JIM MATTOX Attorney General

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# The Attorney General of Texas
mgust 23, 1985

EonorableT. R. Bmdy, Nueces CountyAttomey Courthouse,Room 206 Corpus Christi,Texas Jr.
78401 OpinionNo. JM-345

Re: Whether a countymay impose au annual fee for parking of motor vehicles on Gulf Coast beaches Dear Mr. Bandy: You have providedus with the following information:

The Nueces County commissioners court is considering .sdopting a motor vehicle traffic regulation to be effective upon gulf coast beaches located outside of corporate city limits. Such order wculd be adopted in the manner prescribed and pursuant to this county's authority to do so under 1:he Natural Resources Code. section 61.122(a), V.T.C.S. SeeAttorney General Opinion H-1310 (1!)78). - The p,coposed

regulationwould require anymotor vehicle parked on the beaches of Mustang and Padre Islands outside of corporate city limits, but wit1Li.n

the boundaries of Nueces County, to display s validly issued county parking permit. Permits would be readily available for a $5.00 annual frcs. Funds derivedby the county from the fees collected would be utilized for beach cleaning, public restrooms and law enforcement purposes on thebeaches. You ask whether "LLcommissioners court has the power either directly or by implication to impose au annual parking fee for the parking of motor vehicles on gulf coast beaches pursuant to its authority to regulate traffic cm.these beaches." We answer your question in the negative. The threshold question is vhether a county is authorized to restrict and regulate parking on such beaches. If we answer this question in the af'firmative. we must then determinewhether a county

p. 1570EonorableT. R. Bandy, Jr. - 'Page2 (JM-345)

may then impose an annual parking fee such as the one which you propose. Article IX, sectixr 1-A of the Texas Constitution provides the following inpertinentpart:

The Legislature may authorize the governing body of any county bordering on the Gulf of Mexico or the tidewater lislts thereof to regulate and restrict the speed, parking and travel of motor vehicles on beache. available to the public by virtue of public fight and the littering of such beaches. Nothing in thi.samendment shall increase the rights of any rip;lrian or littoral landownerwith regard to beaches available to the public by virtue of public right or submerged lands.

Section 61.122(a) of the Natural Resources Code provides the following:

The commissioners court of a county bordering on -- the Gulf of Mexico or its tidewater limits, by order, may regulate motor vehicle traffic on any beach within the Boundariesof the county and may prohibit the littc%ingof thebeach andmay define the term 'littering.' (Emphasisadded). The constitutionalprav:lsion pursuant to which section 61.122(a) was adoptedpermits the legislature to authorize the governingbody of any county "to regulate and restrict the speed,parking and travel of motor vehicles on beaches available to the public." The statute authorizes the commissioners court to "regulate motor vehicle traffic. . . .u That the commissioners court has authority to regulate parking on beaches is shown by section 61.126 of the code, which provides as follows:

P61.126. Traffic Regulations If the order includesa traffic regulation, the order shall prov:ldefor signs that are designed and posted in compliance with the current provisions of the TexasManual on Traffic Control Devices for Streets and Highways, stating the

p. 1571.b - , - RonorableT. R. Bandy, Jr. . .Page 3 (JM-345)

applicable speed 'limit,parking requirement. or thatvehicles areprohibited. (Emphasisadded). However, theprohibition againstmotor vehicles on public beaches may not have the effect of prec'luding allpublic access to publicbeaches. We next turn to whether ssrction61.122(a) of the Natural Resources Code authorizes a county lo impose an annual parking fee. For two reasons,we conclude that it doesnot. See 161.011. - Commissioners courtsmay exercise only those powers conferredby the constitution and statutes. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948). We have fount.no statute which purports to authorize countiesto impose such a fee. Section 61.070provides that

[slubsection (4), [slection 61.069 of this code shallnot be construed to prohibit the assessment of a reasonable :ieefor off-beach parking or for the use of facil.j.ties provided for the use and convenienceof thepublic. (Emphasisadded). In the event that a city oc county seeks state funds to clean public beaches, subsection (4)of Election 61.069 provides that such application must provide "that c!n.trance to all public beaches under the jurisdiction of the govern:tng body of the city or county is free of charge. . . ." Section 61.069 clearly contemplates that, in this instance, certain specifietLcounties may impose a reasonable parking fee for off-beachparking; no such authority is conferredwith respect to on-beachparking. Secc:ion61.069 is not express authority-to chargea fee; it is simply a statement that if a governmentalbody has authority to charge a fee it is not taken away by this section. We conclude that the legislature's express inclusion of authority to impose a reasonable fee for off-beach parking is tantamount to an express exclusionof such authoritywith respect to on-beachparking. Moreover. unless the imoositionof a fee is snecificallvorovided by law, none may lawfully liecharged. Nueces County v. C&;ington, 162 S.W.2d 687 (Tex. 1942). See also McCalla v. Rockdale, 246 S.W. 654 (Tex. 1922);McLennan Count v. Bo ess, 137 S.W. 346 (Tex.1911). -*his office said thatHarris In Attorney GeneralOpinion H-990 1977 , County, lacking specificauthority therefor, couldnot charge tolls on the operation of the Lynchburg Ferry. In this instance, the imposition by a county of a parking fee for off-beach parking is nowhere specifically provided by statute. Accordingly. we conclude that a countymay not, pursuant ta section 61.122(a)of theNatural Resources Code, impose an annualparking fee for on-beachparking.

p. 1572Honorable T. R. Bandy, Jr. - 'Page 4 (JM-345)

,SUMMARY A county may rot impose, pursuant to Section 61.122(a)of theNatural Resources Code, an annual parking fee for on-beachparking.

JIM MATTOX Attorney General of Texas TOM GREEN FirstAssistantAttorney General DAVID R. RICRARDS ExecutiveAssistantAttorney General ROBERT GRAY SpecialAssistantAttorney General RICK GILPIN Chairman,Opinion Cdttee Preparedby JimMoellinger AssistantAttorney General APPROVED: OPINION COMMITTRE Rick Gilpin, Chairman Colin Carl Susan Garrison Tony Guillory JimHoellinger Nancy Sutton SarahWoelk

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