Untitled Texas Attorney General Opinion

Honorable Mike Driscoll Opinion No. m-624
Harris County Attorney
1001 Preston, Suite 634 Re: Regulation of boats on the
Houston, Texas 77002 San Jacinto River, and related
matters
Dear Mr. Driscoll:
Your letter requesting an opinion from this office asks:
1. Does the Harris County Commissioners Court
have the authority to prescribe regulations
governing the speed and operation of boats on the
San Jacinto River?
2. If the foregoing question is answered in
the affirmative, does the Harris County Comais-
sioners Court have the authority to post sighs and
buoys specifying maximum speed limits?
3. If question number 1 is answered in the
affirmative, what law enforcement agencies are
authorized to enforce said speed limits?
Chapter 31 of the recently amended Texas Parks and Wiidlife Code
is devoted to water safety. See Acts 1985, 69th Leg., ch. 267, art.
2, at 1251, 1267 et seq. "Bzing regulations" are the subject of
subchapter D thereof. Section 31.091 declares that -- in the interest
of uniformity -- basic authority for the enactment of such regulations
is reserved to the state, but section 31.092 authorizes local
regulation in certain instances, so long as the local regulations are
consistent with the provisions of chapter 31. -Cf. City of Stamford v.
Ballard, 344 S.W.Zd 861 (Tex. 1961).
Chapter 31 specifies that, to the extent they are applicable,
United States Coast Guard Inland Rules apply to all public waterways
(section 31.093). that the negligent or reckless operation of boats is
prohibited (section 31.094), that unreasonable or imprudent operation
or speed is prohibited (section 31.096), that boats cannot be operated
by intoxicated persons (section 31.097). that hazardous wakes must not
be created (section 31.098). that circular courses around swimmers or
fishermen are prohibited (section 31.099), that markers or ramps may
not be interfered with (section 31.100). that the passage of other
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Ronorable Mike Driscoll - Page 2 (JM-624)
boats may not be obstructed (section 31.101), that boats may not be
operated within an area restricted "by the department or a political
subdivision of the state" (section 31.102). and that they may not be
operated as person-towing vessels at certain hours (section 31.103).
The duties of a boat operator involved in an accident are also
specified. -Id. 5531.104, 31.105.
Violations of these regulations are penalized under the new
revision of the Parks and Wildlife Code as either Class E or C "Parks
and Wildlife Code Misdemeanors" (section 31.127). with punishment
ranging from a $25 fine to a fine of $1,000 and a jail term of 180
days. Parks 6 Wild. Code 912.401 et seq. Any permitted local regula-
tions are required to be consistent with these statutory provisions.
-Id. 531.092.
The section allowing local regulations'(section 31.092) reads:
(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,
fishing, swimming, or otherwise restricted areas
and may make rules and regulations relating to the
operation and equipment of boats which it deems
necessary for the public safety. The rules and
regulations shall be consistent. with the pro-
visions of this chapter.
(b) The commissioners court of a county. - with
respect to p ublic water within the territorial
limits of the county that is outside of the limits
of an incorporated city or town or a political
subdivision designated in Subsection (c) of this
section and that are not lakes owned by an incor-
porated city or town, may enter an order on its
books designating certain areas as bathing,
fishing, swimming, or otherwise restricted areas
and may make rules and regulations relating to the
operation and equipment of boats which it deems
necessary for the public safety. The rules and
regulations shall be consistent with the pro-
visions of this chapter.
(c) The governing board of a political sub-
division of the state created pursuant to Article
X-J19 Section 59, of the Texas Constitution, for
the purpose of conserving and developing the
public water of the state, with respect to public
water impounded within lakes and reservoirs owned
or operated by the political subdivision, may
designate by resolution or other appropriate order
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Honorable Mike Driscoll - Page 3 (JM-624)
certain areas as bathing, fishing, swimming; or
otherwise restricted areas and may make rules and
regulations relating to the operation and equip-
ment of boats which it deems necessary for the
public safety. The rules and regulations shall be
consistent with the provisions of this chapter.
(d) A copy of all rules and regulations
adopted under this section shall be summarily
filed with the department.
(e) No city, town, village, special district,
or other political subdivision of the state may
impose or collect a fee for the registration or
inspection of vessels to be used on public water
against the owner or operator of a vessel used on
public water. This section does not apply to the
Local Sales and Use Tax Act, as amended (Article
1066~. Vernon's Texas Civil Statutes), nor to any
launch fees, docking fees, entry fees, or other
recreational fees which .may be imposed or
collected by any political subdivision of the
State of Texas for the use of the facilities
afforded by any such district to the public.
(Emphasis added).
The authority given the commissioners court of a county by sub-
section (b) of section 31.092 is made ambiguous by its reference to
subsection (c). The phrase, "with respect to public water within
the territorial limits of the county that is outside of the limits
of... a political subdivision designated in Subsection (c) of this
section" could mean either (1) outside the entire territorial limits
of the subdivision or (2) outside the limits of the designated "public
water impounded within lakes and reservoirs owned or operated by the
subdivision" over which the statute purports to give subdiv1sior.s
regulatory control. For reasons detailed below, we believe the latter
meaning is the one intended.
