v. -...

• •

454

• • CAUSE NO. 02CV0295

HENRY P. PORRETTO, JR., et al., § Plaintiffs §

§ v. §

§ DAVID DEWHURST, Commissioner § of the Texas General Land Office; eta!., §

Defendants §

GAL VESTONG C.O\JNTY, TEMS

212th JUDICIAL DISTRICT

STATE DEFENDANTS' FIRST AMENDED PLEA TO THE JURISDICTION AND REQUEST FOR EVIDENTIARY HEARING

TO THE HONORABLE JUDGE OF THE COURT:

Defendants Jerry Patterson, Commissioner of the General Land Office, and the

General Land Office ( collectively"State Defendants") file this First Amended Plea to the

Jurisdiction to the claims in Plaintiffs' Second Amended Petition.

A. Background

This is a trespass to try title suit, packaged by the Plaintiffs under various causes of

action. The tracts at issue are described in Exhibit A. The tracts at issue lie south or .. - >

seaward of the Seawall in Galveston between 6th through 12th Streets, 14th through 16th

Streets, 19th through 20th Streets, and 26th through 27th Streets. The upland portions of these

tracts emanate from the Menard Grant. The Menard Grant is a civil law grant that calls for

a southward or seaward boundary as the meanders of the Gulf of Mexico. See Exhibit B.

Because the Menard Grant is a civil law grant the boundary between the upland and the

state-owned submerged land is the mean higher high tide line.

455

• • Henry P. Porretto, Jr., and Rosemarie Porretto (collectively the "Porrettos") filed this

suit in March of2002 to try their title vis-a-vis the State's to most of the disputed tracts. In

March of 2005, this court granted the State Defendants' plea to the jurisdiction, based on

sovereign immunity, to all of the claims asserted by the Porrettos. The Houston Court of

Appeals, First District, affirmed the order granting the State Defendants' plea to the

jurisdiction in part and reversed and remanded in part for further evidence on the State's

claim to title. See Porretto v. Patterson, 251 S.W.3d 701 (Tex. App.-Houston [I" Dist.]

2007, no pet.). A copy of that opinion is attached as Exhibit C.

Sonya Porretto-Nelson, the Porrettos' daughter, has now joined as a party plaintiff

following the death of her father. Hereafter references to the Porrettos include Ms.

Porretto-Nelson. In their Second Amended Petition, the Porrettos assert the following

causes of action:

a declaration of their title pursuant to the Uniform Declaratory Judgment Act (UDJA), chapter 37 of the Texas Civil Practice and Remedies Code;

a de'claration of tile,public's easement pursuant to section 61.019. of the Texas Natural Resources Code regarding the rights of a littoral owner whose rights may be affected by subchapter B of the Open Beaches Act, Texas Natural Resources Code §§ 61.002-.026;

trespass to try title;

taking under the Private Real Property Rights Preservation Act, chapter 2007 of the Texas Government Code, including an allegation that the State Defendants were required to mediate under that Act;

taking under article I, section 17 of the Texas Constitution; and

2

456

• • breach of contract for refusing to complete Phase Two of the Settlement in Principle that was entered between the parties in the Fall of2004, before this court entered its order granting the State Defendants' plea to the jurisdiction.

In addition, the Porrettos seek to recover their attorneys' fees pursuantto the UDJA, chapter

2007 of the Texas Government Code, and chapter 38 of the Texas Civil Practice and

Remedies Code.

Jurisdiction is lacking for all of these claims and causes of action, except for the

request for the public easement declaration under section 61.019 of the Texas Natural

Resources Code, by virtue of sovereign immunity and/or the absence of a justiciable

controversy between the Porrettos and the State Defendants.

B. The Controversy

In its opinion in this case, the Houston Court of Appeals observed that the State

Defendants did not specifically assert in their plea to the jurisdiction the State's ownership

of any of the disputed land. 1 The State Defendants want to be abundantly clear to the court

and the other parties in this case where imy title dispute lies. The State claims title to the

land described in Exhibit A only to the extent such land is below (seaward of) the mean

higher high tide line. To the extent that any of the tracts described in Exhibit A are

The Court further noted that the State Defendants failed to offer any evidence in support of their plea or to "dispute the Porrettos' evidence of ownership." Porretta v. Patterson, 251 S.W.3d at 706 n.2. It should likewise be noted that the Porrettos never offered any "evidence of ownership" when this case was before the district court prior to the appeal.

3

457

• • above (landward of) the mean higher high tide line, the State does not claim title to

those tracts.

C. Plea to the Jurisdiction

1. UDJA- Declaration of Title

To the extent the Porrettos seek declarations vindicating their title to any tracts of

land, the claims are barred by sovereign immunity. The State, its agencies, and officials

have sovereign immunity from suit unless the Legislature has expressly waived their

immunity. The UDJA is not a waiver of the State's immunity. Those cases where a litigant

has been allowed to proceed under the UDJA against a state agency or official have

involved claims that the agency or official is acting ultra vires, i.e., outside the scope of

their legal authority. The Plaintiffs have not alleged that the General Land Office or its

Land Commissioner are not statutorily authorized to assert title to state-owned submerged

land. Instead they dispute the State's assertion of ownership to the particular tracts at issue

and seek a declaration that all of these tracts belong to the Porrettos. Accordingly, through .. .. . .. . . their UDJA claims, the Porrettos seek to try the State's title. Trespass to try title, not the

UDJA, is the exclusive procedure for trying rival claims to property. Thus, the Plaintiffs

have not asserted a proper UDJA claim against the State Defendants.

In addition, to the extent the Porrettos seek declarations vindicating their title to land

above (landward of) the mean higher high tide line, the claims do not allege a justiciable

case or controversy. The State Defendants do not claim title on behalf ofthe State to land

4

458

• • above (landward of) the mean higher high tide line. And the State authorized the filling in

of only state-owned submerged land, i.e., only land below (seaward of) the mean higher

high tide line in the 1994 Surface Lease. See Exhibit D. The district courts lack

jurisdiction to issue advisory opinions when there is no justiciable controversy between

parties. Accordingly, the Porrettos' request for a declaration regarding their title vis-a-vis

the State to those upland tracts should be dismissed.

2. Taking under article I, section 17

Plaintiffs have failed to assert a cognizable takings claim under the Texas

Constitution because the State Defendants lacked intent as a matter of law to take any

property of the Porrettos. To the extent the Porrettos assert a taking ofland below (seaward

of) the mean higher high tide line, that land belongs to the State. Any actions of the State

Defendants with regard to such submerged land has been in the capacity of an owner of

land. Such actions are not the intentional actions of the sovereign to effect the land of

another . .. ; .. .

To the extent the Porrettos assert a taking of land above (landward of) the mean

higher high tide line, the State claims no title to such land. Any effect of the State

Defendants' actions on such upland has been incidental and unintended and will not support

a takings claim as a matter of law.

5

459

• • Accordingly, a constitutional takings claim does not lie as a matter of law and

immunity bars the Porrettos' attempt to seek compensation thereunder.

3. Trespass to Try Title

To the extent the Porrettos sue to determine the State's title to land below (seaward

of) the mean higher high tide line, the Texas Legislature must expressly consent to such a

suit. The Porrettos neither plead nor possess such consent. The Houston Court of Appeals

recognized this jurisdictional bar to trying the State's title, although holding that the

Porrettos may proceed with their claims against Commissioner Patterson, in his official

capacity, for an incidental title determination pursuant to State v. Lain, 162 Tex. 549,349

S.W.2d 579,581-82 (1961). Porretta v. Patterson,251 S.W.3d at 712. It did so, however,

on the presumption that the State had not claimed title or possession to the land in question.

Now that the State has made clear its claims of title and possession, the issue should be

revisited. Upon reconsideration, the State Defendants assert that Lain does not properly

authorize this kind of action. Because the relief in question would run functionally against .. .. . .. the State, it is a suit against the State. It is therefore likewise barred by the State

Defendants' sovereign inununity.

As for the land above (landward of) the mean higher high tide line, the Porrettos

have pled no justiciable case or controversy. The State does not claim title to any of the

lands described in Exhibit A to the extent they are upland, i.e., above (landward of) the

mean higher high tide line.

6

460

• • 4. Chapter 2007 of the Texas Government Code

The Texas Private Real Property Rights Preservation Act found in chapter 2007 of

the Texas Government Code is a limited waiver of sovereign immunity for cases that fall

within the purview of the act. The Porrettos have failed to assert a cause of action under

that act for several reasons.

First, the governmental action that the Porrettos contend violated this act, the 1994

Surface Lease, predated the effective date of the act. Second, the act expressly does not

apply to property that is claimed by the State. And fmally, the Porrettos have failed to

follow the procedural requirements for asserting a taking under the act. Specifically, the

act requires a party to file a contested case proceeding with the agency, in this case the

General Land Office, and then to seek judicial review of the agency determination under

the Administrative Procedure Act found in chapter 2001 of the Texas Government Code.2

The Porrettos have not filed a contested case proceeding with the General Land Office.

6. Breach of Contract .. The Houston Court of Appeals held that the Porrettos may pursue their breach of

contract, i.e., breach of the Settlement in Principle, only to the extent that the claim "arises

out of the takings claim." Porretta v. Patterson, 251 S.W.3d at 712. As stated above, the

Porrettos have not pled a cognizable takings claim as a matter of law. Accordingly, the

2 Juris diction over any administrative appeal lies in the district courts of Travis County. Texas Gov't Code §§ 2001.175 and .176.

7

461

• • Porrettos' breach of contract claim is barred by sovereign immunity.

6. Attorneys' Fees

The Porrettos seek to recover their attorneys' fees from the State Defendants

pursuant to the UDJA, chapter 2007 of the Texas Government Code, and chapter 38 of the

Texas Civil Practice and Remedies Code. Since jurisdiction is lacking under any of these

statutes, the court has no authority to award attorneys' fees thereunder.

7. Set-back Rule

The Porrettos assert in their Second Amended Petition that the General Land

Office's proposed set-back rule (proposed 31 Tex. Admin. Code§ 15.16) seeks to require

local governments to implement new set-back lines for building permits. And they claim

the State is attempting by this rule to shift any takings liability from itself to the local

governments. The State disputes these allegations. Moreover, any challenges regarding

the set-back rule are not ripe.

This proposed rule has not been adopted. The Porrettos assert that they will seek .. .. relief from the courts if it is. If the rule is adopted and the Porrettos desire to challenge it,

that challenge may only be brought in the Travis County District Courts. Texas

Government Code§ 2001.038.

D. Jurisdictional Facts Challenged by the State Defendants

The Porrettos assert numerous facts and mixed issues of fact and law that the State

Defendants dispute as sufficient to support jurisdiction in this case. Those are as follows:

8

462

• • 1. That the Porrettos purchased and/or now own all the tracts in Exhibit A in fee

simple.

2. That the Porrettos own "Porretto Beach" to the extent that it includes land below or

seaward of the mean higher high tide line.

3. That the Menard Grant did not include a reservation of public rights.

4. That Menard Grant property is in any way exempt from the requirements of the

Open Beaches Act, Dune Protection Act, or other related statues, rules, or

ordinances.

5. That the Porrettos can trace their title back to the Menard Grant.

6. That Exhibit C to the Plaintiffs' Second Amended Petition accurately depicts the

status of each tract at issue as submerged or upland.

7. That the Porrettos have not "artificially assisted" in any accretions to the tracts at

issue.

8. That the State Defendants have made oral and written sta~ements denouncing the .. •

Porrettos' ownership to all the tracts in Exhibit A.

9. That the State Defendants have interfered with the Porrettos' attempts to sell any of

the tracts in Exhibit A by asserting the State's ownership.

10. That the State leased any of the tracts in Exhibit A east of lOth Street in the 1994

Surface Leases attached as Exhibits D and E.

11. That the 1994 Surface Lease interfered in any way with any contracts to sell any of

9

463

• • the tracts in Exhibit A.

12. That the Porrettos were unable to close on the sale of any tracts in Exhibit A during

the pendency of this suit because of the litigation.

13. That the Porrettos were unable to close on the sale of any tracts in Exhibit A or were

in any other way damaged by the State's failure to provide a disclaimer letter to

those tracts between 6th and I Oth Streets after the Settlement in Principle ("SIP") was

entered.

14. That the June 23, 1997, letter from Robert Moreland to Daniel Vaughn challenged

the Porrettos' ownership to any of the tracts listed in Exhibit A east of I Oth Street.

15. That the June 23, 1997, letter from Robert Moreland to Daniel Vaughn

unpermissibly and unreasonably interfered with the Porrettos' use and enjoyment of

their property.

16. That the 1994 Surface Lease for beach renourishment contained a false

representation that t~e upland adjacent to !he state-ow~ed submerg~d land was .. >

owned by a party other than the Porrettos.

17. That the Porrettos met their obligations under Phase One of the SIP as ofNovember

8, 2004, when the abatement period ended, including, but not limited to:

a. requesting the letter disclaiming state ownership of the area depicted in

Exhibit A between 6th and lOth Streets as specifically described in the SIP;

b. providing a title commitment acceptable to a third party commercial lender

10

464

• • showing that the Porrettos owned all the upland tracts in Exhibit A between

c. providing underlying deeds and other documentation to support the Porrettos'

ownership; and

d. providing a survey conducted by a licensed state land surveyor of the mean

higher high tide line from 6th to I Ot!t Streets.

18. That the State refused to fulfill its obligation to provide a disclaimer letter.

19. That the State wrongfully failed to negotiate a lease in Phase Two of the SIP or

fraudulently induced the SIP.

20. That the State's claim of ownership to any property depicted in Exhibit A

contributed to Henry P. Porretto, Jr.'s ill health or death.

21. That the City of Galveston recognized the Porrettos' ownership of all of the tracts

in Exhibit A by requesting an easement from Henry P. Porretto, Jr., as part of the

beach renourishment project. .. 22. That the Concession Agreement between the Park Board of Trustees of the City of

Galveston and Paul Roure and Virginia Nagra includes property owned by the

Porrettos.

23. That the alleged lease to Frank Maceo includes property owned by the Porrettos.

11

465

• • Prayer

For the foregoing reasons, the State Defendants respectfully request that this court

set this First Amended Plea to the Jurisdiction for an evidentiary hearing. The State

Defendants further pray that after hearing the evidence relevant to this plea, the court grant

the State Defendants' First Amended Plea to the Jurisdiction in its entirety.

Respectfully submitted,

GREG ABBOTT Attorney General of Texas

KENT C. SULLN AN First Assistant Attorney General

JEFFL.ROSE Deputy First Assistant Attorney General

DAVID PREISTER Assistant Attorney General Acting Chief, Natural Resources Division

L State Bar No. 02318000 Assistant Attorney General

Natural Resources Division P. 0. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2012 (512) 320-0911 (Telecopy)

12

..

466

• • ATTORNEYS FOR THE TEXAS GENERAL LAND OFFICE AND JERRY PATTERSON, COMMISSIONER OF THE TEXAS GENERAL LAND OFFICE

CERTIFICATE OF SERVICE

I certifY that a true and correct copy of the foregoing State Defendants' First Amended Plea to the Jurisdiction and Request for Evidentiary Hearing was sent certified mail, return receipt requested, the 18th day of August, 2008, to:

Andy Mytelka Lucie S. Tredennick GREER, HERZ & ADAMS, L.L.P. One Moody Plaza, 18th Floor Galveston, Texas 77550-7998

Carla Cotropia MILLS SHIRLEY L.L.P. 400 One City Centre 1021 Main Street Suite 1950 Houston, Texas 77002

13

467

• • Amended Exhibit A

Tract A: Lots Five (5), Six (6), Seven (7) in Block Six (6), in the City and County of Galveston County, Texas and only being all of those portions of the subject property lying South of the Seawall, together with that portion of the adjacent Street(s) and Alleys abandoned as set forth in Ordinance No. 78-46.

TractB: Lots Eight (8), Nine (9), Ten (10), Eleven (II), Twelve (12), Thirteen (13), and Fourteen (14), in Block Six (6), in the City and County of Galveston County, Texas and only being all of those portions of the subject property lying South of the Seawall, together with that portion of the adjacent Street(s) and Alleys abandoned as set forth in Ordinance No. 78-46.

