Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MATTOX mgust 23, 1985
Attorney General
Supreme Court Building Eonorable T. R. Bmdy, Jr. Opinion No. JM-345
P. 0. Box 12548 Nueces County Attomey
Aus:in. TX. 78711-2548 Courthouse, Room 206 Re: Whether a county may impose
51214752501
Corpus Christi, Texas 78401 au annual fee for parking of
Telex 9101874.1367
Telecopier 51214750266
motor vehicles on Gulf Coast
beaches
714 Jackson. Suite 700 Dear Mr. Bandy:
Dallas. TX. 75202-4506
2141742.8944
You have provided us with the following information:
4624 Alberta Ave.. Suite 160 The Nueces County commissioners court is con-
El Paso. TX. 79905.2793 sidering .sdoptinga motor vehicle traffic regula-
9151533.3464
tion to be effective upon gulf coast beaches
located outside of corporate city limits. Such
,001 Texas. suite 700 order wculd be adopted in the manner prescribed
Houston, TX. 77002-3111 and pursuant to this county's authority to do so
7131223-5866 under 1:he Natural Resources Code. section
61.122(a), V.T.C.S. See Attorney General Opinion
H-1310 (1!)78). -
a06 Broadway, Suite 312
Lubbock. TX. 794013479
606f747-523a The p,coposedregulation would require any motor
vehicle parked on the beaches of Mustang and
Padre Islands outside of corporate city limits,
43G9 N. Tenth. Suite S
but wit1Li.nthe boundaries of Nueces County, to
McAllen, TX. 76501.1685
51216624547 display s validly issued county parking permit.
Permits would be readily available for a $5.00
annual frcs. Funds derived by the county from the
200 Main Plaza, Suite 400 fees collected would be utilized for beach
San Antonio. TX. 78205-2797
cleaning, public restrooms and law enforcement
512/2254191
purposes on the beaches.
A” Equal Opportunityl You ask whether "LL commissioners court has the power either directly
Affirmative Action Employer or by implication to impose au annual parking fee for the parking of
motor vehicles on gulf coast beaches pursuant to its authority to
regulate traffic cm. these beaches." We answer your question in the
negative.
The threshold question is vhether a county is authorized to
restrict and regulate parking on such beaches. If we answer this
question in the af'firmative.we must then determine whether a county
p. 1570
Eonorable T. R. Bandy, Jr. - 'Page2 (JM-345)
may then impose an annual parking fee such as the one which you
propose. Article IX, sectixr 1-A of the Texas Constitution provides
the following in pertinent part:
The Legislature may authorize the governing body
of any county bordering on the Gulf of Mexico or
the tidewater lislts thereof to regulate and
restrict the speed, parking and travel of motor
vehicles on beache. available to the public by
virtue of public fight and the littering of such
beaches.
Nothing in thi.s amendment shall increase the
rights of any rip;lrianor littoral landowner with
regard to beaches available to the public by
virtue of public right or submerged lands.
Section 61.122(a) of the Natural Resources Code provides the
following:
The commissioners--
court of a county bordering on
the Gulf of Mexico or its tidewater limits, by
order, may regulate motor vehicle traffic on any
beach within the Boundaries of the county and may
prohibit the littc%ing of the beach and may define
the term 'littering.' (Emphasis added).
The constitutional prav:lsionpursuant to which section 61.122(a)
was adopted permits the legislature to authorize the governing body of
any county "to regulate and restrict the speed, parking and travel of
motor vehicles on beaches available to the public." The statute
authorizes the commissioners court to "regulate motor vehicle
traffic. . . .u That the commissioners court has authority to
regulate parking on beaches is shown by section 61.126 of the code,
which provides as follows:
P61.126. Traffic Regulations
If the order includes a traffic regulation, the
order shall prov:lde for signs that are designed
and posted in compliance with the current
provisions of the Texas Manual on Traffic Control
Devices for Streets and Highways, stating the
p. 1571
.b - , -
Ronorable T. R. Bandy, Jr. .. Page 3 (JM-345)
applicable speed 'limit, parking requirement. or
that vehicles are prohibited. (Emphasis added).
However, the prohibition against motor vehicles on public beaches may
not have the effect of prec'ludingall public access to public beaches.
We next turn to whether ssrction 61.122(a) of the Natural Resources
Code authorizes a county lo impose an annual parking fee. For two
reasons, we conclude that it does not. -See 161.011.
Commissioners courts may exercise only those powers conferred by
the constitution and statutes. Canales v. Laughlin, 214 S.W.2d 451
(Tex. 1948). We have fount. no statute which purports to authorize
counties to impose such a fee. Section 61.070 provides that
[slubsection (4), [slection 61.069 of this code
shall not be construed to prohibit the assessment
of a reasonable :iee for off-beach parking or for
the use of facil.j.ties provided for the use and
convenience of the public. (Emphasis added).
In the event that a city oc county seeks state funds to clean public
beaches, subsection (4) of Election61.069 provides that such applica-
tion must provide "that c!n.tranceto all public beaches under the
jurisdiction of the govern:tngbody of the city or county is free of
charge. . . ." Section 61.069 clearly contemplates that, in this
instance, certain specifietLcounties may impose a reasonable parking
fee for off-beach parking; no such authority is conferred with respect
to on-beach parking. Secc:ion 61.069 is not express authority-to
charge a fee; it is simply a statement that if a governmental body has
authority to charge a fee it is not taken away by this section. We
conclude that the legislature's express inclusion of authority to
impose a reasonable fee for off-beach parking is tantamount to an
express exclusion of such authority with respect to on-beach parking.
Moreover. unless the imoosition of a fee is snecificallv orovided
by law, none may lawfully lie charged. Nueces County v. C&;ington,
162 S.W.2d 687 (Tex. 1942). See also McCalla v. Rockdale, 246 S.W.
654 (Tex. 1922); McLennan Count v. Bo ess, 137 S.W. 346 (Tex. 1911).
In Attorney General Opinion-*his
H-990 1977 , office said that Harris
County, lacking specific authority therefor, could not charge tolls on
the operation of the Lynchburg Ferry. In this instance, the imposi-
tion by a county of a parking fee for off-beach parking is nowhere
specifically provided by statute. Accordingly. we conclude that a
county may not, pursuant ta section 61.122(a) of the Natural Resources
Code, impose an annual parking fee for on-beach parking.
p. 1572
Honorable T. R. Bandy, Jr. - 'Page4 (JM-345)
,SUMMARY
A county may rot impose, pursuant to Section
61.122(a) of the Natural Resources Code, an annual
parking fee for on-beach parking.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICRARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Cdttee
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OPINION COMMITTRE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Hoellinger
Nancy Sutton
Sarah Woelk
p. 1573