, . 

The Attorney General of Texas 

December 28, 1978 

JOHN L. HILL 

Attorney General 

Honorable William W. Day 

Criminal District Attorney 

Calhoun County 

Port Lavaca, Texas 77979 

Opinion No. H- 13 10 

Re: Whether a commissioners 

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, 

7 

Zachry v. City of San Antonio, su ram Clement v. City of Paris, 175 S.W. 672 (Tex. 

1915 ; 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 commissioners 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 

jsn 

ps 5161