Tract C: The Southerly portion of Lot Ten (10) of Block Sixty-seven (67), all in the City and County of Galveston, Texas and only being all of those portions of the subject property lying South of the Seawall.

Tract D: Lots One(!), Two (2), Three (3), in Block Seven (7), in the City and County of Galveston, Texas, and only being all of those portions of the subject property lying South of the Seawall.

Tract E: Lots Eight (8), Nine (9), and Ten (I 0), in Block Seven (7), in the City and County of Galveston, Texas and only being all of those portions on the subject property lying South of the Seawall.

Tract F: . . ·· '· tots Eight (8), Nine (9), Ten (I 0) and Eleven (II), in Block Eight (8), in the City and County of

Galveston, Texas, Lots Seven (7), Eight (8), Nine (9), Ten (10), Eleven (II) and Twelve (12), in the Northeast Quarter of Out Lot Twenty-four(24), One (I) through Fourteen (14), inclusive, in the Southeast Quarter of Out Lot Twenty-four (24), Lots One(!), an interest in Lot Two (2), Three (3) through Fourteen (14), inclusive, in the Northwest Quarter of Out Lot Twenty-Five (25), Lots One(!), Through Fourteen (14), inclusive in the Northeast Quarter of Out Lot Twentyfive (25), Lots One(!), Through Fourteen (14), inclusive, in the Southwest Quarter of Out Lot Twenty-five (25) and Lots One (I), Through Fourteen (14), inclusive, in the Southeast Quarter of Out Lot Twenty-five (25), Lots One (I) through Fourteen (14) in the Northwest Quarter of Out Lot Fifty (50) and the entire Northeast Quarter of Out Lot Fifty (50), all in the City and County of Galveston, Texas, and only being all of those portions of the subject property lying South of the Seawall, together with that portion of the adjacent Street(s) and Alleys abandoned as set forth in Ordinance No. 78-46.

213225.2

468

• • Tract G: The Southeast Quarter, of Out Lot Forty-nine (49), all in the City and County of Galveston only being all of those portions of the subject property lying South of the Seawall.

Tract H: The Southwest Quarter of Out Lot Forty-nine ( 49), all in the City and County of Galveston only being all of those portions of the subject property lying South of the Seawall.

Tract I: Lots Eight (8), through Ten (10), inclusive, and the East one-half(l/2) of Lot Eleven (11), in the Northeast Quarter of Out Lot Forty-eight ( 48) all in the City and County of Galveston and only being all of those portions of the subject property lying South of the Seawall.

Tract J: The Northwest Quarter of Out Lot Seventy-two (72), all in the City and County of Galveston and only being all of those portions of the subject property lying South of the Seawall, based on the Map of the City of Galveston in common use.

Tract K; The Southwest Quarter of Out Lot Seventy-two (72), all in the City and County of Galveston and only being all of those portions of the subject property lying South of the Seawall, based on the Map of the City of Galveston in common use.

Tract L: The Southeast Quarter, of Out Lot Seventy-One (71), all in the City and County of Galveston and only being all of those portions of the subject property lying South of the Seawall, based on the Map of the City of Galveston in common use.

TractM: Jbe Northeast Quarter of. Out Lot One hundred-ninete.::n (119), all in the City and County of Galveston and only being all of those portions of the subject property lying South of the Seawall, based on the Map of the City of Galveston in common use.

TractN: The Southeast Quarter, of Out Lot One hundred-nineteen (119), all in the City and County of Galveston and only being all of those portions of the subject property lying South of the Seawall, based on the Map of the City of Galveston in common use.

Tract 0: Part of Lots Eight (8) through Thirteen (13), inclusive, of the Northwest Quarter of Out Lot One hundred forty-one (141), all in the City and County of Galveston and only being all of those portions of the subject property lying South of the Seawall, based on the Map of the City of Galveston in common use.

213225.2

469

• • Tract P: Lots One (I) through seven (7), inclusive, of the Southwest Quarter of Out Lot One hundred forty-one (141), all in the City and County of Galveston and only being all of those portions of the subject property lying South of the Seawall, based on the Map of the City of Galveston in common use.

TractQ: Lots Eight (8) through Fourteen (14), inclusive, of the Southwest Quarter of Out Lot One hundred forty-one (141), all in the City and County of Galveston and only being all of those portions of the subject property lying South of the Seawall, based on the Map of the City of Galveston in common use.

. . .. ..

213225.2

470

• •

471

V\kStlaw. 251 S.W.3d 701 251 S.W.3d 701

• Porretto v. Patterson Tex.App.-Houston [I Dist.],2007.

Court of Appeals ofTexas,Houston (1st Dist.). Heruy P. PORRETIO, Jr. and Rosemarie Porretta,

Appellants, v.

Jeny PATTERSON, Commissioner of the Texas General Land Office, Texas General Land Office, Lou Muller, Executive Director of the Park Board

of Trustees of the City of Galveston, Texas, and the Park Board of Trustees ofthe City of Galveston,

Texas, Appellees. No. 01-05-00942-CV.

Dec. 31,2007. Rehearing Overruled Feb. 19, 2008.

Background: Landowners brought action against General Land Office (GLO), commissioner of the GLO, city park board, and park boara's executive director, alleging that defendants interfered with their ownership of their beachfront property and took it without just compensation. The 212th District Court, Galveston County, Susan Criss, J., dismissed the action, and landowners appealed.

Holdings: The Court of Appeals, Jane Bland, J., held that: (I) landowners asserted a takings claim against GLO and park board that was not barred by govern- · mental inununity, rather than a trespass to IIy title claim; (2) .trial court was required to hold. an evidentiary hearing in landowners' action for trespass to try title against commissioner of the GLO and executive director of city park board in their official capacities; (3) landowners could assert breach of settlement agreement claim against GLO; ( 4) landowners could not assert breach of settlement agreement claim against commissioner of GLO in his official capacity; and

• Page I

(5) Local Government Code did not waive park board's governmental immunity from landowners' action for slander of title.

Affirmed in part, reversed in part, and remanded.

Sherry Radack, C.J., filed an opinion dissenting in part and concurring in part.

West Headnotes

[I) Courts 106 C=4

106 Courts 1061 Nature, Extent, and Exercise of Jurisdiction

in General 106k3 Jurisdiction of Cause of Action

106k4 k. In General. Most Cited Cases

Municipal Corporations 268 C=723

268 Municipal Corporations 268Xll Torts

268XII(A) Exercise of Goverrunental and Corporate Powers in General

268k723 k. Nature and Grounds of Liability. Most Cited Cases Subject·matter jurisdiction is essential for a court to have the authority to resolve a case, and a trial court lacks jurisdiction over a governmental unit that is immune from suit.

(2) Pleading 302 €:=104(1)

302 Pleading 302III Responses or Responsive Pleadings in

General 3021ll(B) Dilatory Pleas and Matter in

Abatement 302kl 04 Plea to the Jurisdiction

302kl 04(1) k. In General. Most Cited Cases A party may challenge a court's subject-matter jurisdiction by filing a plea to the jurisdiction.

l:l 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

472

251 S.W.3d 701 251 S.W.3d 701 • [3] Appeal and Error 30 ~893(1)

30 Appeal and Error 30XVI Review

30XVI(F) Trial De Novo 30k892 Trial De Novo

30k893 Cases Triable in Appellate Court 30k893(!) k. In General. Most

Cited Cases An appellate court reviews de novo a trial court•s ruling on a jurisdictional plea.

[4] Appeal and Error 30 ~863

30 Appeal and Error 30XVI Review

30XVI(A) Scope, Standards, and Extent, in General

30k862 Extent of Review Dependent on Nature ofDecisionAppealed from

30k863 k. In General. Most Cited Cases On review of a ruling on a plea to the jurisdiction, an appellate court does not examine the underlying merit of the plaintiff's case, but considers only the plaintiff's pleadings and evidence pertinent to the jurisdictional inquiry.

[5) Courts 106 ~32

!06 Courts l 061 Nature, Extent, and Exercise of Jurisdiction

in General 1 06k31 Jurisdiction to Be Shown by Record

I 06k32 k. In General. Most Cited Cases A court construes pleadings liberally in favor of conferring jurisdiction.

[6) Courts 106 ~32

106 Courts 1061 Nature, Extent, and Exercise of Jurisdiction

in General 106k31 Jurisdiction to Be Shown by Record

!06k32 k. In General. Most Cited Cases A plaintiff bears the burden to allege facts affinnat-

..

• Page2

ively demonstrating the trial court's jurisdiction to hear the case.

[7) Pleading 302 ~104(1)

302 Pleading 3021ll Responses or Responsive Pleadings in

General 302111(B) Dilatory Pleas and Matter in

Abatement 302kl04 Plea to the Jurisdiction

302kl04(1) k. In General. Most Cited Cases

Pleading 302 ~111.48

302 Pleading 302III Responses or Responsive Pleadings in

General 302III(B) Dilatory Pleas and Matter in

Abatement 302klll Decision of' Issue, and Proceed

ings Thereon 302klll.48 k. Amendments Following

Sustaining of Pleas. Most Cited Cases To prevail on a plea to the jurisdiction, the defendant must show an incurable jurisdictional defect apparent from the face of the pleadings, making it impossible for any amendment of the plaintiff's petition to confer jurisdiction on the trial court.

[8) Eminent Domain 148 ~293(1)

148 Eminent Domain 148IV Remedies of Owners of Property; Inverse

Condemnation 148k293 Pleading

148k293(1) k. Petition or Complaint. Most Cited Cases

Trespass to Try Title 387 €=32

387 Trespass to Try Title 38711 Proceedings

387k3 I Pleading 387k32 k. Declaration or Petition. Most

Cited Cases

© 2008 Thomson Reuters/West No Claim to Orig. US Gov. Works.

473

251 S.W.3d 701 251 S.W.3d 701 • Landowners who alleged that General Land Office (GLO) and city park board interfered with their property rights by conveying leasehold rights to a third party on landowners' beachfront property asserted a takings claim under constitutional provision that no person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation, rather than a claim for trespass to try title, and thus landowners' claim was not barred by governmental immunity; landowners' claim did not allege an accidental or unintended use of their property, but instead alleged an intentional act that interfered with their vested property rights. U.S.C.A. Const.Amend. 5; Vernon's Ann. Texas Canst. Art. I,§ 17.

(9] States 360 €=191.9(3)

360 States 360VI Actions

360kl91 Liability and Consent of State to Be Sued in General

· 360kl91.9 Particular Actions 360kl91.9(3) k. Eminent Domain.

Most Cited Cases While sovereign immunity protects the state from lawsuits for monetary damages, it offers no shield against a taking claim brought under constitutional provision that no person's property shall be taken, damaged, or destroyed for or applied to public use without adequate · compensation. Vernon's Ann. Texas Canst. Art. I, § 17.

(10) Eminent Domain 148 €=285

148 Eminent Domain 14l!IV Remedies of Owners of Property; Inverse

Condemnation 148k285 k. Corporations or Persons Liable.

Most Cited Cases

Municipal Corporations 268 €=739(1)

268 Municipal Corporations 268XII Torts

268Xli(A) Exercise of Governmental and

• Page 3

Corporate Powers in General 268k7l9 Destruction of Property

268k739(1) k. In General. Most Cited Cases The constitution itself is a waiver of governmental immunity for a claim arising from the taking, damaging, or destruction of property for public use. Vernon's Ann. Texas Canst. Art. I,§ 17.

(11) Eminent Domain 148 €=2.1

148 Eminent Domain 1481 Nature, Extent, and Delegation of Power

148k2 What Constitutes a Taking; Police and Other Powers Distinguished

148k2.1 k. In General. Most Cited Cases A physical taking under the constitutional provision that no person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation may occur when the govern~ ment physically appropriates or invades private property, or unreasonably interferes with the landownel's right to use and enjoy it. Vernon's Ann.Texas Canst. Art. 1, § 17.

(12] Eminent Domain 148 €=266

148 Eminent Domain 148IV Remedies of Owners of Property; Inverse

Condemnation 148k266 k. Nature and Grounds in General.

Most Cited Cases If the government uses private property without first paying for it, an owner may recover dsmages for inverse condemnation under the constitutional _provision that no person's, property shall be taken, dsmaged or dtstroyed for or •applied to public ·use without adequate compensation. Vernon's Ann. Texas Canst. Art. I,§ 17.

(13( States 360 €=191.9(5)



11:> 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

474

251 S.W.3d701 251 S.W.3d 701 •

360kl91.9 Particular Actions 360kl91.9(5) k. Property Interests in

General. Most Cited Cases A trespass to try title action against the state requires legislative consent.

[14] Trespass to Try Title 387 €=1

387 Trespass to Try Title 3871 Right of Action and Defenses

387kl k. Nature and Scope of Remedy. Most Cited Cases A trespass to try title action is the proper method of adjudicating rival claims to real property.

[15] Quieting Title 318 €=1

318 Quieting Title 3181 Right of Action and Defenses

318kl k. Nature and Scope of Remedy. Most Cited Cases



387kl k. Nature and Scope of Remedy. Most Cited Cases In a trespass to try title or to quiet title action, an owner sues to recover immediate possession· of land unlawfully withheld.

[16] Trespass to Try Title 387 €=1


387kl k. Nature and S'Cope of Rem~dy. Most Cited Cases A prevailing party's remedy in an action for trespass to try title is title to, and possession of, the real property interest at issue in the suit.

[17] Eminent Domain 148 €=266

148 Eminent Domain 1481V Remedies of Owners of Property; Inverse

Condemnation

• Page4

148k266 k. Nature and Grounds in General. Most Cited Cases A takings claim is one in which a landowner alleges that the government has taken his property for public use without pennission, for which he seeks compensation. U.S.C.A. Const.Amend. 5; Vernon's Ann. Texas Const. Art. I,§ 17.

[18] Eminent Domain 148 €=266

148 Eminent Domain 148N Remedies of Owners of Property; Inverse

Condemnation 148k266 k. Nature and Grounds in General.

Most Cited Cases


3 87 Trespass to Try Title 3871 Right of Action and Defenses

387kl k. Nature and Scope of Remedy. Most Cited Cases The available remedy is a key distinction beiween an action for trespass to try title and a takings action alleging the government has taken property for public use without compensation; while one suit quiets title and possession of the property, the other allows only for just compensation for the property taken or used, and the prevailing party does not regain use of land lost to the public1s use, or win pos~ session of it. Vernon's Ann. Texas Const Art .. !, § 17.

[19) Eminent Domain 148 €=285

148 Eminent Domain 148N Rem~dies of Owners of Property; Inverse

COndemnation 148k285 k. Corporations or Persons Liable.

Most Cited. Cases Although land ownership is universally an underlying consideration of a takings claim, legislative consent is unnecessary to pursue just compensation, as opposed to possession and title, because the Texas and United States Constitutions already grant private landowners such a right. U.S.C.A.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

475

..

251 S.W.3d 701 251 S.W.3d701 • Const.Amend. 5; Vernon's Ann.Texas Const. Art. I, § 17.

[20) Municipal Corporations 268 €=:::>742(6)


268Xli(A) Exercise of Governmental and Corporate Powers in General

268k742 Actions 268k742(6) k. Trial, Judgment, and

Review. Most Cited Cases

States 360 €=:::>211


360k211 k. Trial. Most Cited Cases Trial court was required to hold an evidentiary hearing in landowners' action for trespass to lly title against commissioner of the General Land Office (GLO) and executive director of city park board in their official capacities, alleging that officials interfered with their beachfront property by granting leasehold rights to the property to third parties; officials had burden to claim a superior right to the land on behalf of the government



268Xli(A) Exercise of Governmental and Corporate Powers in General

268k742 Actions 2~8k742(5) k. J?vidence. Most Cited

Cases In an action against the government in which the government asserts that it is inunune from suit, the burden is on the government to adduce evidence es· tablishing as a matter of law that the trial court lacks subject matter jurisdiction because of governmental immunity; the burden then shills to the plaintiff to demonstrate that a disputed issue of material fact exists regarding the jurisdictional issue.


• 268 Municipal Corporations

268Xll Torts

Page 5

268XII(A) Exercise of Governmental and Corporate Powers in General

268k742 Actions 268k742(6) k. Trial, Judgment, and

Review. Most Cited Cases In an action against the government in which the government asserts that it is immune from suit, the government cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a fact issue.

