CHAPTER 63. DUNES
NATURAL RESOURCES CODE
TITLE 2. PUBLIC DOMAIN
SUBTITLE E. BEACHES AND DUNES
CHAPTER 63. DUNES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 63.001. FINDINGS OF FACT. The legislature finds and
declares:
(1) that the mainland gulf shoreline, barrier islands, and
peninsulas of this state contain a significant portion of the
state's human, natural, and recreational resources;
(2) that these areas are and historically have been wholly or in
part protected from the action of the water of the Gulf of Mexico
and storms on the Gulf by a system of vegetated and unvegetated
sand dunes that provide a protective barrier for adjacent land
and inland water and land against the action of sand, wind, and
water;
(3) that certain persons have from time to time modified or
destroyed the effectiveness of the protective barriers and caused
environmental damage in the process of developing the shoreline
for various purposes;
(4) that the operation of recreational vehicles and other
activities over these dunes have destroyed the natural vegetation
on them;
(5) that these practices constitute serious threats to the
safety of adjacent properties, to public highways, to the taxable
basis of adjacent property and constitute a real danger to
natural resources and to the health, safety, and welfare of
persons living, visiting, or sojourning in the area;
(6) that it is necessary to protect these dunes as provided in
this chapter because stabilized, vegetated dunes offer the best
natural defense against storms and are areas of significant
biological diversity;
(7) that vegetated stabilized dunes help preserve state-owned
beaches and shores by protecting against erosion of the
shoreline; and
(8) that different areas of the coast are characterized by dunes
of various types and values, all of which should be afforded
protection.
Acts 1977, 65th Leg., p. 2499, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, Sec. 1,
eff. Aug. 26, 1985; Acts 1991, 72nd Leg., ch. 295, Sec. 18, eff.
June 7, 1991.
Sec. 63.002. DEFINITIONS. In this chapter:
(1) "Commissioner" means the Commissioner of the General Land
Office.
(2) "Barrier island" means an island bordering on the Gulf of
Mexico and entirely surrounded by water.
(3) "Peninsula" means an arm of land bordering on the Gulf of
Mexico surrounded on three sides by water.
(4) "Recreational vehicle" means a dune buggy, marsh buggy,
minibike, trail bike, jeep, or any other mechanized vehicle that
is being used for recreational purposes, but does not include any
vehicle not being used for recreational purposes.
(5) "Mainland shoreline" means all shoreline fronting on the
open Gulf of Mexico that is not located on a barrier island or a
peninsula.
(6) "Restoration" means the repair or replacement of dunes or
dune vegetation.
Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, Sec. 2,
eff. Aug. 26, 1985.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1256, Sec. 15, eff. September 1, 2007.
Sec. 63.003. EFFECT OF CHAPTER. The provisions of this chapter
do not apply to any dune area not accessible by public road or
common carrier ferry facility for as long as that condition
exists.
Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, Sec. 3,
eff. Aug. 26, 1985.
SUBCHAPTER B. DUNE PROTECTION LINE
Sec. 63.011. ESTABLISHING DUNE PROTECTION LINE. (a) After
notice and hearing, the commissioners court of each county that
has within its boundaries mainland shoreline, a barrier island,
or a peninsula located on the seaward shore of the Gulf of Mexico
shall establish a dune protection line on any such shoreline,
island, or peninsula within its boundaries for the purpose of
preserving sand dunes.
(b) A county may allow a municipality within the county to
administer this chapter within its corporate limits and
extraterritorial jurisdiction. On delegation by a county, a
municipality may adopt and apply any appropriate ordinances
within its extraterritorial jurisdiction to effect the purposes
of this chapter.
(c) Municipalities and counties may enter into interlocal
cooperation contracts for the administration of dune permit
programs under The Interlocal Cooperation Act (Article 4413(32c),
Vernon's Texas Civil Statutes).
(d) The land office may assist and advise counties and
municipalities in establishing or altering dune protection lines.
Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, Sec. 3,
eff. Aug. 26, 1985; Acts 1991, 72nd Leg., ch. 295, Sec. 19, eff.
June 7, 1991.
Sec. 63.012. LOCATION OF DUNE PROTECTION LINE. The dune
protection line shall not be located further landward than a line
drawn parallel to and 1,000 feet landward of the line of mean
high tide of the Gulf of Mexico.
Acts 1977, 65th Leg., p. 2500, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977.
Sec. 63.013. NOTICE. (a) Notice of a hearing to consider
establishing the dune protection line shall be published at least
three times in the newspaper with the largest circulation in the
county. The notice shall be published not less than one week nor
more than three weeks before the date of the hearing.
(b) Notice shall be given to the commissioner not less than one
week nor more than three weeks before the hearing.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977.
Sec. 63.014. MAP AND DESCRIPTION OF DUNE PROTECTION LINE. (a)
The commissioners court or governing body of each municipality in
establishing a dune protection line shall define the line by
presenting it on a map or drawing, by making a written
description, or by both. Each shall be designated appropriately
and filed with the clerk of the county or municipality
establishing the line and with the commissioner.
(b) Notice of alterations in the dune protection line shall be
filed with the clerk and with the commissioner, and the
appropriate changes shall be made on the map, drawing, or
description.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 20,
eff. June 7, 1991.
Sec. 63.015. DUNE PROTECTION LINE PROHIBITED. No dune
protection line may be established within a state or national
park area, wildlife refuge, or other designated state or national
natural area; provided, however, any state-owned or other public
land not specifically exempted by this section shall be subject
to the same requirements as private lands except as provided in
Sections 31.161 through 31.167 of this code.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 21,
eff. June 7, 1991.
SUBCHAPTER C. PERMITS
Sec. 63.051. PERMIT REQUIREMENT. An owner of land or a person
holding an interest in land under the owner who desires to
perform or allow any of the acts prohibited in Section 63.091 of
this code must apply for a permit from the appropriate
commissioners court or municipal governing body.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 22,
eff. June 7, 1991.
Sec. 63.052. PERMIT NOT REQUIRED. No permit is required for the
following activities:
(1) grazing livestock;
(2) production of oil and gas; and
(3) recreational activity other than the operation of a
recreational vehicle.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977.
Sec. 63.053. FEES. (a) The commissioners court or governing
body of the municipality may require a reasonable fee to
accompany the application.
(b) Any commissioners court or governing body of a municipality
that has adopted a dune protection line and is administering this
chapter and that has a certified beach access plan as provided
for in Section 61.015 of this code is hereby authorized, subject
to all requirements of Chapter 61 of this code, to charge
reasonable fees that do not exceed the cost for the provision and
maintenance of public beach related facilities and services
necessary to implement such plans, including but not limited to
parking, public health and safety, environmental protection and
matters contained in the certified beach access plans, and that
do not unfairly limit access to and use of such beaches.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 23,
eff. June 7, 1991.
Sec. 63.054. REVIEW. (a) The commissioners court or governing
body of the municipality shall evaluate the permit application,
and if the commissioners court or governing body of the
municipality finds as a fact after full investigation that the
particular conduct proposed will not materially weaken the dune
or materially damage vegetation on the dune or reduce its
effectiveness as a means of protection from the effects of high
wind and water, it may grant the permit.
(b) In determining whether or not to grant the permit, the
commissioners court or governing body of the municipality shall
consider the height, width, and slope of the dune, any
significant environmental features of the dune, the feasibility
and desirability of restoration of vegetation, and cumulative
impacts and shall consider requirements for protection of
critical dune areas.
(c) Each county or municipality administering this chapter shall
establish procedures and requirements governing the review and
approval of dune permits, and these procedures and requirements
shall be submitted to the commissioner for certification to
determine whether the procedures and requirements are in
compliance with rules and policies adopted under Section 63.121.
