   OFFiCE   OF THE   ATTonNe”   GENERAL   ST‘¶TE OF TFXIIS

   JOHN CORNYN




                                                  March 8,1999



The Honorable Robert A. Klaeger                              Opinion No. JC-0016
Burnet County Attorney
220 South Pierce                                             Re: Enforcement of traffic   laws on privately
Bumet, Texas 78611-3136                                      owned streets (RQ- 1199)


Dear Mr. Klaeger:

         You inquire whether state and municipal traffic laws may be enforced on privately-owned
streets. We conclude that such laws apply only on public streets and may not be enforced on
privately-owned    streets.

         You inform us that the City of Meadowlakes (“the City”) in Burnet County is a Type A
general-law municipality      with an estimated population of eleven hundred residents.             The
Meadowlakes Property Owners Association (“MPOA”), a private association, owns all ofthe streets
located within the city limits of the City ofMeadowlakes.   None ofthese streets have been dedicated
to the City for use by the general public. The MPOA also maintains a privately-owned gate house
at the only point of entrance to or exit from the City to regulate access on the private streets. You
ask whether the City has authority to enforce state and municipal traffic regulations on the privately-
owned streets.

         We do not address other legal issues that may arise with the private ownership of all streets
within the boundaries of an incorporated city, except to note that the governing body of an
incorporated   municipality   in this state has numerous duties and responsibilities       under the
constitution and statutes, including the responsibility to provide non-residents with access to the
public meetings and records of the city. See TEX. GOV’T CODE ANN. $$ 551.001-.146 (Open
Meetings Act); $5 552.001-.353 (Public Information Act) (Vernon 1994 & Supp. 1999). You have
not asked and we do not comment here on the application of these guarantees or any others that may
be afforded to persons residing within the City or to the public in general in relation to the City.

        We addressed a question similar to the one you ask in Attorney General Letter Opinion No.
95-064: whether county law enforcement officers were authorized to issue traffic citations to drivers
speeding on streets that were not part of the county road system. The streets at issue in Letter
Opinion No. 95-064 were dedicated to the public in the subdivision plat filed by the developer, but
the dedication was not accepted by the commissioners court. Accordingly, the streets never became
public. See Commissioners Court Y. Frank Jester Dev. Co., 199 S.W.2d 1004, 1007 (Tex. Civ.
App.-Dallas    1947, writ ref d n.r.e.) (dedication of streets in filed plat is an offer, and acceptance
by commissioners court is necessary to make them public streets); Tex. Att’y Gen. Op. No. JM-200
The Honorable   Robert A. Klaeger    - Page 2      (X-0016)




(1984) at 4 (tiling plat alone is insufficient to authorize county road maintenance). Letter Opinion
No. 95-064 concluded that the county had no authority to regulate and enforce speed limits on such
roads because they were not public roads. We reach the same conclusion with respect to the
authority of the City of Meadowlakes to enforce traffic laws on the private streets within its
boundaries.

       Provisions   on regulating traffic are found in the Transportation Code, title 7, subtitle C. See
TEX. TRANSP. CODE     ANN. 55 541.001 - 600.003 (Vernon 1999). Included are provisions on traffic
signs and signals, right of way, speed restrictions, parking restrictions, vehicle equipment, and arrest
and prosecution of violators. See id chs. 543 - 547. A provision of subtitle C “relating to the
operation of a vehicle applies only to the operation of a vehicle on a highway unless the provision
specifically applies to a different place.” Id. 5 542.001. A “[hlighway or street” is “the width
between the boundary lines of a publicly maintained way any part of which is open to the public for
vehicular traffic.” Id. $ 541.302(S). In contrast, a “[plrivate road or driveway,” is “a privately
owned way or place used for vehicular traffic and used only by the owner and persons who have the
owner’s express or implied permission.” Id. 5 541.302(9). Thus, provisions relating to the operation
of a vehicle found in title 7, subtitle C of the Transportation Code apply only on publicly maintained
highways and streets.

