BEAVER APLIN D/B/A BENCHMARK DEVELOPING; LOUISE BULLARD; DIANE LOGGINS CLARK; JOSEPH CORNELL DEWITT AND LISA MARIE DEWITT FUKA; MACARIO RAMIREZ AND CHRISSIE DICKERSON; JEFFREY DYMENT; MARVIN JACOBSON FAMILY HOLDING COMPANY; CATHY T. CHARLES; JAMES MEEK AND PATRICIA MEEK; MARK PALMER; PATRICIA PURSLEY, INDIVIDUALLY AND AS COMMUNITY SURVIVOR OF JAMES C. PURSLEY, DECEASED; KENNETH C. REUTZEL AND ANDREA REUTZEL; S & S HOLDINGS, LLC; ROGERS THOMPSON, EXECUTOR OF THE ESTATE OF P.E. KINTZ, DECEASED, Appellants v. THE STATE OF TEXAS; TEXAS GENERAL LAND OFFICE; LAND COMMISSIONER GEORGE P. BUSH; ATTORNEY GENERAL KEN PAXTON; THE VILLAGE OF SURFSIDE BEACH; MAYOR LARRY DAVISON IN HIS OFFICIAL CAPACITY, Appellees
On Appeal from the 239th District Court Brazoria County, Texas
Trial Court Case No. 91156-CV
CONCURRING OPINION
This case exemplifies the folly of holding the State responsible for pinning down an easement allowing public access to Texas beaches in the manner dictated by the majority opinion in Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012). Since the plaintiffs originally filed suit following Hurricane Frances in 1998, the Texas Gulf Coast has endured three more major hurricanes. Whether avulsion or erosion changes the shoreline is academic: Texas beaches are steadily shrinking at an alarming rate. "Sixty-one percent of the Texas gulf shoreline is classified as eroding where the rate of shoreline retreat is greater than two feet per year." Tex. Gen. Land Office, Coastal Erosion Planning & Response Act: A Report to the 86th Legislature 3 (2018-19). At that rate, courts cannot fully adjudicate claims before they become moot, leaving beach-use rights uncertain for both landowners and beachgoers. See Severance, 370 S.W.3d at 734 (Medina, J., dissenting) (remarking that "the Court's vague distinction between gradual and sudden or slight and dramatic changes to the coastline jeopardizes the public's right to free and open beaches, recognized over the past 200 years, and threatens to embroil the state in beach-front litigation for the next 200 years").
I recognize that we are bound to apply Severance in analyzing the justiciability of the claims before us. But I believe that the purpose-oriented approach to easements that the Severance dissenters expound provides a fairer and more efficient way to balance the competing public and private property rights in the Texas seashore. I therefore concur in the court's opinion and judgment.
Gordon Goodman
Justice Panel consists of Justices Keyes, Kelly, and Goodman. Keyes, J., concurring in the judgment. Goodman, J., concurring.