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DAN MORALES                              September 24.1992
 ATTORSEY
       GENERAL
      Honorable Eddie Cavazos                      Opinion No. DM-169
      Chairman
      Committee on Insurance                       Re: Applicability of Water Safety Act to
      Texas House of Representatives               waterways in private subdivisions and
      P. 0. Box 2910                               related questions (RQ-402)
      Austin, Texas 78768-2910

      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-l (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 pubZic wuter 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.




                                                p. 888
Honorable Eddie Cavaxos - Page 2         (DM-169)




       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 0 1.011(c); Butler v. &ad&r, 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, i%hing, swimming, or otherwise restricted areas and
          may make rules and rqzhtions nshatingto the operation and
          equipment of boats which it deems neces~(uyfor the public sajkty.
          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 &o id. 8 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


                                        p. 889
Honorable Eddie Cavazos - Page 3 @4-169)




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 Bsh 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 Firhttg Club v. Hammett, 88 S.W.2d 127 (Tex. Civ. App.-Waco 1935, writ
dism’d w.0.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

WJLL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEAHIcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General


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