NUMBER 13-21-00109-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LARRY MARK POLSKY, ESQ., Appellant,
v.
SHERIFF ERIC GARZA AND
CAMERON COUNTY, Appellees.
On appeal from the 445th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Silva and Peña
Memorandum Opinion by Justice Silva
Appellant Larry Mark Polsky, Esq. appeals the trial court’s order affirming Cameron
County Sheriff Eric Garza (the Sheriff) and Cameron County’s (the County) denial of his
application for a sexually oriented business (SOB) license. By ten issues, which we
construe as one, Polsky argues the County’s decision was not supported by substantial
evidence. The primary consideration in this appeal is whether substantial evidence
supports the Cameron County Commissioners’ Court (the Commissioners) determination
that a public beach neighboring Polsky’s property constitutes a “public park.” We affirm.
I. BACKGROUND
Polsky applied for an SOB license with the Sheriff pursuant to the County’s
regulations. See Cameron County, Tex., Regulations for Sexually-Oriented Businesses
Operating within Unincorporated Areas of the County (Dec. 21, 2004) (County SOB
Regulations). Several interested parties objected to Polsky’s application via letter or
email, prompting the Commissioners to hold a public hearing. Among the complaints
received was that the proposed location was near beach access and immediately next to
a public beach frequented by children, teenagers, and adults. During the public hearing,
some of the interested parties explained that “literally thousands of families” access and
use the beach adjacent to Polsky’s proposed SOB location, which is located several miles
north of the city of South Padre Island.
Following the hearing, the Commissioners issued a statement finding that “[t]he
public beach, which is within 1,500 feet of [Polsky]’s property[,] is a public park, not owned
by [the County] but dedicated to public use by dedication and implication and used for
recreation, swimming, fishing, sunbathing[,] and family uses since time immemorial.”
Based on this finding, the Sheriff Omar Lucio denied Polsky’s SOB application. 1 Polsky
1 Omar Lucio was the Cameron County Sheriff at the time of Polsky’s application and the
administrative denial. However, Lucio’s term expired on December 31, 2020, and Sheriff Garza was
properly substituted in as a party prior to this appeal.
2
appealed the denial to the Commissioners, and after an evidentiary hearing, the
Commissioners affirmed the Sheriff’s denial of the SOB license. Polsky then sought
judicial review with a district court in Cameron County, which ultimately upheld the denial. 2
This appeal follows.
II. APPLICABLE LAW
The Texas Legislature delegated its legislative authority to regulate SOBs to local
governments. See TEX. GOV’T CODE ANN. § 243.003(a). County commissioners have
authority to regulate SOBs outside the corporate limits of a municipality. Id. § 243.003(c).
In accordance with this delegated authority, the County adopted regulations that prohibit
an SOB from operating within 1,500 feet of a public park. County SOB Regulations
§ X(k)(4)(i); see TEX. GOV’T CODE ANN. § 243.006(a)(2) (permitting a county to prohibit a
SOB from being operated within a certain distance of various places). The County SOB
Regulations defined a “public park” as “any tract of land dedicated for public use and
accessible to the general public for recreational purposes, including locations owned by
non-profit organizations that provide educational and recreational facilities but not
including public roads, walkways, easements, and rights of way.” County SOB
Regulations § V(gg).
“Public beach” means any beach area, whether publicly or privately owned,
extending inland from the line of mean low tide to the line of vegetation
bordering on the Gulf of Mexico to which the public has acquired the right
of use or easement to or over the area by prescription, dedication,
2 The district court originally affirmed the Commissioners’ decision, applying an abuse of discretion
standard. See Polsky v. Lucio, No. 13-19-00062-CV, 2020 WL 6073264, at *2 (Tex. App.—Corpus Christi–
Edinburg Sept. 24, 2020, no pet.) (mem. op.). Polsky appealed and we reversed, concluding that the correct
standard of review was “substantial evidence.” Id. at *2–3. On remand, the district court applied the
substantial evidence standard and again upheld the Commissioners’ decision. It is from this decision that
Polsky appeals.
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presumption, or has retained a right by virtue of continuous right in the
public since time immemorial, as recognized in law and custom.
TEX. NAT. RES. CODE ANN. § 61.001.
III. STANDARD OF REVIEW
When a county undertakes the permitting or licensing of SOBs, it does so in an
administrative capacity. A.H.D. Hous., Inc. v. City of Houston, 316 S.W.3d 212, 217 (Tex.
App.—Houston [14th Dist.] 2010, no pet.); see also Polsky v. Lucio, No. 13-19-00062-
CV, 2020 WL 6073264, at *2 (Tex. App.—Corpus Christi–Edinburg Sept. 24, 2020, no
pet.) (mem. op.). As with State agency administrative decisions, a county’s decision to
permit or deny an SOB is reviewed under the “substantial evidence” standard. A.H.D.
Hous., 316 S.W.3d at 217.
A review under the substantial evidence standard is a limited one that requires
only more than a scintilla of evidence to support the county’s decision. Edinburg Consol.
