Opinion issued May 1, 2014

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-08-00179-CV

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ANGELA MAE BRANNAN, INDIVIDUALLY AND AS INDEPENDENT 

EXECUTRIX OF THE ESTATE OF BOB ALBERT BRANNAN, 

DECEASED, BROOKS PORTER, MARY PORTER, RUSSELL CLINTON, 

INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE 

OF ELIZABETH CLINTON, DECEASED, JUDY CLINTON, REG APLIN 

AND BEAVER APLIN, PARTNERS D/B/A BENCHMARK DEVEOPING, 

LOUISE BULLARD, DUANE LOGGINS CLARK, JOSEPH CORNELL 

DEWITT, LISA MARIE DEWITT FUKA, MACARIO RAMIREZ, 

CHRISSIE DICKERSON, JEFFREY DYMENT, MARVIN JACOBSON 

FAMILY HOLDING COMPANY, CATHY T. CHARLES, JAMES MEEK, 

PATRICIA MEEK, MARK PALMER, JAMES C. PURSLEY, PATRICIA 

PURSLEY, KENNETH C. REUTZEL, ANDREA REUTZEL, S&S 

HOLDINGS, LLC, ROGERS THOMPSON, EXECUTOR OF THE ESTATE 

OF P.E. KINTZ, DECEASED, Appellants

V.

THE STATE OF TEXAS, THE VILLAGE OF SURFSIDE BEACH, MAYOR 

LARRY DAVISON, AND SURFRIDER FOUNDATION, Appellees
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On Appeal from the 239th District Court

Brazoria County, Texas

Trial Court Case No. 15802

MEMORANDUM OPINION

This is a beach-access dispute involving application of the Texas Open 

Beaches Act (OBA) to the appellants’ beach houses on Pedestrian Beach in 

Surfside after storms moved the vegetation line landward of the houses. TEX. NAT.

RES. CODE ANN. §§ 61.001 – .254 (Vernon 2011 & Supp. 2013). After the 

Supreme Court of Texas decided Severance v. Patterson, 370 S.W.3d 705 (Tex. 

2012), the court vacated this court’s prior judgment and remanded the case for 

reconsideration. 

In a new round of briefing, the appellants now argue that they are entitled to 

judgment that the State committed an unconstitutional taking of their property 

without just compensation, an award of damages, and an injunction against 

enforcement of a public easement. In response, the State concedes that the 

previously entered summary judgment must be reversed in light of Severence, but 

argues that additional arguments are still available to it in light of the unavailability 

of its previously asserted rolling-easement theory of the case. The State therefore 

contends that a remand to the trial court is necessary for further proceedings. 

Appellees the Village of Surfside Beach and Mayor Larry Davison ask us to render 
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judgment in their favor or, alternatively, remand to the trial court for further 

development of the record. Intervenor Surfrider Foundation did not previously 

participate in this appeal, but now has filed a brief arguing that we should interpret 

Severance narrowly, and that “factual determinations are needed before any 

judgment may be made on” the property owners’ takings claim. 

Following a holding that there is error in the trial court’s judgment, remand 

to the trial court in the interest of justice is appropriate in several situations, 

including when (1) “we overrule existing precedents on which the losing party 

relied at trial,” (2) “it appears from the record that the losing party might be able to 

recover under some other established legal theory that was not developed at the 

first trial,” and (3) on appeal, “we announce a new standard of recovery in the case 

under consideration.” Westgate, Ltd. v. State, 843 S.W.2d 448, 455 (Tex. 1992). 

“As long as there is a probability that a case has, for any reason, not been fully 

developed, an appellate court has discretion to remand for a new trial. . . .” Ahmed 

v. Ahmed, 261 S.W.3d 190, 196 (Tex. App.—Houston [14th Dist.] 2008, no pet.) 

(citing Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 822 (Tex. 

App.—Houston [1st Dist.] 2008, no pet.)). “Moreover, remand is appropriate if a 

case needs further development because it was tried on an incorrect legal theory or 

to establish and present evidence regarding an alternate legal theory.” Id.
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The parties focused their summary-judgment briefing and arguments in the 

trial court on the state of the law before Severance clarified the law as it relates to 

public-beach access and expressly rejected the rolling-easement theory when the 

vegetation line is altered by an avulsive event. We conclude that the factual record 

and legal arguments are not sufficiently developed to facilitate a complete review 

of the parties’ competing claims under the appropriate Severance analysis. 

Accordingly, we reverse the trial court’s grant of summary judgment in 

favor of the State on the rolling-easement theory, and remand to the trial court for 

reconsideration of the parties’ claims guided by the principles announced in 

Severance. 

PER CURIAM

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.