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’ourequest 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 fht. o, Right0 under go 100 power
In 

### oourtprooeedlnge 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 ofWefirst examlne the queetlon of whether euoh prothe Bill repreeent an unlargful taking for publicHon. M. J. Murray, Chairman; Page 2 (WW-661)

use without compensation,and violate due process of law contrary to applicable constitutionalprovisions.

Of course, if the public owns the property, there is no taking. If the public has an easementby prescription to use the beaches, the Act createsno new right. It recognizes such rights in the public but thesemay 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 additionalproperty interestsare granted beyond that which the publicmay 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 Comptonv. Waco Bridge Company, 62 Tex. 715, 722:

"Evenbefore the earliest settlementby whitemen it seems that the Indians, while yet their campfiresblazed along its banks, had by use establishedthis a,sa 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 secureda right to this ford, by presumptivededication,and also by prescription."

And see Phillipsv. T. & P. .By.Co. 296 S.W. 877 (CommApp. 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 tomean free from barriers obstructingtravel along the beaches, for certainpurposes connectedwith 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 imposeburdens on any private ownership of theHon. M. J. Murray, Chairman, Page 3 (W-661)

beaches In fa,vor,ofthe public interest inmatters which may be generally classed as of an emergencynature.

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 statutesauthorizing same (Articles lOlla to lOllj,V.C.S.), were upheld. Immediatelyat stake was the right to build a filling station In a zoned residential neighborhood. It was urged that this interference by the zoning ordinancewith the use by the landowner of his propertywas a public takingwithout 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 languagefrom a decision of the Supreme Court of the .UnitedStates:

"Uncompensatedobedience to a regulation enacted for the public safetyunder the police power of the State is not taking property without due compensation,and the constitutionalprohibition against the taking of privatepropertywithout compensation is not intendedas a llmitation of the exercise of those police powers wnich are necessary to the tranquii,ty ?f everywell-oldered community,
nor of tnat generalpower overprivate 9ropertywhich is necessary for the nrderiy existen,~- I;f all governments.

. . "#e nojd that the policy p,cwe:' sf a stat:; e!ribra::es

regulationsdesigned to promote the public convenience or the general prosperity, as well as regulationsdesigned 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, ConstitutionalLaw, Section 175 says:

"Thepolice power is a governmental function, an Inherentattribute of sovereignty, and the greatest andmost powerful attribute of government. It was born with civilizedHon. M. J. Murray, Chairman, Page 4 (W-661)

government,and was possessedby every statebefore the union was formed. Although the basis of the police power lies In the constitutionwhich regards the public welfare, safety,and health of the citizens of the state,and although itmay be given to the people of the stateby the constitution,the power existswithout 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, elsewhereand otherwisedescribed or defined as a very high power, and the laws enacted for the purpose of regulation thereundermay be Impolitic, harsh, and oppressivewithout contravening the constitutionalinhibition. It correspondsto the right of selfpreservation in the individual,and is
an essential element In all orderly governments,because necessary to the propermaintenance of the government and the generalwelfare of the community.

. . 'Generallypolice power operates in the field of regulation,exceptpossibly in some cases of emergency such as conflagration or flood when private propertymay be temporarilyused or damaged or even destroyed to prevent loss of life or to protect the remainingproperty of an entire locality.W

There can be no doubt that in certainperiods of emergency, in the very nature of the police power, private property becomes subject to public use. Cfficersmay pursue felons ontoprivate property, otherwise societywould be at themercy of criminals. Firemen may even destroy private property to stop a spreading conflagration. Planes or boats in distressmay be forced to land on private property. Health authorities are at times forced to go on private property to abate sanitaryhazards. Defense forces in event of enemy attackmust 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 uponprivate property is limited to condition8 of emergency, of which the above are examples, where lives, health, property, law enforcementand the like
are at stake. We think, therefore, that the variouspur-, poses listed in Sec. 2 of the Bill must be limited to such emergenciesand that any purpose listedwhich does not fall within such category is invalid. The bulk of the purposes listed are clearly of an emergencynature 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 citybuilding codes, to require
a building setbackas to the beach area In which no fences
or other obstructionsare to be allowed, so as to facilitate the passage of vehicle8 in time of publie emergency.

