

Opinion issued December 15, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-00520-CV
———————————
Texas General Land Office and Jerry Patterson, In His Official
Capacity as Texas Land Commissioner, Appellants
V.
Sonya
Porretto and Rosemarie Porretto, Appellees

 

 
On Appeal from the 212th Judicial District
Galveston County, Texas

Trial
Court Case No. 02CV0295
 

OPINION ON REHEARING
A little
more than fifty years ago, the Porretto family began acquiring tracts of
beachfront property on Galveston Island, gulfward of the seawall.  The family eventually came to own property
along the shoreline between 6th and 27th Streets.  They turned the property between 6th and 10th
Streets into Porretto Beach and provided paid parking and concessions for
beachgoers.  They did not develop the tracts
between 10th and 27th Streets, known as Porretto Beach West (PBW).
In 1994, the State, acting through
the Texas General Land Office (GLO), leased the public land between 10th and
61st Streets—referred to in the lease as “submerged property”—to the City of
Galveston for a beach replenishment project. 
Beginning in 2001, the Porrettos unsuccessfully attempted to sell their
property.  Citing a cloud on their title
as the reason, the Porrettos then sued the GLO and Jerry Patterson, its
commissioner, as well as several Galveston municipal officeholders.  In the suit, the Porrettos alleged
interference with their good title to beachfront property and a governmental
taking of their land in violation of the Texas Constitution.
In our first encounter with this
case, we reversed the trial court’s ruling dismissing the case for lack of
jurisdiction.  See Porretto v. Patterson, 251 S.W.3d 701, 701 (Tex. App.—Houston
[1st Dist.] 2007, no pet.) (Porretto I).  On remand, the State amended its
jurisdictional plea and adduced evidence to support it.  The trial court denied the amended plea and
tried the title dispute and takings claim to the bench.  The trial court quieted title in favor of the
Porrettos.  It further concluded that
certain State actions amounted to a taking without adequate compensation, in
violation of article 1, section 17 of the Texas Constitution.  The trial court then submitted issues
regarding property valuation and attorney’s fees to a jury.  The trial court entered a judgment on the
jury’s verdict and declared title to the contested property in favor of the
Porrettos.
In this appeal, the State contends
that the trial court lacked subject matter jurisdiction over the Porrettos’
request for declaratory relief, because Commissioner Patterson was immune from
suit for the functional equivalent of a trespass to try title claim.  The State further contends that the trial
court erred in concluding that the Porrettos own all of the contested property
and that Chapter 61 of the Texas Natural Resource Code (the Open Beaches Act)
is an unconstitutional ex post facto law. 
It challenges the trial court and the jury findings as legally insufficient.  The State also appeals the trial court’s
imposition of discovery sanctions.  We
grant rehearing, withdraw our earlier opinion, and issue this one in its
stead.  Our disposition remains
unchanged.
We conclude that the trial court
erred in declaring that the Porrettos hold title to the contested property that
is submerged under the Gulf of Mexico. 
As a result, the trial court erred in denying the State’s amended plea
to the jurisdiction with respect to this state-owned property.  Because the Porrettos did not identify the scope
of their private landholdings to exclude state-owned submerged land, the trial
court’s improper declaration of title is fatal to their inverse condemnation
claims, as is the absence of any state action by these defendants that
constitutes a taking.  The trial court
erred in entering judgment declaring the Open Beaches Act unconstitutional
because the Porrettos’ challenge to it was not ripe for adjudication.  Finally, the trial court erred in imposing
discovery sanctions against the State. 
We therefore reverse.
Background
Henry Porretto acquired property
along the Gulf shore between 6th and 27th Streets through a series of purchases
beginning in 1959.[1]  The title to these tracts traces back to the
Menard Grant, an 1838 conveyance of the eastern end of Galveston by the
Republic of Texas to Michael B. Menard.  See generally City of Galveston v. Menard,
23 Tex. 349, 1859 WL 6290, *30, *32 (1859). 
When the Republic conveyed the property to Menard, the entire conveyance
was dry land, but much of it is now submerged beneath the Gulf of Mexico.
          In
1994, the City of Galveston—which is no longer a party to this case—embarked on
a beach renourishment project to replenish and increase the size of the sandy
area along the Gulf shore for public recreational use.  To this end, the State entered into a
ten-year lease with the City for “State Submerged
Gulf of Mexico Tracts . . . adjacent to and along the Galveston Seawall from
the centerline of 10th Street, extended, to the centerline of 103rd Street,
extended.” (emphasis added.)  The lease
includes a map that generally depicts the span of land included in the proposed
beach replenishment project where the City later expected to deposit “beach
quality sand in and on said submerged
land for beach replenishment and restoration . . . .” (emphasis added.)
          The
lease recites that “[t]he uplands property littoral to the submerged lands
subject to this lease are owned by the County of Galveston,” and specifies that
the lease has no effect on the county’s rights or obligations to own and
maintain the seawall.  The lease also
contains an agreement that the City of Galveston would: 
cause surveys to be performed by a Licensed
State Land Surveyor to locate and document the line of highest annual tide . .
. continuing along the length of the submerged lands subject to this lease . .
., and the line of mean high tide along the length of the submerged lands
subject [to the lease].  Each survey
shall be subject to acceptance and approval by the [State].
During the project’s development
stage, a public dispute arose concerning the assertion of property rights on
