NUMBER 13-21-00109-CV

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

LARRY MARK POLSKY, ESQ., Appellant,

 v. 

SHERIFF ERIC GARZA AND

CAMERON COUNTY, Appellees. 

 

On appeal from the 445th District Court 

of Cameron County, Texas.

 

MEMORANDUM OPINION 

Before Chief Justice Contreras and Justices Silva and Peña

Memorandum Opinion by Justice Silva

Appellant Larry Mark Polsky, Esq. appeals the trial court’s order affirming Cameron 

County Sheriff Eric Garza (the Sheriff) and Cameron County’s (the County) denial of his 

application for a sexually oriented business (SOB) license. By ten issues, which we 
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construe as one, Polsky argues the County’s decision was not supported by substantial 

evidence. The primary consideration in this appeal is whether substantial evidence 

supports the Cameron County Commissioners’ Court (the Commissioners) determination 

that a public beach neighboring Polsky’s property constitutes a “public park.” We affirm.

I. BACKGROUND

Polsky applied for an SOB license with the Sheriff pursuant to the County’s 

regulations. See Cameron County, Tex., Regulations for Sexually-Oriented Businesses 

Operating within Unincorporated Areas of the County (Dec. 21, 2004) (County SOB 

Regulations). Several interested parties objected to Polsky’s application via letter or 

email, prompting the Commissioners to hold a public hearing. Among the complaints 

received was that the proposed location was near beach access and immediately next to

a public beach frequented by children, teenagers, and adults. During the public hearing, 

some of the interested parties explained that “literally thousands of families” access and 

use the beach adjacent to Polsky’s proposed SOB location, which is located several miles 

north of the city of South Padre Island.

Following the hearing, the Commissioners issued a statement finding that “[t]he 

public beach, which is within 1,500 feet of [Polsky]’s property[,] is a public park, not owned 

by [the County] but dedicated to public use by dedication and implication and used for 

recreation, swimming, fishing, sunbathing[,] and family uses since time immemorial.”

Based on this finding, the Sheriff Omar Lucio denied Polsky’s SOB application.

1 Polsky 

1 Omar Lucio was the Cameron County Sheriff at the time of Polsky’s application and the 

administrative denial. However, Lucio’s term expired on December 31, 2020, and Sheriff Garza was 

properly substituted in as a party prior to this appeal.
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appealed the denial to the Commissioners, and after an evidentiary hearing, the 

Commissioners affirmed the Sheriff’s denial of the SOB license. Polsky then sought 

judicial review with a district court in Cameron County, which ultimately upheld the denial.2

This appeal follows.

II. APPLICABLE LAW

The Texas Legislature delegated its legislative authority to regulate SOBs to local 

governments. See TEX. GOV’T CODE ANN. § 243.003(a). County commissioners have 

authority to regulate SOBs outside the corporate limits of a municipality. Id. § 243.003(c). 

In accordance with this delegated authority, the County adopted regulations that prohibit 

an SOB from operating within 1,500 feet of a public park. County SOB Regulations

§ X(k)(4)(i); see TEX. GOV’T CODE ANN. § 243.006(a)(2) (permitting a county to prohibit a 

SOB from being operated within a certain distance of various places). The County SOB 

Regulations defined a “public park” as “any tract of land dedicated for public use and 

accessible to the general public for recreational purposes, including locations owned by 

non-profit organizations that provide educational and recreational facilities but not 

including public roads, walkways, easements, and rights of way.” County SOB 

Regulations § V(gg). 

“Public beach” means any beach area, whether publicly or privately owned, 

extending inland from the line of mean low tide to the line of vegetation 

bordering on the Gulf of Mexico to which the public has acquired the right 

of use or easement to or over the area by prescription, dedication, 

2 The district court originally affirmed the Commissioners’ decision, applying an abuse of discretion 

standard. See Polsky v. Lucio, No. 13-19-00062-CV, 2020 WL 6073264, at *2 (Tex. App.—Corpus Christi–

Edinburg Sept. 24, 2020, no pet.) (mem. op.). Polsky appealed and we reversed, concluding that the correct 

standard of review was “substantial evidence.” Id. at *2–3. On remand, the district court applied the 

substantial evidence standard and again upheld the Commissioners’ decision. It is from this decision that 

Polsky appeals.
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presumption, or has retained a right by virtue of continuous right in the 

public since time immemorial, as recognized in law and custom.

TEX. NAT. RES. CODE ANN. § 61.001.

III. STANDARD OF REVIEW

When a county undertakes the permitting or licensing of SOBs, it does so in an 

administrative capacity. A.H.D. Hous., Inc. v. City of Houston, 316 S.W.3d 212, 217 (Tex. 

App.—Houston [14th Dist.] 2010, no pet.); see also Polsky v. Lucio, No. 13-19-00062-

CV, 2020 WL 6073264, at *2 (Tex. App.—Corpus Christi–Edinburg Sept. 24, 2020, no 

pet.) (mem. op.). As with State agency administrative decisions, a county’s decision to 

permit or deny an SOB is reviewed under the “substantial evidence” standard. A.H.D. 

Hous., 316 S.W.3d at 217.

