Does Texas's recreational use statute protect a landowner who hosts agritourism when a private plane lands on the property?

Plain-English summary

A Texas House committee chair asked the AG whether Chapter 75 of the Civil Practice and Remedies Code, the state's recreational use statute, applies to private property owners who host agritourism, specifically when a private aircraft lands on the property. Chapter 75 reflects a policy judgment by the Legislature that landowners who open their property to the public for recreation provide a public benefit, so the statute limits their liability in exchange.

The AG walked through how the statute works. Chapter 75 protects an owner, lessee, or occupant of "agricultural land," a term the statute defines to cover land suitable for growing crops, forestry, or keeping farm or ranch animals. When the protection applies, the landowner owes no duty of care to a trespasser (except for willful or wanton gross negligence) and, when the owner invites or permits someone onto the premises for recreation, does not guarantee the premises are safe, owes that person no greater duty than is owed a trespasser, and does not assume liability for injuries the visitor causes. The protections kick in only for owners who either do not charge for entry, charge below a statutory ceiling tied to property taxes, or carry the specified liability insurance, and they never shield gross negligence, malicious intent, or bad faith.

On the agritourism question, the AG noted that a separate chapter in the same Title defines agritourism as an activity on agricultural land for recreational or educational purposes. Because agritourism by definition occurs on agricultural land, the AG reasoned that landowners conducting agritourism qualify for the same Chapter 75 limitations as any other agricultural landowner, assuming the other conditions are met.

On the aircraft question, the AG pointed to the statutory definition of "premises," which expressly includes "roads" and "private ways." Land where an aircraft lands would fall under one or both terms, so Chapter 75's protections extend there. Whether any particular landing is covered depends on the facts: the status of the people landing (trespasser, licensee, or invitee) and whether the owner invited or permitted them to enter for recreation, which the statute defines broadly to include activities associated with enjoying the outdoors.

Currency note

This opinion was issued in 2018. 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.

What the opinion meant for those who asked

The legislator who requested the opinion: The AG concluded that Chapter 75 applies to property owners conducting agritourism on agricultural property when the chapter's other conditions are met, and that its limitations reach property where a private aircraft lands because "premises" includes roads and private ways.

Agricultural landowners hosting agritourism (as the opinion described them): The opinion treated agritourism landowners as eligible for the same liability limitations as any other agricultural landowner, because agritourism by statutory definition happens only on agricultural land. The AG stressed that coverage still turned on the statute's conditions and on the visitor's status, and that the limitations never reached gross negligence, malicious intent, or bad faith.

Common questions

What is Texas's recreational use statute?
Chapter 75 of the Civil Practice and Remedies Code. The AG described it as a statute recognizing that landowners who open their property for recreation provide a public benefit, and limiting their liability for certain visitors in return.

Did the AG say agritourism operators are covered?
The AG concluded they qualify for the same Chapter 75 limitations as any other agricultural landowner, because the statute defines agritourism as an activity that occurs on agricultural land, assuming the chapter's other conditions are met.

Does the protection reach a spot where a plane lands?
The AG concluded it does. The statute defines "premises" to include roads and private ways, and the AG reasoned that land where an aircraft lands falls within one or both of those terms.

Are there limits to the protection?
Yes. The AG noted the statute does not limit liability for gross negligence, malicious intent, or bad faith, and that the protections apply only to owners who meet the chapter's charge-or-insurance conditions. Whether a specific landing is covered also depends on the visitor's status and purpose.

Background and statutory framework

Chapter 75, the recreational use statute, limits the liability of an "owner, lessee, or occupant of agricultural land" who opens the property for recreation (Tex. Civ. Prac. & Rem. Code §§ 75.001-.007; Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007)). "Agricultural land" is defined as land suitable for crop production, forestry, or keeping farm or ranch animals (§ 75.001(1)). When the protections apply, the owner owes no duty to a trespasser except for willful or wanton gross negligence, and when permission or an invitation is extended for recreation the owner does not assure the premises are safe, owes no greater duty than is owed a trespasser, and does not assume liability for injury the visitor causes (§ 75.002(a), (b)). The protections apply only to owners who do not charge for entry, charge below a ceiling tied to ad valorem taxes, or carry specified liability insurance, and they do not apply to governmental units or shield gross negligence, malicious intent, or bad faith (§ 75.003(c), (e); § 75.002(d)).

Agritourism is defined in Chapter 75A as "an activity on agricultural land for recreational or educational purposes of participants, without regard to compensation" (§ 75A.001(2)). Because that definition ties agritourism to agricultural land, the AG concluded agritourism landowners fall within Chapter 75 like any other agricultural landowner. The statute defines "premises" to include roads and private ways (§ 75.001(2)), and defines "recreation" broadly to include any activity associated with enjoying nature or the outdoors (§ 75.001(3)). Whether a visitor is a licensee or invitee covered by section 75.002(b) turns on whether the invitation or permission was extended for recreation (Dubois v. Harris Cty., 866 S.W.2d 787, 789 (Tex. App.-Houston [14th Dist.] 1993, no writ)). The opinion expressly declined to address the separate and differently structured limitations of Chapter 75A (§ 75A.002(b)(1)(A), (c)).