[231 States 360 €=:::>191.10


360k!91 Liability and Consent of State to Be Sued in General

360kl91.10 k. What Are Suits Against State or State Officers. Most Cited Cases The rationale of the rule allowing a trespass to lly title action to be maintained agamst"governmental officials acting in their official capacities is that in such cases possession is not in fact held for the sov· ereign but is wrongfully held; it matters not that the officials claim that title or right of possession is in the state.

[241 States 360 €=:::>191.9{5)



360kl91.9 Particular Actions 360kl91.9(5) k. "Property Interests in

General. Most Cited Cases Landowners could assert breach of settlement agreement claim against General Land Office (GLO), alleging that GLO's refusal to provide a letter disclaiming any state interest in landowners' beachfront property breached agreement settling landowners' takings claim concerning leases on property GLO granted to third parties; since GLO was not immune from takings claim, it was not im-

10 2008 Thomson Reuters/West No Claim to Orig. US Gov. Works.

476

251 S.W.3d701 251 S.W.3d701 • mune from a claim that it breached agreement to settle the claim. U.S.C.A. Const.Amend. 5; Vernon's Ann. Texas Cons!. Att. I,§ 17.

(25] Municipal Corporations 268 €=:::>1018

268 Municipal Corporations 268XVI Actions

268k!018 k. Compromise and Settlement of Litigation, Most Cited Cases The policy supporting the rule, that a governmental entity that agrees to settle a lawsuit from which it is not immune cannot claim immunity from suit for breach of the settlement agreement relating to that claim, is that the government should not regain immunity it previously has waived by settling a case.

(26) States 360 €=:::>191.9(5)


360kl91 Liability and Consent of State to Be Sued in General ·

360k191.9 Particular Actions 360kl91.9(5) k. Property Interests in

General. Most Cited Cases Landowners could not assert breach of settlement agreement claim against commissioner of General Land Office (GLO) in his official capacity, alleging that conunissioner breached agreement concerning landowners' action for trespass to try title of their beachfront property by refusing to issue letter disclaiming any state interest in the property, since state was immune from trespass to try title action; although official was not immune from trespass to try title action, that claim was based on theory that official was acting outside his authority as a governmental official in possessing the property, and thus official could not dispose of the state's immunity by settling the suit against him so as to bind the state.

(27) States 360 €=:::>93

360 States 360lll Property, Contracts, and Liabilities

• --o------

Page6

360k92 Powers of Particular Boards or Officers to Contract

360k93 k In General. Most Cited Cases Only persons having actual authority to act on behalf of the State can bind it in contract.

(28) Municipal Corporations 26_8 €=:::>723

268 Municipal Corporations 268XII Torts

268XII(A) Exercise of Governmental and Corporate Powers in General

268k723 k. Nature and Grounds of Liability. Most Cited Cases Local Government Code provision, that a park board may sue and be sued in its own name, did not waive city park board's governmental immunity from landowners' action for slander of title. V.T.C.A., Local Government Code§ 306.041(a).

*705 J. Brett Busby, Mayer, Brown, Rowe, & Maw, LLP, Houston, TX, for Appellants. Charles Paul Dunkel Jr., Mills Shirley, Molly Baer Holub, Carla Cotropia, Mills Shirley, LLP, Houston, George W. Vie lll, Mills Shirley, LLP, Galveston, Greg Abbott, Office of the Attorney General, Gen. Litigation Div., Liz Bills, Natural Resources Division, Austin, for Appellees.

Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND;

OPINION

JANE BLAND, Justice. About twenty-seven acres of waterfront property, gulfward of the seawall on Galveston Island, present the basis for this dispute. Henry and Rosemarie Porretta sued the Texas General Land Office (the GLO), and its commissioner, Jerry Patterson, together with the Galveston Park Board, and its executive director, Lou Miller, alleging that the defendants have interfered with their fee simple ownership of the property and taken it without compensation. The trial court dismissed the case on the

' .


477

251 S.W.3d 701 251 S.W.3d 701 • defendants' pleas to the jurisdiction, in which they asserted governmental immunity.

The Porrettos appeal, contending {I) the facts alleged support a takings claim, for which no immunity exists, (2) although inununity bars an action for trespass to try title as to the State, the Porrettos nevertheless can sue Patterson and Miller, (3) an interim settlement agreement executed by the Porrettos, the GLO, and the Park Board, and filed with the trial court, is enforceable, and (4) section 306.04I(a) of the Local Government Code waives any governmental inununity. We conclude that the Porrettos' takings claim is not barred by governmental immunity, and we follow Texas Supreme Court precedent allowing suit against the officials. We further conclude that the Local Government Code does not otherwise waive governmental immunity, and thus governmental inununity bars the Porrettos' claim for slander of title. Finally, we conclude that the Porrettos' breach of settlement agreement claim .may proc_eed.oqly insofar_as i_t_ relates to claims against- ~hich ·-·-no govenunental immunity lies in the first instance. We therefore affinn in part and reverse and remand in part.

Background

There being no reporter's record or trial court findings, we recite the facts from the Porrettos' petition, which we accept as true at this stage of the proceedings. FNI The Porretto family purchased fee simple title in the disputed property beginning in the late 1950's. For more than 40 years, the family earned income from the property . with rental concessions

· ~for beach amenities, like umbrellas, chairs, floats, · and boats. As landowners, the Porrettos continuously have paid property taxes, maintained liability insurance, and constructed and maintained fiXtures and improvements *706 on the property. Among the fixtures is a $50,000 ramp that provides public and emergency vehicle access from Seawall Boulevard to the beach.

FNI. See City of Houston v. Northwood

• Page 7

Mun. Uti/. Dist. No. /, 73 S.W.3d 304, 308 (Tex.App.-Houston [1st Dist.] 2001, pet. denied).

According to the Porrettos' petition. in recent years, the defendants wrongfully have occupied, used, and interfered with the Porrettos' use of their property. In addition, the Porrettos claim a cloud on the title to the land. The Porrettos point to three leases, attached as exhibits to their petition. First, in October 1994, the State, through the GLO, leased the property to the City of Galveston for the purpose . of beach replenishment Second, in December 1994, the State, through the GLO, leased the property to the City of Galveston for the purpose of public recreational use, and placed the leases under Park Board Management. Third, in November 1999, the City of Galveston, by and through the Park Board, leased a portion of the disputed property to Paul Roure and Virginia Nagra for the pwpose of providing beach concessions. According to the Par~ rettos, these leases recite that the State and.' Galve- -stan County own the )and south· of -the seawall, without acknowledgment of the Porrettos' land. In July 200 I, the Porrettos entered an agreement to sell their property to Southbrook Investments, Inc. for 7.5 million dollars. Southbrook later cancelled the contract, citing a cloud on the Porrettos' title caused_ by the three government leases.

In their petition, the Porrettos seek {I) a declaratory judgment against all defendants that they have ''no right of ownership of any nature as to the Property[,]" (2) to quiet title, via a trespass to try title claim against Patterson and Miller, (3) compensation. for a taking of ):beir land, as the Fifth Amendment ai!d Article I, section 17 of the Texas Constitution afford, and (4) damages for slander of title. In addition, while this litigation was pending in the trial court, the Porrettos and the defendants participated in a mediation, reached a settlement agreement, and filed it with the trial court. Their agreement foundered in its execution. The Porrettos amended their petition to include a breach of contract claim based on the defendants' alleged failure

~ 2008 Thomson Reuters/West No Claim to Orig. US Gov. Works.

478

251 S.W.3d 701 251 S.W.3d 701 • to comply with the tenns of the settlement.

In response to the suit, the defendants answered, and filed pleas to the jurisdiction based on the doctrine of governmental immunity. The defendants did not offer evidence in support of their plea, nor did they dispute the Porrettos' evidence of ownership of the tracts in question or the veracity of the lease agreements attached to the Porrettos' petition.FN2 The trial court granted the jurisdictional pleas.

FN2. The lease agreements refer to "state owned submerged land," whicb may fonn the basis for an assertion of title by the State. See City of Galveston v. Texas Gen. Land Office, 196 S.W.3d 218, 220 (Tex.App.-Houston [lst Dist.] 2006, pet. denied). But nothing in the record so indicates. The GLO did not, for example, assert in its plea that the . disputed land is state owned, nor did .it attempt to prove that the State · o\vns the land iii question, either by title or by natural beach erosion. In the briefmg on the plea, the State refers to an assertion that it has title, but it never so asserted in its answer, ~r in its plea.

Standard and Scope of Re:view

[1](2](3](4](5) Subject-matter jurisdiction is essential for a court to have the authority to resolve a case, and a trial court lacks jurisdiction over a governmental unit that is immune from suit. Tex. Ass'n of Bus. v. Tex. Air Control Bd, 852 S. W.2d 440, 443 (1.993). A party may challeJl!lO a court's sub- · ject-matter jurisdiction by filing a plea to the jurisdiction. See Tex. Dep't of Transp. v. Jones, 8 S.W.Jd 636, 638-39 (Tex.l999). We review de novo a trial court's ruling on a jurisdictional plea Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.l998). In our review, *707 we do not examine the underlying merit of the plaintiffs case, but consider only the plaintiff's pleadings and evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.Jd 549, 555

• .1 aot;; 0 u~ ! .J

Page 8

(Tex.2002). We construe the pleadings liberally in favor of conferring jurisdiction. Tex. Dep't oj Transp. v. Ramirez, 74 S. W.3d 864, 867 (Tex.2002).

(6](7) A plaintiff bears the burden to allege facts affumatively demonstratiog the trial court's jurisdiction to hear the case. Dallas Area Rapid Transit v. Whitley, 104 S. W.3d 540, 542 (Tex.2003). To prevail on a plea to the jurisdiction, the defendant must show an incurable jurisdictional defect apparent from the face of the pleadings, making it impossible for any amendment of the plaintiff's petition to confer jurisdiction on the trial court. Bybee v. Fireman's Fund Ins. Co., 160 Tex. 429, 438, 331 S.W.2d 910, 917 (1960).

The Takings Claim

[8) The Porrettos contend the trial court erred in dismissing their constitutional takings claim. They observe that this case has two aspects: allegaiions that the government is "using', - Or utaking" their property, which support their claim for inverse condemnation, and allegations that governmental officials are wrongfully Claiming title their land, for which longstanding Texas Supreme Court precedent allows a suit to proceed. "fl\e defendants respond that the Porrettos improperly have recast a trespass to try title claim against the State as a takings claim, the fanner a claim for which they must obtain legislative consent to sue, and thus the Porrettos allege no claim that survives a jurisdictional plea

[9)[10](J.I](l2) The ·Fifth Amendment grants a landowner· the right to seek compensation from the government for land that it takes: "[N)or shall private property be taken for public use, without just compensation." U.S. CONST. amend. V. Likewise, the Texas Constitution provides, "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person .... "TEX. CONST. art. I, § 17. Thus, while

<D 2008 Thomson Reuters/West No Claim to Orig. US Gov. Works.

479

..

251 S.W.3d 701 251 S.W.3d 701 • sovereign immunity protectS the State from lawsuits for monetary damages, it "offers no shield against a taking claim brought under Article I, section 17 of the Texas Constitution.'t Kenedy Mem'l Found. v. Mauro, 921 S.W.2d 278, 282 (Tex.App.-Corpus Christi 1995, writ denied); see also Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001) (sovereign immunity does not shield State from action for compensation under takings clause). Rather, "[t]he Constitution itself is .. . a waiver of govenunental immunity for the taking, damaging or destruction of property for public use." Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.l980). "A physical taking may occur when the government physically appropriates or invades private property, or unreasonably interferes with the landowner's right to use and enjoy it" Tarrant Reg'/ Water Dist. v. Gragg. 151 S.W.3d 546, 554 (Tex.2004). If the government uses private property without first paying for it, an · owner may recover damages for inverse condemnation. Id (holding that evidence was legally sufficient to support fll1ding that"government reseriloir caused recurrent destructive flooding directly impacting ranch land); see also Texas Parks & Wildlife Dept. v. Callaway, 971 S.W.2d 145, 149 (Tex.App.-Austin 1998, no pet.)(action for inverse condemnation is exception to doctrine of sovereign inununity).

[13][14] In contrast, a trespass to 1Jy title action against the State requires legislative consent. State v. Lain, !62 Tex. 549, 552, 349 S.W.2d 579, 582 (1961) ("When in this state the sovereign is made *708 a party defendant to a suit for land, without legislative consent, its plea to the jUrisdiction of thecourt b.Sed on sovereign immunity should be sustained in limine"). Texas courts have repeatedly held that a trespass to 1Jy title action is the proper method of adjudicating rival claims to real property. Martin v. Amerman. 133 S.W.3d 262, 264 (Tex.2004) (holding that trespass to 1Jy title is "the method for determining title to ... real property."); Rogers v. Ricane Enters., 884 S.W.2d 763, 768

(Tex.I994); Yoast v. Yoast, 649 S.W.2d 289, 292

• Page9

(Tex. I 983). It is this line which the government contends supports its plea to the jurisdiction.

[15][16] With respect to the Porrettos' takings claim, we disagree with the government-a takings claim is not a functional equivalent of a trespass to. tiy title claim or a suit to quiet title. In a trespass to by title or to quiet title action, an owner sues to re· cover immediate possession of land unlawfully withheld. Katz v. Rodriguez, 563 S.W.2d 627, 629 (Tex.CivApp.-Corpus Christi 1977, writ refd n.r.e.) (noting that a trespass to 1Jy title suit affords a legal remedy by statute and a suit to quiet title affords an equitable remedy, but both are actions to recover possession of land unlawfully withheld). A prevailing party's remedy is title to, and possession of, the real property interest at issue in the suit. See Florey v. Estate of McConnell, 212 S.W.3d 439, 449 (Tex.App.-Austin 2006, pet. denied).

[17][18][19] On the other hand, a takings claim is one in which a landowner aiJeges that the g()vern~ ment has taken his property for public use without permission, for which he seeks compensation. City . of Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex. I 971 ). The available remedy is a key distinction between the two. While one suit quiets title and possession of the property, see Florey, 212 S.W.3d at 449, the other allows only for just compensation for the property taken or used-the prevailing party does not regain nse of land lost to the public's use, or win possession of it See Hal/co Tex., Inc. v. McMullen Co., 221 S.W.3d 50, 56 (Tex.2007). And, although land ownership is universalJy an underlying consideration of a takings claim, legislative conseqt is unneceSsmy to pursue just compensation (as opposed to possession and title) because the Texas and United States Constitutions already grant private landowners such a right. As the Texas Supreme Court has observed, if the government could claim inununity for a taking by simply asserting title, then it need never legally condemn land-it "could simply appropriate it, and the landowner would be entitled to no compensation unless the Legislatore granted him permission


480

251 S.W.3d 701 251 S.W.3d 701 • to sue." Griffin v. Hawn, 161 Tex. 422, 426, 341 S.W.2d 151,153 (1960).

In support of their position, the defendants rely upon Bell v. State Department of Highways and Public Transportation, 945 S. W.2d 292, 293 (Tex.App.-Houston [1st Dist.] 1997, pet. denied) and Texas Southern University v. State Street Bank and Trust Company, 212 S.W.3d 893, 911 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). In Bell, a landowner filed a declaratory judgment action, seeking title to property upon which the State bad built a highway. The State claimed title to the property by a lost deed and adverse possession. ld This Court held that Bell's suit was, in effect, a trespass to try title action against the state. !d. at 294. The landowner in Bell, however, did not seek compensation for an inverse condemnation, but instead sought title to the land. ld Thus, our court's holding in that case is distinguishable.

In Texas Southern, __ a bank sued )Jt_e university for inverse condemnation after the university refused to pay for equipment provided to it under a lease/ purchase *709 agreement. 212 S.W.3d at 898-99. Our court afflnned the trial court's denial of the university's plea to the jurisdiction in part, but concluded that the bank's claim for inverse condemnation was properly dismissed because the university took the property under color of contract, as conceded by the parties in their pleadings. ld at 911. In contrast to Texas Southern, in which the parties conceded the existence of a contract by which the university took possession of the equipment, here, the Porrettos' claim of ownership in the land is unchallenged in the pleadings and the evidence. ld

Instead, the facts in this case resemble those in State v. Riemer and Kenedy Memorial Foundation v. Mauro, cases in which takings claims survived a plea to the jurisdiction. See State v. Riemer, 94 S. W.3d I 03, 109 (Tex.App.-Amarillo 2002, no pet.)(holding that allegations that State's lease and actions that resulted in taking of oil and gas were sufficient to state claim for inverse condemnation); see also Kenedy Mem'l Found, 921 S.W.2d at 282

• Page 10

(holding that inverse condemnation claim survived jurisdictional plea where foundation alleged that state mineral leases encroached on foundation's property).