A review under the substantial evidence standard is a limited one that requires 

only more than a scintilla of evidence to support the county’s decision. Edinburg Consol. 

Indep. Sch. Dist. v. Esparza, 603 S.W.3d 468, 478 (Tex. App.—Corpus Christi–Edinburg 

2020, no pet.). “Essentially, this is a rational-basis test to determine, as a matter of law, 

whether [the Commissioners’] order finds reasonable support in the record.” Id. (quoting 

Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App.—Austin 2017, no 

pet.)). Whether the Commissioners’ determination meets the substantial evidence 

standard is a question of law. Id. Our concern centers on whether the Commissioners’

decision was reasonable, not whether it was correct. Id. (citing Jenkins, 537 S.W.3d at

149). “In our review of the district court’s judgment, we focus, as did the district court, on 

the decision of the [Commissioners].” Id. at 447. “[A court] cannot strike down an 

administrative order on the ground that the evidence heard by the [c]ourt indicated that a 
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more equitable one could be entered.” H.G. Sledge, Inc. v. Prospective Inv. & Trading 

Co., 36 S.W.3d 597, 604 (Tex. App.—Austin 2000, pet. denied) (quoting R.R. Comm’n v. 

Mackhank Petrol. Co., 190 S.W.2d 802, 804 (Tex. 1945)).

Just as we review a county’s administrative decision under the same standard as 

a state agency decision, we also apply the same deference to the Commissioners’

interpretation of its rules. See BFI Waste Sys. of N. Am., Inc. v. Martinez Env’t Grp., 93 

S.W.3d 570, 575–76 (Tex. App.—Austin 2002, pet. denied) (“Because it represents the 

view of the regulatory body that drafted and administers the rule, the agency interpretation

actually becomes a part of the rule itself.”). In that vein, we generally construe regulations 

in the same manner as statutes, but where there is ambiguity or room for policy 

determinations, we will defer to the Commissioners’ interpretation “unless it is plainly 

erroneous or inconsistent with the language of the rule.” Id. at 575. “In determining 

whether an agency interpretation of a regulation is reasonable, we cannot consider the 

regulation in isolation, but must consider how the regulation operates within the regulatory 

and statutory framework as a whole.” Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 

653, 661 (Tex. App.—Dallas 2008, no pet.) (citing Tenn. Gas Pipeline Co. v. Rylander, 

80 S.W.3d 200, 205 (Tex. App.—Austin 2002, pet. denied)).

IV. ANALYSIS

The evidence presented to the Sheriff and Commissioners demonstrated that the 

public beach adjacent to Polsky’s land was frequently and consistently used by the public 

for recreational purposes.3 See Tex. Nat. Res. Code Ann. § 61.001 (definition of “public 

3 We note that Polsky does not contest the determinations the area in question is a public beach, 
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beach”). The County, interpreting and applying its definition of “public park,” then 

concluded that the public beach fits within that definition. See BFI Waste Sys. of N. Am., 

93 S.W.3d at 575. Giving deference to the County for its interpretation, we conclude that 

its interpretation was reasonable. See id. Accordingly, the County’s denial of Polsky’s 

SOB license was supported by substantial evidence. See A.H.D. Hous., 316 S.W.3d at 

217.

Polsky, however, ignores the definition of “public park” utilized by the County. See 

County SOB Regulations § V(gg) (defining “public park” as “any tract of land dedicated 

for public use and accessible to the general public for recreational purposes”) (emphasis 

added). Instead, Polsky advocates for the utilization of what he maintains is the common 

use of the word “public park”—i.e., a tract of land owned by some governmental unit and 

formally and officially designated. Polsky argues that a variety of statutory authority and 

case law support his position that the public beach could not be a public park, and we 

address them in turn.

First, Polsky argues that the public beach cannot be a public park because it is not 

owned by a governmental unit or political subdivision. Polsky provides no legal authority

in support, see TEX. R. APP. P. 38.1(i), pointing only to the testimony of Richard Molina, 

Chief Administrator of the Cameron County Appraisal District for support. However, 

Molina never testified that to be a public park as defined by the County SOB Regulations, 

or otherwise, a tract of land must be owned by a governmental unit or political subdivision. 

Moreover, as previously noted, the definition of public park encompasses “any tract of 

is within 1,500 feet of his proposed site, and that it is used for recreational purposes.
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land . . .”—not “any tract of land owned by a governmental unit or political subdivision.” 

See County SOB Regulations § V(gg).

Polsky also contends that Texas Transportation Code § 542.325(5) designates a 

beach as a “roadway” and because the County SOB Regulations exclude roadways from 

the definition of a “public park,” the public beach at issue cannot then be a “public park.”

See TEX. TRANS. CODE ANN. § 542.325(5). However, the transportation code does not say 

what Polsky claims. See id. Section 542.325(5) creates no such designation, rather, it

merely imposes a fifteen mile-per-hour speed limit on beaches. See id. The mere fact that 

a beach is subject to a speed limit does not make it a “roadway” as contemplated by the 

County SOB Regulations. See County SOB Regulations§ V(gg).