and around the affected part of the beach. 
In response to a public query about proposed jet-ski concessions, a GLO
staff attorney wrote in a June 23, 1997 letter that: 
the State does not recognize any claim of
private ownership of land in front of the seawall.  I have previously directed your attention to Galveston v. Menard and the cases cited
therein and pointed out that the pre-project survey of the line of high water
clearly shows it to be up on the seawall. 
The requirement of the park board that the concessionaire obtain consent
of “certain adjacent property owners” and the recitations of the Consent form
itself ascribe some credence to these specious claims in derogation of the
State position and are, therefore, not acceptable.  
As the dispute became more heated, the Galveston
County Daily News published a series of articles regarding disputes over
property ownership in front of the seawall, culminating in an opinion piece by
the GLO’s senior deputy commissioner and general counsel explaining that, based
on the 1940 Texas Supreme Court case of City
of Galveston v. Mann—“which found
that there had been no fast land in front of the seawall for a period in excess
of 20 years and recognized the State’s ownership of the submerged land due to
erosion”—the State took the position that it owned all of the property seaward
of the seawall.  See 143 S.W.2d 1028, 1033 (Tex. 1940).  Individuals representing the State made
similar claims at several public meetings of the Galveston Park Board.  The State directed the Galveston County
Appraisal District [GCAD] to change their records to show state ownership of submerged
lands.  
In the meantime, the Porrettos made
unsuccessful attempts to sell their property. 
In 2001, the Porrettos met with a group of investors that expressed
interest in building a hotel and boardwalk on the Porretto Beach property.  In 2006, the Porrettos again sought to sell
Porretto Beach to a developer who was interested in constructing a high-rise
condominium on the property.  Concerns about
present and future ownership of the beachfront, however, dissuaded the prospective
purchasers.  
The trial court found that the
Porrettos held title to all of the Porretto Beach and PBW property that the
Menard Grant originally had conveyed, including the portions of that property
that undisputedly are submerged beneath the Gulf of Mexico.  The trial court also held that the State’s
actions effected a taking of the Porrettos’ property.  The jury found the values of Porretto Beach
and PBW, respectively, before and after the dates on which the trial court
found that the taking had occurred.  The
trial court declared title in favor of the Porrettos and held that the Open
Beaches Act was an unconstitutional ex post facto law whose regulations did not
apply to the Porrettos’ property.  It
also awarded the Porrettos the takings damages found by the jury, as well as
their attorney’s fees as a sanction in connection with a discovery dispute with
the State.  This appeal followed.
Discussion
I.       Subject-matter
jurisdiction
          A.      Standard of review
Subject-matter jurisdiction is
essential for a court to have the authority to resolve a case, and a trial
court lacks jurisdiction over a governmental unit that is immune from suit.  Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).  A party may challenge a court’s subject-matter
jurisdiction by filing a plea to the jurisdiction.  See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d
636, 639 (Tex. 1999).  We review de novo
a trial court’s ruling on a jurisdictional plea.  Mayhew
v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).  In our review we consider only the plaintiff’s
pleadings and evidence pertinent to the jurisdictional inquiry.  County
of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).  We construe the pleadings liberally in favor
of conferring jurisdiction.  Tex. Dep’t of Transp. v. Ramirez, 74
S.W.3d 864, 867 (Tex. 2002).  At the same
time we are mindful that a plaintiff may not avoid sovereign immunity through
artful pleading.  See City of Houston v. Williams, 216 S.W.3d 827, 828–29 (Tex. 2007)
(“[P]rivate parties cannot circumvent the State’s sovereign immunity from suit
by characterizing a suit for money damages, such as a contract dispute, as a
declaratory-judgment claim,” and “if the sole purpose of such a declaration
[regarding a governmental body’s statutory authority] is to obtain a money
judgment, immunity is not waived”) (quoting Tex.
Natural Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849, 856 (Tex. 2002)).
A plaintiff bears the burden to
allege facts affirmatively demonstrating the trial court’s jurisdiction to hear
the case.  Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).
 To prevail on a plea to the
jurisdiction, the defendant must show an incurable jurisdictional defect apparent
from the face of the pleadings, making it impossible for any amendment of the
plaintiff’s petition to confer jurisdiction on the trial court.  Bybee v.
Fireman’s Fund Ins. Co., 331 S.W.2d 910, 917 (Tex. 1960).  We bear in mind that the government bears the
burden to adduce evidence showing as a matter of law that the trial court lacks
jurisdiction.  Porretto I, 251 S.W.3d at 711 (citing Tex. Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex.
2004)).  
B.      The challenged judgment
The State charges that, despite the
Porrettos’ abandonment of their trespass-to-try-title claim against
Commissioner Patterson, the trial court effectively adjudicated a claim against
the State for land in favor of the Porrettos. 
A plaintiff may request declaratory relief to clarify a person’s legal
rights in relation to the State without implicating the State’s immunity from
suit.  Porretto I, 251 S.W.3d at 708. 
Nor does sovereign immunity shield the State from a claim based on an
unconstitutional taking of property.  Id. (citing State v. Holland, 221 S.W.3d 639, 644 (Tex. 2007); Porretto I, 251 S.W.3d at 708.  But, if the prevailing party seeks title to,
and possession of, the real property interest at issue in the suit, sovereign
immunity bars the suit.  Id. 