Finally, the defendants respond that the Porrettos' takings claim must be dismissed for lack of jurisdiction because they had no intent to take the Porrettos' land, but rather only to assert the government's "rights." But the government offered no evidence on the issue of ownership or title, or even a colorable assertion of ownership in the land; therefore, we mUst accept the Porrettos' allegation that they are the fee simple owners of the land as true for purposes of evaluating this appeal. Viewed, as we must, in a light favorable to conferring jurisdiction, an allegation that the government conveyed leasehold rights to a third party on land that the Porrettos' own is not an allegation of accidental or unintended use of land; rather, it is an allegation of an intentional act that interferes with the vested right of a landowner. See Riemer, 94 S. W.3d at" 109; see also Gragg, 151 S.W.Jd at 554 (affirming inverse condemnation judgment against government where landowner proved taking was not unintended).'"'

FN3. The Park Board observes in its postsubmission briefing that it at least leased the property to a third party in reliance on its lease with the GLO, and thus it acted under color of contract See State v. Holland, 221 S.W.Jd 639, 644 (Tex.2007). Unlike the facts in Holland, where the State produced uncontroverted evidence that it .accepted benefits ·pursuant to' 'CQiltractual llmmgements with third parties, the allegation here is that the government in effect contracted with itself to create immunity. Absent evidence that such a contract can be traced to a colorable right to the Porrettos' land, which has not been adduced at this stage of the proceedings, the Park Board's lease from the GLO does not confer to the Park Board immunity from an


481

251 S.W.3d 701 251 S.W.3d 701 •

inverse condemnation claim any greater than that held by the GLO.

At this stage of the proceedings, the government did not controvert the Porrettos' alJegations of ownership of the land in question, and have challenged the Porrettos' claims without regard to the truth of their claim of ownership.'"' It is true that, to prove their takings claim, the Porrettos necessarily will have to prove that they own the property that the State allegedly has taken or used. If the Porrettos prove that they own the disputed property, and that it has been "taken" by the State, the Porrettos can recover compensation-but •71 0 the leases that allegedly interfere with use of the property stand fmn. Because the state and federal constitutions grant authority to landowners to seek compensation for government takings, and the Porrettos properly have alleged such a claim, we hold that the trial court erred in granting the government defendants' pleas to the jurisdiction as to the Porrettos' inverse condemnation claim.

FN4. In this respect, this case differs from cases in which the State is immune because it has provided evidence that it acted under of color of contract. See, e.g., Holland, 221 S. W.3d at 644 (noting that the State was immune from inverse condemnation claim based on infringement with patent rights because the State "presented uncontroverted evidence" it had acted "pursuant to contractual agreements").

Trespass to Try Title Claims against the Government O~cials

(20] The Porrettos further contend the trial court erred in dismissing their trespass to try title claims against governmental officials Patterson and Muller. Recognizing that the State and Galveston are immune from a trespass to try title actiop., the Porrettos rely upon State v. Lain to sue Patterson and Muller, who acted in their official capacities when executing the leases that the Porrettos contend cloud their title. 162 Tex. at 553, 349 S.W.2d

• Page 11

at 582; see also Griffin. 161 Tex. at 426, 341 S.W.2d at 153.

In Lain, a landowner filed a trespass to title suit against the State and several of its officials, alleging that the State had trespassed on his land by constructing a ferry landing and dredging a channel over his property. 162 Tex. at 549, 349 S.W.2d at 580. The trial court dismissed the State as a party on its plea to the jurisdiction, but denied the pleas of the goverrunental officials. ld The Texas Supreme Court affirmed the trial court's decision, holding that the State's immunity does not inirre to the benefit of its officials:

When suit for recovery of title to and possession of land, filed without legislative consent, is not against the state itself, but is against individuals only, the mere assertion by pleading that the defendants claim title or right of possession as officials of the state and on behalf of the state, will not bar prosecution of the suit

One who takes possession of another's land without legal right is no less a trespasser because he is a state official or employee, and the owner should not be required to obtain legislative consent to institute a suit to oust him simply because he asserts a good faith but overzealous claim that title or right of possession is in the state and that he is acting for and on behalf of the state.

!d. at 552, 349 S.W.2d at 581.

Tho Lain court then established tlie trial court's procedure for adjudicating such cases:

[W]hen officials of the State are the only defendants, or the only remaining defendants, and they file a plea to the jurisdiction based on sovereign immunity, it is the duty of the court to hear evidence on the issue of title and right of possession and to delay action on the plea until the evidence is in. If the plaintiff fails to establish his title and right of possession, a take nothing judgment


482

251 S.W.3d 701 251 S.W.3d 701 •

should be entered against him as in other trespass to try title cases. If the evidence establishes superior title and right of possession in the sovereign, the officials are rightfully in possession of the sovereign's )and as agents of the sovereign and their plea to the jurisdiction based on sovereign immunity should be sustained. If, on the other hand, the evidence establishes superior title and right of possession in the plaintiff; possession by officials of the sovereign is wrongful and the plaintiff is entitled to relief. In that event the plea to the jurisdiction based on sovereign immunity should be overruled and appropriate relief should be awarded against those in possession.... The judgment against the individuals, predicated as it is upon an incidental determination that title and right of possession is in the plaintiff, is not binding on the sovereign.

*711 !d. at 552-53, 349 S.W.2d at 582. The Porrettos contend that the trial court prematurely sustained Patterson and Muller'.s. jurisdictional pleas because Lain obligates a trial court to hear evidence regarding title and possession before dismissing the case. !d. Patterson and Muller respond that the Porrettos failed to object to the trial court's failure to hold a hearing.

[21][22] In Texas Parks & Wildlife v. Miranda, the Texas Supreme Court held that a trial court's review of a plea to the jurisdiction challenging the existence of jurisdictional facts should mirror that of a traditional summary judgrnenL 133 S. W.3d 217, 226-27 (Tex.2004); see1EX.R. CIV. P. 166a(c). The court explained that, by requiring the State to

• meet the summary judgment standard of proof, "we protect the plaintiffs from having to 'put on ·their case simply to establish jurisdiction.' " Miranda, 133 S.W.3d at 228 (quoting Bland lndep. Sch Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000)). Under Miranda. the burden is on the government to adduce evidence establishing as a matter of law that the trial court lacks jurisdiction. 133 S.W.3d at 228. The burden then shifts to the plaintiff to demonstrate that a disputed issue of material fact

• - -o- -- -- --

Page 12

exists regarding the jurisdictional issue. !d. The defendant cannot simply deny the existence of jurisdictional facts and force ·the plaintiff to raise a fact issue. ld Because Lain requires the trial court to hold an evidentiary hearing before ruling on an official's plea to the jurisdiction, the initial ·burden was on Patterson and Muller to claim a superior right to the land on behalf of the government. Lain, 162 Tex. at 552-53, 349 S.W.2d at 582; see Miranda, 133 S. W.3d at 228. Only then does the burden shift to the Porrettos. In their answer and jurisdictional plea, the government did not deny the Porrettos' claim of title, nor did they attempt to show a right to the disputed land. Thus, the trial court's dismissal of the trespass to trY title claim against the officials was premature.FNs

FN5. The officials further respond that Lain is inapplicable because, in that case, the State was not a party, whereas here, the State is a party through the GLO, with respect to the Porrettos' claim ·for inverse condemnation. Lain, 162 Tex. at 549, 349 S.W .2d at 580. We fmd this distinction unpersuasive. In Lain, the State also was a party to the trespass to trY title suit, but the trial court dismissed it on a plea to the jurisdiction, leaving only the government officials as defendants. !d. In this case, the trespass to trY title claims are against the officials only. As such, Patterson and Muller are the "only remaining defendants" in the trespass to try title claim, as contemplated by Lain.ld at 552-53, 349 S. W.2d at 582. ..

[23] The court in Lain expressly held that a trespass to try title action can be maintained against governmental officials acting in their official capacities. Lain, 162 Tex. at 552, 349 S.W.2d at 581. "The rationale of the rule is that in such cases possession is not in fact held for the sovereign but is wrongfully held." !d. at 552, 349 S. W.2d at 582. It matters not that the officials claim that "title or right of possession is in the State." !d. at 581. While contrary to

10 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

483

251 S.W.3d 701 251 S.W.3d 701 • the general rule that- in other circumstances. a suit against a governmental official in his official capa· city is a suit against the State, the Texas Supreme Court has never overruled it, and thus we follow it.FN6 See *112DeMino v. Sheridan, 176 S. W.3d 359, 366 (Tex.App.-Houston [1st Dist.] 2004, no pet.).

FN6. Although Lain expressly permits suit against government officials who wrongfully assert title in a landowner's private property to quiet title, and we follow it for that principle, we do not suggest that government officials waive immWiity for money judgments sought in such a suit Lain, 162 Tex. at 552, 349 S. W.2d at 581-82; cf Tex. Nat'/ Res. Conserv. Comm'n v. IT-Davy, 74 S.W.3d 849, 856 (Tex.2002) ("[P]rivate parties cannot circumvent the State's sovereign immunity from suit by characterizing a suit for money damages,_ such as a ~contract dis~ pute, as a declaratory,judgtrieilt claim.").

There being no evidence. in the record from which to conclude that the government had a colorable right of possession, or even an assertion of right or title to the property in question, we hold that the trial court erred by granting Patterson's and Muller's pleas to the jurisdiction on the Porrettos' trespass to try title claims against them. We note that any judgment against Patterson and Muller does not bind the State. See Lain, 162 Tex. at 552, 349 S.W.2d at 582.

Breach of Contract . ,

[24][25] The Porrcttos further contend that the trial court erred by granting the GLO and Patterson's jurisdictional pleas on the Porrettos' breach of contract claims. They allege that the GLO and Patterson breached the settlement agreement by "refusing to provide a letter disclaiming any state interest in the Porrettos' waterfront lots above the mean high tide line." The Porrettos further contend that the

• Page 13

GLO and Patterson have waived immunity from suit on the settlement agreement. In Texas A & M University-Kingsville v. Lawson, the Texas Supreme Court held that a governmental entity that agrees to settle a lawsuit from which it is not immune cannot claim immunity from suit for breach of the settlement agreement relating to that claim. 87 S.W.3d 518, 521 (Tex.2002) (plurality op.). The policy supporting this holding is that the government should not regain immunity it previously has waived by settling a case. ld. at 522. Because the GLO is not immune from the Porrettos' takings claim~ under Lawson, the Porrettos' breach of contract claim can proceed, but only to the extent it arises out of the takings claim. ld. The trial court thus erred by granting the GLO's plea to the jurisdiction on the Porrettos' breach of contract claim.

[26][27] Although we have held that the Porrettos' trespass to try title action can proceed against Patterson, it does not follow that they may proceed with their breach of contract claim against him. The Porrettos' breach of contract claim seeks recovCry for Patterson's failure to execute a letter disclaiming any interest by the State in portions of the disputed property. Only persons having actual authority to act on behalf of the State can bind it in contract. State ex rei. Dep't of Crim. Justice v. Vitapro Foods, Inc., 8 S.W.3d 316, 322 (Tex.l999). Under Lain, however~ if the Porrettos have superior title, possession by Patterson "is not in fact held for the sovereign but is wrongfully held." Lain, 162 Tex. at 552, 349 S.W.2d at 582. In its non-immune existence, the Porrettos' trespass to try title claim is founded on a theory that Patterson is acting outside

.his authority 'as a government official in possessing . their property. Since the State is immlfne from a ' , . trespass to try title claim, Patterson cannot dispose of the State's immunity by settling the suit against him so as to bind the State-thus incurring a contrac-tual obligation on behalf of the State arising out of a claim to which the State is immune. See id; see also Lawson, 87 S. W.3d at 522 (noting that "a governmental entity would not, in settling a suit for which immunity has been waived, undertake an ob-

~ 2008 Thomson Reuters/West No Claim to Orig. US Gov. Works.

484

251 S.W.3d 701 251 S.W.3d 701 • ligation that exposes it to liability much greater or different than that which it faced from the original claim."). The trial court therefore properly granted Patterson's plea to the jurisdiction on the Porrettos• claim for breach of contract against him.

The Local Government Code

[28] Relying on Missouri Pacific Railroad v. Brownsville Navigation District, *713 the Porrettos contend that the Legislature generally has waived sovereign immunity for claims against park boards under section 306.041 (a) of the Local Government Code, which provides that a park board "may sue . and be sued in its own name." Missouri Pac. RR v. Brownsville Navig. Dist., 453 S.W.2d 812, 813 (Tex.l970) (holding that such statutory language "is quite plain and gives general [legislative] consent for [a] District to be sued in the courts of Texas in the same manner as other _defendants."). After the Porrettos filed their brief in thin:ase, the Texas Supreme Court oVerruled MissoUri Pacific. holding that "sue and he sued" statutes do not, in and of themselves, waive govenunental immunity. Tooke v. City of Mexia, 197 S.W.3d 325, 342 (T ex.2006). We therefore hold that the "sue and be sued" language in section 306.04l(a) does not constitute an independent basis for denying the Park Board's plea to the jurisdiction. As section 306.041 is the only basis upon which the Porrettos rely to assert their claim for slander of title, we hold that the trial court properly dismissed that claim.

Conclusion

We reverse the trial cowt's order as it relates to the Porrettos• inverse condemnation claims, and remand those claims for further proceedings. We reverse the trial court's order as it relates to the trespass to try title claims against Patterson and Muller, individually, and remand those claims for further proceedings. We reverse the order as it relates to the Porrettos' breach of contract claim against the GLO and remand that claim for further proceed-

• - ~o- - . -- --

Page 14

ings, but only insofar as that claim corresponds to the claim for inverse condemnation. We affmn the trial court•s judgment as it relates to the Porrettos' breach of contract claim against Patterson, individually, and to the Porrettos' claims for slander of title. All pending motions are denied as moot.

Chief Justice RADACK, dissenting.SHERRY RADACK, Chief Justice, dissenting in part and concurring in part. I respectfully dissent from the panel's resolution of issue one. The defendants argue that the Porrettos' case is not truly an inverse condemnation case, but is, in fact, a trespass to try title action because it involves a dispute over title to real property. The defendants also argue that, because the State is actually claiming ownership of the property, it has no intent to take the Porrettos' property. I agree with the defendants.

Texas courts have repeatedly held that a trespass to try title action is the proper method of adjudicating rival claims to real property. Martin v. Amerman, 133 S.W.3d 262, 267 (Tex.2004) (stating that trespass to try title is "the method for determining title to ... real property.") (quoting 1EX. PROP.CODE ANN. § 22.00l(a)); Rogers v. Ricane Enters., 884 S.W.2d 763, 768 (Tex.l994); Yoast v. Yoast, 649 S. W.2d 289, 292 (Tex.l983).

Thus, the question presented is whether the Porrettos can try the State's title in an inverse condemnation proceeding. I think not. In Bell v. State Department of Highways and Public Transportation, the plaintiff filed a declaratory judgment, seeking a declaral\an that he held title to property ,.upon which the State'had built a highway. 945 S.W.2d'292, 293 (Tex.App.-Houston [1st Dist.] 1997, writ denied), abrogated on other grounds by Harris County v. Sykes, 136 S.W.3d 635 (Tex.2004). ld The State claimed title to the property by adverse possession. 945 S.W.2d 292, 293. Thls Court held that "[n]o matter how Bell's suit is styled, it is, as the trial conrt found, 'in effect' a trespass to try title suit." 945 S.W.2d at 294. This Court *714 further held that because Bell did not obtain legislative consent

© 2008 Thomson ReutersiWest. No Claim to Orig. US Gov. Works.

485

251 S.W.3d 701 251 S.W.3d 701 • before bringing his trespass to try title action against the State, the trial court lacked subject-matter jurisdiction. /d.

