Can a Texas city ban bicycles from riding on a state road or highway that runs through town?

Texas AG Opinion JM-1109: Can a City Ban Bicycles From a State Roadway?

Plain-English summary

A state representative asked the Attorney General a straightforward transportation question: can a Texas city prohibit bicycles from riding on a state roadway? The answer split into two parts depending on what kind of road is at issue.

For limited-access or controlled-access highways, the kind of road where access on and off is restricted to designated ramps, the answer was a clear yes. Section 64 of the Uniform Act Regulating Traffic on Highways expressly lets local authorities prohibit bicycles from those roads within their jurisdiction. No difficulty there.

The harder question was about ordinary state roadways. Cities get their power to deal with bicycles from section 27(a)(7) of the same act, which lets local authorities "regulate" the operation of bicycles and require registration and licensing. The Attorney General concluded that the power to regulate does not, by itself, include an absolute power to ban bicycles from a roadway. The tell was in the statute's own wording. In section 27(a)(3), the Legislature gave cities power to "regulate or prohibit" processions and assemblages, but for bicycles in section 27(a)(7) it wrote only "regulate." When a Legislature uses both words in one place and only one word in another, courts assume it meant something by the difference. The opinion also pointed out that the Legislature had already granted an express power to prohibit bicycles from certain roads in section 64, so it would be unreasonable to read the same prohibition power into the general "regulate" grant of section 27(a).

That said, the door was not shut entirely. Drawing on a legal treatise (Corpus Juris Secundum) and older Texas case law, the opinion recognized that in some situations "the only efficacious regulation consists of suppression." Where an outright ban on bicycles on a particular roadway is genuinely the only effective way to protect the public from harm, that prohibition could qualify as a reasonable exercise of the police power that section 27(a) does grant. Whether any given road meets that standard is a fact question the Attorney General cannot resolve in an opinion; it has to be judged case by case by the city, and ultimately a court if challenged.

Currency note

This opinion was issued in 1989. 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 Uniform Act Regulating Traffic on Highways, cited here as article 6701d, V.T.C.S., was later repealed and recodified into the Texas Transportation Code, and the bicycle and local-authority provisions were renumbered in the process. Anyone dealing with a present-day question about city bicycle ordinances should work from the current Transportation Code and recent case law rather than the 1989 article 6701d citations here.

Who this opinion affected (as of 1989)

City councils and traffic engineers: The opinion told them they could freely bar bicycles from limited-access highways, but that a blanket ban on an ordinary state roadway needed a real safety justification. Absent that, their power was to regulate bicycle operation, not to prohibit it outright.

Cyclists: For riders, the opinion set a protective default. A city could not simply declare a through street off-limits to bicycles; it had to show that nothing short of a ban would protect the public before it could exclude cyclists from a roadway.

Anyone challenging or defending a bicycle ordinance: The opinion framed the legal test (regulate versus prohibit, and the "only efficacious regulation" standard) that a court would apply to a disputed ban, but left the fact-specific reasonableness call for case-by-case resolution.

Common questions

Can a Texas city ban bikes from a freeway or other limited-access highway?
Yes. The Attorney General advised that section 64 of the Uniform Act expressly authorizes local authorities to prohibit bicycles from limited-access or controlled-access highways within their jurisdiction.

Can a city ban bikes from a regular street or state roadway?
Not automatically. The general power to "regulate" bicycle operation under section 27(a)(7) does not include an outright ban. A full prohibition is permissible only where it is the only effective way to protect the public from harm, and that has to be decided on a case-by-case basis.

Why can a city prohibit processions but only regulate bicycles?
Because the Legislature used different words. Section 27(a)(3) says local authorities may "regulate or prohibit" processions and assemblages, while section 27(a)(7) says only "regulate" as to bicycles. The Attorney General read that difference as deliberate, meaning bicycles get regulation, not automatic prohibition.

Who decides whether a particular bike ban is justified?
The city makes the call in the first instance, judged against whether the ban is a reasonable exercise of the police power because nothing less would protect the public. The Attorney General could not resolve that fact question in an opinion, so it is a case-by-case determination.

Background and statutory framework

Section 179(a) of article 6701d, the Uniform Act Regulating Traffic on Highways, grants every person riding a bicycle the rights and duties of a vehicle driver, subject to the special bicycle provisions of the article. Those provisions address seating, passenger limits, riding near the curb, carrying packages, nighttime equipment, and brakes (§§ 180, 182, 183, 184). Section 2(f) defines a "bicycle" as a human-powered device with two tandem wheels, either more than fourteen inches in diameter.

Two sections governed the municipal-authority question. Section 26 makes the act applicable and uniform throughout the state and its political subdivisions, and bars local authorities from enacting or enforcing any ordinance in conflict with the act unless expressly authorized, while allowing additional traffic regulations not in conflict. Section 27(a) then lists express powers local authorities retain over streets and highways under their jurisdiction, within the reasonable exercise of the police power. Those include regulating stopping and parking, directing traffic, designating one-way and through highways, and, in subsection (a)(7), "regulating the operation of bicycles and requiring the registration and licensing of same." Separately, section 64 expressly empowers local authorities to prohibit bicycles from any limited-access or controlled-access highway within their jurisdiction. The act's definitions of "street or highway," "roadway," "shoulder," and "limited-access or controlled-access highway" appear in section 13.

