GALVESTON - The Texas Supreme Court's decision weakening the state Open Beaches Act has become a key issue in the race for one of the two contested Supreme Court seats in the Nov. 6 election.

San Antonio attorney Michele Petty stood in front of a battered beach home in Surfside last weekend to criticize her opponent, Justice Nathan Hecht, for siding with the majority in Severance v. Patterson, the case that led to the controversial decision.

"Texans have shown their love for their beach and they want access to the beach, and the Texas Supreme Court has ignored that," said Petty, who would be the only Democrat on the court if she defeated Hecht. Hecht did not respond to a request for comment.

The Open Beaches Act historically has been interpreted to allow the public beach to move landward with erosion, a concept known as a "rolling easement." The court said the rolling easement does not apply if the erosion is sudden, as in the case of a storm. Although the decision applied only to West Galveston Island, it potentially could affect other areas of the coast.

"We now have private beaches in Texas where the public can be excluded," Land Commissioner Jerry Patterson said after court issued its 5-3 decision in April. The ninth justice, Chief Judge Wallace Jefferson, did not participate.

Patterson, a Republican, would not go as far as supporting Petty, but said, "It's an issue and the voters need to be aware of it."

Unpopular decision

The decision was widely opposed by state officials, including state Attorney General Greg Abbott, who said it was based on "nothing."

Petty is hoping to tap in to popular support for the Open Beaches Act. An overwhelming majority voted to make the act part of the Texas Constitution in 2010.

Hecht and Judge Don Willett are the only two judges up for re-election who sided with the majority in the Severance case. Willett is unopposed. Incumbent Judge David Medina, who dissented, is in a Republican primary runoff election July 31 with John Devine, a former district judge from Harris County.

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Open beaches an issue in Texas Supreme Court race