HonorableMike Driscoll Harris CountyAttorney 1001Preston, Suite 634 Houston,Texas 77002 OpinionNo. m-624

Re: Regulationof boats on the San Jacinto River, and related matters

DearMr. Driscoll:

Your letterrequestingan opinion from thisoffice asks:

1. Does the Harris County Commissioners Court have the authority to prescribe regulations governing the speed and operation of boats on the San JacintoRiver?

2. If the foregoing question is answered in the affirmative, does the Harris County ComaissionersCourthave the authoritytopost sighsand buoys specifyingmaximum speed limits?

3. If question number 1 is answered in the affirmative, what law enforcement agencies are authorizedto enforce said speed limits?
Chapter 31 of the recently amendedTexas Parks and Wiidlife Code is devoted to water safety. See Acts 1985, 69th Leg., ch. 267, art. 2, at 1251, 1267 et seq. "Bzing regulations" are the subject of subchapterD thereof. Section 31.091declares that -- in the interest of uniformity-- basic authority for the enactmentof suchregulations is reserved to the state, but section 31.092 authorizes local regulation in certain instances,so long as the local regulations are consistentwith theprovisions **of** chapter 31. Cf. City of Stamfordv. - Ballard, 344 S.W.Zd 861 (Tex. 1961).
Chapter 31 specifies that, to the extent they are applicable, United States Coast Guard Inland Rules apply to all public waterways (section31.093).that thenegligentor recklessoperationof boats is prohibited (section 31.094), that unreasonable or imprudentoperation
or speed is prohibited (section31.096),thatboats cannotbe operated by intoxicatedpersons (section31.097). thathazardouswakesmust not be created (section31.098). that circular courses around swimmers or fishermen are prohibited (section 31.099), thatmarkers or ramps may not be interfered with (section 31.100). that the passage of other

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boats may not be obstructed (section 31.101), that boats may not be operated within an area restricted "by the department or a political subdivision of the state" (section 31.102). and that they may not be operated as person-towing vessels at certain hours (section 31.103). The duties of a boat operator involved in an accident are also specified. Id. 5531.104,31.105.

- Violations of these regulations are penalized under the new revision of the Parks and Wildlife Code as either Class E or C "Parks and Wildlife Code Misdemeanors" (section 31.127). with punishment ranging from a $25 fine to a fine of $1,000 and a jail term of 180 days. Parks 6Wild. Code 912.401et seq. Any permitted local regulations are required to be consistentwith these statutoryprovisions. Id. 531.092. - The sectionallowing local regulations'(section31.092)reads:

(a) The governingbody of an incorporatedcity
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, fishing, swimming, or otherwise restricted areas andmaymake rules and regulationsrelating to the operation and equipment of boats which it deems necessary for the public safety. The rules and regulations shall be consistent.with the provisions of this chapter.
(b) The commissioners court of a county. with respect to p -

ublic water within the territorial limitsof the county that is outside of the limits of an incorporated city or town or a political subdivision designated in Subsection (c) of this section and that are not lakes owned by an incorporated city or town, may enter an order on its books designating certain areas as bathing, fishing, swimming, or otherwise restricted areas andmay make rules and regulationsrelating to the operation and equipment of boats which it deems necessary for the public safety. The rules and regulations shall be consistent with the provisions of this chapter.
(c) The governing board of a political subdivision of the state created pursuant to Article X-J19Section 59, of the Texas Constitution, for the purpose of conserving and developing the publicwater of the state, with respect to public water impoundedwithin lakes and reservoirs owned
or operated by the political subdivision, may designateby resolutionor other appropriateorder

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certain areas as bathing, fishing, swimming; or otherwise restricted areas and may make rules and regulations relating to the operation and equipment of boats which it deems necessary for the public safety. The rules and regulations shallbe consistentwith theprovisions of this chapter.
(d) A copy of all rules and regulations adopted under this section shall be summarily filedwith the department.
(e) No city, town, village, special district,
or other political subdivision of the state may impose or collect a fee for the registration or inspection of vessels to be used on public water against the owner or operator of a vessel used on publicwater. This section does not apply to the Local Sales and Use Tax Act, as amended (Article 1066~.Vernon's Texas Civil Statutes),nor to any launch fees, docking fees, entry fees, or other recreational fees which .may be imposed or collected by any political subdivision of the State of Texas for the use of the facilities afforded by any such district to the public. (Emphasisadded).

The authority given the commissioners court of a county by subsection (b) of section 31.092 is made ambiguous by its reference to subsection (c). The phrase, "with respect to public water within the territorial limits of the county that is outside of the limits of... a political subdivisiondesignated in Subsection (c) of this section" could mean either (1) outside the entire territorial limits of the subdivisionor (2)outside the limits of the designated "public water impoundedwithin lakes and reservoirs owned or operated by the subdivision" over which the statute purports to give subdiv1sior.s regulatory control. For reasonsdetailedbelow,we believe the latter meaning is the one intended.

