TX NATURAL RESOURCES CODE

SUBTITLE B. SURVEYS AND SURVEYORS

CHAPTER 61. USE AND MAINTENANCE OF PUBLIC BEACHES

SUBCHAPTER B. ACCESS TO PUBLIC BEACHES



§ 61.011. POLICY AND RULES.
     (a) It is declared and affirmed to be the public policy of this state that the public, individually and collectively, shall have the free and unrestricted right of ingress and egress to and from the state-owned beaches bordering on the seaward shore of the Gulf of Mexico, or if the public has acquired a right of use or easement to or over an area by prescription, dedication, or has retained a right by virtue of continuous right in the public, the public shall have the free and unrestricted right of ingress and egress to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico.
     (b) The legislature recognizes that, in order to provide and maintain public facilities and public services to enhance access to and safe and healthy use of the public beaches by the public, adequate funds are required to provide public facilities and public services. Any local government responsible for the regulation, maintenance, and use of such beaches may charge reasonable fees pursuant to its authority to cover the cost of discharging its responsibilities with respect to such beaches, provided such fees do not exceed the cost of such public facilities and services, and do not unfairly limit public access to and use of such beaches.
     (c) The commissioner shall strictly and vigorously enforce the prohibition against encroachments on and interferences with the public beach easement.
     (d) The commissioner shall promulgate rules, consistent with the policies established in this section, on the following matters only:
          (1) acquisition by local governments or other appropriate entities or public dedication of access ways sufficient to provide adequate public ingress and egress to and from the beach within the area described in Subdivision (6);
          (2) protection of the public easement from erosion or reduction caused by development or other activities on adjacent land and beach cleanup and maintenance;
          (3) local government prohibitions of vehicular traffic on public beaches, provision of off-beach parking, and other minimum measures needed to mitigate for any adverse effect on public access and dune areas;
          (4) imposition of beach access, user, or parking fees and reasonable exercises of the police power by local governments with respect to public beaches;
          (5) contents and certification of beach access and use plans and standards for local government review of construction on land adjacent to and landward of public beaches;
          (6) construction on land adjacent to and landward of public beaches and lying in the area either up to the first public road generally parallel to the beach or to any closer public road not parallel to the beach, or to within 1,000 feet of mean high tide, whichever is greater, that affects or may affect public access to and use of public beaches; and
          (7) the temporary suspension under Section 61.0185 of enforcement of the prohibition against encroachments on and interferences with the public beach easement and the ability of a property owner to make repairs to a house while a suspension is in effect.
     (e) Repealed by Acts 2003, 78th Leg., ch. 245, § 9.
     (f) Chapter 2007, Government Code, does not apply to rules adopted under Subsection (d)(7).

Acts 1977, 65th Leg., p. 2477, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 5, eff. June 7, 1991; Acts 2003, 78th Leg., ch. 245, § 1, 9, eff. June 18, 2003.

§ 61.012. DEFINITION.
     In this subchapter, "beach" means state-owned beaches to which the public has the right of ingress and egress bordering on the seaward shore of the Gulf of Mexico or any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico if the public has acquired a right of use or easement to or over the area by prescription, dedication, or has retained a right by virtue of continuous right in the public.

Acts 1977, 65th Leg., p. 2477, ch. 871, art. I, § 1, eff. Sept. 1, 1977.

§ 61.013. PROHIBITION.
     (a) It is an offense against the public policy of this state for any person to create, erect, or construct any obstruction, barrier, or restraint that will interfere with the free and unrestricted right of the public, individually and collectively, lawfully and legally to enter or to leave any public beach or to use any public beach or any larger area abutting on or contiguous to a public beach if the public has acquired a right of use or easement to or over the area by prescription, dedication, or has retained a right by virtue of continuous right in the public.
     (b) Unless properly certified as consistent with this subchapter, no person may cause, engage in, or allow construction landward of and adjacent to a public beach within the area described in Section 61.011(d)(6) of this code in a manner that will or is likely to affect adversely public access to and use of the public beach. The prohibition in this subsection takes effect only on adoption of final rules by the commissioner under Section 61.011 of this code.
     (c) For purposes of this section, "public beach" shall mean any beach bordering on the Gulf of Mexico that extends inland from the line of mean low tide to the natural line of vegetation bordering on the seaward shore of the Gulf of Mexico, or such larger contiguous area to which the public has acquired a right of use or easement to or over by prescription, dedication, or estoppel, or has retained a right by virtue of continuous right in the public since time immemorial as recognized by law or custom. This definition does not include a beach that is not accessible by a public road or public ferry as provided in Section 61.021 of this code.