The Parks and Wildlife Code was a recodification only of prior
law, without intended substantive change. Acts 1975, 64th Leg., ch.
545, at 1405, 1805. Chapter 31 is derived from the Water Safety Act,
originally enacted in 1959 and codified as article 1722a of the Penal
Code (as it then existed). Acts 1959, 56th Leg., ch. 179, at 369,
375. The original act merely prohibited inconsistent local regula-
tions; it did not affirmatively grant regulatory power to local
political entities except with respect to "horsepcwer limits." In
1965, however, the Water Safety Act; was amended to read much as
subsections (a), (b). and (c) of section 31.092 of the Parks and
Wildlife Code read today. Acts 1965, 59th Leg., ch. 676, at 1540.
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Honorable Mike Driscoll - Page 4 m-624)
The policy statement now found in section 31.002 of the Parks and
Wildlife Code was couched by the first section of that 1965 act in
somewhat different language. It said:
It is the policy of this State to promote safety
for persons and property in and connected with the
use, operation and equipment of vessels and to
promote uniformity of laws relating thereto.
Acts 1965, 59th Leg., ch. 676, Pl, at 1540. We are led by this
statement to believe that the legislature intended no gaps in the
desired protection. In other words, we do not believe the "local
regulations" provisions of section 31.092 of the code (as derived from
the Water Safety Act) should be construed to leave the,public waters
of some areas of the state immune from local boating safety
regulations.
Inasmuch as subsection (c) of section 31.092 grants regulatory
power to an article XVI, section 59 political subdivision only with
respect to impounded public water within lakes or reservoirs owned or
operated by it. such a subdivision (a flood control district, for
example) has no power under section 31.092 to regulate boats on other
public waters that may be located within the territorial confines of
the district or other special subdivision. If subsection (b) is read
to exclude county regulatory power within any area encompassed by the
territorial limits of such a special district, then public waters
within such a district not impounded in, lakes or reservoirs owned or
operated by the district(e.g.. creeks, rivers) would not be subject
to local safety regulation at all unless they happened to be also
located within the limits of a city or town empowered to act under
subsection (a). We do not believe that was the legislative intent.
In our opinion, the scheme of section131.092 of the Parks and
Wildlife Code and its statutory predecessors is to provide for. but
not mandate, local regulation of boating safety on all public waters
within the state. Incorporated cities and towns are given local
authority over public waters within their municipal limits and also
over lakes owned by them elsewhere; article XVI, section 59 water
conservation and development districts are given local authority over
1. The Water Safety Act (article 1722a, V.A.C.P.) was again
amended in 1971, but without significant change for the "local
regulations" provisions at issue here. Acts 1971, 62nd Leg., ch. 971,
520, at 2936. Before the Parks and Wildlife Code was enacted in 1975,
a new Penal Code was adopted in 1973, and at that time the Water
Safety Act was saved from repeal for transfer without substantive
change to the civil statutes (see art. 9206, 520, V.T.C.S.. since
repealed). Acts 1973, 63rd Leg.,>. 399, at 883, 995.
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Honorable Mike Driscoll - Page 5 (JM-624)
waters impounded in lakes and reservoirs, wherever located, that are
owned or operated by the district; and counties are given local
authority over all other public waters located in the counties. The
legislature can use municipalities or other political subdivisions to
act as administrative agents of the state beyond the territorial
confines of the political subdivision. O'Brien v. Amerman, 247 S.W.
270 (Tex. 1922). See Bexar County v. Linden, 220 S.W. 761 (Tex.
1920); City of Galveston v. Posnainsky, 62 Tex. 118 (1884). That, we
believe. is the intent of section 31.092 of the Parks and Wildlife
Code. The legislature authorized certain local agencies - that are
better equipped to ascertain local safety needs -- to fill up the
details of the state laws pursuant to the legislative standards'
established by chapter 31.
In answer to your first question, therefore, it is our opinion
that the commissioners court of Harris County has authority under
section 31.092 of the Parks and Wildlife Code to prescribe regulations
consistent with chapter 31 thereof governing the speed and operation
of boats on the San Jacinto River located within the confines of
Harris County -- except where the river is found within the~terri-
torial limits of an incorporated city or town, or where its waters are
confined within a lake owned by such a city or town or impounded
within a lake or reservoir owned or operated by a political sub-
division created pursuant to article XVI, section 59, of the Texas
2. Inasmuch as the power exercised under section 31.092, in our
view, is the power of a state administrative agency rather than that
of a political subdivision exercising purely municipal powers, cases
involving the latter are not strictly apposite. See Treadgill v.
g, 275 S.W.Zd 658 (Tex. Crim. App. 1954); City of Austin v.
Jamail, 662 S.W.Zd 779 (Tex. App. - Austin 1983, writ dism'd). cf.
City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.Zd 681
(Tex. Civ. App. - Waco 1980, no writ); Attorney General Opinion JM-226
(1984). Of course. the legislature cannot empower one municipality to
deprive another of the powers of local self-government conferred by
article XI. section 5, of the Texas Constitution, see City of Houston
v. City of Magnolia Park, 276 S.W. 685 (Tex. 1925);City of El Paso v.