Indep. Sch. Dist. v. Esparza, 603 S.W.3d 468, 478 (Tex. App.—Corpus Christi–Edinburg
2020, no pet.). “Essentially, this is a rational-basis test to determine, as a matter of law,
whether [the Commissioners’] order finds reasonable support in the record.” Id. (quoting
Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App.—Austin 2017, no
pet.)). Whether the Commissioners’ determination meets the substantial evidence
standard is a question of law. Id. Our concern centers on whether the Commissioners’
decision was reasonable, not whether it was correct. Id. (citing Jenkins, 537 S.W.3d at
149). “In our review of the district court’s judgment, we focus, as did the district court, on
the decision of the [Commissioners].” Id. at 447. “[A court] cannot strike down an
administrative order on the ground that the evidence heard by the [c]ourt indicated that a
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more equitable one could be entered.” H.G. Sledge, Inc. v. Prospective Inv. & Trading
Co., 36 S.W.3d 597, 604 (Tex. App.—Austin 2000, pet. denied) (quoting R.R. Comm’n v.
Mackhank Petrol. Co., 190 S.W.2d 802, 804 (Tex. 1945)).
Just as we review a county’s administrative decision under the same standard as
a state agency decision, we also apply the same deference to the Commissioners’
interpretation of its rules. See BFI Waste Sys. of N. Am., Inc. v. Martinez Env’t Grp., 93
S.W.3d 570, 575–76 (Tex. App.—Austin 2002, pet. denied) (“Because it represents the
view of the regulatory body that drafted and administers the rule, the agency interpretation
actually becomes a part of the rule itself.”). In that vein, we generally construe regulations
in the same manner as statutes, but where there is ambiguity or room for policy
determinations, we will defer to the Commissioners’ interpretation “unless it is plainly
erroneous or inconsistent with the language of the rule.” Id. at 575. “In determining
whether an agency interpretation of a regulation is reasonable, we cannot consider the
regulation in isolation, but must consider how the regulation operates within the regulatory
and statutory framework as a whole.” Combined Specialty Ins. Co. v. Deese, 266 S.W.3d
653, 661 (Tex. App.—Dallas 2008, no pet.) (citing Tenn. Gas Pipeline Co. v. Rylander,
80 S.W.3d 200, 205 (Tex. App.—Austin 2002, pet. denied)).
IV. ANALYSIS
The evidence presented to the Sheriff and Commissioners demonstrated that the
public beach adjacent to Polsky’s land was frequently and consistently used by the public
for recreational purposes. 3 See Tex. Nat. Res. Code Ann. § 61.001 (definition of “public
3 We note that Polsky does not contest the determinations the area in question is a public beach,
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beach”). The County, interpreting and applying its definition of “public park,” then
concluded that the public beach fits within that definition. See BFI Waste Sys. of N. Am.,
93 S.W.3d at 575. Giving deference to the County for its interpretation, we conclude that
its interpretation was reasonable. See id. Accordingly, the County’s denial of Polsky’s
SOB license was supported by substantial evidence. See A.H.D. Hous., 316 S.W.3d at
217.
Polsky, however, ignores the definition of “public park” utilized by the County. See
County SOB Regulations § V(gg) (defining “public park” as “any tract of land dedicated
for public use and accessible to the general public for recreational purposes”) (emphasis
added). Instead, Polsky advocates for the utilization of what he maintains is the common
use of the word “public park”—i.e., a tract of land owned by some governmental unit and
formally and officially designated. Polsky argues that a variety of statutory authority and
case law support his position that the public beach could not be a public park, and we
address them in turn.
First, Polsky argues that the public beach cannot be a public park because it is not
owned by a governmental unit or political subdivision. Polsky provides no legal authority
in support, see TEX. R. APP. P. 38.1(i), pointing only to the testimony of Richard Molina,
Chief Administrator of the Cameron County Appraisal District for support. However,
Molina never testified that to be a public park as defined by the County SOB Regulations,
or otherwise, a tract of land must be owned by a governmental unit or political subdivision.
Moreover, as previously noted, the definition of public park encompasses “any tract of
is within 1,500 feet of his proposed site, and that it is used for recreational purposes.
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land . . .”—not “any tract of land owned by a governmental unit or political subdivision.”
See County SOB Regulations § V(gg).
Polsky also contends that Texas Transportation Code § 542.325(5) designates a
beach as a “roadway” and because the County SOB Regulations exclude roadways from
the definition of a “public park,” the public beach at issue cannot then be a “public park.”
See TEX. TRANS. CODE ANN. § 542.325(5). However, the transportation code does not say
what Polsky claims. See id. Section 542.325(5) creates no such designation, rather, it
merely imposes a fifteen mile-per-hour speed limit on beaches. See id. The mere fact that
a beach is subject to a speed limit does not make it a “roadway” as contemplated by the
County SOB Regulations. See County SOB Regulations§ V(gg).