The Parks and Wildlife Code was a recodification only of prior law, without intended substantive change. Acts 1975, 64th Leg., ch. 545, at 1405, 1805. Chapter 31 is derived from the Water SafetyAct, originally enacted in 1959 and codified as article 1722a of the Penal Code (as it then existed). Acts 1959, 56th Leg., ch. 179, at 369, 375. The original act merely prohibited inconsistent local regulations; it did not affirmatively grant regulatory power to local political entities except with respect to "horsepcwer limits." In 1965, however, the Water Safety Act;was amended to read much as subsections (a), (b). and (c) of section 31.092 of the Parks and Wildlife Code read today. Acts 1965,59th Leg., ch. 676,at 1540.

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The policy statementnow found in section 31.002 of the Parks and Wildlife Code was couched by the first section of that 1965 act in somewhatdifferent language. It said:

It is the policy of this State to promote safety forpersons andproperty in and connectedwith the use, operation and equipment of vessels and to promoteuniformity of laws relating thereto.

Acts 1965, 59th Leg., ch. 676, Pl, at 1540. We are led by this statement to believe that the legislature intended no gaps in the desired protection. In other words, we do not believe the "local regulations"provisionsof section 31.092of the code (asderived from the Water Safety Act) should be construed to leave the, public waters of some areas of the state immune from local boating safety regulations.

Inasmuch as subsection (c) of section 31.092 grants regulatory power to an article XVI, section 59 political subdivision only with respect to impoundedpublicwater within lakes or reservoirs owned or operated by it. such a subdivision (a flood control district, for example)has no power under section 31.092 to regulate boats on other public waters thatmay be locatedwithin the territorial confines of the district or other special subdivision. If subsection (b) is read to exclude county regulatorypower within any area encompassedby the territorial limits of such a special district, then public waters within such a district not impounded in,lakes or reservoirs owned or operated by the district(e.g.. creeks, rivers) would not be subject to local safety regulation at all unless they happened to be also located within the limits of a city or town empowered to act under subsection (a). We do not believe thatwas the legislative intent.

In our opinion, the scheme of section131.092 of the Parks and Wildlife Code and its statutory predecessors is to provide for. but not mandate, local regulation of boating safety on all public waters within the state. Incorporated cities and townsare given local authority over public waters within their municipal limits and also
over lakes owned by them elsewhere; article XVI, section 59 water conservationand developmentdistricts are given local authority over

1. The Water Safety Act (article 1722a, V.A.C.P.) was again amended in 1971, but without significant change for the "local regulations"provisions at issuehere. Acts 1971, 62ndLeg., ch. 971, 520, at 2936. Before the Parks andWildlife Codewas enacted in 1975,
a new Penal Code was adopted in 1973, and at that time the Water Safety Act was saved from repeal for transfer without substantive change to the civil statutes (see art. 9206, 520, V.T.C.S.. since repealed). Acts 1973, 63rdLeg.,>. 399, at 883, 995.

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waters impounded in lakes and reservoirs,wherever located, that are owned or operated by the district; and counties are given local authority over all otherpublicwaters located in the counties. The legislature can use municipalities or other political subdivisions to act as administrative agents of the state beyond the territorial confines of the political subdivision. O'Brien v. Amerman, 247 S.W. 270 (Tex. 1922). See Bexar County v. Linden, 220 S.W. 761 (Tex. 1920);City of Galvestonv. Posnainsky, 62 Tex. 118 (1884). That,we believe. is the intent of section 31.092 of the Parks and Wildlife Code. The legislatureauthorized certain local agencies - that are better equipped to ascertain local safety needs -- to fill up the details of the state laws pursuant to the legislative standards' establishedby chapter 31.

In answer to your first question, therefore, it is our opinion that the commissioners court of Harris County has authority under section 31.092 of the Parks andWildlife Code toprescriberegulations consistentwith chapter 31 thereof governing the speed and operation of boats on the San Jacinto River located within the confines of Harris County -- except where the river is found within the~territorial limits of an incorporatedcity or town,orwhere itswaters are confined within a lake owned by such a city or town or impounded within a lake or reservoir owned or operated by a political subdivision created pursuant to article XVI, section 59, of theTexas

