Untitled Texas Attorney General Opinion ( 1992 )

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DAN MORALES September 24.1992
ATTORSEY
GENERAL
Honorable Eddie Cavazos Opinion No. DM-169
Chairman
Committee on Insurance Re: Applicability of Water Safety Act to
Texas House of Representatives waterways in private subdivisions and
P. 0. Box 2910 related questions (RQ-402)
Austin, Texas 78768-2910
Dear Representative Cavazos:
You ask several questions about the authority to control boating and fishing
in certain coastal waterways created in connection with the construction of private
subdivisions. You advise that the waterways were “designed for the exclusive use of
[such subdivisions’] residents” and that the subdivision plats state that the waterways
“are specifically not dedicated to the use of the public.” You also say that “[n]o
portion of the waterways constitute a part of any previously existing public river,
lagoon, bayou, lake, creek, bay, or inlet” but add that “[t]he waterways have as their
only source of water the public water of the State of Texas of the Gulf of Mexico
through interconnections with the Laguna Madre.”
We first address your question whether the Water Safety Act, chapter 31 of
the Parks and Wildlife Code, applies to such waterways. The Water Safety Act (the
“act”) generally relates to boating. See Parks & Wild. Code subchs. A (definitions
and general provisions), B (identification of boats by numbering), B-l (certificates
of title), C (required equipment), D (boat traffic regulations), E ‘enforcement and
penalties). Section 31.004 of the act reads:
The provisions of this chapter apply to all pubZic wuter of
this state and to all watercraft navigated or moving on the public
water. Privately owned water is not subject to the provisions of
this chapter. [Emphases added.]
Your question thus is whether the waterways you describe are “public waters” within
the meaning of section 31.004.
p. 888
Honorable Eddie Cavaxos - Page 2 (DM-169)
Attorney General Opinion M-1210 (1972) dealt with a situation similar to
the one you present, that is, the applicability of state water safety and fishing laws to
canals dredged from bays along the Gulf coast into private property and affected by
the ebb and flow of the tides. That opinion concluded that since the waterways in
question there were connected with the tidal waters of the Gulf of Mexico, they
were public waters such as to be subject to the state’s fishing and boating laws. See
also Parks & Wild. Code 0 1.011(c); Butler v. &ad&r, 399 S.W.2d 411 (Tex. Civ.
App.-Corpus Christi 1966, writ ref d n.r.e.) (waters of bays, inlets and arms of Gulf
of Mexico are public property). It appears that the waterways you are concerned
about are, similarly, connected to, and subject to the ebb and flow of the tides of the
Gulf of Mexico. Under such circumstances, we believe that Attorney General
Opinion M-1210 is dispositive of your question. The waterways you ask about are
public waters within the meaning of section 31.004 of the Water Safety Act, and are
therefore subject to the provisions of that act.
You also ask, whether, if the waterways in question are subject to the Water
Safety Act, the “City of Corpus Christi [has] the authority to enact a no-wake
ordinance or speed limit on the waterways.” Parks and Wildlife Code section
31.092, a provision of the Water Safety Act, provides in subsection (a):
The governing body of an incorporated city or town, with
respect to public water within its corporate limits and all lakes
owned by it, may designate by ordinance certain areas as
bathing, i%hing, swimming, or otherwise restricted areas and
may make rules and rqzhtions nshatingto the operation and
equipment of boats which it deems neces~(uyfor the public sajkty.
The rules and regulations shall be consistent with the provisions
of this chapter. [Emphases added.]
In our opinion, section 31.092 provides authority for the City of Corpus Christi to
enact no-wake and speed limit regulations for the waterways in question, so long as
such waterways are within the city’s corporate limits and the regulations are
consistent with other provisions of the Water Safety Act. See &o id. 8 31.095(b)
(Water Commission may provide for standardization of speed limits for moving
vessels, and no political subdivision may impose speed limits not in conformity
therewith).
Your remaining question is whether private property owners or the property
owners’ associations of the subdivisions in question “have the right to control
boating and fishing in the waterways within their subdivision?” Again, Attorney
p. 889
Honorable Eddie Cavazos - Page 3 @4-169)
General Opinion M-1210 concluded that waterways such as you describe were
public waterways and that the power of the state to regulate fishing and boating in
such waterways was absolute. We think it follows that private property owners or
homeowners’ associations have no right themselves to regulate public boating or
fishing on such waters. Of course, the public’s right to boat or Bsh on such public
waters would not include the right to trespass on the adjoining owners’private lands;
the private owners could prohibit or otherwise regulate access to such lands. See
Taylor Firhttg Club v. Hammett, 88 S.W.2d 127 (Tex. Civ. App.-Waco 1935, writ
dism’d w.0.j.).
SUMMARY
Waterways created in connection with the construction of
private subdivisions which have as their only source of water the
public waters of the Gulf of Mexico and which are subject to the
ebb and flow of the tides thereof are public waters subject to
state laws providing for the regulation of fishing and boating.
DAN MORALES
Attorney General of Texas
WJLL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
RENEAHIcKs
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 890