Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

Opinion No. m-624 

Re: Regulation of boats on the 

San Jacinto River, and related 

matters 

Dear Mr. Driscoll: 

Your letter requesting an opinion from this office asks: 

1. Does the Harris County Commissioners Court 

have the authority to prescribe regulations 

governing the speed and operation of boats on the 

San Jacinto River? 

2. If the foregoing question is answered in 

the affirmative, does the Harris County Comaissioners Court have the authority to post sighs and 

buoys specifying maximum speed limits? 

3. If question number 1 is answered in the 

affirmative, what law enforcement agencies are 

authorized to enforce said speed limits? 

Chapter 31 of the recently amended Texas 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 

subchapter D thereof. Section 31.091 declares that -- in the interest 

of uniformity -- basic authority for the enactment of such regulations 

is reserved to the state, but section 31.092 authorizes local 

regulation in certain instances, so long as the local regulations are 

consistent with the provisions of chapter 31. Cf. City of Stamford v. - 

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 

(section 31.093). that the negligent or reckless operation of boats is 

prohibited (section 31.094), that unreasonable or imprudent operation 

or speed is prohibited (section 31.096), that boats cannot be operated 

by intoxicated persons (section 31.097). that hazardous wakes must not 

be created (section 31.098). that circular courses around swimmers or 

fishermen are prohibited (section 31.099), that markers or ramps may 

not be interfered with (section 31.100). that the passage of other 

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Ronorable Mike Driscoll - Page 2 (JM-624) 

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 6 Wild. Code 912.401 et seq. Any permitted local regulations are required to be consistent with these statutory provisions. 

- Id. 531.092. 

The section allowing local regulations'(section 31.092) reads: 

(a) The governing body of an incorporated city 

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 

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 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 

limits of 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 

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 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-J19 Section 59, of the Texas Constitution, for 

the purpose of conserving and developing the 

public water of the state, with respect to public 

water impounded within lakes and reservoirs owned 

or operated by the political subdivision, may 

designate by resolution or other appropriate order 

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Honorable Mike Driscoll - Page 3 (JM-624) 

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 shall be 

consistent with the provisions of this chapter. 

(d) A copy of all rules and regulations 

adopted under this section shall be summarily 

filed with 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 

public water. 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. 

(Emphasis added). 

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 subdivision designated in Subsection (c) of this 

section" could mean either (1) outside the entire territorial limits 

of the subdivision or (2) outside the limits of the designated "public 

water impounded within lakes and reservoirs owned or operated by the 

subdivision" over which the statute purports to give subdiv1sior.s 

regulatory control. For reasons detailed below, 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 Safety Act, 

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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Honorable Mike Driscoll - Page 4 m-624) 

The policy statement now found in section 31.002 of the Parks and 

Wildlife Code was couched by the first section of that 1965 act in 

somewhat different language. It said: 

It is the policy of this State to promote safety 

for persons and property in and connected with the 

use, operation and equipment of vessels and to 

promote uniformity 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" provisions of section 31.092 of the code (as derived 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 impounded public water 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 that may be located within the territorial confines of 

the district or other special subdivision. If subsection (b) is read 

to exclude county regulatory power within any area encompassed by 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 that was 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 towns are given local 

authority over public waters within their municipal limits and also 

over lakes owned by them elsewhere; article XVI, section 59 water 

conservation and development districts 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 issue here. Acts 1971, 62nd Leg., ch. 971, 

520, at 2936. Before the Parks and Wildlife Code was 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, 63rd Leg.,>. 399, at 883, 995. 

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Honorable Mike Driscoll - Page 5 (JM-624) 

waters impounded in lakes and reservoirs, wherever located, that are 

owned or operated by the district; and counties are given local 

authority over all other public waters 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 Galveston v. Posnainsky, 62 Tex. 118 (1884). That, we 

believe. is the intent of section 31.092 of the Parks and Wildlife 

Code. The legislature authorized 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' 

established by 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 and Wildlife Code to prescribe regulations 

consistent with 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 incorporated city or town, or where its waters 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 the Texas 

2. Inasmuch as the power exercised under section 31.092, in our 

view, is the power of a state administrative agency 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 of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.Zd 681 

(Tex. Civ. App. - Waco 1980, no writ); Attorney General Opinion JM-226 

(1984). Of course. the legislature cannot empower one municipality to 

deprive another of the powers of local self-government conferred by 

article XI. section 5, of the Texas Constitution, see City of Houston 

v. City of Magnolia Park, 276 S.W. 685 (Tex. 1925);City of El Paso v. 

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 San Antonio, 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 faced with 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 

Taxpayers Association v. Texas Municipal Power Agency, 565 S.W.Zd 258 

(Tex. Civ. App. - Houston [lst Dist.] 1978, no writ). 

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llonorable Mike Driscoll - Page 6 (JM-624) 

Constitution for the purpose 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, conflicts with the general prohibition of 

section 31.096 against the operation of boats at unreasonable or 

imprudent speeds, or amounts to the exercise of an improper delegation 

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 Stamford v. Ballard, supra. 

In answer to your second question, we believe the commissioners 

court has authority to post signs and buoys specifying maximum speed 

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. 

Anderson v. Wood, 152 S.W.Zd 1084 (Tex. 1941). 

Your final question asks what law enforcement agencies are 

authorized to enforce boat speed limits so established by the Harris 

County Commissioners Court. 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 

officers are enforcement officers for the purposes 

of this chapter. 

(b) The enforcement officers may enforce the 

provisions of this chapter by arresting and taking 

into custody any person who commits any act or 

offense prohibited by this chapter or who violates 

any provision of this chapter. 

(c) Game management officers may assist in the 

search for and rescue of victims of water-oriented 

accidents. 

This provision lends force to the conclusion that in promulgating 

regulations pursuant to section 31.092 the legislature intended that 

local governments act as administrative agents 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 1985 Parks and Wildlife Code amendment which makes all such 

3. Local regulations must be filed vith the Parks and Wildlife 

Department. Parks and Wild. Code 531.092(d). 

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L. 
Honorable Mike Driscoll - Page 7 (~~-624) 

violations of "a city ordinance or order of a commissioners court or a 

political subdivision of the state made or entered under this chapter" 

a Class C "Parks and Wildlife Code misdemeanor." Parks and Wild. Code 

131.127. See Acts 1985, 69th Leg., ch. 267, P32, at 1257. - 

We are not unmindful that the Harris County Commissioners Court 

is designated as the governing body of the Harris 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, as amended by Acts 

1967, 60th Leg., 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 impounded waters 

in lakes and reservoirs owned or operated by the district must be 

promulgated by the Harris County Commissioners Court, if at all, in 

its capacity as the governing body of the district. 

SUMMARY 

Section 31.092 of the Parks and Wildlife Code, 

as amended, gives a county commissioners court the 

power to prescribe rules and regulations consistent 

with chapter 31 of the code governing the speed and 

operation of boats on rivers located within the 

confines of the county except where 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 

officer of the state or its political subdivisions, 

or any game management officer, is empowered to 

enforce the regulations so promulgated. 

Very J truly yours, 

L 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

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Honorable Mike Driscoll - Page 8 (JM-624) 

RICK GILPIN 

Chairmen, Opinion Comittee 

Prepared by Bruce Youngblood 

Assistant Attorney General 

p. 2820