The commissioner shall act on a county or municipality's proposed
dune protection plan not later than the 90th day after the date
the plan is submitted by approving the plan or denying
certification. If certification is denied, the commissioner
shall return the proposed plan to the originating local
government with a statement of specific objections and the
reasons for denial, along with suggested modifications. On
receipt, the county or municipality shall revise and resubmit the
plan. The commissioner must certify a county or municipality's
procedures and requirements under this section in accordance with
rules adopted under Section 63.121.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 24,
eff. June 7, 1991; Acts 2003, 78th Leg., ch. 245, Sec. 7, eff.
June 18, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1256, Sec. 16, eff. September 1, 2007.
Sec. 63.055. TERMS AND CONDITIONS OF PERMIT. The commissioners
court or governing body of the municipality may include in a
permit the terms and conditions it finds necessary to assure the
protection of life, natural resources, and property.
Acts 1977, 65th Leg., p. 2501, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 25,
eff. June 7, 1991.
Sec. 63.056. NOTICE TO AND COMMENTS OF COMMISSIONER ON PERMITS.
(a) After receiving an application for a permit to perform any
of the acts prohibited in Section 63.091 in connection with
small-scale construction activity that includes 5,000 square feet
or less or habitable structures two stories in height or less,
the commissioners court or the governing body of the municipality
shall notify the commissioner by sending, not less than 10
working days before the date of the public hearing on the
application, notice of the hearing and a copy of the application.
After receiving an application for a permit to perform any of
the acts prohibited in Section 63.091 in connection with
large-scale construction activity that includes more than 5,000
square feet or habitable structures more than two stories in
height, the commissioners court or the governing body of the
municipality shall notify the commissioner by sending, not less
than 30 working days before the date of the public hearing on the
application, notice of the hearing and a copy of the application.
(b) The commissioner may submit any written or oral comments
regarding the effect of the proposed activity on the dunes that
protect state-owned land, shores, and submerged land.
Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 26,
eff. June 7, 1991.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1256, Sec. 17, eff. September 1, 2007.
Sec. 63.057. PERMIT FOR CERTAIN ACTIVITY PROHIBITED. (a) No
permit may be issued that allows the operation of a recreational
vehicle on a sand dune seaward of the dune protection line.
(b) No permit may be issued that allows any activity in a
critical dune area inconsistent with rules promulgated by the
commissioner for protection of critical dune areas.
Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 27,
eff. June 7, 1991.
SUBCHAPTER D. PROHIBITIONS
Sec. 63.091. CONDUCT PROHIBITED. Unless a permit is properly
issued authorizing the conduct, no person may damage, destroy, or
remove a sand dune or portion of a sand dune seaward of a dune
protection line or within a critical dune area or kill, destroy,
or remove in any manner any vegetation growing on a sand dune
seaward of a dune protection line or within a critical dune area.
Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 814, Sec. 3,
eff. Aug. 26, 1985; Acts 1991, 72nd Leg., ch. 295, Sec. 28, eff.
June 7, 1991.
Sec. 63.093. PROHIBITED OPERATION OF RECREATIONAL VEHICLES. No
person may operate a recreational vehicle on a sand dune seaward
of the dune protection line in any county in which a dune
protection line has been established.
Acts 1977, 65th Leg., p. 2502, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977.
SUBCHAPTER E. CRITICAL DUNE AREAS
Sec. 63.121. IDENTIFICATION OF CRITICAL DUNE AREAS; RULES. (a)
The commissioner, in his role as trustee of the public land of
this state, shall identify the critical dune areas within 1,000
feet of mean high tide that are essential to the protection of
state-owned land, public beaches, and submerged land.
(b) The commissioner shall promulgate rules for:
(1) the identification and protection of critical dune areas;
and
(2) the certification of procedures and requirements governing
the review and approval of dune permits by a county or
municipality.
Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 30,
eff. June 7, 1991.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1256, Sec. 18, eff. September 1, 2007.