On the central question, the Attorney General reasoned that the authority to regulate bicycle operation under section 27(a)(7) does not necessarily include absolute authority to ban bicycles from a state roadway. He relied on the statute's contrasting use of "regulate" in section 27(a)(7) against "regulate or prohibit" in section 27(a)(3), invoking the presumption that every word in a statute is used intentionally. Valley Int'l Properties v. Los Campeones, Inc., 568 S.W.2d 680 (Tex. Civ. App. - Corpus Christi 1978, writ ref'd n.r.e.); see Chastain v. Koonce, 700 S.W.2d 579, 583 (Tex. 1985) ("a word used in different parts of a statute will generally be given the same meaning throughout"). Because the Legislature gave express prohibition power in section 64, the opinion found it unreasonable to infer an equivalent prohibition power from the general regulate grant of section 27(a).

At the same time, the opinion acknowledged, quoting 76 C.J.S. Regulate at pages 612-613, that the power to regulate can in some settings include the power to prohibit where "the only efficacious regulation consists of suppression." In such a case a prohibition might be a reasonable exercise of the police power granted by section 27(a). See generally Garonzik v. State, 100 S.W. 374 (Tex. Crim. App. 1906) (designation of areas within a city where liquor may not be sold is regulation, not prohibition). Whether a particular roadway meets that reasonableness standard is a factual matter that cannot be resolved in the opinion process and must be determined case by case.

Citations

Statutory authorities (Uniform Act Regulating Traffic on Highways, V.T.C.S. art. 6701d):

• § 27(a) (express powers of local authorities over streets and highways, including § 27(a)(3) "regulate or prohibit" processions and § 27(a)(7) "regulate" bicycle operation)
• § 64 (local authorities may prohibit bicycles from limited-access or controlled-access highways)
• § 179(a) (bicycle riders have the rights and duties of vehicle drivers)
• § 26 (act applicable and uniform statewide; limits on conflicting local ordinances)
• § 13 (definitions of street or highway, roadway, shoulder, and limited-access or controlled-access highway); §§ 2(f), 180, 182, 183, 184 (bicycle definition and equipment/operation rules)

Cases:

• Valley Int'l Properties v. Los Campeones, Inc., 568 S.W.2d 680 (Tex. Civ. App. - Corpus Christi 1978, writ ref'd n.r.e.) (every word or phrase in a statute is presumed used intentionally)
• Chastain v. Koonce, 700 S.W.2d 579 (Tex. 1985) (a word used in different parts of a statute is generally given the same meaning throughout)
• Garonzik v. State, 100 S.W. 374 (Tex. Crim. App. 1906) (designating areas where liquor may not be sold is regulation, not prohibition)

Secondary authority:

• 76 C.J.S. Regulate, at 612-613 (relationship between the power to regulate and the power to prohibit)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1109
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1109.pdf

Original opinion text

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

October 11, 1989

Honorable David Cain
Chairman
Transportation Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-1109

Re: Authority of a municipality to prohibit the operation of bicycles on a state roadway (RQ-1741)

Dear Representative Cain:

You ask whether a municipality has the authority to prohibit bicycles[1] from operating on a state roadway.

Section 179(a) of article 6701d, V.T.C.S., provides for the operation of bicycles in this state, as follows:

Every person riding a bicycle shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this Act, except as to special regulations in this Article and except as to those provisions of this Act which by their nature can have no application.

Other provisions of article 6701d, the Uniform Act Regulating Traffic on Highways, require that a person operating a bicycle must ride on a regular attached seat, id. § 180(a), that no bicycle shall carry more persons at a time than the number for which it is designed and equipped, id. § 180(b), and that a bicycle should be operated on a roadway as near as is practicable to the appropriate curb, except under certain conditions. Id. § 182. Additional provisions relate to carrying packages, id. § 183, to the equipment required for nighttime operation, id. § 184(a), and to the specifications for brakes. Id. § 184(b).

[1] Section 2(f) of article 6701d, V.T.C.S., defines bicycle: "'Bicycle' means every device propelled by human power upon which any person may ride, having two tandem wheels either of which is more than fourteen (14) inches in diameter."

Section 26 of article 6701d addresses the applicability of the act to municipalities. Section 26 provides:

The provisions of this Act shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein and no local authority shall enact or enforce any ordinance, rule or regulation in conflict with the provisions of this Act unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this Act. (Emphasis added.)

Section 27(a) of article 6701d details certain express powers local authorities are given to adopt traffic regulations. Section 27(a) provides:

(a) The provisions of this Act shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from --

1. Regulating the stopping, standing or parking of vehicles;

2. Regulating traffic by means of police officers or traffic-control devices;

3. Regulating or prohibiting processions or assemblages on the highways;

4. Designating particular highways as one-way highways and requiring that all vehicles thereon be moved in one specific direction;

5. Regulating the speed of vehicles in public parks;

6. Designating any highway as a through highway and requiring that all vehicles stop or yield before entering or crossing the same, or designating any intersection as a stop intersection or a yield intersection and requiring all vehicles to stop or yield at one or more entrances to such intersection;

7. Regulating the operation of bicycles and requiring the registration and licensing of same, including the requirement of a registration fee. (Emphasis added.)

