Can you ride an ATV or off-highway vehicle on a Texas public beach?

Plain-English summary

Jack Roady, the Galveston County Criminal District Attorney, asked the Attorney General two practical questions about beaches and off-road vehicles: can people legally drive all-terrain vehicles (ATVs) and recreational off-highway vehicles (ROHVs) on a public beach, and can a county set up a system to register those vehicles for beach use?

On the first question, the opinion declined to give a flat yes or no. The county attorney had pointed to Transportation Code section 663.037(a), which bars operating an ATV or ROHV on a "public street, road, or highway." But that section does not mention beaches, and nothing in the Code automatically equates a public beach with a public street, road, or highway. Instead, public beach use is generally governed by the Open Beaches Act and the Dune Protection Act. Under those laws, counties and municipalities can adopt traffic regulations, including bans on vehicles in certain beach areas, that are consistent with the Acts and generally subject to the rules and approval of the General Land Office Commissioner. The Dune Protection Act itself prohibits recreational vehicles in certain beach areas. Because no state statute says ATV or ROHV use on a public beach by the general public is, by itself, lawful or unlawful, the opinion concluded the question cannot be answered categorically without looking at the particular beach and the rules, orders, or ordinances that apply to it.

On the second question, the opinion said no. The county attorney pointed to Transportation Code section 502.140(b), which lets "the state, a county, or a municipality" register an ATV or ROHV for operation on a public beach or highway "to maintain public safety and welfare." Reading the word "register" consistently across the statute, the opinion found that subsection refers to a government entity registering its own vehicles, not to individuals registering with the county. Another statute, section 502.003, generally bars a political subdivision from setting up its own motor vehicle registration requirements. And because a county has only the authority expressly granted or necessarily implied, the opinion concluded a county does not have authority to establish a county system for an individual to register an ATV or ROHV for operation on a public beach.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Galveston County Criminal District Attorney (as the opinion described it): The opinion told the district attorney that ATV and ROHV legality on a public beach turns on the specific facts and the applicable beach rules, and that a county cannot establish its own registration system for individuals to operate these vehicles on a beach.

Counties and municipalities (as the opinion described it): The opinion recognized that local governments can adopt beach traffic regulations under the Open Beaches Act, subject to the General Land Office, but read section 502.140(b) as covering only governmental vehicles, so a county could not create an individual-registration scheme.

ATV and off-highway vehicle riders (as the opinion described it): The opinion treated the legality of riding on a particular beach as depending on the rules, orders, or ordinances for that beach, rather than a single statewide rule.

Common questions

Is it legal to drive an ATV on a public beach in Texas?
According to the opinion, there is no statewide yes or no. It depends on the particular beach and the rules, orders, and ordinances that apply, because beach use is governed by the Open Beaches Act and Dune Protection Act rather than the highway ban in section 663.037(a).

Does the law banning ATVs on roads also ban them on beaches?
The opinion said not automatically. Section 663.037(a) bars operation on a public street, road, or highway and does not mention beaches, and nothing in the Code necessarily treats a beach as a highway.

Can a county or city restrict ATVs on its beaches?
Yes. The opinion noted that counties and municipalities may adopt beach traffic regulations, including prohibiting vehicles in certain areas, consistent with the Open Beaches Act and generally subject to the General Land Office Commissioner's rules and approval.

Can a county let me register my ATV with the county for beach use?
The opinion concluded no. Section 502.140(b) covers a government registering its own vehicles, section 502.003 bars local governments from creating their own registration requirements, and a county lacks the authority to set up an individual-registration system for beach operation.

Background and statutory framework

Chapter 663 of the Transportation Code regulates ATVs and ROHVs, and section 663.037(a) bars operating them on a public street, road, or highway, with exceptions, but does not mention beaches. Tex. Transp. Code Ann. § 663.037(a) (West 2011); see id. § 663.003, §§ 663.001-.038. The Code's "public highway" definition for registration, id. § 502.001(35) (West Supp. 2011), differs from the Natural Resources Code's "public beach" definition, Tex. Nat. Res. Code Ann. § 61.013(c) (West 2011); cf. Brown v. State, 289 S.W.2d 942, 944 (Tex. Crim. App. 1956). Beach use is governed by the Open Beaches Act, id. §§ 61.001-.254 (West 2011 & Supp. 2011), and Dune Protection Act, id. §§ 63.001-.1814 (West 2011), which require beach access plans, id. § 61.015(a), authorize local traffic regulations that prevail over conflicting state law, id. §§ 61.122, .129, .128-.129, subject to the Land Office, id. §§ 61.011(d)(3), .022(c)-(d), and prohibit recreational vehicles in certain areas, id. §§ 63.057, .093; see id. § 63.002(4) (West 2011); 31 Tex. Admin. Code § 15.4(c)(6) (2011).

