448 S.W.3d 393
Tex.2014Background
- The Porretto family acquired ~27 acres of beachfront property (Porretto Beach and Porretto Beach West) spanning both sides of the mean higher high tide (MHHT) line; some tracts are now submerged.
- Texas law (Luttes) fixes the State’s boundary for submerged land at the MHHT; land landward of that line may be privately owned (the dry beach).
- From 1994–2008 the General Land Office (GLO) repeatedly asserted state ownership over land gulfward of the Galveston Seawall (including areas above MHHT per a Shine survey), issued leases to the City for renourishment and recreation, and requested tax-roll changes listing the State as owner.
- GLO staff made public statements denying private ownership; later the Land Commissioner and Attorney General issued letters acknowledging no State claim landward of mean high tide (slightly different term than MHHT).
- The Porrettos sued (2002) to quiet title and for inverse condemnation; the trial court found a taking and awarded damages; the court of appeals reversed on takings and jurisdiction/discovery issues; Texas Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GLO’s repeated assertions that privately held dry beach was State property constituted a compensable taking under Tex. Const. art. I, § 17 | Porretto: GLO’s recharacterization and public statements rendered property unsellable and amounted to a taking/damage | GLO: Statements and litigation positions were not possession or control; later conceded landward of MHHT so no live controversy | Not a taking; mere assertions/opinions and litigation positions without possession or exclusion do not constitute a compensable taking |
| Whether State leases (renourishment and recreation) covering Porretto Beach West constituted a taking | Porretto: Leases claimed state ownership and interfered with use/value, causing damages | GLO: Renourishment lease’s purpose was sand deposit (beneficial) and recreation lease did not exclude owner use; no exclusionary possession | Not a taking; leases did not effectuate State possession or exclude owners; renourishment benefited owners |
| Whether Porrettos’ as-applied constitutional challenge to the Open Beaches Act (ex post facto/vested rights) was ripe | Porretto: OBA permits and restrictions impair preexisting ownership rights | GLO: No final agency action denying permits; no concrete injury | Not ripe; no denial or final decision and no demonstrated vested-right injury |
| Whether trial court’s discovery sanctions (attorney fees/expenses) were proper | Porretto: GLO failed to make a reasonable search and did not properly produce or respond, necessitating a second trip and sanctions | GLO: Produced voluminous records and allowed review; production satisfied Rule 196.3(c) | Sanctions affirmed: trial court acted within discretion; GLO’s partial production and failure to search/respond justified sanctions |
Key Cases Cited
- Luttes v. State, 324 S.W.2d 167 (Tex. 1958) (establishes MHHT as boundary for State-owned submerged tidelands)
- Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012) (rejects "rolling easement" theory and reaffirmed Luttes)
- Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384 (Tex. 2011) (agency assertions of ownership without possession do not constitute a constitutional taking)
- State v. Lain, 349 S.W.2d 579 (Tex. 1961) (a government actor asserting possession may be sued to resolve title despite sovereign-immunity concerns)
- Stop the Beach Renourishment, Inc. v. Fla. Dept. of Envtl. Prot., 560 U.S. 702 (2010) (plurality discussion of recharacterization of private property as public; distinguished by Texas Court)