The trial court’s judgment
declares:  
1.     That the [Porrettos] own fee
simple title to the property at issue . . . between 6th and 10th streets in
front of (seaward of) the Galveston seawall above (landward) of the mean higher
high tide line . . . 
 
2.      That the [Porrettos] own fee simple title to
the property at issue in this lawsuit between 6th and 10th Streets in front of
(seaward of) the Galveston seawall below (seaward of) the mean higher high tide
line . . . .
 
3.     That the [Porrettos] own fee
simple title to the property at issue in this lawsuit between 10th and 27th
Streets in front of (seaward of) the Galveston seawall above (landward of) the
mean higher high tide line . . . .
 
4.      That the [Porrettos] own fee simple title to
the property at issue in this lawsuit between 10th and 27th Streets in front of
(seaward of) the Galveston seawall below (seaward of) the mean higher high tide
line . . . .
In addition to these declarations,
the judgment holds the State liable for damages based on the jury’s fair market
value findings, but it does not require the Porrettos to relinquish the
property to the State.  The judgment
confirms that the Porrettos’ suit, at bottom, challenges the title and
ownership of the property.  The judgment
attaches, and each of these declarations refers to, a property survey and a
legal description of the properties.  The
trial court had subject-matter jurisdiction to adjudicate such a challenge only
absent any showing that the State has a colorable claim to title, or as an
antecedent and necessary finding to support a takings claim.  As we further discuss, we conclude that the
State has proved its title to the submerged land, and the Porrettos have not
proved a taking of their dry land by the State or by Commissioner Patterson.[2]  Because the State demonstrated immunity from
suit, the trial court should have granted the State’s amended plea to the
jurisdiction on the Porrettos’ request for a declaration that adjudicated title
and property ownership against the State.
C.      The State’s ownership by tidal boundary
and the Menard Grant
The State asserted more than a
colorable claim to title in its amended plea. 
In Porretto I, we reversed the
trial court’s grant of the State’s initial plea to the jurisdiction as to
Commissioner Patterson on the Porrettos’ trespass-to-try-title claims because
the State made no assertion of title.  Following
State v. Lain, 349 S.W.2d 579 (Tex.
1961), we held that the trial court’s decision was premature because
Commissioner Patterson had not contested the Porrettos’ claim of title or
otherwise asserted that the State had a colorable, superior right to the
land.  Porretto I, 251 S.W.3d at 711; see
also Tex. Parks & Wildlife Dep’t v. Sawyer Trust, No. 07-0945, 2011 WL
3796347, at *3 (Tex. Aug. 26, 2011) (confirming vitality of Lain rule and applying it to determine
that Trust’s claims did not dispute boundary between State-owned land and
Trust-owned land, but “whether State owned any land at all,” and thus were
barred by sovereign immunity).  After the
appeal, when the proceedings resumed, the State clarified its asserted property
rights, explaining that it did not contest the Porrettos’ ownership of the dry-land
property seaward of the seawall and landward of the mean higher high-tide line,
but it claimed ownership to the contested, now-submerged land—the land seaward of the mean higher high-tide
line.  The State also adduced evidence to
support its right to title to the submerged land.
This evidence, presented at the
evidentiary hearing on the amended plea, includes: (1) a copy of the Menard
Grant; (2) survey maps delineating submerged land, submerged land later filled
as part of the beach renourishment project, and upland property; and (3) the
State’s October 13, 1994 lease to the City of Galveston for the beach
renourishment project.  The lease to the
City expressly conveys only the submerged property between 10th and 61st
Streets—it does not convey any dry land. 
We examine this evidence to determine whether the State has asserted a
colorable claim to title that rendered the trial court without jurisdiction to
adjudicate the Porrettos’ claim to title and possession of the property.
Within the Menard Grant, we find
the answer.  We have a longstanding duty
to strictly construe legislative grants of property in favor of the State,
preserving for the State any interest that is not conveyed in unequivocal and
explicit terms.  Empire Gas & Fuel Co. v. State, 47 S.W.2d 265, 272 (Tex. 1932);
City of Galveston v. Tex. Gen. Land
Office, 196 S.W.3d 218, 226 (Tex. App.—Houston [1st Dist.] 2006, pet.
denied).  In particular, we do not
presume that the State made a grant or sale that includes land under navigable
waters unless the conveying instrument expressly provides for its inclusion.  See
Lorino v. Crawford Packaging Co., 175 S.W.2d 410, 413 (Tex. 1943) (citing Mann, 143 S.W.2d at 1033).  
The parties agree that we are to
interpret the Menard Grant under Spanish civil law.  Under the civil law, the nation owns the
seashore, bays, and rivers absent the expression of a clear intent to the
contrary.   See Menard, 1859 WL at *30, *32. 
In Menard, the Supreme Court
determined whether the grant could be properly construed to convey the
submerged land between the Bay’s shore and the channel.  The call in the title specifies a distance
out from the dry land to the channel of the harbor into the bay, creating fixed
boundaries on the northern side facing Galveston Bay.  Id.
at *32.  This area, which consisted of
mud flats, was “regularly and periodically left bare, dry land, to the channel.”  Id.  Considering the specific language of the
grant and the legislature’s expressed purpose for its authorization, the court
concluded that the grant intended to convey the flats into the bay to the
channel for the construction of wharves in the area.  Id.
at *24.
The Menard court addressed the description of the conveyance only as it
pertains to the Bay side of Galveston Island. 
On the Gulf side—which includes
the property at issue here—the Menard
Grant does not specify a fixed distance seaward: it conveys land “to the
meanders.”  “A meander line is a series
of course and distance calls which follow the river or other natural object or