In Texas Southern University v. State Street Bank and Trust Co., the plaintiff entered into an equipment lease with Texas State University (TSU), a governmental entity. 212 S.W.3d 893, 897-98 (Tex.App.-Houston [1st Dist.] pet. denied). The plaintiff sued TSU, alleging that TSU had "taken" its equipment by inverse condemnation. /d. at 899. This Court held that because TSU was acting under color of contract, it was not exercising its eminent domain power. !d. at 911. As such, TSU lacked the requisite intent under constitutional takings juris· prudence. /d.

As in Bell, I believe that the Porrettos' claim is "in effect" a trespass to try title suit. Both the Porrettos and the State claim to own the property at issue. "Any suit that involves a dispute over the title to land is, in effect, an action in trespass to .try title, whatever its form and regardless or' whether legal or equitable relief is sought." Jordan v. Exxon Corp., 802 S.W.2d 880, 883 (Tex.App.-Texarkana 1991, no writ). A trespass to try title suit is "the method for determining title to ... real property." Martin, 133 S. W.3d · at 266; TEX. PROP.CODE ANN.§ 22.001(a) (Vernon 2000).

As in TSU v. State Street Bank, the Porrettos' pleading does not show the requisite intent' necessary to establish a taking claim. The State claims the property under color of title; it is not "taking" property that it believes belongs to the Porrettos.

" Indeed, ·were we to 'agree that the siate's claim of •· · title to real property could be adjudicated through a takings claim, we would be creating a waiver of the State's sovereign immunity in all actions involving the validity of the State's title to real property. The opposing party in a trespass to try title claim against the State would always be able to circumvent the State's immunity from suit simply by pleading his case as an inverse condemnation. Such artful pleading should not be permitted to effect a

• Page 15

waiver of the State's sovereign immunity.

In sum, the Porrettos' takings claim fails because (I) it is "in effect" a trespass to try title action because it asks the court to adjudicate rival claims to the property, and (2) when acting under color of title, the State does not have the requisite intent to "take'' the property of another. Because the Porret· tos bring a trespass to try title action against the State, not a takings claim, they must first obtain legislative consent, which they did not do. See State v. Lain, 162 Tex. 549, 349 S:W.2d 579, 582 (1961). Thus, the trial court properly granted the defendants' plea to the jurisdiction on the Porrettos' inverse condemnation claims.

Accordingly, I would overrule issue one.

Because I believe that the GLO is entitled to immunity, I would also hold that it is immune from the Porrettos' breach of contract claim. See Tex. A & M Univ.-Kingsville v. Lawson, 87 S.W.3.d 518, . 521 (Tex.2002) (holding that if governmental entity- ' agrees to settle lawsuit from which it is not im· mune, it cannot claim immunity from suit for breach of settlement agreement).

Accordingly, I would also overrule issue three in its entirety.

I concur in the remaining portions of the opinion.

Tex.App.-Houston [I Dist],2007. Porretta v. Patterson 251 S.W.3d 701

END OF DOCUMENT

1!:> 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

486

The• State of~ exas

STATE OF TEXAS

COUNTY OF GALVESTON

• . .

.

Austin, Texas

TEXAS GENERAL LAND OFFICE

§

§ KNOWN ALL MEN BY THESE PRESENT:

(1) By virtue of the authority granted by Texas Natural Resources Code, Chapter 51, (Vernon 1978), and subject to all rules and regulations promulgated by the Commissioner of the Texas General Land Office pursuant thereto- and all other applicable statutes and amendments to the Texas Natural Resources Code, the STATE OF TEXAS, hereinafter called GRANTOR, acting by and through Garry Mauro, Commissioner of the Texas General Land Office, hereby grants to THE CITY OF GALVESTON, a Municipal Corporation, hereinafter called GRANTEE, GRANTEE's successors and assigns, a lease. of ·those certain tracts of submerged lands in Galveston County, Texas, described as follows: ..

THOSE portions of State Submerged Gulf of Mexico Tracts 221-S, 222-S, 229-S, 230-S, 231-S, and 241-S adjacent to and along the Galveston Seawall from the centerline of lOth Street, extended, to the centerline of 103rd Street, extended, as generally shown on Exhibit "A" attached hereto and incorporated herein by reference for all purposes.

(2) The exclusive purpose of this lease and the sole use for which the lease premises are to be used is the deposit of beach quality sand in and on said submerged land for beach replenishment and restoration as described and in accordance with Exhibit "B" attached hereto and made a part of this contract for all purposes, further

·identified as Department of the Army Corps of Engineers Permit Application- 14721(04), Galveston District, as amended by Permit Application- 14721(05), attached hereto and identified as Exhibit "C".

1

487

•• (3) This lease is for a total period of ten (10) years, beginning on the execution of this agreement by the ~ommissioner of the Texas General Land Office, unless the same be renewed, extended, canceled, or changed by the proper official of the State of Texas as authorized by law.

(4) As consideration for the granting of this lease, GRANTEE agrees to pay to the Commissioner of the Texas General Land Office at Austin, T~xas, the sum of Five ($5.00) Dollars per year in advance. The full: payment of Fifty ($50.00) Dollars is to··b!'!- made upon the execution hereof by the Commissioner of' .the General Land Office.

(5) The uplands property littoral to the submerged lands subject to this lease are owned by the County of Galveston which executes this lease agreement solely to effectuate this paragraph 5 by which Galveston County, together with Grantee, except as otherwise stated, hereby waive, relinquish, and release any cl.aim or right to assert a claim to any right, title, interest, or ownership in the emergent fast land gulfward of the Seawall which will be the intended result of the replenishment project authorized in paragraph 2 of this lease .

.... Nothing in this paragraph shall modify, release, or otherwise effect '• •' (;al vest on County's ownership, right of maintenance of or. control over

what is commonly and generally known as the Galveston Isl<~,nd Sealoral:l, -:· • .!Project, nor its right and obligation to preserve and maintain said

,seawall. In addition Grantor and Galveston County acknowledge the '; ''':existence of a 9 0' maintenance easement along and gulfward of the

seawall th.e purpose of the easement being to enahle Galveston County to maintain the seawall as it deems necessary.

(6) GRANTEE agrees that it shall cause surveys to be performed by a Licensed State Land surveyor to locate and document the line of highest annual tide along R.A. Apffel Park and Stewart Beach Park, and continuing along the length of the submerged lands subject to this lease from the center line of lOth Street, extended, to the centerline of 61st Street, extended, (aka Phase 1), and the line of mean high tide along the leng:th of the submerged lands subj.ect hereto from the centerline of 6lst Street, extended, to the· centerlfne of 103rd Street, extended, (aka Phase II) • Each survey shall be subject to acceptance and approval by the GRANTOR.

(7) GRANTEE shall not assign or sublease the rights granted in this lease in whole or in part to any third party for any purpose without the prior written approval of the commissioner of the Texas General Land Office.

(8) GRANTEE shall permit GRANTOR's agents, representatives, and employees to enter into and on the above-described premises at all reasonable times for the purpose of inspection and for any other reasonable purpose necessary to protect GRANTOR's interest in the premises herein granted.

2

488

• • (9) GRANTOR reserves the right to use any or all of the area contained within the lease described above for any purpose not inconsistent with the purpose of this l~ase.

(10) GRANTEE shall use the highest degree of care and all proper safeguards to prevent pollution of air, ground, and water in and around the above-described area and shall comply with the rules and orders which the Commissioner of the Texas General Land Office deems necessary for the protection and preservation of.public lands and water. In .the event of pollution which i.s ·the resdlt of GRANTEE's use of .the above-described premises, GRANTEE shall use all means reasonably available to recapture all pollutants which have escaped and shall be responsible for all damage of any nature arising from such pollution.

(11) GRANTEE agrees to inform the commissioner of the Texas General Land Office of the name and address of GRANTEE's designated agent or representative for the purposes of this agreement and agrees to inform the Commissioner of any change in the ·designation or address of the person or office so selected.

(12) GRANTEE shall not permit the use of the premises for any illegal purposes. GRANTEE will comply, and will cause its officers, employees, agents, and inv~tees to comply, with all applicable laws~'· ordinances, rules, and regulations of governing agencies concerning the use of the premises under this lease agreement.

(13) GRANTEE agrees to indemnify and hold GRANTOR, its officers and employees, harmless for liability or damages of any kind or character without limit and without regard to the cause or causes thereof or the negligence of any party or parties, arising directly or indirectly from the use of the premises herein granted and\or any breach by GRANTEE of the terms, covenants, or conditions provided herein.

(14) In the event that GRANTEE fails to pay any mq~ey due under the terms of this agreement wh~n the same becomes due, or· is in breach of any condition or covenant set forth. herein, the Commissioner of the Texas General Land Office shall have the right, at his option, to forfeit this agreement and terminate all rights inuring to the GRANTEE herein by sending written notice of such forfeiture by United states Mail to the last known address of GRANTEE's designated agent or representative. Upon sending of such written notice, this agreement shall terminate and all rights granted herein to GRANTEE shall revert to GRANTOR (subject to reinstatement by the School Land Board, at its option). such forfeiture and termination shall not prejudice the rights of GRANTOR for any claim of payments due.

(15) Upon termination of the fill activity authorized by this agreement, GRANTEE shall remove or cause to be removed all personal property, construction equipment, and any other construction material or waste resulting from the replenishment project.

3

489

• • (16) A waiver by GRANTOR of a breach of this lease by GRANTEE does not constitute a continuing waiver or a waiver of any subsequent breach of this lease.

(17) By executing this contract, each of the parties attest that it is authorized to enter into and perform this agreement, and that the person executing this agreement for and on behalf of each party is duly and lawfully authorized to do so.

(18) GRANTEE hereby agrees to and accepts the following Special ' Conditions as binding on and required ··o:e it in GRANTEE's use of the submerged lands subject to this lease and the activities approved and authorized in paragraph 2.

(a) The nourishment project shall be conducted in a manner that is consistent with the General Land Office rules for management of the beach/dune system §15.7(d) and the city of Galveston Coastal Development Ordinance /93,-73. · (b) GRANTEE shall use the best beach-quality material possible from the proposed borrow areas following the recommendations of the consulting firm, Coastal Planning and Engineering within the City's $4 million budget. -(c) GRANTEE shall provide frequent photographic documentation of the construction and post~construction phases of the project to the La Porte Field Office of the General Land Office. (d) GRANTEE shall monitor any effects of the dredging operation on the shoreline adjacent to the borrow sites. (e) GRANTEE shall conduct beach and nearshore surveys (profiles) approximately one month prior to commencement of the project to assess the condition of the beach. The profiles shall be measured from benchmarks established by the u.s. Army Corps of Engineers within the groin field, and from benchmarks (approved by GRANTOR) outside the extracted/filled area, and which are u.s.c. & G.S. firstorder benchmarks as most recently adjusted if available. (f) The nearshore profiles of the nourished beach shall extend seaward beyond the expec.~ed adjustment of the nourished profile •

. (g) Pos~-fill profiles shall be measured from the same benchmarks at three-month intervals for the first year after construction and at six-month intervals for the second year. (h) GRANTEE shall provide to GRANTOR an annual monitoring report which includes: aerial photographs of the project site; a map depicting the preproject location of mean high water or highest annual tide, whichever is applicable, and its location upon project completion; an analysis of the performance of the project based on the profile data and weather; and an analysis of the effects of the project on the borrow site and the adjacent shoreline. Two annual reports shall be submitted to GRANTOR. The first report shall include the required information from preconstruction to 12 months after·project completion .. The second annual report shall contain the required information to 24 months following project comp!etion.

4

490

• • • (i) In th. e event of a major storm in the project area~ a profile survey shall be performed and delivered to GRANTOR as s~on as practicable after the passage of the storm. . \ (j) GRANTEE shall prepare and execute a plan for moving sediment to fill any eroding areas adjacent to a salient should one form.

IN TESTIMONY WHEREOFJ.. y~tness my h~ pnd seal of the Texas General Land Office this'SI!>- day of d!£~6(. 1 1994.

Approved: Contents: Deputy COllUII. : sr. Deputy co,nmm~:~~~~~RC~/ Executive:

The Galveston

STATE OF TEXAS

COUNTY OF GALVESTON

·,

Land

The City of Galveston

By:~~-~s Name. OUGLAS W. MATTHEWS Title: city Manager

Thisr-.ntrmn~t was r)}illtledged befef~e t?Y~ ~&-~ 19~~ by ~\OS \..I..L lt'...:S I • ~ PC I

on behalf df the city of Galveston •

.. . ..

5

t PUblic

·:\D\vm ~e .Sh:wJ -:Jr. Print Name

MY commission expires:

491

• • STATE OF TEXAS

COUNTY OF GALVESTON

This Jnst:cm~nt was acknowledged before me on IC?c:tiLw /.P , 191:J., by J{_~Y.MfvvrL , <1K>M fi1 ~w , on beh~ of the County of Galveston. -

,,

--~lfiJ¥~ ·Notary PubliC

6

6HAf2P.U S. ku21(./'ATJ2)c./& Print Name

My commission expires:

..

492

~ w

~ l ' ~

' ~ ..,.

DATE: DEC. 1992 SCALEiNONE

tfL'''"

,, "•~'~'

l·h~l

...._ ' .. . . . . ...._ ....... ····· ...... ..... . . .. . . --------........,. .

' ...,___ __ ..._. ........ ------- • 0~ INNER 'ii'AR CIIWN,ll_---- - -- d

......_____________ 11

~Q!}{!E~~f;~ .. p.fliVE-

R.A. APffEL PARI< BORROW SITE

• STEWART BEACH BORROW SITE .

• SHEET I Of iii PROPOSED BEACH

REPLENISHMENT PROJECT lOth STREET TO 103rd STREET

C I TV AND C:OUIITY'Of GAUl EST ON . , ~'P.TE 0/' T£Xf/!1

API'LIC~IIT ICIT¥ Of OALVUTOII

. .

Q

c: r ...., c ....,

' I

494

.. ' ., . . ' " . ~ .. , .....

' '

~YTO A T"TENTION Ofl''

•G.At.V£STON OISTJUC:~ COR~ OP' ENGl.

P.O. BOX 122!.1

G.At.VE!STON. TEXA..S 77SS3-122S

CESWG-co-RB, PERM:IT APPLICATION - 14721(04)

JOINT PYBLIC NOTICE

28 January 1993

U.S, ARMY COJlPS OF ENGINEERS. GALVESTON DISTRICT Aml

TEXA,S WATER CQMMISSION

To Whom It May Concern: This district·has received an application for a Department of the 1J:my ·pendt as des=ibed below:

APPLICNff:

city of Galveston P.O. Box 779 Galveston, Texas 77553 Ta2ephone: 409/766-2124

HATERWAY AND LOCATION: Gul.f of Mexico between 10th Street and 103rd Street of Ga2veston, the. Boddecker Drive Boat Channel between Biq Re~ and the south· Jett;:y, offshore between the inner bar channel. of Bali var Roads and tlie South Jetty near Big Reef, and portions of Stewart Beach and Apffel Park, Galveston County, Texas •

.EQEK: The City of Galveston: proposes to amend and extend the the of Perlllit 14721 (03) to place sand on the beaches of Galveston from 10th Street to 103rd street as shown on the enc2osed p2ans·. The purpose of the project is to restore sand to an area of re=eationa2 beach that has been lost to erosion. The work shou2d enhance re=eational uses, promote tourism, and provide f2ooe protection.

Apprt·rlmately 2, 000, ooo cubid yards of materhl wi22 be excavated from 4 designated areas on the east end of Galveston Island. Exc=s sand above me= high tide will be. graded from the parking area1• at Stewart Bea::h and Apffel Park, pi2ed in mounds, loaded on t.ucks, and hatL'1d to the area along the beach where it will be d<•posited over tl: a seawall onto existing rip-rap. In areas where no beach exist. adjacent to the rip-rap, the sand will be deposited on the existing rip-rap to be distributed by tidal. wave action. In areas wh gre beach now exist, the sand wiJ.l be spread and graded to the mean high water line. The material from the Boddecker Drive Boat Channel will either be removed by drag line bucket, loaded on tr\;cks and hau2ed to the beach site or removed by hydraulic dredge and transported by pipeline to an interim disposal area. After dewatering, the material will be excavated

495

g ...... '""'-'"'""por~:ea •=Ck to the .beach site •• fou.:rth site to .be tncluded as a de . ated borrow area is locMd ot:t:shore, near Big Reef. 'rhe mater~a.i.. irom this .;..i.ta will be hydraulically dredged and transported by pipeline installed along the shore-line. ·

All necessary measures will be taken to preserve the integrity of Big Reef and to min~ize the disturbance to the existing bird habitat in the area. In addition, the work will be timed to interference with tourism and current traffic patterns.