Sec. 63.122. NOTICE TO COUNTIES. After the commissioner has
identified the critical dune areas, notice of the critical dune
areas and the rules for their protection shall be given to the
commissioners court of each county and the governing body of each
municipality in which one or more of these areas is located.
Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 30,
eff. June 7, 1991.
SUBCHAPTER F. APPEALS
Sec. 63.151. APPEAL BY LITTORAL OWNER. A littoral owner
aggrieved by a decision of the commissioners court or governing
body of the municipality under this chapter may appeal to a
district court in that county.
Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 31,
eff. June 7, 1991.
Sec. 63.152. APPEAL BY COMMISSIONER. The commissioner may
appeal to a district court of that county any decision of the
commissioners court or governing body of the municipality that
the commissioner determines to be a violation of this chapter.
Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 31,
eff. June 7, 1991.
SUBCHAPTER G. PENALTIES
Sec. 63.181. ENFORCEMENT. (a) Any county attorney, district
attorney, or criminal district attorney, or the attorney general
at the request of the commissioner, shall file in a district
court of Travis County or in the county in which the violation
occurred a suit to obtain either a temporary or permanent court
order or injunction to prohibit and remedy any violation of this
chapter or any rule, permit, or order under this chapter and to
collect damages to natural resources injured by the violation and
to recover civil penalties.
(b) A person who violates this chapter or any rule, permit, or
order under this chapter is liable for a civil penalty of not
less than $50 nor more than $2,000. Each day that a violation
occurs or continues constitutes a separate offense. A violation
of Section 63.091 is considered to be a continuing violation from
the date of the initial unauthorized conduct until the earlier
of:
(1) the date on which a proper permit is issued authorizing the
conduct; or
(2) the date on which restoration of dunes or dune vegetation
damaged by the violation is completed.
Acts 1977, 65th Leg., p. 2503, ch. 871, art. I, Sec. 1, eff.
Sept. 1, 1977. Amended by Acts 1991, 72nd Leg., ch. 295, Sec. 32,
eff. June 7, 1991; Acts 2003, 78th Leg., ch. 245, Sec. 8, eff.
June 18, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1256, Sec. 19, eff. September 1, 2007.
Sec. 63.1811. ADMINISTRATIVE PENALTY. The commissioner may
assess an administrative penalty for a violation of Section
63.091 or any rule, permit, or order issued under this chapter in
the amount established by Section 63.181(b) for a civil penalty.
In determining the amount of the penalty, the commissioner shall
consider:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation and the
hazard or damage caused thereby;
(2) the degree of cooperation and quality of response;
(3) the degree of culpability and history of previous violations
by the person subject to the penalty;
(4) the amount necessary to deter future violations; and
(5) any other matter that justice requires.
Added by Acts 2007, 80th Leg., R.S., Ch.
1256, Sec. 20, eff. September 1, 2007.
Sec. 63.1812. ENFORCEMENT PROVISIONS CUMULATIVE. This
subchapter is cumulative of all other applicable penalties,
remedies, and enforcement and liability provisions.
Added by Acts 2007, 80th Leg., R.S., Ch.
1256, Sec. 20, eff. September 1, 2007.
Sec. 63.1813. MITIGATION FOR DAMAGE, DESTRUCTION, OR REMOVAL OF
DUNE OR DUNE VEGETATION WITHOUT PERMIT. (a) The commissioner
may order restoration for the damage, destruction, or removal of
a sand dune or a portion of a sand dune or the killing,
destruction, or removal of any vegetation growing on a sand dune
seaward of the dune protection line or within a critical dune
area in violation of this chapter or any rule, permit, or order
issued under this chapter.
(b) The decision to require restoration under this section is
discretionary with the commissioner. This section does not
impose a duty on the state to order restoration.
(c) The commissioner may contract for the restoration required
under this section and may pay the costs of restoration from
money appropriated by the legislature.
Added by Acts 2007, 80th Leg., R.S., Ch.
1256, Sec. 20, eff. September 1, 2007.