monument as closely as is practically possible for purposes of calculating the
amount of land conveyed.”  Ely v. Briley, 959 S.W. 2d 723, 725 n.1
(Tex. App.—Austin 1998, no pet.).  A
conveyance to the meanders, then, is a grant to the shoreline and does not
include submerged land.  See City of Port Isabel v. Mo. Pac. R.R.,
729 S.W.2d 939, 942–43 (Tex. App.—Corpus Christi 1987, writ ref’d n.r.e.).  
Under the civil law, a conveyance
to the meanders extends to the mean higher high-tide line.[3]  John & Stella Kenedy Mem’l
Found. v. Dewhurst, 90 S.W.3d 268, 270, 280 (Tex. 2002) (relying on Luttes v. State, 324 S.W.2d 167, 175
(Tex. 1958), and recognizing that Luttes
was not limited to its facts; it “generally determine[d] shoreline boundaries
under the civil law”); TH Invs. Inc. v.
Kirby Inland Marine, L.P., 218 S.W.3d 173, 184 (Tex. App.—Houston [14th Dist.]
2007, pet. denied).  The conveyance along
the Gulf shoreline thus does not include submerged land or land seaward of the
mean higher high-tide line. See John
& Stella Kenedy Mem’l Found., 90 S.W.3d at 270, 280; Luttes, 324 S.W.2d at 175; see also Lorino, 175 S.W.2d at 414
(holding that Galveston City Council lacked power to grant exclusive rights to
Gulf shore and surf for operation of private bathhouse because Menard Grant
“stops with the shore,” leaving right to enjoyment of waters and shores of Gulf
to state and its citizens).  “The soil
covered by the bays, inlets and arms of the Gulf of Mexico within tidewater
limits belongs to the State, and constitutes public property that is held in
trust for the use and benefit of all people.” 
Id. at 413.
Texas law recognizes that littoral
boundaries can shift over time.  “[W]hen
the location of the margin or bed of a body of water that constitutes the
boundary of a tract of land is gradually and imperceptibly changed or shifted . . .,
the margin or bed of the body of water, as so changed, remains the boundary
line of the tract, which is extended or restricted accordingly.”  Brainard
v. State, 12 S.W.3d 6, 17‑18 (Tex. 1999); see TH Invs., 218 S.W.3d at 185 (observing that boundary
established by tideline moves over time and that “the location of the
shoreline, wherever it may be at any given time, represents the boundary of a
littoral owner’s property”); Natland
Corp. v. Baker’s Port, Inc., 865 S.W.2d 52, 57 (Tex. App.—Corpus Christi
1993, writ denied) (observing that “an upland owner acquires or loses title to
the land gradually or imperceptibly added to or taken from his shoreline”); City of Corpus Christi v. Davis, 622
S.W.2d 640, 642, 644 (Tex. App.—Austin 1981, writ ref’d n.r.e.) (noting that
landward advance of tide and attendant shoreline erosion causes upland owner to
lose title to state when dry land becomes submerged) (citing State v. Balli, 190 S.W.2d 71, 100 (Tex.
1944)).  As a result of these forces,
what was once dry land conveyed by the Menard Grant has returned to state
ownership as the mean higher high-tide line reaches further inland.  See TH
Invs., 218 S.W.3d at 195 (holding that state gained ownership of tract that
became submerged through indistinguishable effects of erosion and
subsidence).  
The State could not divest itself of
title to any submerged land by facilitating the replenishment of the beaches on
that land.  “Accretions along the shores
of the Gulf of Mexico and bays which have been added by artificial means do not
belong to the upland owners, but remain the property of the State.”  Lorino,
175 S.W.2d at 414; accord Stop the Beach
Renourishment, Inc. v. Fla. Dep’t of Envt’l Protection, 130 S. Ct. 2592, 2611
(2010) (Florida law); see Davis, 622
S.W.2d at 646 (applying presumption that state holds title to land covered by
sea when reclamation project began).
D.      Conclusion
The State’s evidence proves, as a
matter of law, its entitlement to the submerged land it claims, because the
Porrettos’ title is valid only to the meanders—their title stops short of any
submerged land.  We therefore hold that
the trial court erred in declaring the Porrettos to be owners of the submerged
land and in denying the State’s amended plea to the jurisdiction on the
Porrettos’ claims for a declaration of title.
II.      Inverse
Condemnation Claims
The State also challenges the legal
sufficiency of the evidence that the State’s actions with respect to Porretto
Beach or PBW constituted a taking.  The
Texas Constitution prohibits the taking of private property for public use
without adequate compensation.  Tex. Const. art. I, § 17.  If the government appropriates private property
without paying adequate compensation, the property owner may recover the
resulting damages in an inverse condemnation suit.  Westgate,
Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992).  “An inverse condemnation may occur when the
government physically appropriates or invades the property, or when it
unreasonably interferes with the landowner’s right to use and enjoy the
property, such as by restricting access or denying a permit for development.”  Id.  
Whether government action amounts
to a taking is a question of law that we review de novo.  See Mayhew
v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998) (whether zoning
ordinance constituted compensable taking); State
v. Heal, 917 S.W.2d 6, 9 (Tex. 1996) (whether property owners could seek
compensation for diminution in value of property caused by impaired access
after receiving compensation for value of land taken).  To amount to a regulatory taking, the
governmental action must, at a minimum, create a “current, direct restriction
on the property’s use.”  Westgate, 843 S.W.2d at 452.  “[P]ublicly targeting a property for
condemnation, resulting in economic damage to the owner, generally does not
give rise to an inverse condemnation cause of action unless there is some
direct restriction on use of the property.”  Id.
at 453.  
          A.      The takings
evidence
As support for their takings
claims, the Porrettos point to the GLO’s actions in:
(1)            
Representing, in June 23, 1997 correspondence from its staff attorney
concerning proposed jet ski concessions, that “the State does not recognize any
claim of private ownership of land in front of the seawall,” and that the State
owned all the land covered by the Beach Replenishment Project, in front of (seaward
of) the seawall; 
 
