                                   July   3,   1959


Honorable    Menton J. Murray,     Chairman
Conservation     and Reclamation    Commlttee
State   of Texas
House of Representatives
Austin,    Texas
                                           Oplnidn    NO. ~~-661
                                           Re:    Constltutlonallty       of
                                                  House Bill 14, 56th
                                                  Legislature,      2nd C.S.,
                                                  dealing     with public
                                                  use of beaches.
Dear Mr. Murray:
             Y’ou request the opinion   of this department     a8 to
the constltutlonallty     of the comMIttee eubstltute      for House
Bill 14 of the 56th Legislature,       2nd C.&,  which deala with
public  uee of the beache      along the open waters    of the CIulf
of Mexico.
           Construing     the statute    a8 a whole, as we are re-
quired  to do under standard       rules  of statutory    construction,
we think It clear     that the Act Involves       three types of rlghte
in the public   to uee tha beaohee as follows:

                   a.   Ownerehlp.
                   b.   Presorlptlve rl ht.
                   o,   Right0 under go f 100 power
            In oourt prooeedlnge   Involving   the flrrt two above
mentloned   rlghtn the burden ,of proof la plaoed on the upland
owner, a phase of the bill     wh$oh we dlrouerr further  on in
thie opinion.
            We first  examlne the queetlon    of whether    euoh pro-
vielone   of the Bill repreeent  an unlargful   taking   for public
Hon. M. J. Murray, Chairman; Page 2 (WW-661)


use 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 recog-
nizes 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 follow-
ing 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
          a,sa 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. .By. Co. 296 S.W. 877
(Comm App. 1927); Perry v. Jaggers, 9    W 2d 143, err. dism;
T. & P. l?y.CO. v. Gaines, 27 S.W. 266:.  '


          The bill next recognizes the existence of and con-
firms 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 bar-
riers obstructing travel along the beaches, for certain pur-
poses 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 the
Hon. M. J. Murray, Chairman, Page 3 (W-661)


beaches In fa,vor,of the public interest in matters which may
be generally classed as of an emergency nature.
          Perhaps the leading case dealing with the constitu-
tionality of such legislation Is the case of Lombard0 v. City
of D::c
     .i
      1,:
        s, 71 S.W. 2d, 475, wherein the Dallas zoning ordl-
nance, as well as the statutes authorizing same (Articles
lOlla to lOllj, V.C.S.), were upheld. Immediately at stake
was the right to build a filling station In a zoned resi-
dential 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 contentlon 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 Lombard0 case at page 479, adopted the follow-
ing 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 llmi-
          tation of the exercise of those police
          powers wnich are necessary to the tran-
          quii,ty ?f every well-oldered community,
          nor of tnat general power over private
          9roperty which is necessary for the
          nrderiy existen,~-I;f all governments. . .
          "#e nojd that the policy p,cwe:' sf a stat:;
          e!ribra::esregulations designed to promote
          the public   convenience or the general
          prosperity, as well as regulations de-
          signed 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 func-
          tion, an Inherent attribute of sovereignty,
          and the greatest and most powerful attribute
          of government. It was born with civilized
Hon. M. J. Murray, Chairman, Page 4 (W-661)


          government, and was possessed by every
          state before the union was formed. Al-
          though the basis of the police power lies
          In the constitution which regards the
          public welfare, safety, and health of
          the citizens of the state, and although
          it may be given to the people of the
          state by the constitution, the power
          exists without any reservation in the
          constitution, being founded on the duty
          of the state to protect Its citizens
          and provide for the safety and good
          order of society.
          "In its nature it is very broad and com-
          prehensive, elsewhere and otherwise de-
          scribed or defined as a very high power,
          and the laws enacted for the purpose of
          regulation thereunder may be Impolitic,
          harsh, and oppressive without contra-
          vening the constitutional inhibition.
          It corresponds to the right of self-
          preservation in the individual, and is
          an essential element In all orderly
          governments, because necessary to the
          proper maintenance of the government
          and the general welfare of the com-
          munity. . .
          'Generally police power operates in the
          field of regulation, except possibly in
          some cases of emergency such as conflagra-
          tion or flood when private property may be
          temporarily used or damaged or even de-
          stroyed to prevent loss of life or to
          protect the remaining property of an
          entire locality.W
          There can be no doubt that in certain periods of
emergency, in the very nature of the police power, private
property becomes subject to public use. Cfficers may pur-
sue felons onto private property, otherwise society would
be at the mercy of criminals. Firemen may even destroy
private property to stop a spreading conflagration. Planes
or boats in distress may be forced to land on private proper-
ty. Health authorities are at times forced to go on private
property to abate sanitary hazards. Defense forces in event
of enemy attack must be deployed across property lines.
,   .




