Case Information
*1 The Attorney General of Texas mgust 23, 1985 JIM MATTOX
Attorney General
Supreme Court Building P. 0. Box 12548 [51214752501] Aus:in. TX. 78711-2548 Telex 9101874.1367 Telecopier 51214750266 Nueces County Attomey Eonorable T. R. Bmdy, Corpus Christi, Texas Courthouse, Room 206 Jr. 78401 Re: Whether a county may impose Opinion No. JM-345 motor vehicles on Gulf Coast beaches au annual fee for parking of 714 Jackson. Suite 700 Dear Mr. Bandy: Dallas. TX. 75202-4506 2141742.8944
You have provided us with the following information: The Nueces County commissioners court is con- 4624 Alberta Ave.. Suite 160 sidering .sdopting a motor vehicle traffic regula- El Paso. TX. 79905.2793 9151533.3464 tion to be effective upon gulf coast beaches located outside of corporate city limits. Such order wculd be adopted in the manner prescribed ,001 Texas. suite 700 and pursuant to this county's authority to do so Houston, TX. 77002-3111 under 1:he Natural Resources Code. section 7131223-5866 61.122(a), V.T.C.S. See Attorney General Opinion H-1310 (1!)78). a06 Broadway, Suite 312 Lubbock. TX. 794013479 The p,coposed regulation would require any motor 606f747-523a vehicle parked on the beaches of Mustang and 43G9 N. Tenth. Suite S McAllen, TX. 76501.1685 [51216624547] but wit1Li.n the boundaries of Nueces County, to Padre Islands outside of corporate city limits, display s validly issued county parking permit. Permits would be readily available for a $5.00
annual frcs. Funds derived by the county from the 200 Main Plaza, Suite 400 fees collected would be utilized for beach San Antonio. TX. 78205-2797 cleaning, public restrooms and law enforcement 512/2254191 purposes on the beaches. You ask whether "LL commissioners court has the power either directly
A” Equal Opportunityl Affirmative Action Employer 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 determine whether a county *2 Eonorable T. R. Bandy, Jr. - 'Page 2 (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 in pertinent part:
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.s amendment shall increase the rights of any rip;lrian or littoral landowner with 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 Boundaries of the county and may prohibit the littc%ing of the beach and may define the term 'littering.' (Emphasis added).
The constitutional prav:lsion pursuant to which section 61.122(a) was adopted permits the legislature to authorize the governing body 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 includes a traffic regulation, the order shall prov:lde for signs that are designed and posted in compliance with the current provisions of the Texas Manual on Traffic Control Devices for Streets and Highways, stating the *3 .b - , -
Ronorable T. R. Bandy, Jr. . . Page 3 (JM-345)
applicable speed 'limit, parking requirement. or that vehicles are prohibited. (Emphasis added).
However, the prohibition against motor vehicles on public beaches may not have the effect of prec'luding all public access to public beaches. We next turn to whether ssrction 61.122(a) of the Natural Resources Code authorizes a county lo impose an annual parking fee. For two reasons, we conclude that it does not. See 161.011.
Commissioners courts may exercise only those powers conferred by the constitution and statutes. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948). We have fount. no statute which purports to authorize counties to impose such a fee. Section 61.070 provides that
[slubsection (4), [slection 61.069 of this code shall not be construed to prohibit the assessment of a reasonable :iee for off-beach parking or for the use of facil.j.ties provided for the use and convenience of the public. (Emphasis added).
In the event that a city oc county seeks state funds to clean public beaches, subsection (4) of Election 61.069 provides that such applica- tion 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 specifietL counties may impose a reasonable parking fee for off-beach parking; no such authority is conferred with respect to on-beach parking. Secc:ion 61.069 is not express authority-to charge a fee; it is simply a statement that if a governmental body 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 exclusion of such authority with respect to on-beach parking.
Moreover. unless the imoosition of a fee is snecificallv orovided by law, none may lawfully lie charged. 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). In Attorney General Opinion H-990 1977 , -*his office said that Harris County, lacking specific authority therefor, could not charge tolls on the operation of the Lynchburg Ferry. In this instance, the imposi- tion by a county of a parking fee for off-beach parking is nowhere specifically provided by statute. Accordingly. we conclude that a county may not, pursuant ta section 61.122(a) of the Natural Resources Code, impose an annual parking fee for on-beach parking.
Honorable T. R. Bandy, Jr. - 'Page 4 (JM-345)
,SUMMARY A county may rot impose, pursuant to Section 61.122(a) of the Natural Resources Code, an annual parking fee for on-beach parking.
JIM MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICRARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Cdttee
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OPINION COMMITTRE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Hoellinger
Nancy Sutton
Sarah Woelk