(2)            
Notifying Galveston County Appraisal District that “there are no private
beach owners south of the seawall” during an October 1997 Galveston Park Board
meeting;
 
(3)            
Authoring, through senior deputy commissioner and general counsel, an editorial
published in the Galveston County Daily
News in July 1997, claiming all beaches in front of the Galveston seawall
as state-owned property;
 
(4)            
Executing a lease of submerged land, as grantor, to the City of
Galveston;  
 
(5)            
Requesting that the State be substituted as the owner of portions of the
property in the Galveston County real property records; and
 
(6)            
Claiming state ownership of the property in this court proceeding. 
The trial court determined, however, that the
takings occurred on specific dates: October 13, 1994—the date the State leased
the submerged property to the City of Galveston for the beach renourishment
project—for PBW, and June 23, 1997—the date of the correspondence from the GLO
staff attorney about the proposed jet ski concession—for Porretto Beach.  The jury’s fair market value findings for the
properties also hinge on these dates.  We
therefore determine whether the specific acts occurring on these dates support
the taking claims.  Cf. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (observing
that, absent objection, court must measure sufficiency of evidence under charge
submitted). 
          B.      Analysis
          With
respect to PBW, we agree with the State that its lease to the City is no
evidence of a taking.  The October 13,
1994 lease expressly declares the parties’ intent for the establishment of a
public recreation area on the “state-owned submerged lands” improved by the
beach renourishment project.  The
Porrettos may assert a claim of title only for the property above the mean
higher high-tide line, which the State does not claim to own, and its lease
does not purport to convey.  
With respect to the remainder of
Porretto Beach, the June 23, 1997 correspondence authored by the GLO staff
attorney is not the kind of direct restriction on use of the property that
supports an inverse condemnation claim, particularly here, where the State
later expressly disavowed any claim to land other than the submerged land to
which it was entitled.  See Westgate, 843 S.W.2d at 453; see also TCI West End, Inc. v. City of
Dallas, 274 S.W.3d 913, 918 (Tex. App.—Dallas 2008, no pet.) (Texas
Historical Commission’s lawsuit to enforce statutory right to seek damages for
destruction of historic structure or property did not constitute act to support
regulatory takings claim; suit did not allege facts sufficient to show
Commission’s lawsuit caused private property owner to suffer physical invasion
of property or destroyed all economically viable use of property; possibility
that trial court might create constructive trust sometime in future does not
destroy all economical viable use of property, nor does it unreasonably
interfere with owner’s use and enjoyment of property); Texas Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379,
396 & n.6 (Tex. App.—Fort Worth 2008, no pet.) (observing that city
employees’ and officials’ statements to press and/or to community that plaintiff
was absentee owner whose property was “mismanaged, unsafe for habitation,
crime-ridden or otherwise not suitable as apartment dwellings [and was] going
to be closed or condemned,” and exclusion of plaintiff’s apartments from city’s
list of available housing for hurricane evacuees were not regulatory acts that
could provide basis for regulatory takings claim); Wilkinson v. Dallas/Fort Worth Int’l Airport Bd., 54 S.W.3d 1,
14–15 (Tex. App.—Dallas 2001, pet. denied) (holding that allegations that
included bad faith and premature announcement of runway expansion project,
refusal to include certain landowners in mitigation program, and destruction of
areas adjacent to appellants’ neighborhood, all of which decreased market value
of appellants’ property, did not amount to physical or legal restriction of
property use required for inverse condemnation claim).  
As we noted in Porretto I, the title is central to the Porrettos’ claims, as they
bear the burden to prove that they own the property allegedly taken by the
State.  251 S.W.3d at 711; see Texas Dep’t of Transp. v. City of Sunset
Valley, 146 S.W.3d 617, 644 (Tex. 2004) (“It is fundamental that, to
recover under the constitutional takings clause, one must first demonstrate an
ownership interest in the property taken.”). 
The record does not identify the specific portion and value, if any, of
the Porrettos’ property that the State allegedly took.  Essential to the regulatory takings analysis
is whether the privately-held strip of land has any economically viable use,
that is, whether the property owner has any distinct investment-backed
expectations for its development.  See Sheffield
Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 672 (Tex. 2004) (quoting
Penn Central Transp. Co. v. City of New
York, 438 U.S. 104, 124, 98 S. Ct. 2646 (1978)); Mayhew, 964 S.W.2d at 936 (“[A] regulatory taking occurs when
governmental regulations deprive the owner of all economically viable use of
the property or totally destroy the property’s value.”); see also Barto Watson, Inc. v. City of Houston, 998 S.W.2d 637, 641
