Oc,:ober 29, 1986 

P 

Honorable Curtis R. Wilkin3on 

Lamb County Attorney 

County Courthouse, Room 103 

Littlefield, Texas 79339 

Opinion No. JM-572 

Re: Whether a lake in a municipal park is public water under the 

jurisdiction of the Texas Department of Parks and Wildlife for 

purposes of the Water Safety Act 

Dear Mr. Wilkinson: 

You inquire whether a Blake in a certain municipal park is public 

'water within the meaning of the Water Safety Act and subject to the 

jurisdiction of the Texm Department of Parks and Wildlife for 

purposes of the Water Safety Act. 

A home rule city has leased for recreational puxposes a reservoir 

and adjacent shoreline on private ranch land outside the limits of the 

city. We are advised that the reservoir is approximately 1200 surface 

acres and is fed by.underground springs and rainfall and that citizens 

of the area have used the lake extensively for swimming, skiing, 

fishing, and camping for many years. By ordinance, the city has 

declared the reservoir ani. adjacent shoreline a municipal park for as 

long as the ordinance and long term lease remain in effect. The city 

also adopted the provisions of the Texas Parks and Wildlife Code as an 

ordinance to govern the behavior in and use of the municipal park. 

Statutory and case law determine whether specific bodies of water 

are the property of the slate. Statutory law now codified as section 

11.021(a) of the Water Code provides that 

- 

[t]he water of t!le ordinary flow, underflow, and 

tides of every :il.owing river, natural stream, and 

lake, and of evsery bay or arm of the Gulf of 

Mexico, and the storm water, floodwater, and rainwater of every river, natural stream, canyon, 

ravine, depressi.on, and watershed in the state is 

the property of the state. 

The statute has been interpreted by the courts in light of the 

constitution and the law under which lands were granted. Water from 

springs and surface water Erom rainfall covering private land is not 

p. 2549 
Honorable Curtis R. Wilkinson - Page 2 (m-572) 

always state water within the meaning of section 11.021(a). See 

Turner v. Big Lake Oil Co., 96 S.W.2d 221, 228 (Tex. 1936) (rainwater 

on private land); 

- San Antonio 

527 S.W.2d 754, 759 (Tex. Civ. App. 

1974, n.r.e.) (ownership of water from 

springs). See also Diversion Lake Club v. Heath, 86 S.W.2d 441, 446 

(Tex. 1935) (water diverte(Tfrom navigable stream); Reed v. State, 175 

S.W.2d 473 (Tex. Civ. App. - Eastland 1943, no writ) (surface water in 

non-navigable lake); Taylor ,Fishing Club v. Hasauett, 88 S.W.2d, 127, 

130 (Tex. Civ. App. - Waco 1935, writ dism'd) (water from springs, 

rainfall, and floodwaters in non-navigable inland lake); Attorney 

General Opinions H-805 (1976); H-68 (1973); M-1210 (1972); O-6579 

(1945). 

The question of whether specific water is state water under 

section 11.021(a) of the Rater Code usually involves facts that this 

office cannot determine in the opinion process, such as the source and 

location of the water. However, the real issue before us is whether 

the reservoir is public water for purposes of the Water Safety Act and 

not whether it is the property of the state. In our opinion, the lake 

-on private land that is lt!ased to the city for recreational purposes 

and used as a public munic:.pal park is public water within the meaning 

of the Water Safety Act, and the Parks and Wildlife Department may 

enforce the act. 

The provisions of the Water Safety Act "apply to all public water 

in this state and to all watercraft navigated or moving on the public 

water." Privately owned water is not subject to the provisions of the 

Water Safety Act. Parks 6 Wild. Code §31.004. Section 31.003 of the 

Parks and Wildlife Code provides that 

[l]n this Chapter [the Water Safety Act]: 

. . . I 

(5) 'Water oj! this state' means any public 

water within the territorial limits of this state. 

The Water Safety Act does not define "any public 

territorial limits of this state. The legislature, 

the policy of the act. Se:tion 31.002 provides: 

It is the duty of this state to 

recreational water safety for persons and 

water" within the 

however, did state 

promote 

property 

in and connected with the use of all recreational 

water facilities in the state, to promote safety 

in the operatior-and equipment of facilities, and 

to promote uniformity of laws relating to waZZ 

safety. (Emphases added). 

p. 2550 
Honorable Curtis R. Wilkinmn - Page 3 (JM-572) 

. 

P 

We do not construe the charter powers of the city but assume, 

without deciding, that the city is authorized by its charter to 

acquire property for use as a city park. A city is authorized by 

state statute to acquire and operate property for recreational 

purposes, including land outside the city limits. See V.T.C.S. art. 

6081e (cities may acquire lyr gift, devise, purchasezr condemnation 

land for oublic uarks wit:l:Ln or without limits of the citv): art. 

6081f (cities may acquire land for park purposes and ope&;e and 

maintain parks). See also V.T.C.S. arts. 1015c-1; 1176; City of 

College Station v. Turtle R%k Corp., 680 S.W.2d 802, 807 (Tex. 1984); 

Attorney General Opinions Tt-889, M-804 (1971). A city's power to 

acquire property for municip.al purposes implies the power to lease it. 

- 

See Attorney General Opinion Nos. MW-535 (1982); O-6911 (1945). 

A lease of real property is a sale of the right to use and occupy 

the property for a certain period of time and is a transfer of a right 

of ownership and an interest in the property. See State National Bank 

of El Paso v. United States, 

Citizens Bank and Trust CoTv. 

509 F.2d y32.835 (5th Cir. 1975); 

Wy-Tex Livestock Co., 611 S.W.2d 168, 

‘171 (Tex. Civ. App. - Amariilo 1981, writ ref'd n.r.e.); L. A. Durrett 

h Company v. Iley, 434 S.W.Zd 367, 371 (Tex. Civ. App. - Dallas 1968, 

writ ref'd n.r.e.). In Evans v. Ropte, 96 S.W.2d 973 (T&x. 1936). the 

court, quoting from a dis&sion by Emory Washburn in his book on 

Servitudes and Easements, points out that a right to take,water from a 

spring or well is a grant of own.srship and constitutes an interest in 

real estate. 

The Texas Supreme Court has stated that a municipal park is a 

place where the public gene.rally.may go for various kinds of recreaiion and amusement. L&S v. City if-Fort Worth, 89 S.W.2d 975, 978 -- 

(Tex. 1936). See also ICi!y; v. Sheppard, 157 S.W.2d 682, 685 (Tex. 

Cl". ADO. - Austin 1941. writ ref'd w.o.m.) (oublic oark is ulace 

which public at large may-resort to for recreation). Land acquired by 

a city for use as a public park is acquired for a public use. 

It is our opinion tha,t the fact that the city owns a leasehold 

interest in the lake which is used as a public municipal park ana' "a 

recreational water facility in the state" makes the lake public water 

for purposes of the Water Safety Act. We conclude ,that, during the 

duration of the lease to ~1e city and the city's use of the lake as a 

municipal park, the lake is not privately owned water within the 

meaning of the Water Safety Act. Hence, it is not excluded from the 

provisions of the act. 

SUMMARY 

A lake on private land that is leased to a city 

for recreational purposes and used as a public 

municipal park ill public water within the meaning 

p. 2551 
Honorable Curtis R. Wilkinson - Page 4 (JM-572) 

of the Water Safety Act, and the Parks and 

Wildlife Department may enforce the act. 

Very truly yours, 

. J-b 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

'Prepared by Nancy Sutton 

Assistant Attorney General 

, 

p. 2552