Can a private subdivision control boating and fishing on its own canals in Texas?

Plain-English summary

A coastal subdivision dredges canals so residents can keep boats behind their houses. The plats say the canals are for residents only and are "specifically not dedicated to the use of the public," and the canals were not carved out of any existing river or bay. But the only water in them comes from the Gulf of Mexico, flowing in through the Laguna Madre, and the canals rise and fall with the tides. A state representative asked three questions: does the Water Safety Act apply to these canals, can the City of Corpus Christi set boating speed limits on them, and can the subdivision's owners or homeowners' association control who boats and fishes there?

On the first question, the Attorney General concluded the canals are "public waters" under the Water Safety Act. Section 31.004 of the Parks and Wildlife Code applies the Act to all public water of the state but not to privately owned water, so everything turned on which category these canals fall into. A 1972 opinion (M-1210) had addressed almost the same situation, canals dredged from Gulf bays into private property and affected by the tides, and concluded that because they connected to the tidal waters of the Gulf, they were public waters subject to state fishing and boating laws. Texas case law treats the waters of the bays, inlets, and arms of the Gulf as public property. Because the canals here are likewise connected to and subject to the tides of the Gulf, the Attorney General concluded they are public waters under section 31.004 and are subject to the Act.

On the second question, the Attorney General concluded the City of Corpus Christi can enact no-wake and speed-limit rules. Section 31.092 of the Act lets the governing body of an incorporated city, for public water within its corporate limits, designate restricted areas and make boat operation and equipment rules it considers necessary for public safety, as long as they are consistent with the Act. So the city may regulate the canals within its limits, subject to the requirement (in section 31.095(b)) that local speed limits conform to any statewide standardization the Water Commission adopts.

On the third question, the Attorney General concluded the private owners and homeowners' associations cannot control public boating and fishing on the canals. Because these are public waters and the state's power to regulate fishing and boating on them is absolute, private parties have no right to regulate it themselves. The opinion added one important limit on the public side: the right to boat or fish on public waters does not include a right to trespass on the adjoining owners' private land, and the private owners can prohibit or regulate access across their land.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Water Safety Act provisions of the Parks and Wildlife Code (including sections 31.004, 31.092, and 31.095) have been amended since 1992, and the state water agency referenced has been reorganized, so confirm the current statutes and agency structure before relying on anything described here.

Background and statutory framework

The Water Safety Act, chapter 31 of the Parks and Wildlife Code, generally relates to boating, covering definitions and general provisions, boat numbering, certificates of title, required equipment, boat traffic regulations, and enforcement and penalties. Section 31.004 provides: "The provisions of this chapter apply to all public water 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." The question was whether the subdivision waterways are "public waters" within the meaning of section 31.004.

The Attorney General relied on Attorney General Opinion M-1210 (1972), which dealt with a similar situation: 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 because the waterways were connected with the tidal waters of the Gulf of Mexico, they were public waters subject to the state's fishing and boating laws. See also Parks & Wild. Code § 1.011(c); Butler v. Sadler, 399 S.W.2d 411 (Tex. Civ. App.—Corpus Christi 1966, writ ref'd n.r.e.) (waters of bays, inlets, and arms of the Gulf of Mexico are public property). Because the waterways in question are similarly connected to, and subject to the ebb and flow of the tides of, the Gulf, the Attorney General concluded Attorney General Opinion M-1210 is dispositive: the waterways are public waters within the meaning of section 31.004 and are subject to the Act.

On the city's authority, section 31.092(a) provides that the governing body of an incorporated city or town, with respect to public water within its corporate limits and all lakes it owns, 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 it deems necessary for public safety, consistent with the chapter. The Attorney General concluded section 31.092 authorizes the City of Corpus Christi to enact no-wake and speed-limit regulations for the waterways, so long as they are within the city's corporate limits and the regulations are consistent with the rest of the Act. See also id. § 31.095(b) (the Water Commission may provide for standardization of speed limits for moving vessels, and no political subdivision may impose speed limits not in conformity).

On the private owners' authority, the Attorney General again relied on Attorney General Opinion M-1210, which concluded such waterways were public and that the state's power to regulate fishing and boating in them was absolute. It followed that private property owners and homeowners' associations have no right to regulate public boating or fishing on such waters. The public's right to boat or fish on public waters would not include the right to trespass on adjoining owners' private lands, and the private owners could prohibit or otherwise regulate access to those lands. See Taylor Fishing Club v. Hammett, 88 S.W.2d 127 (Tex. Civ. App.—Waco 1935, writ dism'd w.o.j.).

Common questions

Are private subdivision canals automatically private water?
No. The opinion concluded that canals whose only source of water is the Gulf of Mexico and which rise and fall with the tides are "public waters" under the Water Safety Act, even if the plats say they are not dedicated to the public.

Who can set boating speed limits on these canals?
A city can, for the parts within its corporate limits. Section 31.092 lets an incorporated city designate restricted areas and make boat operation rules for public water in its limits, as long as they are consistent with the Act and any statewide speed-limit standardization.

Can the homeowners' association keep the public from boating or fishing there?
No. Because the canals are public waters and the state's regulatory power over fishing and boating on them is absolute, the opinion concluded private owners and associations cannot regulate public boating or fishing on the water itself.

Does the public's right to use the water let people come onto my land?
No. The opinion was clear that the public's right to boat or fish on public waters does not include a right to trespass on adjoining private land. Owners can prohibit or regulate access across their property.

Citations

• Parks & Wildlife Code §§ 1.011(c), 31.004, 31.092, 31.095(b) (Water Safety Act)
• Attorney General Opinion M-1210 (1972)
• Butler v. Sadler, 399 S.W.2d 411 (Tex. Civ. App.—Corpus Christi 1966, writ ref'd n.r.e.)
• Taylor Fishing Club v. Hammett, 88 S.W.2d 127 (Tex. Civ. App.—Waco 1935, writ dism'd w.o.j.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0169
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0169.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

September 24, 1992

Honorable Eddie Cavazos
Chairman
Committee on Insurance
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-169

Re: Applicability of Water Safety Act to waterways in private subdivisions and related questions (RQ-402)

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-1 (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 public water 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.

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 § 1.011(c); Butler v. Sadler, 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, 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 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 also id. § 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 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 fish 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 Fishing Club v. Hammett, 88 S.W.2d 127 (Tex. Civ. App.—Waco 1935, writ dism'd w.o.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

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General