         ,     .




                      The Attorney              General of Texas
                                         December    28,    1978
JOHN L. HILL
Attorney General


                   Honorable William W. Day                        Opinion No. H- 13 10
                   Criminal District Attorney
                   Calhoun County                                  Re: Whether a commissioners
                   Port Lavaca, Texas 77979                        court may grant a permit to
                                                                   close a beach which the public
                                                                   has used over a long period of
                                                                   time.

                   Dear Mr. Day:

                          You inquire about the authority of any person to block off a beach, or
                   any portion thereof, which has been used by the public without interference
                   for approximately 65 years.      You state that the landowner acquired the
                   property in 1912 and never formally dedicated it to the public. Your brief
                   indicates that neither the landowner nor his heirs, if any, have attempted to
                   prevent public use of the area. The commissioners court recently gave the
                   Chamber of Commerce a permit authorizing it to hold a festival on the
                   beach. The Chamber of Commerce charged admission to a portion of the
                   beach during the festival.

                          You ask whether the owner impliedly dedicated the beach to the public,
                   and whether the public acquired a prescriptive right or easement to use it as
                   a public beach. Whether or not the public has acquired rights in a beach by
                   dedication or prescription is a fact question, which cannot be resolved in the
                   opinion process. See Seaway                                375 S.W.2d 923 (Tex.
                   Civ. App. - HoGn          1964, writ ref’d n.r.e.) (discussion of evidence to
                   establish public rights in beach through dedication or prescription).       See
                   generally Comment, The Texas Open Beaches Act: Public Rights to Beach
                   Access, 28 Baylor L. Rev. 383 (1976).

                         You next ask whether the commissioners court may permit any person
                   or organization to close this beach. Even if the beach has been dedicated to
                   the public, we find no statute authorizing the commissioners court to issue a
                   permit for the purposes you state.     The commissioners court may exercise
                   only those powers conferred by the constitution and statutes.     Canales v.
                   Laughlin, 214 S.W.2d 451 (Tex. 1948). Consequently, it has no authority to




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Honorable William W. Day        -   Page 2   (H-1310)




permit exclusive use of a beach by any person or organization. See Zachry v. City of San
Antonio, 305 S.W.2d 558 (Tex. 1957) (where land has been dedicated for park, city cannot
authorize inconsistent use as long as public uses it for park). But see V.T.C.S., Nat.
Resources Code § 61.022.

        You ask whether en individual or organization may take possession of the beach and
 charge admission to other persons. The individuals or organizations you inquire about do
 not assert ownership of the beach; hence, their right to use the beach depends upon the
 public having rights in it and is the same right enjoyed in common with other members of
 the public.    They may not obstruct public access to a beach in which the public has
 acquired rights or otherwise divert it from the purposes for which it was dedicated. See,
        Zachry v. City of San Antonio, su ram Clement v. City of Paris, 175 S.W. 672 (Tex.
71915 ; Kalteyer v. Sullivan, 46 S.W. 288--P.Tex. CIV. App. 1898, writ ref’d.).
          You finally ask whether the commissioners court has authority to prevent vehicular
traffic    from using this beach. Section 61.122 of the’Natura1 Resources Code provides in
part:

               The commissioners court of a county bordering on the Gulf
               of Mexico or its tidewater limits, by order, may regulate
               motor vehicle traffic on any beach within the boundaries of
               the county. . . .

However, the definition of “beach” has been taken from the Open Beach provisions, Nat.
Resources Code §§ 61.001 - 61.024. See Nat. Resources Code gg 61.012, 61.121. “‘[Bleach’
means state-owned beaches to which the public has a right of ingress and egress bordering
on the seaward shore of the Gulf of Mexico. . . if the public has acquired a right of use or
easement to or over the area. . . . ” Nat. Resources Code § 61.012. You state in your brief
that the beach you inquire about does not fit within the statutory definition since it does
not border on the Gulf of Mexico. Assuming that this interpretation          is correct, the
commissioners court would have no authority under section 61.122 to regulate traffic on
the beach you inquire about. But see Gulf Holding Corp. v. Brazoria County, 497 S.W.2d
614 (Tex. Civ. App. - Houston [14th Dist.1 1973, writ ref’d n.r.e.) (treating as fact issue
whether beach which did not front on Gulf was actually a Gulf beach). We find no other
statute authorizing the commissioners court to establish traffic regulations for this type
of beaches. See V.T.C.S. art. 67Old-21, 5 1 (establishing speed limit on beaches defined to
include the shore adjacent to the inlets and bays of the Gulf); Attorney General Opinion
V-429 (1947). Consequently, it would probably be held that the commissioners court has no
authority to prevent vehicular traffic from using this bay front beach.

                                     SUMMARY

               Whether the public has acquired rights in a beach by implied
               dedication or prescription is a fact question. The commis-
               sioners court has no authority to permit exclusive use of a
               beach by any person, whether the beach has been dedicated
               to the public or remains under private ownership. The court




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Honorable William W. Day    -   Page 3 (R-1310)




           has authority to regulate motor vehicle traffic on a beach as
           defined by section 61.012 of the Natural Resources Code but
           would probably be held to have no authority to regulate
           traffic on other beaches.




                                          Attorney General of Texas
APPROVED:                         w




DAVID _M.KENDALL, First Assistant




Opinion Committee

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