Sec. 63.1814. NOTICE REQUIREMENTS; ORDERS AND HEARINGS. (a)
The commissioner shall assess an administrative penalty and
pursue restoration in accordance with this section.
(b) Before the commissioner may order restoration under Section
63.1813 or assess an administrative penalty under Section
63.1811, the commissioner must give written notice to a person
who is taking or has taken actions that violate Section 63.091 or
any rule, permit, or order issued under this chapter. The notice
must state:
(1) the specific conduct that violates Section 63.091 or any
rule, permit, or order issued under this chapter;
(2) that the person who is engaged in or has been engaged in the
conduct that violates Section 63.091 or any rule, permit, or
order issued under this chapter must perform restoration for the
damage caused by the violation not later than the 60th day after
the date on which the notice is served;
(3) that failure to perform restoration for the damage caused by
the violation in accordance with the commissioner's order may
result in liability for a civil penalty under Section 63.181(b)
in an amount specified, restoration contracted or undertaken by
the commissioner and liability for the costs of restoration, or
any combination of those remedies; and
(4) that the person who is engaging in or has engaged in conduct
that violates Section 63.091 or any rule, permit, or order issued
under this chapter may submit, not later than the 60th day after
the date on which the notice is served, a written request for a
hearing.
(c) A person is considered to be engaging in or to have engaged
in conduct that violates Section 63.091 or any rule, permit, or
order issued under this chapter for purposes of this section if
the person is the person who most recently owned, maintained,
controlled, or possessed the real property on which the conduct
occurred.
(d) The notice required by Subsection (b) must be given:
(1) by service in person, by registered or certified mail,
return receipt requested, or by priority mail; or
(2) if personal service cannot be obtained or the address of the
person responsible is unknown, by posting a copy of the written
notice at the site where the conduct was engaged in and by
publishing notice in a newspaper with general circulation in the
county in which the site is located at least two times within 10
consecutive days.
(e) The commissioner by rule may adopt procedures for a hearing
under this section.
(f) The commissioner must grant a hearing before an
administrative law judge employed by the State Office of
Administrative Hearings if a hearing is requested. A person who
does not request a hearing within 60 days after the date on which
the notice is served waives all rights to judicial review of the
commissioner's findings or orders and shall immediately initiate
mitigation and pay any penalty assessed. If a hearing is held,
the commissioner may issue a final order approving the proposal
for decision submitted by the administrative law judge concerning
mitigation and payment of a penalty. The commissioner may change
a finding of fact or conclusion of law made by the administrative
law judge, or may vacate or modify an order issued by the
administrative law judge in accordance with Section 2001.058,
Government Code.
(g) A person may seek judicial review of a final order of the
commissioner under this section in a Travis County district court
under the substantial evidence rule as provided by Subchapter G,
Chapter 2001, Government Code. The trial courts of this state
shall give preference to an appeal of a final order of the
commissioner under this section in the same manner as provided by
Section 23.101(a), Government Code, for an appeal of a final
order of the commissioner under Section 51.3021 of this code.
(h) If the person who is engaged in or has been engaged in
conduct that violated Section 63.091 or any rule, permit, or
order issued under this chapter does not pay assessed penalties,
mitigation costs, and other assessed fees and expenses on or
before the 60th day after the date of entry of a final order
assessing the penalties, costs, and expenses, the commissioner
may:
(1) request that the attorney general institute civil
proceedings to collect the penalties, costs of restoration, and
other fees and expenses remaining unpaid; or
(2) use any combination of the remedies prescribed by this
section, or other remedies authorized by law, to collect the
unpaid penalties, costs of restoration, and other fees and
expenses assessed because of unauthorized conduct and its
mitigation by the commissioner.
(i) Penalties or costs collected under this section shall be
deposited in the coastal erosion response account established
under Section 33.604.
Added by Acts 2007, 80th Leg., R.S., Ch.
1256, Sec. 20, eff. September 1, 2007.