DAN MORALES 

ATTORSEY GENERAL 

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September 24.1992 

Honorable Eddie Cavazos 

Chairman 

Committee on Insurance 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78768-2910 

Opinion No. DM-169 

Re: Applicability of Water Safety Act to 

waterways in private subdivisions and 

related questions (RQ-402) 

Dear Representative Cavazos: 

You ask several questions about the authority to control boating and fishing 

in certain coastal waterways created in connection with the construction of private 

subdivisions. You advise that the waterways were “designed for the exclusive use of 

[such subdivisions’] residents” and that the subdivision plats state that the waterways 

“are specifically not dedicated to the use of the public.” You also say that “[n]o 

portion of the waterways constitute a part of any previously existing public river, 

lagoon, bayou, lake, creek, bay, or inlet” but add that “[t]he waterways have as their 

only source of water the public water of the State of Texas of the Gulf of Mexico 

through interconnections with the Laguna Madre.” 

We first address your question whether the Water Safety Act, chapter 31 of 

the Parks and Wildlife Code, applies to such waterways. The Water Safety Act (the 

“act”) generally relates to boating. See Parks & Wild. Code subchs. A (definitions 

and general provisions), B (identification of boats by numbering), B-l (certificates 

of title), C (required equipment), D (boat traffic regulations), E ‘enforcement and 

penalties). Section 31.004 of the act reads: 

The provisions of this chapter apply to all pubZic wuter of 

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

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

this chapter. [Emphases added.] 

Your question thus is whether the waterways you describe are “public waters” within 

the meaning of section 31.004. 

p. 888 
Honorable Eddie Cavaxos - Page 2 (DM-169) 

Attorney General Opinion M-1210 (1972) dealt with a situation similar to 

the one you present, that is, the applicability of state water safety and fishing laws to 

canals dredged from bays along the Gulf coast into private property and affected by 

the ebb and flow of the tides. That opinion concluded that since the waterways in 

question there were connected with the tidal waters of the Gulf of Mexico, they 

were public waters such as to be subject to the state’s fishing and boating laws. See 

also Parks & Wild. Code 0 1.011(c); Butler v. &ad&r, 399 S.W.2d 411 (Tex. Civ. 

App.-Corpus Christi 1966, writ ref d n.r.e.) (waters of bays, inlets and arms of Gulf 

of Mexico are public property). It appears that the waterways you are concerned 

about are, similarly, connected to, and subject to the ebb and flow of the tides of the 

Gulf of Mexico. Under such circumstances, we believe that Attorney General 

Opinion M-1210 is dispositive of your question. The waterways you ask about are 

public waters within the meaning of section 31.004 of the Water Safety Act, and are 

therefore subject to the provisions of that act. 

You also ask, whether, if the waterways in question are subject to the Water 

Safety Act, the “City of Corpus Christi [has] the authority to enact a no-wake 

ordinance or speed limit on the waterways.” Parks and Wildlife Code section 

31.092, a provision of the Water Safety Act, provides in subsection (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, i%hing, swimming, or otherwise restricted areas and 

may make rules and rqzhtions nshating to the operation and 

equipment of boats which it deems neces~(uy for the public sajkty. 

The rules and regulations shall be consistent with the provisions 

of this chapter. [Emphases added.] 

In our opinion, section 31.092 provides authority for the City of Corpus Christi to 

enact no-wake and speed limit regulations for the waterways in question, so long as 

such waterways are within the city’s corporate limits and the regulations are 

consistent with other provisions of the Water Safety Act. See &o id. 8 31.095(b) 

(Water Commission may provide for standardization of speed limits for moving 

vessels, and no political subdivision may impose speed limits not in conformity 

therewith). 

Your remaining question is whether private property owners or the property 

owners’ associations of the subdivisions in question “have the right to control 

boating and fishing in the waterways within their subdivision?” Again, Attorney 

p. 889 
Honorable Eddie Cavazos - Page 3 @4-169) 

General Opinion M-1210 concluded that waterways such as you describe were 

public waterways and that the power of the state to regulate fishing and boating in 

such waterways was absolute. We think it follows that private property owners or 

homeowners’ associations have no right themselves to regulate public boating or 

fishing on such waters. Of course, the public’s right to boat or Bsh on such public 

waters would not include the right to trespass on the adjoining owners’ private lands; 

the private owners could prohibit or otherwise regulate access to such lands. See 

Taylor Firhttg Club v. Hammett, 88 S.W.2d 127 (Tex. Civ. App.-Waco 1935, writ 

dism’d w.0.j.). 

SUMMARY 

Waterways created in connection with the construction of 

private subdivisions which have as their only source of water the 

public waters of the Gulf of Mexico and which are subject to the 

ebb and flow of the tides thereof are public waters subject to 

state laws providing for the regulation of fishing and boating. 

DAN MORALES 

Attorney General of Texas 

WJLL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

RENEAHIcKs 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

p. 890