        Hon. M. J. Murray, Chairman, Page 5 (~~-661)


                  We are of the opinion, however, that the right
        under the police power to go upon private property is limited
        to condition8 of emergency, of which the above are examples,
        where lives, health, property, law enforcement and the like
        are at stake. We think, therefore, that the various pur-,
        poses listed in Sec. 2 of the Bill must be limited to such
        emergencies and that any purpose listed which does not fall
        within such category is invalid. The bulk of the purposes
        listed are clearly of an emergency nature and are valid
        under the police power. The effect of the bill, insofar
        as this phase of it is concerned, Is, through regulations
        closely akin to zoning and city building codes, to require
        a building setback as to the beach area In which no fences
        or other obstructions are to be allowed, so as to facilitate
        the passage of vehicle8 in time of publie emergency.
                  A city orginance containing a building setback
        rule was specifically upheld by the Supreme Court in Halsell
        ;;.F;;uBOn, 202 S.W. 317.   The case points out the two
               ons for the exercise of the police power: reasonable-
        ness of the legislation and promotion of public welfare.
        The court said at page 321:
                  "Since these regulations appear reasonable,
                  and since they promote the general conven-
                  ience and the public welfare, we cannot
                  regard them as subject to attack on con-
                  stitutional grounds.
                  "Coming within the police power, appellants
                  have to submit to these regulations, without
                  regard to compensation."
                  For a time in the history of Texas jurisprudence
        there appears to have been some doubt as to whether the police
        power was superior to rights of property. The Lombard0 case,
                               to have laid this matter to rest, the
        AUKS’s~~~~~’ai”:EzZr478 :
                  "The insistence that the right of property
                  or the unrestricted use of property Is not
                  subject to the police power has long since
                  been determined adversely to that conten-
                  tion."
        Subsequent Supreme   Court   decisions are in accord.
                   In R.R. Commission v. Rowan 011 Co., 259 S.W. 2d
Hon. M. J. Murray, Chairman, Page 6 (~~-661)


173 (1953), the Court stated: "All property is held subject
to a valid exercise of the police power."
          In Town of Ascarate v. Villalobos, 223 S.W. 2d
945, 950, the Court quoted with approval this language:
          "Since the very foundation of the police
          power is the control of privat~eInterests
          for the public welfare, a statute or ordi-
          nance is not rendered unconstitutional by
          the mere fact that private rights of per-
          son or property are subjected to restraint
          or that loss will result to Individuals
          from its enforcement."
          The question of police power versus property rights
was brought into sharp focus in the recent case of State v.
Richards, 301 S.W. 2d 597 (1957).  The Supreme Court upheld
a statute authorizing confiscation of an automobile driven by
a narcotics violator who had borrowed it from an innocent
owner. The dissenting opinion in what both sides admitted
was a harsh case on the facts, stoutly insisted that the
police powere was subordinate to property rights. Justice
Walker, speaking for the court majority, said:
          "Police regulations are not unconstitutional
          merely because they operate as a restraint
          upon private rights of person or property
          or will result in loss to individuals.
          Damage to or loss of property resulting from
          a proper exercise of such power does not
          constitute a taking of property under the
          right of eminent domain, and compensation
          is not required to be made therefor. . . A
          large di8CEtiOn  is necessarily vested in
          the Legislature to determine not only what
          the interests of the public require, but
          what measures are necessary for the protec-
          tion of such interests. If there is room
          for a fair difference of opinion as to the
          necessity and reasonableness of a legis-
          lative enactment on a subject which lies
          within the domain of the police power, the
          courts will not hold it void."
           To the same effect see opinion by Justice Norvell
in City of Corpus Christi v. Jones, 144 S.W. 2d 388 (19&O),
err. di sm., m                    illiams v. State, 176 S.W.2d
.   .