According to Polsky, for a tract of land to be a public park, it must have a 

quantifiable geographical area, an entrance, hours of operation, a name, and amenities. 

However, Polsky provides no authority to support this proposition and we find none, see 

TEX. R. APP. P. 38.1(i), and nothing in the County SOB Regulations evinces such a 

requirement. See County SOB Regulations§ V(gg).

Polsky additionally relies on Lohec v. Galveston County for support that the public 

beach cannot be a public park. 841 S.W.2d 361 (Tex. 1992). Lohec considered whether

the Galveston County Beach Park Board of Trustees possessed the authority to make 

purchases without its county auditor’s approval or oversight. Id. at 362. Analyzing Chapter 

62 of the Texas Natural Resources Code—which allows a county to establish a beach 

park board of trustees and sets forth the powers and duties of such a board—the court 

concluded that a beach park board of trustees was subject to oversight by the county 
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commissioner. Id. at 366–67; see TEX. NAT. RES. CODE ANN. §§ 62.001–.163 (statutes 

applicable to beach park boards of trustees). However, Lohec did not, as Polsky argues, 

pertain to a county’s designation of public beaches as public parks or the regulation

SOBs. See Lohec, 841 S.W.2d at 366–67. Nor does Chapter 62 of the natural resources

code. See TEX. NAT. RES. CODE ANN. §§ 62.001–.163.

Polsky further cites to Texas Natural Resources Code § 61.161, asserting that it

does not provide the county with authority to designate the public beach in front of his 

property as a public park. See TEX. NAT. RES. CODE ANN. § 61.161. However, § 61.161 

neither permits nor restricts a county’s authority to make any such designation; rather, it 

establishes a public policy that public beaches “shall be used primarily for recreational 

purposes” and any use that “substantially interferes with the enjoyment of the beach area 

by the public shall constitute an offense against the public policy of the state.” Id.

Polsky argues that, although a private owner may dedicate land for public use, the 

owners of the beach properties did not do so, as evidenced by the fact that they continued 

to pay property taxes on the lots. Polsky relies on Owens v. Hockett to support his 

argument. 251 S.W.2d 957 (Tex. 1952). In Owens, the Texas Supreme Court upheld a 

jury finding that Hockett, a landowner, had dedicated his land for public use in the form of 

a public roadway that was maintained by the county. Id. at 958–59. In making its 

determination, the court relied on a Vermont case, observing that “the act of throwing 

open the property to the public use, without any other formality, is sufficient to establish 

the fact of a dedication to the public.” Id. at 958 (citing Abbott v. Mills, 3 Vt. 521, 527 

(1831)). Owens does not address whether Hockett continued to pay property taxes on 
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the portion of his land that was found to have been dedicated to public use, but there is 

no dispute that he maintained title over the property. Id. at 958–59. Nor does Owens

involve the dedication of privately owned beaches for public use. Id. Further, the court’s 

analysis in Owens supports the Commissioners’ finding as the evidence here showed the 

landowners have continuously opened their property to public use. Id. at 958.

Lastly, Polsky contends that Schleuter v. City of Fort Worth, 947 S.W.2d 920 (Tex. 

App.—Fort Worth 1997, pet. denied), supports his position that the public beach cannot 

be a public park under the County SOB Regulations but provides little to no explanation 

regarding its applicability. See TEX. R. APP. P. 38.1(i). We find the case to be inapposite.

In Schleuter, the Fort Worth Court of Appeals reviewed whether the city’s SOB ordinances

violated the Texas Equal Rights Amendment, the First Amendment, and were 

unconstitutionally vague—before ultimately affirming the ordinances’ constitutionality. 

947 S.W.2d at 923. Yet, Polsky has not presented an argument that the County SOB 

Regulations violate the Texas Equal Rights Amendment, the First Amendment, or were 

unconstitutionally vague. Moreover, the definition of “public park” in Schleuter differs from 

the definition before this Court: “any land area dedicated to and/or maintained by the city 

for traditional park-like recreational purposes.” Cf id. (citing Fort Worth, Tex., City Code

app. A, Ord. 3011 § 18A(G)(23)). Thus, we disagree with Polsky that Schleuter supports 

his argument that the public beach cannot be a public park under the County SOB 

Regulations.

Having reviewed Polsky’s individual challenges to the Commissioner’s finding, we 

reiterate our conclusion: because the evidence showed that the public beach adjacent to 
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Polsky’s proposed SOB is dedicated for public use and accessible to the general public 

for recreational purposes, we conclude the Commissioners’ finding is supported by 

substantial evidence. See A.H.D. Hous., 316 S.W.3d at 217. We further conclude the 

Commissioners’ interpretation of “public park” is reasonable and not plainly erroneous or 

inconsistent with the rule. See BFI Waste Sys. of N. Am., 93 S.W.3d at 575. Finally, the 

Commissioners’ finding is consistent with the statutory and regulatory framework as a 

whole. See Deese, 266 S.W.3d at 661. Therefore, the trial court did not err in affirming 

the denial of Polsky’s SOB application. Polsky’s sole issue is overruled.

V. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA

Justice

Delivered and filed on the

20th day of April, 2023.