         As you describe the streets of the City of Meadowlakes, they are neither publicly owned nor
maintained and are therefore not subject to the state traffic regulations in question. Accordingly, the
City ofMeadowlakes      has no authority to enforce such laws on those private streets. A peace officer
has no authority to issue a citation under state law for a traffic offense on the private streets, and if
such a citation is issued, it may not be prosecuted. See Johnson v. State, 3 1 S.W.2d 1084, 1086-87
(Tex. Crim. App. 1930) (in prosecution for driving on a public road while intoxicated, evidence
established that the road was a public road); Tex. Att’y Gen. Op. No. M-265 (1968) at 3 (in
prosecution for obstruction of a “public road,” prosecution must prove that road was a “public
road”).

          The provisions of Transportation Code, title 7, subtitle C apply uniformly throughout the
state, and a local authority, such as a city, may enact an ordinance that conflicts with a provision of
subtitle C, only where subtitle C expressly authorizes it to do so. TEX. TRANSP. CODE ANN.
5 542.201 (Vernon 1999); see id. 5 541.002(3) (defining “local authority” to include “a county,
municipality, or other local entity authorized to enact traffic laws under the laws of this state”).
Section 542.202 of the Transportation Code expressly authorizes a local authority to regulate traffic
within its boundaries in specific ways, such as by regulating parking, designating intersections as
stop or yield intersections, designating school crossing zones, and altering a speed limit within
statutory limitations. Id. 5 542.202 (a)(2), (8), (1 I), (12). However, a city’s regulatory authority
under section 542.202 of the Transportation Code applies only “with respect to a highway under its
jurisdiction.” Id. 5 542.202(a) (emphasis added). We have already noted that a“[h]ighway or street”
 is “the width between the boundary lines of a publicly maintained way any part of which is open to
the public for vehicular trafIic.” Id. 8 541.302(5). Thus, a city has no authority under section
 542.202 to adopt municipal ordinances regulating traffic on privately-owned streets.
The Honorable   Robert A. Klaeger    - Page 3      (JC-0016)




        You specifically ask whether the City of Meadowlakes may use public monies for the
enforcement of state and municipal traffic laws on the private streets owned by the MPOA. Because
we conclude that the City lacks authority to enforce state or local traffic laws on the privately-owned
streets within its boundaries, we conclude that it may not expend public funds for that purpose.

         Article III, section 52 of the Texas Constitution prohibits the legislature from authorizing a
county, city, town, or other political corporation to lend its credit or grant public money or anything
of value to an individual, association, or corporation, with exceptions not relevant to your question.
Article XI, section 3 ofthe constitution provides that no “county, city, or other municipal corporation
shall       make any appropriation or donation” to any private corporation or association.        These
provisions prevent the gratuitous application of funds to a private use, but they do not invalidate an
expenditure that is made for the direct accomplishment of a public purpose, even though it may
incidentally benefit a private interest. See Tex. Att’y Gen. LO-94-078, at 2 (and authorities cited
therein). Because the City of Meadowlakes has no authority to enforce state and municipal traffic
laws on the private streets owned by the MPOA, there is no public purpose for expending public
funds in attempting to do so. Under Texas law, public funds may not be expended to maintain
privately-owned roads. See generally Exparte Conger, 357 S.W.2d 740 (Tex. 1962); Tex. Att’y
Gen. Op. No. DM-13 (1991); Tex. Att’y Gen. LO-94-078. We conclude that in the absence of
authority to enforce traffic laws on the privately-owned streets within the City, the expenditure of
public funds on such activity does not serve a public purpose and is prohibited by article III, section
 52 and article XL section 3 of the Texas Constitution.
The Honorable   Robert A. Klaeger   - Page 4      (JC-0016)




                                      SUMMARY

                    Provisions in the Transportation Code, title 7, subtitle C, relating
           to the operation of a vehicle, apply only on public roadways and not on
           private roads or streets unless expressly applicable. Accordingly, the City
           of Meadowlakes has no authority to enforce state and municipal traffic
           laws on privately-owned      streets within its boundaries. A peace officer
           has no authority to issue a citation for a traffic offense on the private
           streets, and if such a citation is issued, it may not be prosecuted.

                    Article III, section 52 and article XI, section 3 of the Texas
           Constitution prohibit the City of Meadowlakes to use public monies to
           enforce state and municipal traffic laws on its private streets.




                                                Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

 Prepared by Susan L. Garrison
 Assistant Attorney General