AQTHOBIZ'ATTON FROM OTHER AG"ENC!ES: Texas Water Colllltissi.on, carti~ication is re~ired. eohcurrent with processing of this application, the Texas Water Commission (TWC) is reviewing this appli~ation under Section 401 of the Clean Water Act and in accordance with Title Jl, Texas Administrative code Section 279.1-.lJ to determine if the work would comply with State water quality standards. By virtue of an agreement between the o.s. Army Corps o~ Engineers and the TWC, thi~ public notice is also issued for the purpose of advising all known interested persons that there is pending bafore the TWC a decision on water ~~ality certification under such act. Any comments concerning ~~is application may he sUbmitted to the EXecutive Director, Attention: Wastewater Permits Section, Texas Water Co~ssion, l700 North Congress, P.O. Box l:JQ87, capitol Station, Austin. 'l'oxas 787U.. The public collllnent period extends 30 days from the ~te of publication of this notice. A copy or the pUblic notice w~th a description of work is made available for review in the Texas Water Commission's Austin of!ice. The complete application =Y be reviewed in the cr.s. Ar:my Corps of Engineers• offices. 'l'l:l.e TWC may conduct a public hearing to consider all comments concerning water quality if reqUested in writing. A request for a pUblic hearing must contain the following information: the name, mailing address, and telephone number of the person making the request: the application number or other recognizable reference to the application; a brief description of the interest of the requester, or of persons represented by the requ~ster; and a brief description of how the application, if granted,,would adversely affect such interest.

The application will be processed pursuant to Section 10 oe the Rivers and Harbors Act of 1899 and Section 404 or the Clean Water Act. Any person may request a pUblic hearing. The request must be received in writing by the District Engineer within JO days oe the data of this notice and must clearly set !orth with particularity the reasons for holding a public hearing.

Evaluation of the probable impacts involving deposits or discharge of dredged or filL material into Waters of the Onited States will include the application o£ gUidelines established by the Administrator a:t: the Environmental Protection Agenc<.f.

. '

. . . >

496

..

• • ASSESSMENT OF HISTQRIC PROPERTIES: The District Engineer has reviewed the latest published version o1! the National Register of Historic Places, lists of properties determined eligible, and other sources of information. The 1!ollowing is c=ent knowledge o1! the presence or absence of historic properties and the effects o1! the undertaking upon these properties:

The state Tracts proposed for work under this permit application are included in the 'l'exas A,ntiquity Committees • s list of State land tracts con-t:a~ing state Archeological Landlnarks. Tl:!,erefore, the proposed activities may affect historic shipwrecks and a standard marine historic properties investigation is justified.

The District Engineer invites responses to" this public notice from State and local agencies, historical and archeological societies, indi vidual.s, Indian tribes, and other parties likely to. have knowledge of or concerns with historic properties in the area.

ENPANGERE!) SPECIES: Big Reef is wintering habitat for many bird species. Among these is the piping plover, Charadru.is melodus, which is a threatened species under the Endangered Species Act. OU.e to the proximity of the proposed work, consultation with the

··u.s. _Fish and_Wilcllife has been initiated to determine if. this project will have an affect on the piping plover.

The District Engineer invites responses to this public notice from qualified individuals ar.d other parties likely to have knowledge of or concerns with ·endangered or threatened species in the pe=it area.

PUBLIC INTI:REST FACTQRS: The decision whether to issue a permi't will be based on an evaluation of the probable impacts, including cumul.ative impacts, of the proposed activity on the public interest. That decision will reflect the national. concern for both protection and utilization of important resources. The benefits which reasonably may be expected· to accrue'· from. the· .proposal · Jr,USt be balanced against its reasonably foreseeable detriments. AH. 1!actors which may be relevant to the proposal will be considez ed; among those are conservation,. econmnics, aesthetics, general.: environlllental concern::>, wetlands, historic properties, fish az:d wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, ·water supply and conservation, water quality, energy needs, safety, food and 1!iber production, mineral needs and, in general, the needs and welfare of the people.

The Corps of Engineers is soliciting com.m.ents from the public; Federal, State, and local agencies and-officials; Indian tribes; and other interested parties in order to consider and evaluate the impacts of this proposed activity. Any comm.ents received will be considered by the Corps of Engineers to. determine whether to issue, modify, condition or deny a permit for this proposal.

3

... •,

497

~ 00

: DEC. 1992 ALE: NONE

, '"-' c::. tl

I' I. • tlg

~-----~-

......... '-.. --·---------.......... '-~--INNER-~A[!__CJ!AJiN!!------- -._......,1JJJ1,1tt ..___ _____ _

BODDECI<ER DRIVE· --.- -·' .. ···-·

5iEWART BEACH BPRROW SITE.

j!i.llinA

R.A. APFFEL PARI< BORROW SITE

•

JECT STREET

CITY AND j:OUHTY'OF OAIJIES!OH !TATE Of.TJ:XA8 : ..

APPLICANT: CITY OF OALVEBTON

•

•

~ \0

OF GALVESlOH STATE Of TEXA 8

APPLICANT• CITY Of GALVESTON

. --v-- !~fl!! I ' ~~

. o;;-,..<1 r.,.s . 8

"1 rou

,.,I... OESIGNAJEQ BEACH REPLENISHMENT L! MIT$- PHAS f II )10 I j;j •

Q w·

···,~-. ' Yt

EX!UBI7' A

I ...

------------------------~G_ULF OF MEXICO ~I-I'"'C'"'r ") '"',.. , ..

.........__.'- ...

U'1 0 0

. -· ... -···--· .

--..........-.:

VICINIW

.II

MAP STEWARI BEACH·· A.A. APFFEL PAR BORROW SIIES .

BEACH ENT PROJECT

TO ,. ., , ... \~. ·, •... : I •' f' ·I

DATE: DEC. 1992 SCALE: NONE STATE OF TEXAS

APPLICANT! CITY OF GALVESTON (II ~" .. " ' " I

·I' 0 I ,, " ~ s \~

.. I • ,I

~ • BJ\NO FREE OF DEBR I B BIIALL BE TRUCKEI> FROU BORROW SITES.

~· (I

·I ,, \,. ~,. ' ' 2. ·TilE 1\HCHIHT OF Rl\Nn WI L.J, NOT.· r::·xcgr-:J>

2,UUI),II()Il Cll. Yllll.

non no J. 'rilE IJI\Nil lliii\L.J .• liP: Uiia>U£ll'l'J;:l> UVIl:R '1'111~ flEAWI\LL.

-t. SJ\NI> SJIAl,L BF: fiPRll:J\1> Ill( TII>l\.L on WJ\VR ACTION. ( SEE NOTE 13. )

OfPOSif AOfA Cliii.F OF ldfXICO

D•ft••ll•4 •••_. T• ••· l.li•w•4 a, Hoi Mol Wowo 01 Tl4o• Aollon,

I ', ,·~· ••• , ~~·::,·:,···T·'.n:~- aUiTlH--lilXICO· '"1-;::r-T • ' "·'·'·. ,, :. /'·· ·.'.:··.l;·.•,fll:t_h~

NOTES FOH STEWART BEACII J\liD · ..... '·"·' 1•',•:.·:.1lll.·•···'·1··l'11·':7rr-;.,r

[U'l'EP:Io P.ABg DOR.fiH~__f!ITES: TO Til~ RIP-RAP, TilE CITr WILL SPREAD AJID GRADB TilE PROPOSED ftAHD UP TO Tllll: HIGII TIDE LIHII:. THB BARD WILL TIIEH BK DISTRIBUTED BY TilE

l . TilE HAX I HUH A!,(,OWADLE AHOUHT or SAHD REHOVED FROM ALL SITES. SHALL NOT EXCEED 2 1 000 1 000 (TWO MILLION) CUBIC YARDS,

2, TilE Cl TY SIIALL GRADE EXCESS SAHD LOCATED ABOVB TilE HEAH 111011 TIDE LIHE I'ROH TIIB STEWART BEACH PAR~ AHD R.A. 'APFFKL BEACU PARf PARKIHG AREAS. I TillS 18 PART DO T!!E PARK 1 S RKCJULAR GROUND HA I HTEHIIHCII: PROCEDURE, J 1 AHD FORH HOUNDS 011' fiJ\NU. Tllf:SE HOUHOS OF .BArHl WILl, TIIEH Bit J,OJIOE:ll ClHTO TRUCKS TO HE TRUCKED AllAY. CARll: MIA!.!, DE TAXEH SO THAT A SlTUATIOH WilER£ RXC:ROII!VE SAND REHOVA!,, UNUICl!ITLY BEACUAREAS, OR CRATERS WILL HOT BE CRII:ATED.

J. FOLLOWING THK LOADING Of TilE TRUCXs,'· THE SAHD WILL Bll: TRUCII:ED TO Til£ DEPOSIT ARB'AJJ BB'l'Wii:EII lOTI! 8TRBET AHD lOJRD s:rRBBT, AHD DBPDSITKD OVER TilE Sli:AWALL ONTO TUB EXISTING RIP-RAP Rl!HHINCI PARALLEL TO TIIK GALV&STOII BKAWALL. IH TIIR ARI::I\8 Wl!ERI:: AH EXISTIHCJ BEACH IS ADJloCENT

L

NATURAL TIDAL OR WAVE ACTION, IN TilE AREAS WHBRB THBRB 1B HO. BBACII AREA ADJACBHT TO TilE RIP-RAP, THB BAHD WILL 1 BB DBPOSITBD DULY DHTO THII: Bl'ISTIIIG RIP-RAP TO Bll: DISTRIBUTBD BY TilE NATURAL TIDAL OR WAVB ACTION.

THB TRUCKING 01' THIS SAHD HATERJAL S!iALL TME PLACK HAIHLY DURING TilE FALL,· WINTER .AHD SPRIHG HDHTIIS AHD WOIILD OCCIIA • DURIHG TilE DAYLIGIIT IIOIIRS .AT TIHII:S WIIICJI.WOULD AVOID CONFLICTS WITII RUSII HOUR TR.AFI'IC. TIIERE HAY BE IHSTAJIC£8 DURING TilE SUHHER HOHTIIS OR TOURIST SEASOH WUEH SOHE HhTERlhL HAr !!AVE TO BE TRAMSPORTII:D. DURING TillS TIHE PERIOD, TilE ~AHD WILL Bll: TRAHSPORTED AHD DEPOSITED FROH HlDHlOHT TILL i100 A.H,

EXHIBIT i,

•

•

..

~

• PROPOSED CROSS-SECTION\ OF CHANl:fEL

S~: VARI'ES',

~ . .

I

SHEET 4 OF 115

..

I

• I I

OF SEAWALL

PROPOSED BODDECI<ER DRIVE BOAT ·CHANNEL BORROW SITE { BORROW TO RESULT FROM

MAINTENANCE OF BOAT CHANNEL]

PROPOSED BEAOf REPLENISHMENT PROJECT

I lOth STREET TO I03rd STREET CITY AND COUNTY OF GALVESTON

STATE OF TEXAS APPI.ICANT• CITY OF OALVESTON

501

<-~>

• • DATE: DEC. 1992

NOTES FOR BOOOECKER DRIVE

SCALE: NONE

BOAT CHANNEL BORROW SITE.

2.

:J.

CHANNEL SHALL BE RESTORED TO ORIGINAL I'I!DTH AND DEPTH BY HEJUIS OF THE DRAG LINE BUCX:ET li.ETHOD AND/OR ·ay HEANS OF HYDRAULIC DREDGING.

MATERIALS REMOVED FOR THE HAIIITE.!IANCE! OF THE EXISTING Cli.ANNEL WILL BE lUTHER LOADED Otf TRUCc.. AND TRUCKED TO TRE PROPOSED BE.ACll REP!.ENISHMENT SITE AND/OR SHALL BE TRANSPORTED BY HEANS OF A HYDRAULIC DREDGE PIPELINE TO AN. INTERIM SPOIL AREA.

TilE CEliTERLINti: OF TJIE! PROPOSED CHANNEL lliLL RUN' PARALLEL TO THE CE!ITEIU.IliE! . OF THE SOUTH JETTY APPROXIMATELY 100' NORTH OF '!'l!E JETTY. THE SOUTIIERll BOT'l'OH EDGE! OF THE CRANNEL WILL BE LOCATED NO CLOSER THAN 50' NOR"l'H OF THE CENTERLINE OF TilE SOtrrH JETTY.

... , :.~_ DREDGED HAXERIAL IS l!RL.U'IVE!LY CLEAll , SAND SHELL MATERIAL WITH VERY LITTLll: ORGAHIC MATERIAL.

5. HOQ Exr.STiliG VEGE"!ATIOH AlfD nLL · Ill"l'RRIUH SPOIL AREA WITH 2.5'-3' OF DREDGE HAXERIAL.

1i. J FOOT BElUtS ARE TO BE CONSTRUCTED TO PREVE!liT EROSION.

7 • E!XCE!S S llM:Ell. AT Ill'rEIUUH SPOIL AREA SHALL BE GRAVITY DRAIIIED B1ICX TO n1E PROPOSED BOAT CliAlflfE:):..

' 8. PROPOSED Ill"l'lmiUH SPOIL

AREA IS THE PREVIOUS SPOIL SITE AREA APPROVED IJHl)E!R CORP OF Eli.GIJIEER PERHIT t139l~-

9 • DREDGED MATERIAL AT THE Ill"l'ERIUH SPOIL SITE WIJ:.li BE EXCAVATED AHD TRANSPORTED BY TRUCX TO BE.l\Cll REPLEliiSHHE.!I'r SITE.

PROPOSED BEACH REPLENISHMENT PROJECT

lOth STREET TO I03rd STREET

. •

. . •

I)

CITY AND COUNTY OF OALV£:m:JH !!TArE OF TVCAS

APPLICANT: CITY OF OALV£:m:JH

PROPOSED BODDECKER DRIVE BOAT CHANNEL MAINTENANCE.

SHEET 5 Of I~

'I • ;· ·;

502

_ORIGINAL PROPOSED

---Sovtla

ORIGINAL .AND PROPOSED DEPTH=(-6)

ORIGINAL AHD PROPOSED DEPTH=(-6)

DATE: DEC. 199 2

PROPOSED 8EAGI REPLENISHMENT PROJECT

10 I h STREET 1U 103-d STREET CITY AHO COUHTY OF <JACJE:rnJH

STAT!!: OF TEXAS _..,.PLICAHT: Cfn' OF IJAl.VE!fT1JN

• SCALE· NO

Sl4c Sl""" • %:1

ll.l. T.

II.LT.

Side Sl01>« ~ 2:1

PROPOSED BODOECKER DRIVE BOAT CHANNa MAINTENANCE.

SHEET 6 OF 15

.-..!-

503

.. ' .

.· ... .. .

.

• DATE: DEC. 1992

ORIGINAL AND _ PROPOSED DEPTH~(-6)

---:- Soudt

. OR.IGINAL lU{D PROPOSED D~"rll= ( -6 l

s-dt

.

ORIGINAL AND PROPOSED DEP:tH~C-GJ .

... . .

ORIGINAL AND PR.OPOSED D~TH=(-6}

PROPOSED BEAo-t REPLENI SHMEJfT PROJECT

I 0 f h STREET TO (03fd STREET C 1 rr .&HO COUNTY OF a AC/ElnlN

$T'~ OF TEJCA~ .lPPLJCAHT: CITY OF GALVESTON

• SCALE: NONE

M.t...T.

11.1.-T •

Sl4e Slope • z=l

. .

ll.l.T.

Slcle :ll"'I'' • t:l

PROPOSED BOOOECKER DRIVE BOAT CHANNEL MAINTENANCE.

SI<EET 7 OF 15

::c.

504

U'l 0 U'l

SCALE: J,l', IJJJ

CENTERLINE Of INNER BAR CHANNEL

EAST BEACH

BIG REEF

..