A city orginance containinga building setback rule was specificallyupheld by the Supreme Court in Halsell ;;.F;;uBOn, 202 S.W. 317. The casepoints out the two ons for the exercise of the police power: reasonableness of the legislationand promotion of public welfare. The court said at page 321:

"Since these regulationsappear reasonable, and since they promote the general convenience and the public welfare, we cannot regard them as subject to attack on constitutionalgrounds. "Comingwithin 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 thismatter to rest, the 

### AUKS’s~~~~~’ai”:EzZr478 :

"The insistence that the right of property or the unrestricteduse 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. Commissionv. Rowan 011 Co., 259 S.W. 2dHon. M. J. Murray, Chairman, Page 6 (~~-661)

173 (1953),the Court stated: "Allproperty 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 quotedwith approval this language:

"Since the very foundation of the police power is the control of privat~eInterests for the public welfare, a statute or ordinance is not rendered unconstitutionalby themere fact that private rights of person or property are subjectedto 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 statuteauthorizing confiscationof an automobiledriven by a narcoticsviolatorwho 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 subordinateto property rights. Justice Walker, speakingfor the courtmajority, said:

"Policeregulationsare 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 suchpower does not constitutea taking of property under the right of eminent domain, and compensation is not required to be made therefor.

. .A large di8CEtiOn is necessarilyvested in the Legislature to determinenot 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 reasonablenessof a legislative enactment on a subjectwhich lies within the domain of the police power, the courts will not hold it void."

To the same effect see opinionby JusticeNorvell in City of Corpus Christi v. Jones, 144 S.W. 2d 388 (19&O), err. dism.,m illiamsv. 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 CriminalAppeals.

The phase of the bill under considerationdoes not of itself authorize indiscriminatepublic travel on the beaches. Rather it keeps the beaches openby a 'building setback,,

provision In order that a way may be clear for vehicles, should a public emergencyarise. The bill contains numerous exceptionsdesigned 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 suchportion 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 ofmany and varied diScuSSiOn by the courts and text writers of this country. The reported cases dealing with the subjectare legion. See, Annotations in 

### 51A.L.R. 1139, 162A.L.R. 

### 513,and 

### 46AiL.R. 2d 1176.

The presumptionshere under considerationare set forth in Section 

### 3 of the Bill. It is there provided:

"The area defined in Section 2 above shallbe presumed to be subject to the public uses and easementsdescribed in Section 2 unless the same is rebutted by a claimant of ownership or exclusive rights in said land,which claimant shallhave 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 establishedno prescriptiveright as against such claimant by the public, or by the person or persons using the seashoreas an easementHon. M. J. Murray, Chairman, Page 8 (WW-661)

to the sea. Provided that it shallbe sufficientfor claimant to show thatno prescriptive rightwas obtainedduring 'z;:,zzyears immediatelypreceding the

. This proviso shallnot preclude, affirmativeproof by the State that such prescriptive rightwas obtainedmore than 25,years~

preceding the action and ~.~I3 still lti’effecf.”

The questionpresented is whether the creation of such a statutory presumptionviolates the "dueprocess of law" guaranteed by the FourteenthAmendment of the Federal Constitutionand Article I, Section 19, Conatitu; tion of Texas.

.ItIs important to note that~the .Bill,does more than~createmerely a prima facie',presumption, that is, one which'Pvil1

supply evidence to supporta judgmentin the absence of contrary evidence of probativevalue and whichmerely places the burden of "going forward" with the evidenceupon the opponent. This Bill places upon the claimant of the area the "burden of persuasion', In fact "theburden~ofestablishingclearly that the public has not,within the period of 25 years preceding the action, used the area in such a manner as to havematured by prescription the rights and uses described In Section 2. Thus the Bill, if. valid,would diametricallyreverse the common law doctrinewhich places the burden'of,"going forward" as'well asthe burden of 7persuasion"'uponone ~whoseeks by a judgmentto impress an easement on land thenrecord.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;sCity d

. 78 decidedby the United States Supreme Court in 1910..Thebe under attack as violating the due process clause was a ,Mississippistatute which provided that in actions for damages "proof of,injury inflictedby the running of ,locomotives

. b

..sha~ll.be prima facie evidence of the want of reasonable 'skilland care',in the operation offthe train. The court rejected the contention that~ the courts of Mississippiby construlr&the act as creating a presumption of liabilityhad in fact given it a greater force that amere temporary inference of fact. ;Inthis connectionthe,Court said:

n The‘statutory effect of the rule 1; io'provide that evidence of an,injuryHon. M. J. Murray, Chairman, Page 9 (~~-661)

arising from the actual operation of trains shall create an inference of negligence, which is themain 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 statutedoes 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 supplyan 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 statutorypresumptions:

"That a legislativepresumption of one fact from:evidence of anothermay not constitutea denial of due process of law or a denial of the equalprotection of the law, it Is only essential that there shallbe 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 unreasonableas to be a purely arbitrarymandate.

. ."