On registration, section 502.140(b) lets the state, a county, or a municipality register an ATV or ROHV for beach or highway operation to maintain public safety and welfare, and subsection (c) ties beach operation to vehicles registered under (b) (operable like a golf cart under section 551.403). Tex. Transp. Code Ann. § 502.140(a)-(c), § 502.140 (West Supp. 2011); id. § 551.403. Section 502.003 bars a political subdivision from setting its own registration requirements, id. § 502.003(a) (West 2007); see id. § 502.001(1)(B), (25), (37)(B), and chapter 502 routes registration through the DMV via the county tax assessor-collector, id. §§ 502.001(11), .040(b)(1) (West Supp. 2011). Reading "register" consistently, TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex. 2011); LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex. 2011); Ex parte Keller, 173 S.W.3d 492, 498 (Tex. Crim. App. 2005), and treating "public safety and welfare" as a police-power phrase, Spann v. City of Dallas, 235 S.W. 513, 515 (Tex. 1921); Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000), the opinion concluded the subsection covers governmental vehicles only. A county's authority being express or necessarily implied, City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28-29 (Tex. 2003), it found no county power to create an individual-registration system.

Citations

Cases:

• Brown v. State, 289 S.W.2d 942, 944 (Tex. Crim. App. 1956)
• TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex. 2011)
• LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex. 2011)
• Ex parte Keller, 173 S.W.3d 492, 498 (Tex. Crim. App. 2005)
• Spann v. City of Dallas, 235 S.W. 513, 515 (Tex. 1921)
• Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000)
• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28-29 (Tex. 2003)

Statutes:

• Tex. Transp. Code Ann. § 663.037(a) (West 2011)
• Tex. Transp. Code Ann. § 663.003
• Tex. Transp. Code Ann. §§ 663.001-.038
• Tex. Transp. Code Ann. § 502.001(35) (West Supp. 2011)
• Tex. Transp. Code Ann. § 502.140(a)-(c) (West Supp. 2011)
• Tex. Transp. Code Ann. § 502.140 (West Supp. 2011)
• Tex. Transp. Code Ann. § 502.003(a) (West 2007)
• Tex. Transp. Code Ann. § 502.001(1)(B), (25), (37)(B)
• Tex. Transp. Code Ann. §§ 502.001(11), .040(b)(1) (West Supp. 2011)
• Tex. Transp. Code Ann. § 551.403
• Tex. Nat. Res. Code Ann. § 61.013(c) (West 2011)
• Tex. Nat. Res. Code Ann. §§ 61.001-.254 (West 2011 & Supp. 2011)
• Tex. Nat. Res. Code Ann. §§ 63.001-.1814 (West 2011)
• Tex. Nat. Res. Code Ann. § 61.015(a)
• Tex. Nat. Res. Code Ann. §§ 61.122, .129
• Tex. Nat. Res. Code Ann. §§ 61.128-.129
• Tex. Nat. Res. Code Ann. §§ 61.011(d)(3), .022(c)-(d)
• Tex. Nat. Res. Code Ann. §§ 63.057, .093
• Tex. Nat. Res. Code Ann. § 63.002(4) (West 2011)
• 31 Tex. Admin. Code § 15.4(c)(6) (2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0934
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0934.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 18, 2012

The Honorable Jack Roady Opinion No. GA-0934
Galveston County Criminal District Attorney
600 Fifty Ninth Street, Suite 1001 Re: Whether recreational off-highway vehicles
Galveston, Texas 77551-4137 and all-terrain vehicles may be legally operated on
a public beach and whether a county is authorized
to establish a system for registering such vehicles
with the county for operation on a beach
(RQ-1017-GA)

Dear Mr. Roady:

You ask whether recreational off-highway vehicles ("ROHV") and all-terrain vehicles ("ATV") may be legally operated on a public beach and whether a county is authorized to establish a system for registering such vehicles with the county for operation on a beach.[1]

You suggest that section 663.037(a) of the Transportation Code prohibits the operation of an ATV or ROHV by the general public on a public beach. Id. at 1-2; TEX. TRANSP. CODE ANN. § 663.037(a) (West 2011). Chapter 663 generally regulates the operation and ownership of an ATV or an ROHV. See id. § 663.003 (providing that the "chapter applies to the operator and operation of a [ROHV] in the same manner as if the ROHV were an ATV); see generally id. §§ 663.001-.038 (chapter 663). Section 663.037(a) prohibits the operation of an ATV or ROHV on a "public street, road, or highway" with certain exceptions, but the section does not specifically mention beaches. Id. § 663.037(a). No provision of chapter 663, nor any other provision in the Transportation Code, necessarily equates all areas of a public beach with a public street, road, or highway. Compare id. § 502.001(35) (West Supp. 2011) (definition of "public highway" for vehicle registration purposes), with TEX. NAT. RES. CODE ANN. § 61.013(c) (West 2011) (definition of "public beach" for purposes of the Open Beach Act). Cf. Brown v. State, 289 S.W.2d 942, 944 (Tex. Crim. App. 1956) (determining that the evidence about the route that a driver took on a beach was sufficient to uphold a conviction for driving intoxicated on a public highway).

Rather, the use of public beaches is generally governed by the Open Beaches Act and the Dune Protection Act. See TEX. NAT. RES. CODE ANN. §§ 61.001-.254 (West 2011 & Supp. 2011) (the "Open Beaches Act"); id. §§ 63.001-.1814 (West 2011) (the "Dune Protection Act"). Under the Open Beaches Act, certain counties and other local governmental entities are required to develop a plan for beach access and use that is consistent with the Act's policies. Id. § 61.015(a). Counties and municipalities are authorized to promulgate traffic regulations, including prohibitions of vehicular traffic in certain areas of a beach within their jurisdiction, that are consistent with the Act's policies. Id. §§ 61.122, .129. Local traffic regulations prevail over conflicting general state laws. Id. §§ 61.128-.129. However, local traffic regulations are generally subject to the rules and approval of the Commissioner of the Texas General Land Office. Id. §§ 61.011(d)(3), .022(c)-(d).

The Dune Protection Act prohibits the operation of a recreational vehicle in certain areas of a public beach. Id. §§ 63.057, .093.[2] However, no state statute of which we are aware addresses whether the operation of an ATV or ROHV on a public beach by the general public is, per se, lawful or unlawful. Whether an ATV or ROHV may be lawfully operated on a public beach or a particular area of a public beach cannot be answered categorically, without reference to particular facts and any rules, orders, or ordinances applicable to the particular beach or area of the beach.

You also ask whether a county is authorized to establish a registration system, whereby an individual may register an ROHV with the county for operation on a beach. Request Letter at 1. You note Transportation Code section 502.140, which provides in part:

(a) Except as provided by Subsection (b), a person may not register an all-terrain vehicle or a recreational off-highway vehicle, with or without design alterations, for operation on a public highway.

(b) The state, a county, or a municipality may register an all-terrain vehicle or a recreational off-highway vehicle for operation on a public beach or highway to maintain public safety and welfare.

(c) A recreational off-highway vehicle registered as provided by Subsection (b) may be operated on a public or private beach in the same manner as a golf cart may be operated on a public or private beach under Section 551.403 ....

TEX. TRANSP. CODE ANN. § 502.140(a)-(c) (West Supp. 2011) (formerly section 502.006, renumbered by Act of May 29, 2011, 82d Leg., R.S., ch. 1296, § 100, 2011 Tex. Gen. Laws 3617, 3662-63). You suggest that section (b) may be construed as authorizing either (1) the state, a county, or a municipality to register an ATV or ROHV with the Texas Department of Motor Vehicles (DMV), or (2) an individual to register an ROHV with one of the specified governmental entities. Request Letter at 2.