According to Polsky, for a tract of land to be a public park, it must have a
quantifiable geographical area, an entrance, hours of operation, a name, and amenities.
However, Polsky provides no authority to support this proposition and we find none, see
TEX. R. APP. P. 38.1(i), and nothing in the County SOB Regulations evinces such a
requirement. See County SOB Regulations§ V(gg).
Polsky additionally relies on Lohec v. Galveston County for support that the public
beach cannot be a public park. 841 S.W.2d 361 (Tex. 1992). Lohec considered whether
the Galveston County Beach Park Board of Trustees possessed the authority to make
purchases without its county auditor’s approval or oversight. Id. at 362. Analyzing Chapter
62 of the Texas Natural Resources Code—which allows a county to establish a beach
park board of trustees and sets forth the powers and duties of such a board—the court
concluded that a beach park board of trustees was subject to oversight by the county
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commissioner. Id. at 366–67; see TEX. NAT. RES. CODE ANN. §§ 62.001–.163 (statutes
applicable to beach park boards of trustees). However, Lohec did not, as Polsky argues,
pertain to a county’s designation of public beaches as public parks or the regulation
SOBs. See Lohec, 841 S.W.2d at 366–67. Nor does Chapter 62 of the natural resources
code. See TEX. NAT. RES. CODE ANN. §§ 62.001–.163.
Polsky further cites to Texas Natural Resources Code § 61.161, asserting that it
does not provide the county with authority to designate the public beach in front of his
property as a public park. See TEX. NAT. RES. CODE ANN. § 61.161. However, § 61.161
neither permits nor restricts a county’s authority to make any such designation; rather, it
establishes a public policy that public beaches “shall be used primarily for recreational
purposes” and any use that “substantially interferes with the enjoyment of the beach area
by the public shall constitute an offense against the public policy of the state.” Id.
Polsky argues that, although a private owner may dedicate land for public use, the
owners of the beach properties did not do so, as evidenced by the fact that they continued
to pay property taxes on the lots. Polsky relies on Owens v. Hockett to support his
argument. 251 S.W.2d 957 (Tex. 1952). In Owens, the Texas Supreme Court upheld a
jury finding that Hockett, a landowner, had dedicated his land for public use in the form of
a public roadway that was maintained by the county. Id. at 958–59. In making its
determination, the court relied on a Vermont case, observing that “the act of throwing
open the property to the public use, without any other formality, is sufficient to establish
the fact of a dedication to the public.” Id. at 958 (citing Abbott v. Mills, 3 Vt. 521, 527
(1831)). Owens does not address whether Hockett continued to pay property taxes on
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the portion of his land that was found to have been dedicated to public use, but there is
no dispute that he maintained title over the property. Id. at 958–59. Nor does Owens
involve the dedication of privately owned beaches for public use. Id. Further, the court’s
analysis in Owens supports the Commissioners’ finding as the evidence here showed the
landowners have continuously opened their property to public use. Id. at 958.
Lastly, Polsky contends that Schleuter v. City of Fort Worth, 947 S.W.2d 920 (Tex.
App.—Fort Worth 1997, pet. denied), supports his position that the public beach cannot
be a public park under the County SOB Regulations but provides little to no explanation
regarding its applicability. See TEX. R. APP. P. 38.1(i). We find the case to be inapposite.
In Schleuter, the Fort Worth Court of Appeals reviewed whether the city’s SOB ordinances
violated the Texas Equal Rights Amendment, the First Amendment, and were
unconstitutionally vague—before ultimately affirming the ordinances’ constitutionality.
947 S.W.2d at 923. Yet, Polsky has not presented an argument that the County SOB
Regulations violate the Texas Equal Rights Amendment, the First Amendment, or were
unconstitutionally vague. Moreover, the definition of “public park” in Schleuter differs from
the definition before this Court: “any land area dedicated to and/or maintained by the city
for traditional park-like recreational purposes.” Cf id. (citing Fort Worth, Tex., City Code
app. A, Ord. 3011 § 18A(G)(23)). Thus, we disagree with Polsky that Schleuter supports
his argument that the public beach cannot be a public park under the County SOB
Regulations.
Having reviewed Polsky’s individual challenges to the Commissioner’s finding, we
reiterate our conclusion: because the evidence showed that the public beach adjacent to
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Polsky’s proposed SOB is dedicated for public use and accessible to the general public
for recreational purposes, we conclude the Commissioners’ finding is supported by
substantial evidence. See A.H.D. Hous., 316 S.W.3d at 217. We further conclude the
Commissioners’ interpretation of “public park” is reasonable and not plainly erroneous or
inconsistent with the rule. See BFI Waste Sys. of N. Am., 93 S.W.3d at 575. Finally, the
Commissioners’ finding is consistent with the statutory and regulatory framework as a
whole. See Deese, 266 S.W.3d at 661. Therefore, the trial court did not err in affirming
the denial of Polsky’s SOB application. Polsky’s sole issue is overruled.
V. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Delivered and filed on the
20th day of April, 2023.
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