Could Brazoria County treat the land between the Gulf and the Intracoastal Canal as a barrier island and place a dune-protection line along its entire coast?
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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-246: Brazoria Dune Protection Line
Plain-English summary
Brazoria County asked whether it could establish a dune-protection line along its entire Gulf coast. The county suggested that the Intracoastal Canal, several miles inland, "in a sense makes a barrier island of the entire county coastline." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
JM-246 concluded that the county lacked that authority under Natural Resources Code section 63.011 because no statutory barrier island lay within the county. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
The opinion read "barrier island" as a naturally occurring geological landform, normally bounded on the landward side by a lagoon or estuary. It said the artificial canal did not create that kind of island. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
JM-246 therefore interpreted the statutory word "water" to mean water naturally surrounding the island, rather than a man-made canal. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
Currency note
This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Could Brazoria County establish the proposed dune-protection line along its whole coast?
No. The opinion's summary stated that the county was "not authorized under section 63.011 of the Natural Resources Code" to do so. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
Why did the Intracoastal Canal not make the coast a barrier island?
JM-246 said a barrier island was a naturally occurring geological form and "was not created by the construction of this artificial canal." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
How did the statute define a barrier island?
Section 63.002(2) defined it as "an island bordering on the Gulf of Mexico and entirely surrounded by water." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
What geographic conditions did section 63.011 require?
The county had to border the Gulf and contain a barrier island or peninsula north of the Mansfield Ship Channel. The dune-protection line could then be established on that island or peninsula to preserve dunes defending against storm water and shoreline erosion. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
Background and statutory framework
Natural Resources Code section 63.011 authorized a Gulf-bordering county with the specified island or peninsula to establish a dune-protection line after notice and hearing. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
Brazoria County bordered the Gulf and lay north of the Mansfield Ship Channel, but JM-246 found no barrier island within its boundaries. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
The opinion relied on geological descriptions from Dr. Robert Morton, a University of Texas Bureau of Economic Geology associate director, and published definitions describing a barrier island as a natural landform separated from the mainland by a lagoon or estuary. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
Citations and references
- Weise and White, Padre Island National Seashore: A Guide to the Geology, Natural Environment, and History of a Texas Barrier Island (1980), defined a barrier island as a long, low, narrow island separated from the mainland by a lagoon. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
- The American Geological Institute's Glossary of Geology & Related Sciences (1957) appeared as another source for the geological meaning of barrier island and barrier beach. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0246
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0246.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
December 13, 1984
Honorable Jim Mapel
Criminal District Attorney
Brazoria County Courthouse
Angleton, Texas 77515
Opinion No. JM-246
Re: Whether Brazoria County may establish a dune protection line along its coast pursuant to section 63.011 of the Natural Resources Code
Dear Mr. Mapel:
You have requested our opinion as to whether Brazoria County is authorized to establish a dune protection line along its entire coast.
Section 63.011 of the Natural Resources Code provides:
After notice and hearing, the commissioners court of any county bordering on the Gulf of Mexico that has within its boundaries a barrier island or peninsula located north of the Mansfield Ship Channel may establish a dune protection line on the island or peninsula for the purpose of preserving sand dunes that offer a defense against storm water and erosion of the shoreline.
"Barrier island" is defined as "an island bordering on the Gulf of Mexico and entirely surrounded by water." Section 63.002(2). Brazoria County borders on the Gulf of Mexico and is located north of the Mansfield Ship Channel. The Intracoastal Canal runs the length of Brazoria County, several miles inland from the Gulf. You suggest that "the Intracoastal Canal in a sense makes a barrier island of the entire county coastline." In order to accept this argument as valid, we would have to construe "water" in section 63.002(2) to include a man-made body of water such as the canal.
Dr. Robert Morton, associate director of the University of Texas Bureau of Economic Geology, and an internationally known expert on coastal geology who has frequently testified as an expert witness for this office, has furnished information to us which indicates that a "barrier island," in geological terms, is a land form which fronts on an open ocean, and which is normally bounded landward by a lagoon or estuary. Dr. Morton emphasizes that a barrier island is a naturally occurring geological form created by erosion over a period of time.
Furthermore, in Padre Island National Seashore: A Guide to the Geology, Natural Environment, and History of a Texas Barrier Island (1980) by Weise, B.R. and White, W.A., the authors define a "barrier island" as
a long, low, narrow island separated from the mainland by a lagoon and commonly having dunes, vegetated zones and marshy environments extending lagoonward from the beach.
It is clear from this information that a barrier island, in geological terms, was not created by the construction of this artificial canal. See also definitions of "barrier island" and "barrier beach" in American Geological Institute, Glossary of Geology & Related Sciences, a Cooperative Project (1957). The legislature was presumably aware, when it enacted the predecessor statute of section 63.002, et seq., in 1973, that a "barrier island" has specific geological significance, i.e., that it is separated from the mainland by a lagoon or estuary rather than by a man-made canal. For this reason, we believe that the legislature, in defining "barrier island" in section 63.002(2), must have intended "water" to refer only to water naturally surrounding such island.
We conclude therefore that, since no "barrier island" lies within the boundaries of Brazoria County, that county is not authorized by section 63.011 of the Natural Resources Code to establish a dune protection line along its entire coast.
SUMMARY
Brazoria County is not authorized under section 63.011 of the Natural Resources Code to establish a dune protection line along its entire coast.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
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