A different statute, section 502.003, generally prohibits a political subdivision from establishing its own motor vehicle registration requirements. TEX. TRANSP. CODE ANN. § 502.003(a) (West 2007); see also id. § 502.001(1)(B), (25), (37)(B) (defining "motor vehicle," as "a vehicle that is self-propelled," and "all-terrain vehicle" and "recreational off-highway vehicle" as self-propelled vehicles). Moreover, a close examination of the text of section 502.140(b) reveals that it does not authorize a separate registration system by local government. Key to construing section 502.140(b) is the meaning of the word "register." In construing the words of a statute, "[l]anguage cannot be interpreted apart from context. The meaning of a word that appears ambiguous when viewed in isolation may become clear when the word is analyzed in light of the terms that surround it." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex. 2011). Moreover, the construction of a statute is "aided by the interpretive context provided by 'the surrounding statutory landscape.'" LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex. 2011) (citation omitted). Chapter 502 generally provides for registration of vehicles with the DMV by an application submitted to a county tax assessor-collector. See, e.g., TEX. TRANSP. CODE ANN. §§ 502.001(11), .040(b)(1) (West Supp. 2011). The phrase in section 502.140(a), that "a person may not register" an ATV or ROHV for operation on a highway, refers to the action of a potential applicant, not to that of a governmental entity that receives the application. Id. § 502.140(a). If we assume, as we must, that "register" is used consistently in the statute, then subsection (b) should be construed as concerning only the registration of state, county, and municipal vehicles. See Ex parte Keller, 173 S.W.3d 492, 498 (Tex. Crim. App. 2005) (stating "normal rules of statutory construction," that "a word or phrase that is used within a single statute generally bears the same meaning throughout that statute"). And subsection (c), which provides for operation of vehicles on a beach, is limited to the governmental vehicles registered under subsection (b).

Further, the phrase "public safety and welfare," as it appears in section 502.140(b), normally refers to a governmental police power. See Spann v. City of Dallas, 235 S.W. 513, 515 (Tex. 1921) (stating that "[t]he police power is a grant of authority from the people to their governmental agents for the protection of the health, the safety, the comfort and the welfare of the public"). The phrase "to maintain public safety and welfare" refers to "operation on a public beach," not to registration of the vehicle. See Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000) (noting that a qualifying phrase in a statute should "be confined to the words and phrases immediately preceding ... without impairing the meaning of the sentence"); TEX. TRANSP. CODE ANN. § 502.140 (West Supp. 2011). Thus, section 502.140(b) contemplates that a governmental entity, not a private individual, may register its ROHV or ATV for use on a public highway or beach in order to maintain public safety and welfare.[3]

Section 502.140(b) does not authorize a county to establish its own system for an individual to register a ROHV or ATV with the county. Because a county's authority must be express or necessarily implied from its express powers, City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28-29 (Tex. 2003), we conclude that a county does not have the authority to establish a county system for registering an ATV or ROHV for an individual to operate on a public beach.

SUMMARY

Whether an all-terrain vehicle or recreational off-highway vehicle may be lawfully operated on a public beach or a particular area of a public beach cannot be answered categorically without reference to particular facts and any rules, orders, or ordinances applicable to the particular beach or area of the beach.

A county does not have the authority to establish a county system for registering an off-highway vehicle or an all-terrain vehicle for an individual to operate on a public beach.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Jack Roady, Galveston Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Nov. 8, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] Under the Dune Protection Act, a "recreational vehicle" is "a dune buggy, marsh buggy, minibike, trail bike, jeep, or any other mechanized vehicle that is being used for recreational purposes." TEX. NAT. RES. CODE ANN. § 63.002(4) (West 2011). See also 31 TEX. ADMIN. CODE § 15.4(c)(6) (2011) (Tex. Gen. Land Office, Dune Protection Standards) (General Land Office rule prohibiting a local governmental entity from issuing a permit or certificate authorizing a "recreational vehicle" on certain areas of a public beach).

[3] Legislative history is consistent with our construction of section 502.140(b). Its predecessor was first added by Senate Bill 1453 in 1989. Act of May 22, 1989, 71st Leg., R.S., ch. 699, § 1, 1989 Tex. Gen. Laws 3208, 3208-09. In addition to the language ultimately located in section 502.140(b), Senate Bill 1453 makes several references to "an all-terrain vehicle owned by this State, a county, or a municipality" and to the operation of such vehicles "to maintain public safety and welfare of the residents of this State." Id. §§ 1-5.