State, 209 S.W.Zd 989 (Tex. Civ. App. - El Paso 1947, writ ref'd), and
it is elemental that two municipal corporations cannot exercise the
same governmental authority over the same area. City of El Paso v.
State, supra; City of Galena Park v. City pf Houston, 133 S.W.Zd 162
(Tex. Civ. App. - Galveston 1939, writ ref d); City of New Braunfels
v. City of San Antonio, 212 S.W.Zd 817 (Tex. Civ. App. - Austin 1948,
writ ref'd n.r.e.). Cf. V.T.C.S. art 1015, subdiv. 30; art. 1108,
subdiv. 1; art. 1182c-1. But we are not faced with those situations
here. Cf. City of Pelly v. Harris County Water Control and Improve-
ment District, 198 S.W.Zd 450 (Tex. 1946); State ex rel Grimes County
Taxpayers Association v. Texas Municipal Power Agency, 565 S.W.Zd 258
(Tex. Civ. App. - Houston [lst Dist.] 1978, no writ).
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llonorableMike Driscoll - Page 6 (JM-624)
Constitution for the purpose of water development or conservation. We
do not believe the establishment by a local authority pursuant to
section 31.092 of particular speeds as unsafe, in particuiar water
areas under local control, conflicts with the general prohibition of
section 31.096 against the operation of boats at unreasonable or
imprudent speeds, or amounts to the exercise of an improper delegation
of legislative authority. It merely gives detail to the already-
established legislative prohibition. See Texas Liquor Control Board
v. Attic Club, Inc., 457 S.W.Zd 41 (Tex. 1970); Attorney General
Opinion O-5160 (1943). cf. City of Stamford v. Ballard, supra.
In answer to your second question, we believe the commissioners
court has authority to post signs and buoys specifying maximum speed
limits so prescribed as an incident of the power to promulgate and
enforce such regulations. See Parks and Wild. Code 531.142. Where a
right is conferred or an obligation is imposed on a commissioners
court, it has a broad discretion to accomplish the purposes intended.
Anderson v. Wood, 152 S.W.Zd 1084 (Tex. 1941).
Your final question asks what law enforcement agencies are
authorized to enforce boat speed limits so established by the Harris
County Commissioners Court. Section 31.121 of the Parks and Wildlife
Code answers the question:
(a) All peace officers of this state and its
political subdivisions and g== management
officers are enforcement officers for the purposes
of this chapter.
(b) The enforcement officers may enforce the
provisions of this chapter by arresting and taking
into custody any person who commits any act or
offense prohibited by this chapter or who violates
any provision of this chapter.
(c) Game management officers may assist in the
search for and rescue of victims of water-oriented
accidents.
This provision lends force to the conclusion that in promulgating
regulations pursuant to section 31.092 the legislature intended that
local governments act as administrative agents for the state, because
it makes violations thereof enforceable by state peace officers as
well as local ones.' That conclusion is further buttressed by the
recent 1985 Parks and Wildlife Code amendment which makes all such
3. Local regulations must be filed vith the Parks and Wildlife
Department. Parks and Wild. Code 531.092(d).
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Honorable Mike Driscoll - Page 7 (``-624)
violations of "a city ordinance or order of a commissioners court or a
political subdivision of the state made or entered under this chapter"
a Class C "Parks and Wildlife Code misdemeanor." Parks and Wild. Code
131.127. -See Acts 1985, 69th Leg., ch. 267, P32, at 1257.
We are not unmindful that the Harris County Commissioners Court
is designated as the governing body of the Harris County Flood Control
District, a political subdivision created pursuant to article XVI,
section 59, of the Texas Construction with territorial boundaries
coextensive with the boundaries of Harris County. See former art.
8280-120 [Acts 1937, 45th Leg., ch. 360, at 714, as amended by Acts
1967, 60th Leg., ch. 631, at 1574, and Acts 1975, 64th Leg., ch. 593,
at 18771. In our opinion, the matter is without significance except
that section 31.092 regulations and rules affecting impounded waters
in lakes and reservoirs owned or operated by the district must be
promulgated by the Harris County Commissioners Court, if at all, in
its capacity as the governing body of the district.
SUMMARY
Section 31.092 of the Parks and Wildlife Code,
as amended, gives a county commissioners court the
power to prescribe rules and regulations consistent
with chapter 31 of the code governing the speed and
operation of boats on rivers located within the
confines of the county except where the rivers are
found within the territorial limits of an in-
corporated city or town, or where river waters are
confined within lakes owned by such cities or
impounded within lakes or reservoirs owned or
operated by a political subdivision created pur-
suant to article XVI. section 59, of the Texas
Constitution for the purpose of water conservation
or development. The county may post signs and
buoys specifying such speed limits, and any peace
officer of the state or its political subdivisions,
or any game management officer, is empowered to
J
enforce the regulations so promulgated.
Very truly yours,
L
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
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Honorable Mike Driscoll - Page 8 (JM-624)
RICK GILPIN
Chairmen, Opinion Comittee
Prepared by Bruce Youngblood
Assistant Attorney General
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