                               October   11, 1989




Honorable   David Cain                     Opinion   No.   JM-1109
Chairman
Transportation   Committee                 Re:   Authority   of a munici-
Texas House of Representatives             pality to prohibit    the oper-
P. 0. Box 2910                             ation of bicycles    on a state
Austin, Texas    78769                     roadway    (RQ-1741)

Dear   Representative      Cain:

      You    ask   whether a municipality   has   the authority           to
prohibit     bicycles1   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   applica-
            tion.

      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. 5 180(a), that no bicycle shall carry more persons at           a
time than the number for which it is designed       and   equipped,
id. 5 180(b), and    that a bicycle should be       operated   on   a



      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.




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roadway as near as is practicable        to the.appropriate      curb,
except under    certain    conditions.    Id.    § 182.    Additional
provisions  relate to     carrying packages,    &      9 183, to    the
equipment  required     for nighttime    operation,   &      § 184(a),
and to the specifications      for brakes.    Id. 5 184(b).

     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   muni-
            cipalities    therein     and   local
                                            no
            sa
             h 11 e n ac t or   e nforce anv ord      ante.   r ule _
            or reoulation     in conflict with :Fe or ovisions
            of this Act unless exvresslv         authorized   here-
               .    ocal   authorities     mav.   however.    adoDt
            add' ' na
            ltlo          tra                                    not
            *.
            (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
            resnect to streets   and hiahwavs under    their
            jurisdiction  and    within     the  reasonable
            exercise of the oolice Dower from --

                1. peaulatinq  the        stopping,     standing   or
            parking of vehicles:

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

               3. P-q                                    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.    P-q          the    speed    of   vehicles   in
            public    parks;




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                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. peculatina     the   oDeration   of   bicvcles
            and requiring   the registration     and   licensing
            of same, including the requirement        of a   reg-
            istration  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 everv wav Dubliclv maintained     when anv Dart thereof
is open to the use of      the DUbliC for DUrDOSeS   of vehicular
travel."    (Emphasis added.)    Roadway is defined as:

                That   portion    of    a hiahwav     imDrOVed.
            desianed   or   ordinarilv     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. s 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.   5 13 (9).

      Your    question  is directed        to prohibiting bicycles     from
operating     on a state roadway.           Section 64 of article     6701d




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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     in-
cludes the   power to  prohibit   is  considered   at   76   C.J.S.
Reaulate,  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.       T
                                               h+
            rlv denotes some dearee of restraint             of   acts
            al
            usu    1 d
            be reaulated.     and neaatives      the idea that all
            acts which ordinarilv        would be Derformed          in
            1 on   ctio
            1.'th ta                                   It has     been
            said that     to    reoulate    means     Duttina     into
            effVe t sue                                      eces
            7       tee      es                   ha       n       ans
            and imDlies both aovernment          and restriction;

                It has often been      said that the power        to
            regulate does     not    necessarily     include    the
            power to    prohibit,    and   ordinarily
            g
            'Drohibit.'     This is true in a general sense,
            and in the sense that mere regulation          is   not
            the same    as   absolute prohibition.         On   the
            other
            powe
            2        0 c ec                                wer   to
            prohibit    under    certain    circumstances,        as
            here
            w      t                             ious  reaulation
            consists                       and it has been said
            that it does include       the power to     prohibit,
            except on the observance       of authorized      regu-
            lation.    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




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            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 "prohibi-
tion" for purposes     of article 6701d, V.T.C.S.,          since section
27(a)(7) authorizes       local    authorities      to    tBregulate'* the
operation   of bicycles and section 27(a)(3) authorizes                local
authorities     to   "regulate      or   prohibit"      processions        or
assemblages.     See Vailev Int'l Prboerties         V.-LOS     Camoeones.
Inc., 568 S.W.2d 680 (Tex. Civ. App. - Corpus Christi                  1978,
writ ref'd n.r.e.1       (everv word     or DhraSe     in   a statute      is
presumed   to have been used intentionhlly,          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).             &g
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. Reaulate,       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 aenerallv     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,




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Honorable     David   Cain    - Page     6    (JM-1109)




            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.




                                                  TIM        MATTOX           -
                                                    Attorney  General   of Texas

MARYKELLER
First Assistant       Attorney    General

LOU MCCKEAKY
Executive  Assistant         Attorney        General

JUDGE ZOLLIE STEAKLKY
Special Assistant  Attorney             General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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