Local authorities are additionally empowered to prohibit bicycles from any limited-access or controlled-access highway within their respective jurisdictions. Id. § 64.

Street or highway is defined in section 13(a) of article 6701d as "[t]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." (Emphasis added.) Roadway is defined as:

That portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the berm or shoulder. In the event a highway includes two or more separate roadways the term 'roadway' as used herein shall refer to any such roadway separately but not to all such roadways collectively. (Emphasis added.)

Id. § 13(c). The shoulder of a highway is "not intended for normal vehicular travel." Id. § 13(l)(4). Limited-access or controlled-access highway means:

Every highway, street or roadway in respect to which owners or occupants of abutting lands and other persons have no legal right of access to or from the same except at such points only and in such manner as may be determined by the public authority having jurisdiction over such highway, street, or roadway.

Id. § 13(g).

Your question is directed to prohibiting bicycles from operating on a state roadway. Section 64 of article 6701d certainly gives municipalities authority to prohibit bicycles from limited-access or controlled-access roadways. The more difficult question is whether municipalities' authority to regulate the operation of bicycles on streets and highways within their jurisdiction, pursuant to section 27 of article 6701d, includes the right to prohibit the operation of bicycles on roadways other than limited-access or controlled-access highways.

The matter of whether the authority to regulate includes the power to prohibit is considered at 76 C.J.S. Regulate, pages 612 and 613, where it is stated:

The power to regulate includes the power to restrain, and indicates restriction in some respects, and the term 'regulate' embraces the idea of fixing limitations and restrictions, and contemplates the power of restriction or restraint. The word ordinarily denotes some degree of restraint of acts usually done, and negatives the idea that all acts which ordinarily would be performed in connection with the thing to be regulated may be so performed. It has been said that to regulate means putting into effect such rules as are necessary as means, and implies both government and restriction;

It has often been said that the power to regulate does not necessarily include the power to prohibit, and ordinarily 'regulate' is not synonymous with 'prohibit.' This is true in a general sense, and in the sense that mere regulation is not the same as absolute prohibition. On the other hand, the power to regulate may include the power to prohibit under certain circumstances, as where the only efficacious regulation consists of suppression, and it has been said that it does include the power to prohibit, except on the observance of authorized regulation. The word 'regulate' denotes some degree of prohibition of acts usually done in connection with the thing to be regulated, and negatives the idea that all acts which ordinarily would be performed in connection therewith may be so performed without any prohibition whatever. (Footnotes omitted.) (Emphasis added.)

We believe that a municipality's authority to regulate the operation of bicycles on streets and highways within its jurisdiction, pursuant to section 27(a)(7) of article 6701d, does not necessarily include absolute authority to ban bicycles from a state roadway. We think the legislature intended to distinguish the terms "regulation" and "prohibition" for purposes of article 6701d, V.T.C.S., since section 27(a)(7) authorizes local authorities to "regulate" the operation of bicycles and section 27(a)(3) authorizes local authorities to "regulate or prohibit" processions or assemblages. See Valley Int'l Properties v. Los Campeones, Inc., 568 S.W.2d 680 (Tex. Civ. App. - Corpus Christi 1978, writ ref'd n.r.e.) (every word or phrase in a statute is presumed to have been used intentionally, with a meaning and purpose). The legislature gave local authorities express power to prohibit bicycles from certain roadways pursuant to section 64; it is therefore unreasonable to conclude that, absent equally express authority, the legislature also intended local authorities to have equivalent authority to prohibit the operation of bicycles under section 27(a). See Chastain v. Koonce, 700 S.W.2d 579, 583 (Tex. 1985) ("a word used in different parts of a statute will generally be given the same meaning throughout").

There may be situations, of course, where the "only efficacious regulation consists of suppression," see 76 C.J.S. Regulate, at 613, in which case prohibition might be construed as a "reasonable exercise of the police power" granted to local authorities by section 27(a) of article 6701d. See generally Garonzik v. State, 100 S.W. 374 (Tex. Crim. App. 1906) (designation of areas within city where liquor may not be sold is regulation, not prohibition). The determination of which particular situations meet this reasonableness criterion is a factual matter that cannot be resolved in the opinion process. The determination of what constitutes the exercise of the reasonable police power of a municipality in regulating the operation of bicycles on streets and highways pursuant to section 27(a) must be made on a case-by-case basis.

SUMMARY

A municipality has the authority to prohibit the operation of bicycles on a limited-access or controlled-access highway, road, or street within its jurisdiction. A municipality may prohibit the operation of bicycles on roadways other than limited-access or controlled-access highways if it is the only efficacious regulation to protect the public from harm, and thus a reasonable exercise of a municipality's police power. The determination of what constitutes the exercise of the reasonable police power of a municipality in regulating the operation of bicycles on state roadways must be made on a case-by-case basis.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General