                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                  May 18,2012



The Honorable Jack Roady                                  Opinion No. GA-0934
Galveston County Criminal District Attorney
600 Fifty Ninth Street, Suite 1001                        Re: Whether recreational off-highway vehicles
Galveston, Texas 77551-4137                               and all-terrain vehicles may be legally operated on
                                                          a public beach and whether a county is authorized
                                                          to establish a system for registering such vehicles
                                                          with the county for operation on a beach
                                                          (RQ-1017-GA)

Dear Mr. Roady:

       You ask whether recreational off-highway vehicles ("ROHV") and all-terrain vehicles
("ATV") may be legally operated on a public beach and whether a county is authorized to establish
a system for registering such vehicles with the county for operation on a beach. I

        You suggest that section 663.037(a) of the Transportation Code prohibits the operation of
an ATV or ROHV by the general public on a public beach. Id. at 1-2; TEX. TRANSP. CODE ANN.
§ 663.037(a) (West 2011). Chapter 663 generally regulates the operation and ownership of an ATV
or an ROHY. See id. § 663.003 (providing that the "chapter applies to the operator and operation
of a [ROHV] in the same manner as if' the ROHV were an ATV); see generally id. §§ 663.001-.038
(chapter 663). Section 663.037(a) prohibits the operation of an ATV or ROHV on a "public street,
road, or highway" with certain exceptions, but the section does not specifically mention beaches.
Id. § 663.037(a). No provision of chapter 663, nor any other provision in the Transportation Code,
necessarily equates all areas of a public beach with a public street, road, or highway. Compare id.
§ 502.001 (35) (West Supp. 2011 ) (definition of "public highway" for vehicle registration purposes),
with TEX. NAT. RES. CODE ANN. § 61.013(c) (West 2011) (definition of "public beach" for purposes
of the Open Beach Act). Cf Brown v. State, 289 S.W.2d 942, 944 (Tex. Crim. App. 1956)
(determining that the evidence about the route that a driver took on a beach was sufficient to uphold
a conviction for driving intoxicated on a public highway).




         'See Letter from Honorable Jack Roady, Galveston Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex.
Att'y Gen. at 1 (Nov. 8,2011), http://www.texasattorneygenera1.gov/opin ("Request Letter").
The Honorable Jack Roady - Page 2                     (GA-0934)




        Rather, the use of public beaches is generally governed by the Open Beaches Act and the
Dune Protection Act. See TEX. NAT. RES. CODE ANN. §§ 61.001-.254 (West 2011 & Supp. 2011)
(the "Open Beaches Act"); id. §§ 63.001-.1814 (West 2011) (the "Dune Protection Act"). Under
the Open Beaches Act, certain counties and other local governmental entities are required to develop
a plan for beach access and use that is consistent with the Act's policies. [d. § 61.015(a). Counties
and municipalities are authorized to promulgate traffic regulations, including prohibitions of
vehicular traffic in certain areas of a beach within their jurisdiction, that are consistent with the Act's
policies. [d. §§ 61.122, .129. Local traffic regulations prevail over conflicting general state laws.
[d. §§ 61.128-.129. However, local traffic regulations are generally subject to the rules and approval
of the Commissioner of the Texas General Land Office. [d. §§ 61.011(d)(3), .022(c)-(d).

        The Dune Protection Act prohibits the operation of a recreational vehicle in certain areas of
a public beach. /d. §§ 63.057, .093. 2 However, no state statute of which we are aware addresses
whether the operation of an ATV or ROHV on a public beach by the general public is, per se, lawful
or unlawful. Whether an ATV or ROHV may be lawfully operated on a public beach or a particular
area of a public beach cannot be answered categorically, without reference to particular facts and any
rules, orders, or ordinances applicable to the particular beach or area of the beach.

       You also ask whether a county is authorized to establish a registration system, whereby an
individual may register an ROHV with the county for operation on a beach. Request Letter at 1.
You note Transportation Code section 502.140, which provides in part:

                  (a) Except as provided by Subsection (b), a person may not register
                  an all-terrain vehicle or a recreational off-highway vehicle, with or
                  without design alterations, for operation on a public highway.

                  (b) The state, a county, or a municipality may register an all-terrain
                  vehicle or a recreational off-highway vehicle for operation on a public
                  beach or highway to maintain public safety and welfare.

                  (c) A recreational off-highway vehicle registered as provided by
                  Subsection (b) may be operated on a public or private beach in the
                  same manner as a golf cart may be operated on a public or private
                  beach under Section 551.403 ....