In rejecting the attack on the statute the court finally concluded that, the injuriesbeing causedby a derailed car, it was not "an unreasonable inference that a derailment of a railway car is due to somenegligence, either in constructingormaintenance of the track or some carelessness in operation." (P. 81)

In 1929 the Supreme Court of the United States was again confrontedwith a state statute creatinga 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 shouldbe liable for damages or injuries inflicted "by the running of theHon. M. J. Murray, Chairman, Page 10 (~-661)

locomotives.

. .unless the company shallmake 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 suitwas occasionedby a grade corssing -dent. The defendanthad offeredmuch evidence of its
care and, althoughplaintiff offeredno 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 companywas 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 suchparticulars." 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 necessarilypermitted the presumption to be consideredand weighed as evidence against the testimony of defendant", and it appearing that the courts of Georgiahad construed the statute asmpplying evidenceby presumption,proceeded to strikedown the statuteas creatingan arbitrarypresumption in violation.of the due process clause. During the course of the opinion the court, in discussing legislation creatingprima facie presumptions,, said: "Legislationdeclaring 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 connectionbetweenwhat 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 creatinga presumption that is arbitrary or that operates to deny a fair opportunity to repel it violates the due process clause of the 14thAmendment, Legislative fiatmay not take the place of fact in the judicialdeterminationof Issues involving life, liberty ofproperty. Manley v. Georgia, 279 U.S. 1, ante, 575, 49 Sup. Ct. Rep. 215, and cases cited." (Emphasisadded) (73 L.Ed. 888)Hon. M. J. Murray, Chairman, Page 11 (WW-661)

It is our construction that the Turni seed case, +tate supra, is authority for the proposition that statute creating a prima facie presumption to be valid theremust be a logical connectionbetween the facts proved and the facts presumed. In the specific fact case there in question the court found the lnference.ofnegligence (the presumption) logically to follow from the facts proved (the derailment of a railroad car).

In Henderson, supra, the appellee urged that the presumption createdby the Georgia statutevalidlywas and shouldbe consideredas evidence in the case, and relied for his position upon Turni seed-7-Fapparentlyupon the ground that both statuteswere sm lar in language and that the court in Turnipseed had found a reasonable relationbetween the facts presumed and the facts proved. The court expressly rejected this theory and, in referring to Turnipseed, said:

n

. . .That case is essentiallydifferent from this one. Each of the state enactments raises a presumption from the fact of injury caused by the running of locomotivesor cars. The Mississippi statute createdmerely 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.
"Thepresumption raisedby 8 2780 is unreasonableand arbitrary and violates the due process clause of the 14thAmendment * *

.' (L.Ed. 888, 889)
While itmight be argued that the court struck down the statute in the Henderson case because it found no lcglzal connectionbetween the grade crossing accident and the presumption of negligence on the part of the railroad,
we think themore logical interpretationleads to the conclusion that it was because the statute,as construedby the Georgia courts, had the force of evidence. We are strengthenedin this conclusionby the fact that a statute in Florida identical in words with the Georgia statutewas held constitutionalin the case of Atlantic-CoastLine 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 creatinga prima f<acie presumptionwhich vanishedwhenthe Railroad Companyproduced probative evlk dence to the contrary. The Florida Supreme Court further noted that its statutehad 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 InternalRevenue.v.Baln Peanut Co., 

### 134F.2d 

### 853,5 Cir., 1943, the Court, in dlscuaalng statutorypresumptions said:

"The law governing burden of proof Is a matter of substance. It Is never the function of a rebuttablepresumption to shift the burden of proof; its office Is to supplyan Inferencewhichmay take the place of proof not otherwiseproduced. If the statutory presumption here invpked shouldbe given the probative force accorded to It by the Board, It would have the effect of shiftingthe 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 sufficientevidence 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
"Ifwe 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 differencebetween a statute thatmerely suppliesan 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 latterpresumption is unreasonable;and, betweenprivate parties, violates the due-process clause of. ’

Hon. M. J. Murray, Chairman, Page 13 (~~-661)

the FourteenthAmendmant if createdby an Act of Congress.” (134 F.2d, 857, 858)
While the authoritieswhich we have discussed (andmost otherswhich we have examined in our research) relate to tort actions, theywould 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 Constitutionand for that reason Is invalid.

In the interest of time, however, and on the assumption that perhaps the committeemight 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 bemade merely prima facie, as discussed In Turnipseed and Henderson, supra. We are canfldent that a courtwould 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 sandybeach areas for the purposes designated and set forth In the Bill. Under these circumstancesproof of the locatl,on of landwithin the area designatedbears a logical connectionwith the presumption of public use and shouldmeet 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 Constitutionand is therefore invalid. The use of the. area for the emergencypurposes set forth in Section 5 Is valid.
Very truly yours,
WILL WILSON Attorney GeneralHon. 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

REVIEWEDFOR THE ATTORNEY GENERAL

BY W. V. Geppert