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Brannan v. State

The trial court properly ordered the removal of the three houses remaining on the easement that moved to them and properly denied these three owners' claims for damages due to a permanent taking. The enforcement of the public's existing easement is not a taking of property without just compensation under the common law and under the Open Beaches Act, which here acts as a codification of the common law. Houston's 1st Court of Appeals, No. 01-08-00179-CV, 02-04-2010

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OPINION ON REHEARING

This appeal concerns the application of the Open Beaches Act at Pedestrian Beach in the Village of Surfside Beach on the Gulf Coast of Texas.*fn1 Appellants, Angela Mae Brannan, Individually and as Independent Executrix of the Estate of Bob Albert Brannan, deceased, Brooks and Mary Porter, Russell and Judy Clinton, Russell Clinton as Independent Executor of the Estate of Elizabeth Clinton, deceased, Reg and Beaver Aplin, Partners d/b/a Benchmark Developing, Louise Bullard, Diane Loggins Clark, Joseph Cornell Dewitt, Lisa Marie Dewitt Fuka, Macario Ramirez, Chrissie Dickerson, Jeffrey Dyment, the Marvin Jacobson Family Holding Company, Charles T., Cathy, James, and Patricia Meek, Mark Palmer, James C. and Patricia Pursley, Kenneth C. and Andrea Reutzel, S & S Holdings, LLC, and Rogers Thompson, Executor of the Estate of P.E. Kintz, deceased, (collectively, “the Owners”), have filed a motion for rehearing and for en banc reconsideration of our opinion issued on August 28, 2009. We deny the rehearing, but we withdraw our opinion and judgment of August 28, 2009 and substitute this opinion and judgment in their place. Because we issue a new opinion in connection with the denial of rehearing, the Owners’ motion for en banc reconsideration of our prior opinion is moot. Richardson-Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 472 (Tex. App.–Houston [1 Dist.] 2006, pet. denied).

The Owners appeal from the trial court’s judgment in favor of appellees, the State of Texas, Texas General Land Office, Texas Land Commissioner Jerry Patterson, in his official capacity, Texas Attorney General Greg Abbott, in his official capacity, the Village of Surfside Beach, Texas, Mayor James Bedward, Surfside Beach, Texas, in his official capacity, Environmental Defense, Surfrider Foundation, and Criminal District Attorney Jeri Yenne, in her official capacity.

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