TEX. TRANSP. CODE ANN. § 502.140(a)-(c) (West Supp. 2011) (formerly section 502.006,
renumbered by Act of May 29, 2011, 82d Leg., R.S., ch. 1296, § 100,2011 Tex. Gen. Laws 3617,



         2Under the Dune Protection Act, a "recreational vehicle" is "a dune buggy, marsh buggy, minibike, trail bike,
jeep, or any other mechanized vehicle that is being used for recreational purposes." TEX. NAT. REs. CODE ANN. §
63.002(4) (West 2011). See also 31 TEX. ADMIN. CODE § IS.4(c)(6) (2011) (Tex. Gen. Land Office, Dune Protection
Standards) (General Land Office rule prohibiting a local governmental entity from issuing a permit or certificate
authorizing a "recreational vehicle" on certain areas of a public beach).
The Honorable Jack Roady - Page 3                      (GA-0934)




3662-63). You suggest that section (b) may be construed as authorizing either (1) the state, a county,
or a municipality to register an ATV or ROHV with the Texas Department of Motor Vehicles
(DMV), or (2) an individual to register an ROHV with one of the specified governmental entities.
Request Letter at 2.

         A different statute, section 502.003, generally prohibits a political subdivision from
establishing its own motor vehicle registration requirements. TEX. TRANSP. CODE ANN. § 502.003(a)
(West 2007); see also id. § 502.001(1)(B), (25), (37)(B) (defining "motor vehicle," as "a vehicle that
is self-propelled," and "all-terrain vehicle" and "recreational off-highway vehicle" as self-propelled
vehicles). Moreover, a close examination of the text of section 502. 140(b) reveals that it does not
authorize a separate registration system by local government. Key to construing section 502. 140(b)
is the meaning of the word "register." In construing the words of a statute, "[l]anguage cannot be
interpreted apart from context. The meaning of a word that appears ambiguous when viewed in
isolation may become clear when the word is analyzed in light of the terms that surround it."
TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex. 2011). Moreover, the
construction of a statute is "aided by the interpretive context provided by 'the surrounding
statutory landscape.'" LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex. 2011)
(citation omitted). Chapter 502 generally provides for registration of vehicles with the DMV by
an application submitted to a county tax assessor-collector. See, e.g., TEX. TRANSP. CODE ANN.
§§ 502.001(11), .040(b)(1) (West Supp. 2011). The phrase in section 502. 140(a), that "a person may
not register" an ATV or ROHV for operation on a highway, refers to the action of a potential
applicant, not to that of a governmental entity that receives the application. Id. § 502.140(a). If we
assume, as we must, that "register" is used consistently in the statute, then subsection (b) should be
construed as concerning only the registration of state, county, and municipal vehicles. See Ex parte
Keller, 173 S.W.3d 492, 498 (Tex. Crim. App. 2005) (stating "normal rules of statutory
construction," that "a word or phrase that is used within a single statute generally bears the same
meaning throughout that statute"). And subsection (c), which provides for operation of vehicles on
a beach, is limited to the governmental vehicles registered under subsection (b).

         Further, the phrase "public safety and welfare," as it appears in section 502.140(b), normally
refers to a governmental police power. See Spann v. City of Dallas, 235 S.W. 513, 515 (Tex. 1921)
(stating that "[t]he police power is a grant of authority from the people to their governmental agents
for the protection of the health, the safety, the comfort and the welfare of the public"). The phrase
"to maintain public safety and welfare" refers to "operation on a public beach," not to registration
of the vehicle. See Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578,580 (Tex. 2000) (noting that
a qualifying phrase in a statute should "be confined to the words and phrases immediately preceding
... without impairing the meaning of the sentence"); TEX. TRANSP. CODE ANN. § 502.140 (West
Supp. 2011). Thus, section 502.140(b) contemplates that a governmental entity, not a private
individual, may register its ROHV or ATV for use on a public highway or beach in order to maintain
public safety and welfare. 3



        3Legislative history is consistent with our construction of section 502.140(b). Its predecessor was first added
by Senate Bill 1453 in 1989. Act of May 22, 1989, 71st Leg., R.S., ch. 699, § 1, 1989 Tex. Gen. Laws 3208, 3208-09.
                                                                                                         (continued ... )
The Honorable Jack Roady - Page 4                     (GA-0934)




        Section 502.l40(b) does not authorize a county to establish its own system for an individual
to register a ROHV or ATV with the county. Because a county's authority must be express or
necessarily implied from its express powers, City of San Antonio v. City of Boerne, 111 S.W.3d 22,
28-29 (Tex. 2003), we conclude that a county does not have the authority to establish a county
system for registering an ATV or ROHV for an individual to operate on a public beach.




          \ ... continued)
In addition to the language ultimately located in section 502. 140(b), Senate BiU1453 makes several references to "an
all-terrain vehicle owned by this State, a county, or a municipality" and to the operation of such vehicles "to maintain
public safety and welfare ofthe residents of this State." Id. § § 1-5.
The Honorable Jack Roady - Page 5             (GA-0934)




                                       SUMMARY

                      Whether an all-terrain vehicle or recreational off-highway
               vehicle may be lawfully operated on a public beach or a particular
               area of a public beach cannot be answered categorically without
               reference to particular facts and any rules, orders, or ordinances
               applicable to the particular beach or area of the beach.

                       A county does not have the authority to establish a county
               system for registering an off-highway vehicle or an all-terrain vehicle
               for an individual to operate on a public beach.

                                              Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
