Could Nueces County require a paid annual permit to park a vehicle on Gulf Coast beaches outside city limits?

Texas AG Opinion JM-345: Public Beach Parking Fee

Plain-English summary

Nueces County was considering a rule requiring vehicles parked on the beaches of Mustang and Padre Islands outside city limits to display a county permit. The proposed permit would cost $5 per year, with proceeds used for beach cleaning, public restrooms, and law enforcement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

JM-345 concluded that the county could regulate and restrict motor-vehicle parking on public Gulf Coast beaches. The Texas Constitution and Natural Resources Code §61.122(a) supplied that regulatory authority, and §61.126 expressly referred to beach parking requirements. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

The authority to regulate parking did not include authority to charge for on-beach parking. The opinion found no statute authorizing the annual fee and applied the rule that a county may exercise only powers conferred by the constitution or statutes. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

The opinion contrasted on-beach parking with Natural Resources Code §61.070, which preserved otherwise-existing authority to assess a reasonable fee for off-beach parking or public facilities. JM-345 read the legislature's express mention of off-beach parking as excluding an implied power to charge for on-beach parking. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

Currency note

This opinion was issued in 1985. 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.

Common questions

Could a coastal county regulate parking on a public beach?

Yes. JM-345 read Tex. Const. art. IX, §1-A and Natural Resources Code §§61.122(a) and 61.126 as authorizing counties to regulate and restrict beach parking and other motor-vehicle traffic. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

Could Nueces County require a $5 annual on-beach parking permit?

No. The opinion found no statutory authority for an annual charge on vehicles parked on the beach. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

Did the proposed use of the money change the answer?

No. Although the county proposed using the revenue for cleaning, restrooms, and law enforcement on the beaches, JM-345 based its answer on the absence of legal authority to impose the fee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

What did the opinion say about off-beach parking fees?

Section 61.070 said the beach-cleaning funding provisions did not prohibit a reasonable fee for off-beach parking or public facilities. JM-345 said this did not itself create fee authority, but it showed that the legislature had addressed off-beach rather than on-beach parking charges. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

Could a county prohibit all vehicle access to a public beach?

The opinion said a prohibition against motor vehicles could not have the effect of precluding all public access to public beaches. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

Background and statutory framework

Article IX, §1-A of the Texas Constitution allowed the legislature to authorize Gulf-bordering counties to regulate and restrict vehicle speed, parking, and travel on public beaches. Natural Resources Code §61.122(a) authorized a Gulf county commissioners court to regulate motor-vehicle traffic on beaches within the county. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

Section 61.126 required signs for traffic regulations to state the applicable speed limit, parking requirement, or vehicle prohibition. The opinion treated that language as confirmation that the statutory traffic-regulation power included parking rules. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

Canales v. Laughlin supplied the limiting rule that commissioners courts may exercise only powers conferred by the constitution and statutes. Nueces County v. Currington, McCalla v. City of Rockdale, and McLennan County v. Boggess supported the related rule that a governmental fee could not be charged without legal authorization. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

Citations and references

• Tex. Const. art. IX, §1-A
• Natural Resources Code §§61.011, 61.069, 61.070, 61.122(a), 61.126
• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Nueces County v. Currington, 162 S.W.2d 687 (Tex. 1942)
• McCalla v. City of Rockdale, 246 S.W. 654 (Tex. 1922)
• McLennan County v. Boggess, 137 S.W. 346 (Tex. 1911)
• Attorney General Opinions H-1310 (1978) and H-990 (1977)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0345
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0345.pdf

Original opinion text

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

The Attorney General of Texas

August 23, 1985

Honorable T. R. Bandy, Jr.
Nueces County Attorney
Courthouse, Room 206
Corpus Christi, Texas 78401

Opinion No. JM-345

Re: Whether a county may impose an annual fee for parking of motor vehicles on Gulf Coast beaches

Dear Mr. Bandy:

You have provided us with the following information:

The Nueces County commissioners court is considering adopting a motor vehicle traffic regulation to be effective upon Gulf Coast beaches located outside of corporate city limits. Such order would be adopted in the manner prescribed and pursuant to this county's authority to do so under the Natural Resources Code, section 61.122(a), V.T.C.S. See Attorney General Opinion H-1310 (1978).

The proposed regulation would require any motor vehicle parked on the beaches of Mustang and Padre Islands outside of corporate city limits, but within the boundaries of Nueces County, to display a validly issued county parking permit. Permits would be readily available for a $5.00 annual fee. Funds derived by the county from the fees collected would be utilized for beach cleaning, public restrooms and law enforcement purposes on the beaches.

You ask whether "a commissioners court has the power either directly or by implication to impose an annual parking fee for the parking of motor vehicles on Gulf Coast beaches pursuant to its authority to regulate traffic on these beaches." We answer your question in the negative.

The threshold question is whether a county is authorized to restrict and regulate parking on such beaches. If we answer this question in the affirmative, we must then determine whether a county may then impose an annual parking fee such as the one which you propose. Article IX, section 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 limits thereof to regulate and restrict the speed, parking and travel of motor vehicles on beaches available to the public by virtue of public right and the littering of such beaches.

Nothing in this amendment shall increase the rights of any riparian or 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 littering of the beach and may define the term "littering." (Emphasis added).

The constitutional provision pursuant 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. . . ." That the commissioners court has authority to regulate parking on beaches is shown by section 61.126 of the code, which provides as follows:

§61.126. Traffic Regulations

If the order includes a traffic regulation, the order shall provide 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 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 precluding all public access to public beaches. We next turn to whether section 61.122(a) of the Natural Resources Code authorizes a county to impose an annual parking fee. For two reasons, we conclude that it does not. See §61.011.

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 found no statute which purports to authorize counties to impose such a fee. Section 61.070 provides that

[S]ubsection (4), [s]ection 61.069 of this code shall not be construed to prohibit the assessment of a reasonable fee for off-beach parking or for the use of facilities provided for the use and convenience of the public. (Emphasis added).

In the event that a city or county seeks state funds to clean public beaches, subsection (4) of section 61.069 provides that such application must provide "that entrance to all public beaches under the jurisdiction of the governing body of the city or county is free of charge. . . ." Section 61.069 clearly contemplates that, in this instance, certain specified counties may impose a reasonable parking fee for off-beach parking; no such authority is conferred with respect to on-beach parking. Section 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 imposition of a fee is specifically provided by law, none may lawfully be charged. Nueces County v. Currington, 162 S.W.2d 687 (Tex. 1942). See also McCalla v. City of Rockdale, 246 S.W. 654 (Tex. 1922); McLennan County v. Boggess, 137 S.W. 346 (Tex. 1911). In Attorney General Opinion H-990 (1977), this office said that Harris County, lacking specific authority therefor, could not charge tolls on the operation of the Lynchburg Ferry. In this instance, the imposition by a county of a parking fee for on-beach parking is nowhere specifically provided by statute. Accordingly, we conclude that a county may not, pursuant to section 61.122(a) of the Natural Resources Code, impose an annual parking fee for on-beach parking.

SUMMARY

A county may not impose, pursuant to section 61.122(a) of the Natural Resources Code, an annual parking fee for on-beach parking.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Nancy Sutton
Sarah Woelk