Acts 1977, 65th Leg., p. 2478, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1979, 66th Leg., p. 1607, ch. 681, § 2, eff. Aug. 27, 1979; Acts 1983, 68th Leg., p. 4818, ch. 850, § 1, eff. June 19, 1983; Acts 1991, 72nd Leg., ch. 295, § 6, eff. June 7, 1991.

§ 61.014. DENIAL OF ACCESS BY POSTING.
     (a) As used in this section, "public beach" means the area extending from the line of mean low tide of the Gulf of Mexico to the line of vegetation bordering on the Gulf of Mexico, or to a line 200 feet inland from the line of mean low tide, whichever is nearer the line of mean low tide, if the public has acquired a right of use or easement to or over the area by prescription, dedication, or has retained a right by virtue of continuous right in the public.
     (b) No person may display or cause to be displayed on or adjacent to any public beach any sign, marker, or warning, or make or cause to be made any written or oral communication which states that the public beach is private property or represent in any other manner that the public does not have the right of access to the public beach as guaranteed by this subchapter.

Acts 1977, 65th Leg., p. 2478, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1979, 66th Leg., p. 1607, ch. 681, § 1, eff. Aug. 27, 1979; Acts 1991, 72nd Leg., ch. 295, § 7, eff. June 7, 1991.

§ 61.015. BEACH ACCESS AND USE PLANS.
     (a) Each local government with ordinance authority over construction adjacent to public beaches and each county that contains any area of public beach within its boundaries shall adopt a plan for preserving and enhancing access to and use of public beaches within the jurisdiction of the local government. Such beach access and use plans must be consistent with the policies in Section 61.011 of this code and the rules promulgated thereunder and Chapter 63 of this code and shall to the greatest extent practicable incorporate the local government's ordinary land use planning procedures. A municipality may adopt and apply any appropriate ordinances within its extraterritorial jurisdiction to effect the purposes of this subchapter.
     (b) Local governments shall submit proposed beach access and use plans to the commissioner for certification as to compliance with such policies and rules. The commissioner shall act on a local government's proposed beach access and use plan within 60 days of submission by either approving the plan or denying certification. In the event of denial, the commissioner shall send the proposed plan back to the originating local government with a statement of specific objections and the reasons for denial, along with suggested modifications. On receipt, the local government shall revise and resubmit the plan. The commissioner's certification of local government plans shall be by adoption into the rules under Section 61.011.
     (c) A littoral owner proposing construction adjacent to and landward of a public beach in the area described in Section 61.011(d)(6) shall submit a development plan to the appropriate local government. The local government shall forward the development plan to the commissioner no less than 10 working days prior to acting on the development plan. The commissioner may submit comments on the proposed construction to the local government.
     (d) The local government shall review the proposed development plan and the commissioner's comments and other information the local government may consider useful to determine consistency with the local government's beach access and use plan.
     (e) If the proposed construction is required to be permitted by the local government under Chapter 63 of this code, the local government shall consider the issuance of the permit concurrently with the certification under this section, unless otherwise provided by rules promulgated under Section 61.011 of this code.
     (f) The local government, after considering all appropriate information, shall make the determination and shall certify that the construction as proposed either is consistent with the local government's beach access and use plan or is inconsistent with the local government's beach access and use plan, in which case the local government must specify how the construction is inconsistent with the plan.
     (g) The local government may include in the certification any reasonable terms and conditions it finds necessary to assure adequate public beach access and use rights consistent with Chapter 63 of this code.
     (h) The requirements of this section take effect only on adoption of final rules by the commissioner under Section 61.011 of this code.

Acts 1977, 65th Leg., p. 2478, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 8, eff. June 7, 1991; Acts 2003, 78th Leg., ch. 245, § 2, eff. June 18, 2003.

§ 61.016. BOUNDARIES FOR AREAS WITH NO MARKED VEGETATION LINE.
     (a) To determine the "line of vegetation" in any area of
      public beach in which there is no clearly marked line of vegetation (for instance, a line immediately behind well-defined dunes or mounds of sand and at a point where vegetation begins) recourse shall be to the nearest clearly marked line of vegetation on each side of the unmarked area.
     (b) The "line of vegetation" for the unmarked area shall be the line of constant elevation connecting the two clearly marked lines of vegetation on each side.
     (c) If the elevation of the two points on each side of the area are not the same, the extension defining the "line of vegetation" shall be the average elevation as between the two points, but if there is no clearly marked line of vegetation, the " line of vegetation" shall not extend inland further than 200 feet from the seaward line of mean low tide.