Citations

Statutory provisions:

• Tex. Civ. Prac. & Rem. Code §§ 75.001-.007, 75.001(1), 75.001(2), 75.001(3), 75.002(a), (b), (b)(2), (d), 75.003(c), (e), 75.004(a)
• Tex. Civ. Prac. & Rem. Code §§ 75A.001(2), 75A.002(b)(1)(A), (c)

Cases:

• Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007)
• Dubois v. Harris Cty., 866 S.W.2d 787, 789 (Tex. App.-Houston [14th Dist.] 1993, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0218
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0218.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 26, 2018

The Honorable Lyle Larson Opinion No. KP-0218
Chair, Committee on Natural Resources
Texas House of Representatives Re: Whether chapter 75 of the Civil Practice
Post Office Box 2910 and Remedies Code applies to limit the liability
Austin, Texas 78768-2910 of a private property owner on whose property
private aircraft lands for purposes of
agritourism (RQ-0219-KP)

Dear Representative Larson:

    You ask whether "Chapter 75, Title 4 of the Civil Practice and Remedies Code appl[ies] to

private property owners on whose property agro-tourism related private aircraft lands." [1] Chapter
75, often referred to as the recreational use statute, "recognizes that landowners or occupiers, who
open their property to the public for recreational purposes, provide a public benefit." Stephen F.
Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007); see TEX. CIV. PRAC. & REM. CODE
§§ 75.001-.007. To encourage this use, chapter 75 limits landowner liability for certain
individuals, including "an owner, lessee, or occupant of agricultural land" in specific instances.
See TEX. CIV. PRAC. & REM. CODE § 75.002(a), (b). The Legislature defined "agricultural land"
under chapter 75 as

            land that is located in this state and that is suitable for:

                (A) use in production of plants and fruits grown for human or
                animal consumption, or plants grown for the production of
                fibers, floriculture, viticulture, horticulture, or planting seed;

                (B) forestry and the growing of trees for the purpose of rendering
                those trees into lumber, fiber, or other items used for industrial,
                commercial, or personal consumption; or

                (C) domestic or native farm or ranch animals kept for use or
                profit.

Id. § 75.001(1).

    Chapter 75 applies only to individuals who collect below a certain amount for entry onto

their premises or who have liability insurance coverage above a specified amount. See id.
§ 75.003(c). [2] When those circumstances exist, the owner, lessee, or occupant of agricultural land
"(1) does not owe a duty of care to a trespasser on the land; and (2) is not liable for any injury to a
trespasser on the land, except for willful or wanton acts of gross negligence by the owner, lessee,
or other occupant of agricultural land." Id. § 75.002(a). In addition, chapter 75 significantly limits
liability to invitees and licensees when the invitation or permission is extended for recreation:

                If an owner, lessee, or occupant of agricultural land gives permission
                to another or invites another to enter the premises for recreation, the
                owner, lessee, or occupant, by giving the permission, does not:

                    (1) assure that the premises are safe for that purpose;

                    (2) owe to the person to whom permission is granted or to whom
                    the invitation is extended a greater degree of care than is owed
                    to a trespasser on the premises; or

                    (3) assume responsibility or incur liability for any injury to any
                    individual or property caused by any act of the person to whom
                    permission is granted or to whom the invitation is extended.

Id. § 75.002(b). Thus, an owner, lessee, or occupant of agricultural land who gives permission to
another or invites another to enter the premises for recreation, owes no duty of care to the person
to whom permission is granted or to whom the invitation is extended. Id. § 75.002(a), (b)(2).
These provisions do not limit the liability of an owner, lessee, or occupant of real property who
acted with gross negligence, malicious intent, or in bad faith. Id. § 75.002(d).

    You ask specifically about the application of chapter 75 to property owners who host or

allow agritourism on their property. Request Letter at 1. Chapter 75 does not define "agritourism,"
but another chapter within Title 4 of the Civil Practice and Remedies Code defines the term as "an
activity on agricultural land for recreational or educational purposes of participants, without regard
to compensation." Id. § 75A.001(2). [3] Thus, agritourism activities occur on agricultural land. Id.
As discussed above, all owners, lessees, or occupants of such land, including agritourism entities,
qualify for the limitations on liability therein, assuming all other conditions of that chapter are met.
Thus, agricultural landowners conducting agritourism on their property qualify for the same
limitations on liability found in chapter 75 as any other agricultural landowner. See id.
§ 75A.002(c) ("A limitation on liability provided by this section to an agritourism entity is in
addition to other limitations of liability.").