(Tex. App.—Houston [1st Dist.] 1999, pet. denied); Texas Bay Cherry Hill, L.P., 257 S.W.3d at 396 (holding that, even
assuming city’s adoption of redevelopment plan was regulation, it did not
constitute taking; plan did not compel property owner to suffer physical
invasion of its property or deprive owner of all economically viable use of
property, nor did it constitute unreasonable interference with owner’s right to
use and enjoy property).  The contours of
the Porrettos’ private holding as well as any pre-existing public easements and
restrictions on its development all factor into this analysis.  See
Sheffield Dev. Co., 140 S.W.3d at 672–73
(quoting Mayhew, 964 S.W.2d at
93–33); see generally Gulf View Courts,
Inc. v. Galveston Cnty., 150 S.W.2d 872, 873 (Tex. Civ. App.—Galveston
1941, writ ref’d) (affirming injunction requiring private beach owners to
remove permanent buildings from County’s seawall easement and declaration that
County had right to maintain sand dump on its right-of-way).  The Porrettos’ takings claim, without any
evidence of their ownership interest and the State’s invasion of it, cannot
stand.
The State’s use of state-owned
submerged land does not effect a taking. 
Neither the State’s lease of the land nor the GLO’s letter supports the Porrettos’
takings claims.  The record does not
elsewhere identify the property actually owned by the Porrettos or contain any
evidence that government action by the State deprived them of the use of their property,
as opposed to state use of State-owned submerged land.  The character of the lease—to allow for a beach replenishment project on
submerged land—does not restore to the
Porrettos the submerged land they lost by time and tide.  More than a half century ago, the Texas
Supreme Court held that artificial accretions to submerged land inure to the
benefit of the State.  Lorino, 175 S.W.2d at 414.  Accordingly, the Porrettos have failed to
establish that the State took their private property for public use without
adequate compensation in violation of article I, section 17 of the Texas
Constitution.  See Mayhew, 964 S.W.2d at 937–38 (reversing and rendering judgment
against plaintiffs on inverse condemnation claim because fact findings made by
trial court after bench trial and relied on by plaintiffs were insufficient to
constitute taking).  We reverse the trial
court’s judgment on Porrettos’ inverse condemnation claims against the State
and render judgment that they take nothing on those claims.  
III.    Ripeness
of Open Beaches Act Challenge
According to the State, the trial
court erred in granting declaratory relief on the Porrettos’ constitutional challenge
to the Open Beaches Act because it was not ripe for decision.  “Ripeness is an element of subject
matter jurisdiction.”  Mayhew, 64 S.W.2d at 928.  In considering whether a claim is ripe, we
consider whether, at the time a lawsuit is filed, the facts are sufficiently
developed “so that an injury has occurred or is likely to occur, rather than
being contingent or remote.”  Waco Indep. Sch. Dist. v. Gibson, 22
S.W.3d 849, 851–52 (Tex. 2000) (quoting Patterson
v. Planned Parenthood of Houston, 971 S.W.2d 439, 442 (Tex. 1998)); Harris Cnty. Mun. Util. Dist. No. 156 v.
United Somerset Corp., 274 S.W.3d 133, 138–39 (Tex. App.—Houston [1st
Dist.] 2008, no pet.).  A claim is not
ripe if it concerns “uncertain or contingent future events that may not occur
as anticipated or may not occur at all.”  Gibson,
22 S.W.3d at 852 (quoting Patterson,
971 S.W.2d at 442).  “A case is not ripe
when determining whether the plaintiff has a concrete injury depends on
contingent or hypothetical facts, or upon events that have not yet come to
pass.”  Id. (citing Patterson,
971 S.W.2d at 443).  A threat of harm can
constitute a concrete injury, but the threat must be “direct and immediate”
rather than conjectural, hypothetical, or remote. Id. (citing Abbott Labs. v.
Gardner, 387 U.S. 136, 152, 87 S. Ct. 1507 (1967)).
The Porrettos have not identified
any property right threatened with imminent injury or injured by the statutory
recognition of the public’s right to unrestricted access to the Gulf shore
along state-owned beaches or where 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.”  Tex.
Nat. Resource Code Ann. § 61.011(a) (West 2001).  The Open Beaches Act does not create a public
beach easement where none exists.  Brannan v. State, No. 01-08-00179-CV, 2010
WL 375921, at *9 (Tex. App.—Houston Feb. 4, 2010, pet. filed) (mem. op. on
reh’g) (citing Arrington v. Mattox,
767 S.W.2d 957, 958 (Tex. App.—Austin 1989, writ denied)).  In the trial court, the Porrettos did not
identify any property right they currently hold and held before the enactment
of the Open Beaches Act that has been threatened or lost as a result of its
application.  We therefore hold that
subject-matter jurisdiction does not exist over the Porrettos’ challenge to the
Open Beaches Act.  
IV.     Discovery
Sanctions
The State also challenges the trial
court’s imposition of sanctions requiring the State to pay the Porrettos’
attorney’s fees and expenses based on a finding of discovery abuse.  We review the imposition of sanctions for an
abuse of discretion.  A trial court
abuses its discretion if it issues a discovery sanction in an arbitrary or
unreasonable manner, or without reference to guiding rules and principles. In re Colonial Pipeline Co., 968 S.W.2d
938, 941 (Tex. 1998) (orig. proceeding). 

