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 required 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 

f 

ht. 

o, Right0 under go 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. 

vielone of 

We first examlne the queetlon of whether euoh prothe 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 recognizes 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 following 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,s a 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 confirms 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 barriers obstructing travel along the beaches, for certain purposes 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 constitutionality 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 ordlnance, 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 residential 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 following 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 llmitation of the exercise of those police 

powers wnich are necessary to the tranquii,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::es regulations designed to promote 

the public convenience or the general 

prosperity, as well as regulations designed 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 function, 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. Although 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 comprehensive, elsewhere and otherwise described or defined as a very high power, 

and the laws enacted for the purpose of 

regulation thereunder may be Impolitic, 

harsh, and oppressive without contravening the constitutional inhibition. 

It corresponds to the right of selfpreservation 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 community. . . 

'Generally police power operates in the 

field of regulation, except possibly in 

some cases of emergency such as conflagration or flood when private property may be 

temporarily used or damaged or even destroyed 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 pursue 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 property. 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: reasonableness 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 convenience and the public welfare, we cannot 

regard them as subject to attack on constitutional 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 contention." 

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~e Interests 

for the public welfare, a statute or ordinance is not rendered unconstitutional by 

the mere fact that private rights of person 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 protection of such interests. If there is room 

for a fair difference of opinion as to the 

necessity and reasonableness of a legislative 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 contains numerous exceptions designed to lessen the inconvenience 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 seashore for the purposes stated in Section 

2 of the Act, and 

I'C * There has been established no prescriptive right as against such claimant 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 

~.~I3 still 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. 

.It Is important to note that~the .Bill,does more 

than~create merely a prima facie',presumption, that is, 

one which'Pvil1 supply 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 

then record.tltle,'to which is In another. 

RR. Co., v. Turnipseed, et al., a:9 U.S. 35 55 L 

A leading case is Mobile, Jackson & lCanr;s City 

d . 78 

decided by the United States Supreme Court in 1910.. Thebe 

under attack as violating the due process clause was a 

,Mississippi statute which provided that in actions for 

damages "proof of,injury inflicted by the running of ,locomotives . b . . sha~ll.be prima facie evidence of the want 

of reasonable 'skill and care', in the operation off the 

train. The court rejected the contention that~ the courts 

of Mississippi by construlr&the act as creating a presumption 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 producing 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 otherwise 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 inference." 

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 derailed 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 presumption of negligence in accidents involving the operation 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 reasonable care and diligence, the presumption in all cases 

being against the company" was under attack as being in 

violation of due process. 

accl 

due 

The suit was occasioned by a grade corssing 

-dent. The defendant had offered much evidence of its 

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 necessarily 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 presumption in violation.of the due process clause. During 

the course of the opinion the court, in discussing legislation 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 particular 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, 

supra, is authority for the proposition that +tate 

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 

-7-Fapparently upon the ground 

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 temporary 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 unreasonable 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 conclusion 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 Company 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<acie presumption which vanished 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 accorded 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 circumstantial, and has no effect In 'excess 

of a mere temporary inference of fact that 

casts upon the defendant the duty of producing 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 beginning. . .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 statute that merely supplies an inference of 

fact in the absence of evidence contradicting 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 parties, 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 advised 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 therefrom 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,on of 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