        Hon. M. J. Murray, Chairman, Page 7 (W-661)


        177, 182, for a review of the police power by the   Court   of
        Criminal Appeals.
                  The phase of the bill under consideration does not
        of itself authorize indiscriminate public travel on the
        beaches. Rather it keeps the beaches open by a 'building
        setback,,provision In order that a way may be clear for
        vehicles, should a public emergency arise. The bill con-
        tains numerous exceptions designed to lessen the inconven-
        ience occasioned the upland owner. The beaches give primary
        access to the sea, and in view of the purposes stated in
        Sec. 2, we cannot say that such an exercise of the police
        power is unreasonable. Accordingly, we are of the opinion
        that such portion of the bill is constitutional.
                  With reference to the presumption created in the
        bill, the power of the Legislature to create a presumption
        of the existence of certain facts upon proof of other facts
        has been the subject of many and varied diScuSSiOn  by the
        courts and text writers of this country. The reported cases
        dealing with the subject are legion. See,Annotations in
        51 A.L.R. 1139, 162 A.L.R. 513, and 46 AiL.R. 2d 1176.
                  The presumptions here under consideration are
        set forth in Section 3 of the Bill. It is there provided:
                  "The area defined in Section 2 above
                  shall be presumed to be subject to the
                  public uses and easements described in
                  Section 2 unless the same is rebutted
                  by a claimant of ownership or exclusive
                  rights in said land, which claimant
                  shall have the burden of establishing
                  clearly, that
                  "a. The ownership or right to exclusive
                  possession of the seashore in question is
                  in claimant, and
                  "b. Such ownership includes a right to
                  exclude persons from the use of the sea-
                  shore for the purposes stated in Section
                  2 of the Act, and
                  I'C
                    * There has been established no pre-
                  scriptive right as against such claim-
                  ant by the public, or by the person or
                  persons using the seashore as an easement
Hon.   M.   J. Murray, Chairman, Page 8 (WW-661)


             to the sea. Provided that it shall be
             sufficient for claimant to show thatno
             prescriptive right was obtained during
            'z;:,zz years immediately preceding the
                    . This proviso shall not preclude,
             affirmative proof by the State that such
             prescriptive right was obtained more
             than 25,years~preceding the action and
            ~.~I3still lti’effecf.”
          The question presented is whether the creation
of such a statutory presumption violates the "due process
of law" guaranteed by the Fourteenth Amendment of the
Federal Constitution and Article I, Section 19, Conatitu;
tion of Texas.
           .ItIs important to note that~the .Bill,doesmore
than~create merely a prima facie',presumption,that is,
one which'Pvil1supply evidence to support a judgment in
the absence of contrary evidence of probative value and
which merely places the burden of "going forward" with
the evidence upon the opponent. This Bill places upon
the claimant of the area the "burden of persuasion', In
fact "the burden ~of establishing clearly that the public
has not, within the period of 25 years preceding the
action, used the area in such a manner as to have matured
by prescription the rights and uses described In Section
2.  Thus the Bill, if.valid, would diametrically reverse
the common law doctrine which places the burden'of,"going
forward" as'well asthe burden of 7persuasion"'upon one
~who seeks by a judgment to impress an easement on land
thenrecord.tltle,'towhich is In another.
          A leading case is Mobile, Jackson & lCanr;sCity
RR. Co.,v. Turnipseed, et al., a:9 U.S. 35 55 L d . 78
decided by the United States Supreme Court in 1910.. Thebe
under attack as violating the due process clause    was a
,Mississippistatute   which provided that in actions for
damages "proof of,injury inflicted by the running of ,loco-
motives . b .. sha~ll.beprima facie evidence of the want
of reasonable 'skill and care',in the operation offthe
train. The court    rejected the contention that~the courts
of Mississippi by construlr&the act as creating a pre-
sumption of liability had in fact given it a greater
force that a mere temporary inference of fact. ;In this
connection the,Court said:
              n      The ‘statutory effect of the rule
              1; io'provide that evidence of an,injury
Hon. M. J. Murray, Chairman, Page 9 (~~-661)

          arising from the actual operation of trains
          shall create an inference of negligence,
          which is the main fact in issue.  The only
          legal effect of this inference Is to cast
          upon the railroad company the duty of pro-
          ducing some evidence to the contrary. Then
          the question of negligence is one for the
          jury, upon all of the evidence. In default
          of such evidence, the defendant, in a civil
          case, must lose, for the prima facie case
          is enough as a matter of law.
          "The statute does not, therefore, deny
          the equal protection of the law, or other-
          wise fail in due process of law, because
          it creates a presumption of liability,
          since its operation is only to supply an
          inference of liability in the absence of
          other evidence contradicting such infer-
          ence."
          The court further laid down what may be taken as
a guide in testing the validity of statutory presumptions:
          "That a legislative presumption of one
          fact from:evidence of another may not
          constitute a denial of due process of
          law or a denial of the equal protection
          of the law, it Is only essential that
          there shall be some rational connection
          between the fact proved and the ultimate
          fact presumed, and that the inference of
          one fact from proof of another shall not
          be so unreasonable as to be a purely
          arbitrary mandate. . ."
          In rejecting the attack on the statute the court
finally concluded that, the injuries being caused by a de-
railed car, it was not "an unreasonable inference that a
derailment of a railway car is due to some negligence,
either in constructing or maintenance of the track or some
carelessness in operation." (P. 81)
          In 1929 the Supreme Court of the United States
was again confronted with a state statute creating a pre-
sumption of negligence in accidents involving the opera-
tion of railroads. Thus, in Western & Atlantic RR. v.
Henderson, 279 U.S. 639, 73 L.Ed. 884, a Georgia statute
providing that a railroad company should be liable for
damages or injuries inflicted "by the running of the
Hon. M. J. Murray, Chairman, Page 10 (~-661)