Approximately six weeks before
trial, the Porrettos served the State with a request for production.  The parties made arrangements for the
Porrettos’ attorneys to visit the GLO offices in Austin, and the State gave
them access to review its archived correspondence and other materials kept in
the ordinary course of business.  The
State did not conduct a previous search through its archives to select
responsive documents and organize them according to each request.  In their motion for sanctions, the Porrettos
complained of the State’s failure to review its own files and select responsive
documents.
Texas Rule of Civil Procedure 196.3
governs the production of documents and tangible things during the discovery
process.  With respect to the organization of
produced materials, the rule provides that “[t]he responding party must either
produce documents and tangible things as they are kept in the usual course of
business or organize and label them to correspond with the categories in the
request.”  Tex. R. Civ. P. 196.3(c).  
Much as a trial court cannot compel a party to create indices or reduce
information to tangible form in response to a request for production, a trial
court cannot sanction a party for failing to organize responsive materials
according to the method its opponent prefers when the discovery response
complies with an alternate method permitted under the rules.  Cf.
In re Colonial Pipeline Co., 968
S.W.2d at 941 (holding that trial court abused its discretion in ordering party
to produce inventory in response to request for production); McKinney v. Nat’l Union Fire Ins. Co.,
772 S.W.2d 72, 73 n.2 (Tex. 1989) (declaring that rule governing requests for
production “cannot be used to force a party to make lists or reduce information
to tangible form”).  Because the State’s
response to the Porrettos’ request for production did not violate the discovery
rules, the trial court abused its discretion in imposing sanctions.
Conclusion
We hold that the trial court erred
in denying the State’s amended plea to the jurisdiction with respect to the
submerged land formerly held by the Porrettos, because the State adduced
evidence that it is the owner of that submerged land. Accordingly, we dismiss
for lack of jurisdiction the Porrettos’ claims against the GLO and Commissioner
Patterson seeking a declaration of title. We further hold that the Porrettos’
inverse condemnation claims with respect to land above the mean higher high-tide
line are without merit, because the state actions challenged were not takings,
and no legally sufficient evidence accurately identifies or values their
private property interest, nor the State’s encroachment of it.  We hold that the trial court also lacked
subject-matter jurisdiction over the Porrettos’ constitutional challenge to the
Open Beaches Act.  We therefore reverse
the judgment and (1) dismiss for lack of subject-matter jurisdiction the
Porrettos’ title claims and their Open Beaches Act challenge; and (2) render
judgment that the Porrettos take nothing on their inverse condemnation
claims.  Finally, we hold that the trial
court erred in imposing discovery sanctions on the State and, therefore,
reverse the award of attorney’s fees assessed as sanctions against the State.
 
