Texas Proposition 9 (2009)

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Texas Proposition 9, also known as House Joint Resolution 102, appeared on the November 2009 ballot in Texas as a legislatively-referred constitutional amendment, where it was approved.[1]

A Texas statute known as the Open Beaches Act guaranteed beach access for the state's residents. It has been in effect for about 50 years. However, Richard Raymond, a Democratic member of the Texas House of Representatives (District 42), advocated elevating the level of protection of that right to the Texas Constitution and sponsored legislation to put Proposition 9 before the state's voters.

Raymond said, "We have one of the best coastal access laws in the country. This takes it to another level. It’s more likely that these beaches will remain public forever."

Election results

Texas Proposition 9 was approved by voters on the night of November 3, 2009. Unofficial election results follow:[2]

Texas Proposition 9
ResultVotesPercentage
Approveda Yes 802,731 76.94%
No240,58323.05%

Text of measure

The short ballot summary Texas voters will see on their ballot is "The constitutional amendment to protect the right of the public, individually and collectively, to access and use the public beaches bordering the seaward shore of the Gulf of Mexico."[3]

Constitutional changes

See also: Amending the Texas Constitution

Proposition 9 amends Article 1 of the Texas Constitution by adding a new Section 33 which will say:

In this section, "public beach" means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law.
  • (b) The public, individually and collectively, has an unrestricted right to use and a right of ingress to and egress from a public beach. The right granted by this subsection is dedicated as a permanent easement in favor of the public.
  • (c) The legislature may enact laws to protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments.
  • (d) This section does not create a private right of enforcement.

Support

A Galveston beach at sunset

Arguments

A group called Surfrider’s South Texas Chapter stated their arguments for the measure. According to their website, surfers are not the only group that would be affected if the measure failed to be enacted by voters. The passage of the measure would have an impact on future measures similar to this one. The website stated: “This matters to fishermen, birders, swimmers, families, shell collectors and even the odd treasure hunter, but it goes beyond that. The passage of Proposition 9 has the potential to set a precedent for the protection of public beach access and that every coastal state in the United States can strive to draft and implement.”

Opposition

Arguments

Opponents argued that the proposition gave the state "too much power to restrict the right of private landowners to enjoy their property." Additionally, opponents, including Americans for Prosperity, argue that the proposition will make the law more difficult to amend in the future. "The law should be weakened, not placed in the Constitution," said Americans for Prosperity.[4]

Campaign contributions

No committees or contributions to campaigns relating to Proposition 9 were reported.[5]

Media editorial positions

Main article: Endorsements of Texas ballot measures, 2009

Editorial boards in support

  • The Star-Telegram editorial board supported Proposition 9. "In the Nov. 3 constitutional amendment election, Texans have a chance to keep it that way. Proposition 9 on the ballot would incorporate into the state constitution the provisions of a 1959 law that reserves beaches for public use. A lot of beachfront property owners would have it otherwise...Still, all coastal property owners know the risks when they buy. They know they could lose their homes in many ways. If the vegetation line moves in such a way that their home encroaches on the beach, they know they cannot get title insurance or windstorm insurance. That’s sad for them, but the more important principle at stake is that the public has a right to use the beach," said the board.[6]
  • The Austin Chronicle supported the proposition. "A very good amendment. This is actually an important defense of the constitutional right of all Texans – but not currently stated in the constitution – of permanent access to public beaches without interference from developers or other private interests," said the board.[7]
Devastation along the Texas Coast in Galveston after Hurricane Rita

In an editorial published by the Forth Worth Star-Telegram, columnist Mike Norman cited a recent case in support of Proposition 9. Norman described the case of Carol Severance who bought two houses near Galveston beach, one in 1999 and the other in 2004. The facts of the story are as follows:

  • After Hurricane Rita occurred, the erosion of the storm caused the vegetation line to shift landward, thus leaving her property on a public beach. The state then offered her $40,000 for moving expenses since her house was then on public property. Severance declined and then sued in a federal court.
  • A judge dismissed her case because her "right to exclude the public never extended seaward of the dynamic, natural boundary of the beach" as defined in the Open Beaches Act.
  • After she appealed, two judges dismissed part of her case, while the third judge wanted to dismiss the case completely, raising questions whether Severance, a California resident, had connections with the Pacific Legal Foundation, a Sacramento-based organization that fights in courts nationwide for the rights of property owners.
  • The judge questioned whether Severance and the foundation had premeditated intentions of attacking the Open Beaches Act.
  • Norman states: “That might at least explain why she spent good money on houses that were already targeted for removal. Maybe she did know what she was doing. Either way, November will be a crucial month for Texans and their right to use the beaches of their state. I hope voters will stand behind the Open Beaches Act by approving Proposition 9 on Nov. 3.”[8]

Editorial boards opposed

  • The El Paso Times opposed Proposition 9. They said,"This proposition involves public access to beaches and doesn't need to be in the Constitution. The Legislature should handle this. Also, opponents say it could restrict the rights of private-property owners."[9]

Aftermath

Senator Juan Hinojosa, sponsor of the measure, thanked his supporters and voters who voted for the amendment on November 4, 2009. According to the senator: "Proposition 9 makes the Texas Open Beaches Act a part of the Texas Constitution. With so much development taking place on Texas' coastline, I feel it is important to clarify our right to enjoy public beaches in Texas."[10]

Path to the ballot

See also: Laws governing direct democracy in Texas

The Texas House of Representatives voted by 140-1 to put the measure on the November ballot, and the Texas State Senate followed suit with a 29-2 vote.

As laid out in Article 17 of the Texas Constitution, in order for a proposed constitutional amendment to be placed on the ballot, the Texas State Legislature must propose the amendment in a joint resolution of both the Texas State Senate and the Texas House of Representatives. The joint resolution can originate in either the House or the Senate. The resolution must be adopted by a vote of at least two-thirds of the membership of each house of the legislature. That amounts to a minimum of 100 votes in the House of Representatives and 21 votes in the Senate.

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