CONTOUR ELEV. ARE BASED ON t.!EAN LOW TIDE QATUM.

'•

.. . .. SLOPE: 50 H: IV (MAXIMUM)

GULF OF MEXICO

'<o ..................

PROPOSED OFFSHORE BORROW SITE

CITY AND COUNTY OF

. -

STATE OF TEXAS •'· APPLICANT• CITY OF GALVESTON

V1 0 Ol

!:WTED ~'OB Oll:E§!IOB!i.i UPI:!BOH f;l I:!.'§; i ,.

. ' ' ' ' I . Hl\'fERIAC, TO BE IIYDRAULlCALLY DREDGED 4. SLOPES AT PROPOSED naRROW s 'r l'E · wnr.

AND TRANSPORTED TO BEACH BY DREDGE EQUAL OR EXCEED •EXISTING STABLE PIPELINE. NATURALLY SliM' EO SLOPES AI,ONG THE

NORTH SHORE OF BIG REEF. 2. DORROW HATER I A£, SIIAI.L CONSIST

PRIHARILY OF BEACH. QUALil'Y SAND 5. AN ANALYSIS OF EXISTING SLOPES ON HATERIAL. THE NORTH SHORE OF' BIG REEF HAS BEEN

HA,DE BETWEEN STATION 12t900 AND 3. CONTOURS SIIOWN REPRESEN'f OCTOBER S'l!ATIOH 18t~OO. COMPUTED SLOPES

J9g2 IIYDROGRAPIIIC SURVEY I>ATA. RANGE FROH 1811: 1 V TO 4911: lV. TifF. PROPOSED HAXIHUH SLOPE AT TIIR BORROW SITE SIIAfoL DE 5011: 1 V.

Q < P- mr~~ll~~ Er. INNER STA 18+ 400

/ VERTICAL SCALE

·to . ~~~1~~~~ATED FOR

-zo / 'EXISTING t"D/H>C>-5 oCT I ON ••

/ •

/ -~o

'

/ . .

~ "40 ·,

0 1000 2000 3000. 4000

0 ·mTmm~E~f INNER STA. 18+900

/ v

·to

/ EXISTING CROSS-SECTION

•20 SHEET 9 OF 1!\

_..... / PROPOSED BEACH -~ ' REPLENISHMENT PROJECT

~ > IOih STREET TO 103rd STREET

CITY AND COUNTY OF GALVESTON "40 ' HAn: Of TEXA$

0 1000 '2000 3000 .DDI Ill"' A U'r' ,.lTV ,...- ""•• , . .,. ... - ....

~' _., .

U'1 0

"'

" -'P.ROPOSED BEACH

" • II , ,., . STA 19 + 400........-,_Q_

.. .·, ~ . "

REPLENISHMENT PROJECT ' --lOth STRE;ET TO I03rd STREET / - --~ CITY AND COUNTY OF GALVESTON ~-STATE OF TEXAS

-~r- r APPLICANT! CITY OF GALVESTON -_2Q ~f!jifBLII.E OF INNER . /

t BAA CHANNEL / l --30 MAXIMUM LIMITS OF BORROW

/ '

~ "40

0 1000 2CCO ;:)()XJ . 4000 5UJU

Q_ .- ~i~TE~~A~~~ ~~~r INNER STA. 19+900 g~l~ ': ~m I h~~oTdQE ----•JQ

v R • l'r 20' / _...... ln~n· · nii'i' ,r:,,:?· · /

VERTICAL SCALE -15M7,L'"-:·

' .... EXAGGERATED FOR __ r_,_

"20 CLARITY.

/ . (MAXIMUM

. . . -30 .. ' Ll M ITS OF BORR• ~w.

_/ '

"40 '

0 1000 2000 ~ 4000 5000

0' ,..-~l~TE~~1'l\'~~f INNER '' STA. 20+400

/ ~

"10 /

~- -~_jl , •15 M.L --: ----

"20 50

__.-/ 'MAXI

I

~UM -]) / LIMIT S OF

/ BORR JW

''\() SHEET 10 OF 15 :

() 1000 2000 3000 4000 5000

U1 0 00

JL P]OPOSED BEACH IDATUM: MEAN I ON Tin~ STA. 20+ 900 REPLENISHMENT PROJECT SCALE: HOR: I"• 600

1 -~·-~ !---"' lOth STREET TO 103rd STREET VERT: I"• 20' _/

~ CITY AND COUNTY OF GALVESTON DATE: DEC. 1992 /r

STATE OF TEXAB '/ ___ ·"' _jl APPLICANT: CITY OF GALV·EBTON ·IS M.L.:s.---

..-... 1--., -;;c. 50 -cEHTERLIME Qf' INNI'R

BAA CHANNEL . ,....--::.o - _;.--

'

-40 / MAXIMUM LIMITS. v OF BORROW.

0 1000 2000 ;,QXJ . 41JUJ WJO

() . '-il~TE~g~N5N~[ INNER STA. 21 + 400

~ v---

•IQ . ~ VERTICAL SCALE , ..

r\_ L __ /"' Jl EXAGGERATED FOR ' .L_ r--r/ 5 •20 CLARITY. "17 M.L~ . " /' 'V " .: .

-30 / J

/ MAXIMUM LIMITS· v "'40 OF BORROW.·.

1000 2000 3000 4000 5000

0 ~00' SOUTH OF THE STA. 21 +912. 37 tg~~T~~~WNEEf.F INNER v -Jo ,....-:

-~ / ------_:J "20 ·18 M.L T. -1- _ __,/ 50 I

-:!>() ~ }

/ MAXIMUM LIMITS _.,.,..

"40 Of BORROW. SHEET II OF 15 ' ·, : ... 400 1000 2000 ;,ooo 4000 5000

I

•

•

J I

IJ1 0 1.0

-----

~ PRbPOSED BEACH DATE: DEC. 1992 :· . S'fA. · ;~2 + 400 REPLENISHMENT PROJECT '' --·-·- -··

~ lOth STREET TO 103rd STREET .

f.:LCL CITY AND COUNTY OF GALVESTON STATE OF TEXAS - / ~~ APPLICANT: CITY OF GALVESTON .

~ - ___, .:::::c:s M I

-20 . .T. < CEN~~I E OF_I: ER BAR ~ '- t

CHANNEL .. -~ ------•3() I

~ - / MAXIMUM LIMITS "40 OF BORROW.

400 1000 2000 . : 000 . 4000 . <5000

_Q_ STA. 22 + 900

"' 1~00 SOUTH OF THE

·.~ PROJECTED CENTER~~

"10 OF THE INNER BAR C ~L.

. ~~r~ • H~~NI '~o1bl{t v- -<s v

"20 VERT.: I"• 20' / M.LJ.

____;,__ _ . .....,._-f-- ,. • "30 ---- "24 M.LJ:---

I ICAI SCAI E•

/ -- / EXAGGERATED FOR MAXIMUM LIMITS CLARITY.

:M1 OF .BORROW. . • wo 1000 2000 3000 4000 :lWO

0 STA. 23 + 400 "' ~00 SOUTH OF THE

PROJECTED CENTERLINE

"10 OF INNER BAA CHANNEL,

~ -20

; EXISTING . CROSS· SECTION -30 ----

/ /

-"40 SHEET 12 OF 15 I • I ..

~)0 1000 <:l. N ;>1.00.1 ' 'KilO :x.>VU

•

•

•

1.11 ~

0

SCALE: I"= 1000

.. 6';6'

1' ~"",<'-. .

I '

D R.A. APFFEL

_ ____f4.BJL---_:.... 0 o o I o 0 o o o 0 o o o I ol o I I I II

. -.. " ' ' I'' •

•

.;

GULF OF

MEXICO

PIPHINE TO SE LOCATED~ IO' NORTH OF SOUTH ~ETTY.

PROPOSED PIPELINE ROUTE PROPOSED OFFSHORE BORROW

SITE TO lOth STREET


10 I h STREET TO IO~d STREET CITY lHD CDUHrt OF Q~LVE:ITOH

3TAU OF TEXJ.~ ~PP\.ICAHT• CITY Of' 04\.Y£ HDH

PROPOSED OFFSHORE

BORROW SITE

• ,.,c£ ->;

SLOP!' : 50 H : IV (MAXIMUM)

: ·'·

C:l-4&:-t"T I '1. "~ 11::.

U1 .... ....

SCALE; I

____ _._ --·--·---------

~-----------------r~rE;~N:l~oe~H Lg~A~;~ETATION LINE FROM APFFEL PARK ROAD

. TO IITEWART BEACH .

GULF OF MEXICO

PROPOSED PIPELINE ROUTE PROPOSED' OFFSHORE BORROW

SITE TO 10

C:i.JhC'T l'.d 1'\C' 1111:


lOth STREEr" TO 6lat STREET. CITY AND COUNTY'OF OAI.YESTON

STATE OF TEXAS : APPLICANT: CITY Of GALVESTON

U'l .... N

P~OPOSED BEACH REPLENISHMENT PROJECT

10th STREET TO IO::td STREET CIT'!' AND CO\JHTl' OF OALVUTOII

STlT! 0 F TEXA 5 APPLIC.I.HT• CITY OF Q.I.LVESTON

PROPOSED PIPELINE ROUTE PROPOSED OFFSHORE BORROW

SITE TO lOth STREET

SCALE: I": 10~0

PIPELINE TO SE LOCATED IO' SOUTH OF EXISTING POSTS, (STEWART BEACH TO lOth STREET ROCK GROIN,!

GULF OF MEXICO

FORT SAN

JACINTO

PIPELINE to BE LDCATED p' TO 25' SOUTH OF VEGETATION LINE fROM AP.FFEL PARK ROAD TO STEWA'RT BEACH.

I .•.

CLJ'C't:T IJ:: f"\~ Ill!

. :.··

P.~. -~~~ ~~·;; ~• ~•,UI • • GALVESTON, TEXAS 77 !I:S.:!-1229

PUBLIC NOTICE ,-,-.

REpt.Y TO ATTENTION OF.:

CESWG-CO-RN, PERMIT APPLICATION- 14721 (05) 15 April 1994

j JOINT PUBLIC NOTICE U.S ARMY CORPS OF ENGINEERS. GALVESTON DISTRICT

AND TEXAS NATURAL RESOURCE CONSERVATION COMMISSION

To Whom It May-Concern: This district has received an application the Army permit as described below:

APPLICANT:

city of Galveston P.O~. Box 77_9 . . . . . .

·. ·Galveston, -·Texas·.·. ·77553··.····· . Telephone: 409/766-2124

.• . ,.

.. •

for a Department of

: ; : .

WATERWAY AND LOCATION: Gulf of Mexico, Galveston, Galveston County, Texas.

NQRK: The City of Galveston proposes to amend Permit 14721(04) to add an additional borrow area to the Galveston beach nourislunerit project. This. proposed area is approxilnately 15,000 feet long and 5,000 feet wide and is located 2,900 to 4,700 feet seaward of the Galveston beach shoreline, between lOth and 39th Street. The city proposes to hydraulically dredge a maximUlll of 20 feet below the existing bottom. The borrow area will be selectively dredged to utilize the cleanest, beach-compatible sand deposits-available, in the approximate amount of one to two million cubic yards. The purpose of the project is to restore sand to an area of recreational beach that has been lost to erosion. .. AUTHORIZATION FROM OTHER AGENCIES: ·

Texas ~atural Resource Conservation Commission certification is required. Concurrent with processing of this application, the Texas Natural Resource Conservation Commission (TNRCC) is reviewing this application under Section 401 of the Clean Water Act and in accordance with Title 31-, Texas Administrative Code Section 279.1-.13 to determine if the work would comply with State water quality standards. By virtue of an agreement between the U.S. Army Corps of Engineers and the TNRCC 1 this public notice is also issued for the purpose of advising all known interested persons that there is pending before the TNRCC a decision on water quality certification under such act. Any comments concerning this application may be submitted to the·

d. EXfft8.!T -~ , ..

. '··

513

' .

Executive Dire~r, Attention: Wastewater ~its. Section, Te?(as ... Natural Resource Conservation Com.mission, 1700 North congress·, '' P.O. Box 13087, Capitol Station, Austin, Texas 78711. The public comment period extends 30 days from the date of publication of this notice. A copy of the public notice with a description of work is made available for review in the Texas water Commission's Austin Office. The complete application may be reviewed in the U.S. Ani:J.y Corps of Engineers 1 offices •. _ 'l'he· ·. TNRCC may conduct a public hearing to consider all co1IIlllents .. concerning water quality if reqpested in writing. A request for a public hea~ing must contain the· following information: the name, mailing address, and telephone number of .the Person making the request; the application number or other recognizable reference to the application; a brief description of the interest of.the requester, or of persons represented by the requester; and a brief description of how the application, if granteci, would adversely affect such interest .•

The applic~tion .. :will. be processed pursuant to Section 10 of the Rivers and· H;a_rbors'·Act :of: :1:899:· and .Section- 4.04"• ot the Clean• - ·' Water Act. Any person may request a public hearing. The request must be received in writing by the District Engineer within 3.0 days of the date of this notice· and must clearly s'et forth with particuiarity the reasons for holding a public hearing.

Evaluation of the probable impacts involving deposits or discharge of dredged or fill material into Waters of the United States will include the application of guidelines estab1ished by the Administrator of the Environmental Protection Agency.

ASSESSMENT OF HISTORIC PROPERTIES: The District Engineer has reviewed the latest published version of the National Register of Historic Places, lists of properties determined eligible, and other sources of information. The following is current knowledge of the presence or absence· of historic.properties and the effects of the undertaking upbp these properties:

The State tracts proposed for work under this permit application are included in the Texas Antiquity Committee's list of state land tra,cts containing Stat.e Archeological Landmarks. Therefore, the proposed activities may affect pre-20th-centUry shipwrecks and a cultUral resources investigation is required prior to ·the permitted work activity.

The District Engineer invites response to this public notice from State and local agencies, historical and archeological societies, individuals, Indian tribes, and other parties likely to have knowledge of or concerns with historic properties in the area.

2

514

'

ENDANGERED SPE~: Preliminary ind~cations are their critical habitat will

PUBLIC INTEREST FACTORS:

• . .. -, . . . ~~ . . ' '!.

that no known endangered specl.es or··. be a~fecte? by the proposed work.

The decision whether to issue a permit wiil be based on an evaluation of the probable impacts, including cumulative impacts, o~ the proposed activity on the public interest ..... That decision will reflect the national concern for both protection and utilization of important resources. The benefits which reasonably may be 'exPected to accrue from the proposa~ mus~ be balanced agatnst its reasonably foreseeable detriments. Ali factors which may be relevant. to the proposal will be considered; among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wild+ife values, ~load hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, f()od and fiber production, _m,ineral needs and, in general, the : needs· and welfare of the people; . · ·

The Corps of Engineers is soliciting comments from the public; Federal, State, and local agencies and officials; Indian tribes; and other interested parties in order to considerand.~valuate the impacts of this proposed activity. Any comnients received will be considered by the Corps of Engineers to determine whether to issue, modify, condition or deny a permit for this proposal. To make this decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above. comments are used in the preparation of an Environmental Impact Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act. Comments are also used to determine the need for a public bearing and to determine the overall public interest o.f the proposed activity.

Comments must be received by. the District Eng' r; P.O. Bo 1229, Galveston, Texas 77553-1229, on o:; befor 16 May 1994. If there are any questions relative to this Pub ·. · please contact Ms. Cynthia Wood at the above address or by telephone at 409-766-3980.

DISTRICT ENGINEER GALVESTON DISTRICT CORPS OF ENGINEERS

3

515

N£W MEXICO

PASO

M£XJco·

N.T~.

INTRACOASTPL WAlERWAY ..

AUSTlN Q

..

COUNlY~

GULF OF~ MEXICO

•

GROIN (iYP.)

~SfAWNl.

OF

MEXIC.O

. . . ~· .... ...

..

-·

JETTY

PROPOSED BORROW AREA

GULF OF MEXICO

.

•

. ·a..

.. _. ... ;:

<(

:2 z 0 t;: ()

g

'"?i~ "" -·"' z ... , 0 t- • ........ Co;'-.., -o·z oo .,,.. . . ..:

!t<r z

..: -u "'o ;:;"'

Cl 2 0

2 2 -2. Cl - <t 2 .J

a. a: w

.J 1!1

<t 2 f- Cl Ill 2

~w 0

0.\'T[::.