locomotives. . . unless the company shall make it appear
that their agents have exercised all ordinary and reason-
able care and diligence, the presumption in all cases
being against the company" was under attack as being in
violation of due process.
          The suit was occasioned by a grade corssing
accl-dent. The defendant had offered much evidence of its
due care and, although plaintiff offered no evidence of
several of the allegations contained in the 'qomplaint,the
trial court instructed the jury that because of the statute
the presumption arose that the company was negligent "in
each of the particulars specified in the petition, and the
burden thereupon shifts to the defendant company to show
that its employees exercised ordinary care and diligence
in such particulars." The Supreme Court said that by
authorizing the jury, in the absence of evidence, to find
negligence in the operation of the train, "the court neces-
sarily permitted the presumption to be considered and
weighed as evidence against the testimony of defendant",
and it appearing that the courts of Georgia had construed
the statute asmpplying evidence by presumption, proceeded
to strike down the statute as creating an arbitrary pre-
sumption in violation.of the due process clause. During
the course of the opinion the court, in discussing legis-
lation creating prima facie presumptions,,said:
          "Legislation declaring that proof of one
          fact or group of facts shall constitute
          prima facie evidence of an ultimate fact
          in issue is valid if there is a rational
          connection between what is proved and
          what i to be inferred. A prima facie
          presum:tion casts upon the person against
          whom it is applied the duty of going
          forward with his evidence on the particu-
          lar point to which the presumption.relates.
          A statute creating a presumption that is
          arbitrary or that operates to deny a fair
          opportunity to repel it violates the due
          process clause of the 14th Amendment,
          Legislative fiat may not take the place
          of fact in the judicial determination of
          Issues involving life, liberty of property.
          Manley v. Georgia, 279 U.S. 1, ante, 575,
          49 Sup. Ct. Rep. 215, and cases cited."
          (Emphasis added) (73 L.Ed. 888)
Hon. M. J. Murray, Chairman, Page 11 (WW-661)


          It is our construction that the Turni seed case,
                                          +tate
supra, is authority for the proposition that
statute creating a prima facie presumption to be valid
there must be a logical connection between the facts proved
and the facts presumed. In the specific fact case there in
question the court found the lnference.of negligence (the
presumption) logically to follow from the facts proved (the
derailment of a railroad car).
          In Henderson, supra, the appellee urged that the
presumption created by the Georgia statute validly was and
should be considered as evidence in the case, and relied
for his position upon Turni seed apparently upon the ground
                      -7-F-
that both statutes were s m lar in language and that the
court in Turnipseed had found a reasonable relation between
the facts presumed and the facts proved. The court expressly
rejected this theory and, in referring to Turnipseed, said:
          n . . . That case is essentially different from
          this one. Each of the state enactments raises
          a presumption from the fact of injury caused
          by the running of locomotives or cars. The
          Mississippi statute created merely a tempo-
          rary inference of fact that vanished upon the
          introduction of opposing evidence. Gulf,
          M & N R.R. Co. v. Brown, 1.38 Miss. 39, 66,
          et seq. 102 So. 855; Columbus & G.R. Co. v.
          Fondren 145 Miss. 679, 110 So. 365.   That of
          Georgia as construed in this case creates an
          inference that is given effect of evidence to
          be weighed against opposing testimony and is
          to prevail unless such testimony is found by
          the jury to preponderate.
          "The presumption raised by 8 2780 is un-
          reasonable and arbitrary and violates the
          due process clause of the 14th Amendment
          * * .' (L. Ed. 888, 889)
          While it might be argued that the court struck
down the statute in the Henderson case because it found no
lcglzal connection between the grade crossing accident and
the presumption of negligence on the part of the railroad,
we think the more logical interpretation leads to the con-
clusion that it was because the statute, as construed by
the Georgia courts, had the force of evidence. We are
strengthened in this conclusion by the fact that a statute
in Florida identical in words with the Georgia statute was
held constitutional in the case of Atlantic-Coast Line Com-
pany v. Voss, 136 Fla. 32, 186 so. 199, for the specific
.

