Texas Beaches and Property Rights: An Exemption

In a story filled with special deals, hypocrisy, and political intrigue, the Chronicle reports that Texas legislators have approved an exemption to the Texas Open Beaches Act (TOBA)--for one of their own. State Rep. Wayne Christian received an exemption to TOBA that will allow him to rebuild his home on Bolivar Peninsula.

The Texas Constitution prohibits bills that target a specific area of the state. Lawmakers sidestep this prohibition through a process called "bracketing"--they define the area without specifically naming it. The exemption, which was attached as an amendment to another bill, was carefully worded to apply only to Bolivar:

The amendment “brackets” Bolivar by saying that it applies to houses on a peninsula in a county with more than 250,000 population and less than 251,000 population. The only area fitting that description is Bolivar.

The sponsor of the amendment, Rep. Mike “Tuffy” Hamilton, R-Mauriceville, defended his actions:

Yes it does benefit (Christian), and I know it does, but I did it 99 percent for the benefit of my constituents.

Christian also denied any wrong doing:

If I were to pass a law that affected only Wayne Christian, that would be a conflict.

This is not an unethical, deceptive method of doing anything. This is the way it’s been ever since government was invented.

Contrary to what Christian thinks, such legislation is unethical. Many property owners on Galveston Island are in the same situation as Christian, yet the legislation provides them no relief. Instead, the state will use force to seize their property while Christian and his neighbors can rebuild. If it is proper for property owners on Bolivar to rebuild (which it is), it is equally proper for property owners on Galveston to rebuild.

Texas Land Commissioner Jerry Patterson, who is responsible for enforcing TOBA, has asked Gov. Rick Perry to veto the bill when it reaches his desk. Patterson has stated that he will not enforce the bill it is signed, and legislators will have to impeach him.

“I don’t think building houses on the beach, with the waters of the Gulf beneath them, is a good idea or good public policy,” Patterson said.

As I have previously argued, this isn't a decision for Patterson, or any other lawmaker to decide. This is a decision properly left to the property owners. And Patterson isn't content with legislators making arbitrary decisions--he wants to get in on the action too by unilaterally deciding which laws he will enforce and which he won't enforce.

Patterson's position would be admirable if he was refusing to enforce an unjust law. However, the exemption, while clearly reeking of political favoritism, does grant some measure of justice. It will provide some recognition of property rights to Bolivar property owners. While the rights of property owners on Galveston remain threatened, Patterson wishes to extend that threat to Bolivar.

Government's purpose is the protection of individual rights, including property rights. If Christian, Hamilton, and other legislators believe that Bolivar property owners have a right to rebuild on their property, then so do the property owners on Galveston. This is bad legislation, not so much because it grants an exemption, but because it doesn't go far enough.