Acts 1977, 65th Leg., p. 2478, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 9, eff. June 7, 1991.

§ 61.017. LINE OF VEGETATION UNAFFECTED BY CERTAIN CONDITIONS.
     (a) The "line of vegetation" is not affected by the
      occasional sprigs of salt grass on mounds and dunes or seaward from them and by artificial fill, the addition or removal of turf, or by other artificial changes in the natural vegetation of the area.
     (b) If the changes listed in Subsection (a) of this section are made and the vegetation line is obliterated or is created artificially, the line of vegetation shall be determined in the same manner as in those areas covered by Section 61.016 of this code, but if there is a vegetation line consistently following a line more than 200 feet from the seaward line of mean low tide, the 200-foot line shall constitute the landward boundary of the area subject to public easement until a final court adjudication establishes the line in another place.
     (c)(1) In an area of public beach where a seawall structure constructed in its entirety as a single structure of one design before 1970 and continuously maintained with a height of not less than 11 feet above mean low tide interrupts the natural line of vegetation for a distance not less than 4,000 feet nor greater than 4,500 feet, the line of vegetation is along the seaward side of the seawall for the distance marked by the seawall, provided that prior to September 2, 1997:
               (A) a perpetual easement has been granted in favor of the public affording pedestrian, noncommercial use along and over the entire length of the seawall and adjacent sidewalk by the general public;
               (B) fee title to the surface estate to an area for public parking and other public uses adjacent to the seawall has been conveyed to and accepted by a public entity, which area contains sufficient acreage to provide at least one parking space for each 15 linear feet of the seawall, is located within the center one-third of the length of the seawall or not farther than 300 feet from that center one-third, and has frontage on the seawall for at least 300 linear feet; and
               (C) permanent roadway easements exist within 1,000 feet of each end of the seawall affording vehicular access from the nearest public road to the beach.
          (2) A line of vegetation established as described in this subsection shall be the landward boundary of the public beach and of the public easement for all purposes. Fee title to all submerged land as described in this code shall remain in the State of Texas.
     (d)(1) In an area of public beach where a combination stone revetment and concrete sheet pile wall constructed in its entirety as a single structure before 1999 and continuously maintained with a height of not less than five feet above mean low tide interrupts the natural line of vegetation for a distance not less than 7.5 miles and not more than 8.5 miles, the line of vegetation is along the landward boundary of that strip of land conveyed to the United States of America for the construction of the stone revetment and concrete sheet pile wall and for the distance marked by the stone revetment and concrete sheet pile wall.
          (2) A line of vegetation established as described by this subsection is the landward boundary of the public beach and of the public easement for all purposes. Fee title to all submerged land as described in this code shall remain in the State of Texas.

Acts 1977, 65th Leg., p. 2479, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1995, 74th Leg., ch. 593, § 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 331, § 1, eff. Sept. 1, 1997;

Acts 2001, 77th Leg., ch. 999, § 1, eff. Sept. 1, 2001.

§ 61.018. ENFORCEMENT.
     (a) Any county attorney, district attorney, or criminal district attorney, or the attorney general at the request of the commissioner, shall file in a district court of Travis County, or in the county in which the property is located, a suit to obtain either a temporary or permanent court order or injunction, either prohibitory or mandatory, to remove or prevent any improvement, maintenance, obstruction, barrier, or other encroachment on a public beach, or to prohibit any unlawful restraint on the public's right of access to and use of a public beach or other activity that violates this chapter.
     (b) In the same suit, the attorney general, the commissioner, county attorney, district attorney, or criminal district attorney may recover penalties and the costs of removing any improvement, obstruction, barrier, or other encroachment if it is removed by public authorities pursuant to an order of the court.
     (c) A person who violates this chapter is liable for a civil penalty of not less than $50 nor more than $1,000. Each day the violation occurs or continues is a separate violation.
     (d) Any county attorney, or the attorney general at the request of the commissioner, may bring a suit for a declaratory judgment to try any issue affecting the public's right of access to or use of the public beach.

Acts 1977, 65th Leg., p. 2479, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 10, eff. June 7, 1991; Acts 2003, 78th Leg., ch. 245, § 3, eff. June 18, 2003.