    Hon.   M.   J.   Murray,   Chairman; Page 12 (WW-661)


    reason that the courts of Florida construed the statute
    merely as creating a prima f<aciepresumption which van-
    ished whenthe Railroad Company produced probative evlk
    dence to the contrary. The Florida Supreme Court further
    noted that its statute had been upheld in Klrsch v.
    Atlantic Coast Line Railroad Company, 5 Cir. 28 Fed. 963~
    and, in effect, by the Supreme Court of the United States
    in the Henderson case supra, and In the case of Strln fellow
    v. Atlantic Coast Line Company, 290 U.S. 608, 7ti&
              In Commissioner of Internal Revenue.v. Baln Peanut
    Co., 134 F.2d 853, 5 Cir., 1943, the Court, in dlscuaalng
    statutory presumptions said:
                 "The law governing burden of proof Is a
                 matter of substance. It Is never the
                 function of a rebuttable presumption to
                 shift the burden of proof; its office Is
                 to supply an Inference which may take the
                 place of proof not otherwise produced.
                 If the statutory    presumption  here invpked
                 should be given the probative force ac-
                 corded to It by the Board, It would have
                 the effect of shifting the burden of proof;
                 but it does not have this effect, because
                 it is a mere rule,of evidence and not,of
                 substantive.law. It'ls a presumption that
                 yields readily to evidence, direct or cir-
                 cumstantial, and has no effect In 'excess
                 of a mere temporary     inference of fact that
                 casts upon the defendant the duty of pro-
                 ducing sufficient evidence to rebut it,
                 When that is done, the inference Is at an
                 end; It disappears entirely,,and the burden
                 of proof remains as It existed in the be-
                 ginning. . .I
                 "If we compare the Turnlpseed case with
                 Western & A.R.R. Co. v. Henderson 279
                 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 684, we
                 shall observe the difference between a stat-
                 ute that merely supplies an inference of
                 fact in the absence of evidence contra-
                 dicting such inference, and a statute that
                 creates an inference that is given the
                 effect of evidence to be weighed against
                 opposing testimony. The latter presumption
                 is unreasonable; and, between private par-
                 ties, violates the due-process clause of
.   ’




        Hon. M. J. Murray, Chairman, Page 13 (~~-661)


                  the Fourteenth Amendmant if created by an
                  Act of Congress.” (134 F.2d, 857, 858)
                  While the authorities which we have discussed
        (and most others which we have examined in our research)
        relate to tort actions, they would seem to apply with even
        greater force to vested rights of property with which we
        are presently concerned. In view of such authorities,
        it Is our opinion, and you are so advised, that, as presently
        drawn, Section 3 of H.B. 14, violates the due process clause
        of the Federal and State Constitution and for that reason Is
        invalid.
                  In the interest of time, however, and on the
        assumption that perhaps the committee might be interested
        in revising this portion of the Bill, you are further ad-
        vised that it is our opinion that the presumptions could
        be made valid If they are revised so as to be made merely
        prima facie, as discussed In Turnipseed and Henderson,
        supra. We are canfldent that a court would take judicial
        notice of the fact that, when and where not barred there-
        from by effective obstructions, members of the general
        public have in fact used the sandy beach areas for the
        purposes designated and set forth In the Bill. Under
        these circumstances proof of the locatl,onof land within
        the area designated bears a logical connection with the
        presumption of public use and should meet the tests laid
        down by the cases discussed above.

                                  SUMMARY
                  As presently drawn Section 3 of H.B. 14,
                  56th Legislature, 2nd Called Session
                  contravenes the due process clause of the
                  Federal and State Constitution and is
                  therefore invalid. The use of the.area
                  for the emergency purposes set forth in
                  Section 5 Is valid.
                                         Very   truly   yours,

                                         WILL WILSON
                                         Attorney General
Hon. M. J. Murray, Chairman, Page 14 (WW-661)




                                     8
                                    J. Arthur Sandlin
                                    Assistant
APPROVED BY:
OPINION COMMITTEE
George P. Blackburn, Chairman
John B. Webster
W. R. Scruggs
W. 0. Schultz
C. K. Richards
REVIEWED FOR THE ATTORNEY GENERAL

BY
     W. V. Geppert