                                                                   Jane
Bland
                                                                   Justice

 
Panel
consists of Justices Keyes, Higley, and Bland.
 




[1]
          Henry Porretto died while this
case has been pending.  His daughter
Sonya Porretto is the current owner of the property and assignee of her
mother’s claims.


[2]
          In Porretto I, the Porrettos also asserted takings claims against
certain Galveston municipal authorities in connection with beach concession
agreements.  See Porretto v. Patterson, 251 S.W.3d 701, 706 (Tex. App.—Houston
[1st Dist.] 2007, no pet.).  We do not
address either these claims or the alleged actions underlying them, as the
Galveston authorities are not parties to this appeal.


[3]
          The Texas coast experiences two
high tides daily, one of which is higher than the other.  The mean high tide—used for calculating a shoreline boundary under the
Texas common law—is
an average, over the 18.6-year tidal cycle, of the tidal boundary’s location
using a calculation that accounts for the daily reach of both tides.  The mean higher high-tide line—used in the civil law
applicable to Spanish and Mexican land grants, as well as those of the Republic
of Texas—is an
average, over the 18.6-year tidal cycle, of the tidal boundary using a calculation
that accounts only for the daily location of the higher high tide.  See
John & Stella Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 272 (Tex.
2002).  “[T]he vertical difference
between these two tidal datum planes is very slight along the Texas coast,
varying from zero in many inland bays to about 0.1 foot along the open Gulf
coast.”  William Gardner Winters, Jr., The Shoreline for Spanish and Mexican Grants
in Texas, 38 Tex. L. Rev.
523, 530 (1960) (citing Texas Surveyors Ass’n, Report of Riparian Boundary Committee (Mar. 21, 1957)).  