2. Inasmuch as the power exercisedunder section 31.092, in our view, is the power of a state administrativeagency rather than that of a political subdivision exercising purely municipal powers, cases involving the latter are not strictly apposite. See Treadgill v. g, 275 S.W.Zd 658 (Tex. Crim. App. 1954); City of Austin v. Jamail, 662 S.W.Zd 779 (Tex.App. - Austin 1983, writ dism'd). cf. City ofWest Lake Hills v. WestwoodLegalDefense Fund, 598 S.W.Zd 681 (Tex.Civ.App. - Waco 1980,nowrit);AttorneyGeneralOpinion JM-226 (1984). Of course. the legislaturecannot empower onemunicipality to deprive another of the powers of local self-government conferred by articleXI. section 5, of the Texas Constitution, see City of Houston
v. City ofMagnoliaPark, 276 S.W. 685 (Tex. 1925);City of El Pasov. State, 209 S.W.Zd 989 (Tex.Civ.App. - El Paso 1947,writ ref'd), and it is elemental that two municipal corporations cannot exercise the
same governmental authority over the same area. City of El Paso v. State, supra; City of Galena Park v. City pf Houston, 133 S.W.Zd 162 (Tex.Civ. App. - Galveston 1939,writ ref d); City of New Braunfels
v. City of SanAntonio, 212 S.W.Zd 817 (Tex.Civ.App. - Austin 1948, writ ref'd n.r.e.). Cf. V.T.C.S. art 1015, subdiv. 30; art. 1108, subdiv. 1; art. 1182c-1. But we are not facedwith those situations here. Cf. City of Pelly v. Harris County Water Control and Improvement District, 198 S.W.Zd 450 (Tex. 1946);State ex rel Grimes County TaxpayersAssociationv. Texas Municipal Power Agency, 565 S.W.Zd 258 (Tex.Civ.App. - Houston [lstDist.] 1978,nowrit).

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Constitution for thepurpose of water development or conservation. We do not believe the establishment by a local authority pursuant to section 31.092 of particular speeds as unsafe, in particuiar water
areas under local control, conflictswith the general prohibition of section 31.096 against the operation of boats at unreasonable or imprudent speeds,or amounts to the exerciseof an improperdelegation of legislative authority. It merely gives detail to the alreadyestablished legislative prohibition. See Texas Liquor Control Board
v. Attic Club, Inc., 457 S.W.Zd 41 (Tex. 1970); Attorney General Opinion O-5160 (1943). cf. City of Stamfordv. Ballard, supra.

In answer to your second question, we believe the commissioners court has authority to post signs and buoys specifying maximumspeed limits so prescribed as an incident of the power to promulgate and enforce such regulations. See Parks and Wild. Code 531.142. Where a right is conferred or an obligation is imposed on a commissioners court, it has a broad discretion to accomplish the purposes intended. Andersonv. Wood, 152 S.W.Zd 1084 (Tex. 1941).

Your final question asks what law enforcement agencies are authorized to enforce boat speed limits so establishedby the Harris County CommissionersCourt. Section 31.121 of the Parks and Wildlife Code answers the question:

(a) All peace officers of this state and its political subdivisions and g== management officersare enforcementofficers for the purposes of this chapter.
(b) The enforcement officers may enforce the provisions of this chapterby arresting and taking into custody any person who commits any act or offenseprohibitedby this chapter or who violates any provisionof this chapter.
(c) Gamemanagement officersmay assist in the search for and rescue ofvictims ofwater-oriented accidents.

This provision lends force to the conclusion that inpromulgating regulations pursuant to section 31.092 the legislature intended that local governmentsact as administrativeagents for the state, because it makes violations thereof enforceable by state peace officers as well as local ones.' That conclusion is further buttressed by the recent 1985Parks andWildlife Code amendment which makes all such

3. Local regulationsmust be filed vith the Parks and Wildlife Department. Parks andWild. Code 531.092(d).

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violations of "a city ordinanceor order of a commissionerscourt or a political subdivisionof the statemade or enteredunder this chapter"
a Class C "ParksandWildlife Codemisdemeanor." Parks andWild. Code 131.127. SeeActs 1985, 69thLeg., ch. 267, P32,at 1257.

-
We are not unmindful that the Harris County Commissioners Court is designatedas the governingbody of theHarris County Flood Control District, a political subdivision created pursuant to article XVI, section 59, of the Texas Construction with territorial boundaries coextensive with the boundaries of Harris County. See former art. 8280-120 [Acts 1937, 45th Leg., ch. 360, at 714, asamended by Acts 1967, 60thLeg., ch. 631, at 1574,and Acts 1975, 64th Leg., ch. 593, at 18771. In our opinion, the matter is without significance except that section 31.092 regulations and rules affecting impoundedwaters in lakes and reservoirs owned or operated by the district must be promulgated by the Harris County Commissioners Court, if at all, in its capacityas the governingbody of thedistrict.

SUMMARY
Section 31.092 of the Parks and Wildlife Code,
as amended, gives a county commissionerscourt the power toprescriberulesand regulationsconsistent with chapter 31 of the code governingthe speedand operation of boats on rivers located within the confinesof the county exceptwhere the rivers are found within the territorial limits of an incorporated city or town, or where river waters are confined within lakes owned by such cities or impounded within lakes or reservoirs owned or operated by a political subdivision created pursuant to article XVI. section 59, of the Texas Constitution for the purpose of water conservation
or development. The county may post signs and buoys specifying such speed limits, and any peace officerof the stateor itspolitical subdivisions,
or any game management officer, is empowered to enforce the regulationssopromulgated.
Very 

# J trulyyours,

L JIM MATTOX AttorneyGeneral of Texas

JACKHIGHTOWER FirstAssistantAttorneyGeneral

MARY KELLER ExecutiveAssistantAttorneyGeneral

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RICK GILPIN Chairmen,OpinionComittee
Preparedby BruceYoungblood AssistantAttorneyGeneral

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