3r.J1/S4.

an -COW~J.KI. 129llDS

SHEET:

1-

--~~----~----------------------------------~~

516

.... ;;

..

PEUCAN ISLAND

•

.,

GALVESTON

.•

.. $

.. '

GULF OF MEXICO

PROPOSED DREDGE BORROW AREA (31,.385,185 C.Y.)

NOURISHMENT Ul.!ITS

LEGEND :

J.. DENOTES RIC£ ~ V.BMCORE LOC:.llDNS (1991)

-?- OENOl<S CEI\C (co.o.sTAL E}ICJNfEUNG' RES'tAAai CEHT'ER VIBAACDRE [.OCIJl()NSJ (1979)

·w > z . ··:5 . a_

~ w ~ <(

3: 0 ~ ~ 0 £D

Cl 0 z z z z :so D.~ w

w ..JZ <( Cl 1-z ~Ul

0

517

.a;

~ a -50

• • -------------------

LIMIT OF' BORROW AREA

. 5000'

• DEFIH COHTOURS OaTAJNED FROM COASTJJ. ENGINEERING RESEARCH CEHTER ldiSCE!.!»>EOUS REPORT NO. 79-k JUlY, 1979

-75~----~----.-~---.-----.----.-~---.

4300

a

-25

m

~ a -50

5300 7300 8300 9300

DISTANCE FROM SHORE (fill)

. CROSS~SECTION A 1-A THROUGH THE LOCATION OF', U.S. ARMY CORPS OF'

ENGINEERS V1BRACORE fJ 17

----------------· ---

LIMIT OF BORROW AREA

5000' fEXISllNG .

~OTIOM .. I

• DE?lli COHTOURS OSTAJNED FROM COJSTAL ENGINEERING RESEARCH CENTER MISCElL'.NEOUS REPORT NO. 79--?; JULY, 1979

·•

V1 z 0 f= u lU V1 I

V1 •VJ

0 ~ u. <{ lU ~ <{

3: 0 ~ ~ 0 J:

~

Cl u z z z z j Cl

z D. a::

lU w

..J z <{ Cl l- z ~w 0·

0 -75-+--------~----------.----------r--------~----------.---------~k~~-~~~

4300

-=- -~

5300 6300 7300 8JOO

DISTANCE FROI.I SHORE (fill)

CROSS-SECTION 8 1-8 THROUGH 1HE LOCATION OF U.S. ARMY CORPS OF

ENGINEERS VIBRACORE # 18

9300 3/Jl ••

"" ma . c:JW.l'O

12600tCJ5 S>t<m

3

518

· ..

•• • SURFACE LEASE NO. SL 9400l6.

ST~ OF TEXAS 5 s

COUNTY OF GALVESTON S .. . . . PURSUANT to the authority grante4 in Chapter.sl; TBX· NAT. RES.· COPE ~· (Vernon Supp. 1994) and ~ndmentis. thereto, .and subject to· admi ni.strative rul•• and ll1Dilnd!nants related .thsreto, this Lease. AgX"eement ( "Leaae") is made. and .. entered i.nt0 ·by 'and between the State of Texas, acting ·by and'through Garry·Maur0 , CCJDmissioner of th~ General Land Office ( •Lelia'?%""), and 'the· City of

. Gal.veston, . Texas, acting by and through, ·. it•· City connc'il ("Lessee")• ·

Article I. Premises

1. 01.. I~ considerati.on of the mutual covenants. and agreements set forth .in thi• Leo.ae, and othon: goocl and val\Uible. COIU14:le:z;•tion;, the receipt and sJifficiency of which is hereby acknowledged, Le.ssor does hereby· dS!IIise and lease to Lessee., and 'Leasee. ·<io.es.' herepy ·

·lease· from Lessor, a tract of state-owned r~al· property. con.sistinq of portions of State Tracts 221-S, 222'-:-S, 22·9-.S, 231-s, . and 241-S adjacent and .~long the Galveston Seawal:). ·. from the· .. extended · canterli.ne of lOth Street southwestward to the· ext'ettded centerline· o:f 6lat Stre'et, Galveston County, Texas, (the "Leased Premises"), . £or the ptirpo11e o£ eatablishing and maintaili.f4>g .a. public rlicreation.

· ara·a, as the Pramisas are 1110:r:e parli.cul~ly. deJ?icte.~ i.n· •Bxhi.bi.t. A," attached he:r:etc and incorporated herein by reterence for al.l purposes, to.gether wi.th such ancillary support. fun.ctions 6r, facilities as JIJAY be approved by the pa.rtilji.S· fro~a t·.itll'a;to. time.

1. 02. · · It i.s the intent of the part';!.!!:,. that. the publ.ic · recreation aree. contemplataq by this agreement ,wi.ll. be establi.shed : on and utilize the area created by the beach nourishment project authorize4 on· state-owned submerged lands :,by the .. prov;!.siona of . Genera1 Land office surface tease No •. :3L 9.400'15' (formerly. designated as GLO Sw:face Lease No. SL 9400_07):,. imtered i.nto by the parties hera to and affective October 13, 199 oL. ·

1. OJ, ·Les.see has inspected the physical ·and. topographi.c condition of the leased premises and Lea see· a=epts ~ "AS IS."· in its existing· physical and/or topographic_·. ·.conditi.on. . LESSOR· DISCLAIMS ·ANY AND ALL WARRANTIES OF HABITABILITY,. MERCHANTABILITY, . Fl:TNESS' FOR· ANY PURPOSB, .AND ANY OTHER Blq'RBSS OR IMPLIED IU.lmANTY NOT· EXPRESSLY SET FORTH IN THIS LEASE. 'LESSOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY PURSUANT TO·ARTICU. 2.314 OR 2.315· OF. 'llfiE UNIFORM COMMERCIAL CODE. . . .

1

519

•• • . '

Article II. Term

2 • 01. . The tarll! of this Lease shall be · twenty comme?cing on December 1, 1994, (the •Commencement axpi~J.nq on the last day o:l! November, .201'4, sUbject· te~nation as hereinafter provided. ·. .

Article III. Consideration.-

(20) ·years Date") and to · earlier.

3 • 0 l. . As consideration fo:z;- this grant,. Lesise~ agrees the Ccimaiaaioner of the Ganaral Land Office the sWii Doll.rs (~50.00). ·

to pai tc. of .F fty

hticle IV. Use ot! Premiliel!!

4 • 01. , Lessee shall have the right to. u~e . the Leased Premises for th! establishment, operation and lllilintezuo.n_ca· of· a- pUblic recreat:~.on _area. Lessor and Lessee aclatowledqe· and· agree that this Lease is entera4 into pursuant to Texas NatUral: Resources Code; Chapter 51 (Ve:rnon Supp. 1994) and that thecLeaaed.Premisea· are tq. be used only . for •public activity•, as-· is . def·ined ·in . Taxas ~dmini'strative Code .• It is understood anci·-aqrei\Od, however, t_l;ut:-i::. such act:lvi,ty may include without· 'further authi::irizatio!l' the right ta maintain the subject recreation lo..rea by the ·deposit ot! fill ma.ta:d . .U. consisting of beach quality sand. ..... · · ·

4. 02 •. · The :foregoing notwithstanding, L~ss~e may e'!lter intocontrac_ts and concession or franchise agreEIJI\ents· to pz;oJDOt!'l __ the· .

-said public recreation purposes o£ this ·Lease, Revenues: received by· Lessee from such contracts or agrsements •hall be dedicated to· and·. used solely for purposes dil::ectly rel:at_ed to· a'dmi ')i l!i-tration, · · .. improveme;nt, ·or maintenance of the subject· pl!blio rec.rea:t.ion .area·or for services related to the maiiltenancs of ~e· public 'heil.ches, within the jurisdiction of Lessee. ~ · .·: . . .· · · · ·

4. 03. Moimber:" of the public: may .not. be .. exeluded . f:;em . stat~ • · ~ owned la.ni:l: which · ia .leas<!d for public p~ttposes ·nor .may the right o_f

. the public to enter or leave the beach-area be _Uipair~td;.hQWtiV'!l.t, Lessee mey. assess reasonable fees_ for parking· or, __ for -the use o·f facilities provided for the use and convenience of tha pub1i~ and

· ma.y prohibit 'littering, and othe~ise provide. f.or the' safe. and _orderly use of the leased premises in a. manner .,:·ond.s:tent with the purposes 'of tha lease and applicable law.

4.04. All of Lessee's books, records,· and papers· relatin<:J to revenues derived hereunder; including. :teyenuea oiEJrived ·W1der· any contract .. or franchise aqreement, shall,·. upon· request,_. :be .. made. available for ipspaction by Lasser or its repre·l!&ntati;ves· •.. ~1·

. structures built on the leased premisas shall ba: open to_ J.IJropact:~;on by Lessor or· its representatives durinq no:r;mi!J,_-J:lusin~ss: hours~

4. OS. . It is ·agreed that wh~n any pe:cnanent s-truetur.e .is placed. -· on tha leased premises, its location. shall ;thereby bacpme fixed and · shall not be changed without the pr:~.or WI:J.ttan.consent of Lessor.

2

520

• • ... ...

Article v. ~ransfer ot Interests

~·Ol. The rights granted herein may not be assigned~ whole or 1.n part without the prior written consent of the Co.mmissioner of the General Land Otfice, except as provided harain. Notwithstanding the foregoing, La~see way assign all its rights, duties, obligations, and rasponsibilities.under this ~ease· to the Perk Board of ~rustees ot 1;he city of .Ga.~ves~n, Texas, pursuant to the provision~ contained in Chapter 306, Tuas Loclll Government Code.

Article VI. Reservation From Lease

6.01. Lasser expressly reserves the'right to lease the· lands covered by this Lease for the purpose ot · .. exploring far aru1. developing·ail, gas, minerals, and all othe~ energy resources, as well as·tbe right to authorize, permit or regulate the construction or lllllintenance of all major structures, bath existing or new, intended for commercial uses of the area, together with ~he.rights of ingress and egress necessary to tbe.exerciae of such.reserved rights. Lessor will not authorize or pe7;ttiit uses wh.i:ch· are . inconsistent with the rights granted herein.·. It is apec:ificall;r understoodand·4qreed that nothing herein:is· inten!ied.to pX'ohiblt.' Lessor frOIIl laasing existing structures, such as the· operatcian known as ~he Balinese Ballroom Pier and similar.tacilities, for comZercia1 us•s. ·

VII • Lia.bili ty

7. 01. It is understood and agreed that Lessor sha.l.l. not be·. liable to Lessee or any other person whataoever·for any injury, loes or dllmAge to any person or property in or upon .the leased· premises. To the extent allowed by law,: Lessee. ·hereby agrees to assume all liability for or on account of ·any· injury, lass, or damage described herein, and to indemnify arid forever hold ha.rmless the State .of. Texas, its .o:ff.!.cars, and agent,s, againat eli..ch and every clAim, dem"nd, or cause of a.ction t~t lil;l.y be made ~r brouqht against the State of Texaa by reason of or. iii any way·.arising out of Laasee•s ·use o:f the leased premises' ~ from an.y defact or· imperfection in any building, pier, wharf·, · sidewa:lk, driveway, street, 0 r other structure placed by Lessee in or upon the leased premises for 4ily reason. · ·

7. 02. Lessee eball use the high•at degree o£ care and all proper ·safeguards to prevent pollution 'of. air and 'lilllter in and around the leased premises.

vrrr. Default

8. 01. In the event Lease• is in breach of ·any material provision hereof, the rights granted herein· shall be subject to forfeiture by the Commissioner of the General L'and Offic:... With notice to Lessee, such forfeiture shal.l be effeetive upon the transmittal by the Commissioner of a notice of the act of default, declaring euch rights to ba forfeited, subject to Lee see• s right to

3

521

. '

• • ~.· ... .,

ours the defa~t within ten days, The rights·granted herein ~y, at the option of the Conunisaioner, be reinatated 'after.forfaitux:e.

Article IX. Notice

9 • 0 l. Any notice which may or shall be gi van under the terlllll of this Lease shall be iri writing- and :~hall be ·either delivered by hand or sent by United States Reg.:!-stered · or Certified ~1, adequate postage prepaid. If intended, for. ~ssor to: General Land Office, addressed to attantion of Deputy. :COmm.iaaioner, Asset Management, 1700 North Congress Avenue,. Austin; Texas 78701. If. i11tended for Lessee, to: City Manager, City ·of Galveston, 823' Ro&aribarg, P.O. Box 779, Galveston, Texas. '77?53, .,;ith a copy to Bxacutive Director, Park Board of Trustees of the City of Galveston, 2100 Seawall Blvd., Galveston, Texas 77550. ,.Bitha:.: .. party• a address may be ehangad from time· to ''time by such. party .by

.giving notice as provided above, except that. the Lea~ad Premises may not be used by Lessee as the sole notice ~gsa.

.. .

9 , 02. No change of address of either party ·shal.l be b:ind.ing on the other party =til notice cif such change o£ addr•iss is. given as herain prov.ided •. A po:~t office rac.,ipt for ragistration_,of ~mch notice or- s.{.guad:· ratarn recei.pt shall be ·conol.ua.iva that. such notice was ~lLverad in due course of mall if .mailed as provided above.

Article x. Entire Agre~ent

10. 01. 'l'hig. instrumant consisting of five page~, plus incorporated axhibita, constitutes the entire agr~ement between Lessor and Le.,see; no prior written or pr.io'r o:r; contemporaneous oral promi.,es or representation• .shuJ. be binding.· Thia Laue lihall not be amended, changed or extended except by written instru:iaant signed by both parties hereto.

EFFECTIVE AS. THE 1st DAY 0:1!' DECEMBER,. '199;4 •. · •

LESSOR;

State of

APPROV!D! CDntents; C. :7-- ·

De;luty Comm:z;-:::::~-:::--:-::---Sr. Deputy =q;;:;::_ Executive _ _:_ ____ _

LESSEE:

City of Galveston

4

522

• STATE 01!' TEXAS S

s COUNTY OF GALVESTON S

..

•• ·~ -·-~~ n; •, '• 0' 0. ...... . ..

ACltNOWLBDGEMEN'r

. . . BEFORE ME, the undersigned ~uthority,_on'this day parsonaliy·

appeared Douglas w. Matth•ws, City Manager of the City of Galveston, Taxa", known to me to. be such person, and acknoWledged tha.t he exacuted the same for the purposes and consideration therein expressed in the ~apacity therein stated. ·

~;E:IVBN PINDER MY HAND AND S,BAL OF OFFI.CB 1 . this ~ da.y of ~~n_. 1 1994.

Si'ATB OF TEXAS

COUNTY OF NU2CES

s s s

xas

BBFORH MB, the Wldarsiqned authority, on this day personal.ly ·appeared Garry Mauro, Commissioner, General ·Land Office, -Texas, known to me to be such parson, and acknowle!iged that he exacuted the same !or the purposes and .considerati·on: therein expressed in the capacity therein stated.

j).'~~!lNDBR MY .HAND AND ·sm o:F· ODICE, this ~--~~~~~~---------' 1994.

J.tJJ:i-. da.y of . .

5

State of Texas

SPENCER l. REID · Hot>rr l'uliit. S!o~ ;,n..., loly Co ......... ,{Jpifu 1-ZS.tl

.,.

523

U'1 N

"'"

~ l ' ~ '1 ~ ....

••"'''' .......

: ,1·.1

!

~ . . . . -----....... ' .. --- . ......_ ... '---- -;iJN£1-ML-'Ci-ill".n- .... -- - - --loll.fJtJM,_,

STEWART BEACH BORRGW SIT£ •

A.A. APfFEL PARK BORROW .SITE

..,

· trATI OF TI:I(AI APPLICAHlt CITY OF 1

•

0f:7:'_ . . ,.. r-rs e ·

~roll

. JT liMITS- PHASE ,. 0

.. Ia . BEACH Rrpt Elf13HUF ~ ~ OfS!IjtiATED

GULF Of IAEltiCO 0

l

N

'q

t t'Jt1

i w

I , .. J r.

.., N ..,

v. -...

Documents