§ 61.0185. TEMPORARY SUSPENSION OF SUBMISSION OF REQUESTS THAT ATTORNEY GENERAL FILE SUIT.
     (a) The commissioner by order may
      suspend for a period of two years from the date the order is issued the submission of a request that the attorney general file a suit under Section 61.018(a) to obtain a temporary or permanent court order or injunction, either prohibitory or mandatory, to remove a house from a public beach if the commissioner determines that:
          (1) the line of vegetation establishing the boundary of the public beach has moved as a result of a meteorological event;
          (2) the house was located landward of the natural line of vegetation before the meteorological event; and
          (3) the house does not present an imminent threat to public health and safety.
     (b) The commissioner shall make a determination under Subsection (a) regarding the line of vegetation in accordance with Sections 61.016 and 61.017.
     (c) The commissioner shall consult with the Bureau of Economic Geology of The University of Texas at Austin when making a determination under Subsection (a) regarding:
          (1) the line of vegetation; or
          (2) the effect of a meteorological event on the location of the public beach easement.
     (d) This section does not apply to a house that the commissioner determines to be:
          (1) located in whole or in part below mean high tide; or
          (2) more than 50 percent destroyed as a result of a meteorological event.
     (e) An order issued under this section shall be:
          (1) posted on the land office's Internet website;
          (2) published by the land office as a miscellaneous document in the Texas Register; and
          (3) filed for record by the land office in the real property records of the county in which the house is located.
     (f) The commissioner shall notify the attorney general and each pertinent county attorney, district attorney, or criminal district attorney of the issuance of an order under this section.
     (g) A county attorney, district attorney, or criminal district attorney may not file suit under Section 61.018(a) to obtain a temporary or permanent court order or injunction, either prohibitory or mandatory, to remove a house from a public beach while the house is subject to an order issued under this section.
     (h) While an order issued under this section is in effect, a local government may:
          (1) issue a certificate or permit authorizing repair of a house subject to the order if the local government determines that the repair:
               (A) is solely to make the house habitable;
               (B) complies with rules adopted by the commissioner under Section 61.011(d)(7); and
               (C) does not increase the footprint of the house or involve the use of concrete, Fibercrete, or other impervious materials seaward of the line of vegetation; and
          (2) allow utilities to be reconnected to a house subject to the order.
     (i) Issuance of an order under this section is purely within the discretion of the commissioner. This section does not create:
          (1) a duty on the part of the commissioner to issue an order related to all or part of a house, regardless of any determination made; or
          (2) a private cause of action for:
               (A) issuance of an order under this section; or
               (B) failure to issue an order under this section.
     (j) Chapter 2007, Government Code, does not apply to an order issued under this section.
     (k) If the commissioner issues an order under this section, a limitations period established by statute, under common law, or in equity that may be asserted or claimed in any action under this chapter is suspended and does not run against this state, the public, or the owner of the house for the period the order is in effect.
     (l) Expenses incurred while an order issued under this section is in effect by the owner of a house in an effort to repair or otherwise make the house habitable may not be claimed as damages in any litigation with this state or a local government that may be filed to enforce this chapter.

Added by Acts 2003, 78th Leg., ch. 245, § 4, eff. June 18, 2003.

§ 61.019. DECLARATORY JUDGMENT SUITS.
     (a) A littoral owner whose rights are determined or affected by this subchapter may bring suit for a declaratory judgment against the state to try the issue or issues.
     (b) Service of citation on the state shall be made by serving the citation on the attorney general.

Acts 1977, 65th Leg., p. 2479, ch. 871, art. I, § 1, eff. Sept. 1, 1977.

§ 61.020. PRIMA FACIE EVIDENCE.
     In a suit brought or defended under this subchapter or whose determination is affected by this subchapter, a showing that the area in question is located in the area from mean low tide to the line of vegetation is prima facie evidence that:
          (1) the title of the littoral owner does not include the right to prevent the public from using the area for ingress and egress to the sea; and
          (2) there is imposed on the area a common law right or easement in favor of the public for ingress and egress to the sea.

Acts 1977, 65th Leg., p. 2479, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 11, eff. June 7, 1991.

§ 61.021. AREA NOT COVERED BY SUBCHAPTER.
     (a) None of the provisions of this subchapter apply to beaches on islands or peninsulas that are not accessible by a public road or ferry facility for as long as the condition exists.
     (b) A local government or local official may not adopt, apply, or enforce a beach access and use plan or any other provision of this subchapter within a state or national park area, wildlife refuge, or other designated state or national natural area.

Acts 1977, 65th Leg., p. 2480, ch. 871, art. I, § 1, eff. Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, § 14, eff. June 7, 1991. § 61.0211. STATE OR NATIONAL PARK COVERED BY