    You question whether those limitations on liability extend to property on which an

agritourism-related private aircraft lands. Request Letter at 1. The limitations on liability in
chapter 75 apply "on the premises" of agricultural land, and the Legislature defined "premises" to
include "roads" and "private ways," among other areas. TEX. CIV. PRAC. & REM. CODE
§§ 75.001(2) (defining "premises"), 75.002(b) (limiting liability on the premises). Property where
an aircraft lands would qualify under one or both of these terms, and the protections of chapter 75
therefore extend to such areas. [4] But whether a particular aircraft landing is subject to chapter 75
will depend, in part, on the status of the individuals landing on the property and their purpose in
traveling to the property. As discussed above, a property owner generally owes no duty of care to
a trespasser on agricultural land. Id. § 75.002(a). The limitations on liability for licensees or
invitees under section 75.002(b) apply when the property owner invited or granted permission to
enter the premises for recreation. Id. § 75.002(b). [5] The Legislature defined "recreation" for
purposes of this section to encompass a wide variety of activities, including any "activity
associated with enjoying nature or the outdoors." Id. § 75.001(3). [6] Thus, if a property owner
conducting agritourism on his or her agricultural property invites or grants permission to
individuals to enter the premises for recreation, chapter 75 applies to limit the property owner's
liability for injuries or property damage occurring to those invited or given permission to enter,
including any injuries or damage resulting from the landing of private aircraft.

                                   SUMMARY

                    Chapter 75 of the Civil Practice and Remedies Code limits
           liability in certain circumstances for the owner, lessee, or occupant
           of agricultural land. By statutory definition, agritourism occurs only
           on agricultural land. Thus, chapter 75 applies to property owners
           conducting agritourism on their agricultural property if they
           otherwise meet the conditions in chapter 75.

                  Assuming those conditions are met, if a property owner
          conducting agritourism on his or her agricultural property invites or
          grants permission to individuals to enter the premises of the property
          for recreation, chapter 75 limits the property owner's liability for
          injuries or property damage occurring on the premises to those
          invited or given permission to enter, including injuries or damages
          due to the landing of private aircraft. Chapter 75 does not, however,
          limit the liability of a property owner who acts with gross
          negligence, malicious intent, or in bad faith.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] See Letter from Honorable Lyle Larson, Chair, House Comm. on Nat. Res., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Apr. 5, 2018), https://www.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").

[2] "[Chapter 75] applies only to an owner, lessee, or occupant of real property who: (1) does not charge for entry to the premises; (2) charges for entry to the premises, but whose total charges collected in the previous calendar year for all recreational use of the entire premises of the owner, lessee, or occupant are not more than 20 times the total amount of ad valorem taxes imposed on the premises for the previous calendar year; or (3) has liability insurance coverage in effect on an act or omission described by Section 75.004(a) and in the amounts equal to or greater than those provided by that section." TEX. CIV. PRAC. & REM. CODE § 75.003(c). These restrictions on applicability do not apply to a governmental unit. See id. § 75.003(c), (e).

[3] Chapter 75A, enacted by the Legislature in 2015, provides express limited liability for agritourism activities in addition to the limitations of liability otherwise provided by chapter 75. See generally id. §§ 75A.001-.004. The limitations on liability established in chapter 75A are different from the limitations in chapter 75. See id. § 75A.002(b)(1)(A) ("This section does not limit liability for an injury . . . proximately caused by . . . the agritourism entity's negligence . . . ."), (c). While some of the limitations on liability in chapter 75A are not as broad as those in chapter 75, chapter 75A applies "without regard to compensation" received from invitees on the property. Id. § 75A.001(2). You do not ask about the separate limitations on liability provided in chapter 75A, and we therefore limit our analysis to Chapter 75 only. See Request Letter.

[4] You ask only about private aircraft lands on the agritourism property. Id. at 1. The limitations in chapter 75 apply to the premises of the agricultural land, and this opinion does not address injuries or damages to property occurring outside the premises of this land. See TEX. CIV. PRAC. & REM. CODE § 75.002(b).

[5] The limitation on liability applies regardless of whether an injury or property damage occurred due directly to the recreational activity. The relevant question is whether the invitation or permission was extended for purposes of recreation. See Dubois v. Harris Cty., 866 S.W.2d 787, 789 (Tex. App.-Houston [14th Dist.] 1993, no writ) (concluding that section 75.002 limited liability when an individual tripped and fell due to a pot hole in the parking lot of a county park).

[6] "Recreation" also expressly includes hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, including off-road motorcycling and off-road automobile driving and the use of all-terrain vehicles and recreational off-highway vehicles, nature study, cave exploration, waterskiing and other water sports, bicycling and mountain biking, disc golf, dog walking, and radio control flying. TEX. CIV. PRAC. & REM. CODE § 75.001(3).