CHAPTER 90. ACCESS TO PROTECTED FRESHWATER AREAS
PARKS AND WILDLIFE CODE
TITLE 5. WILDLIFE AND PLANT CONSERVATION
SUBTITLE I. PROTECTED FRESHWATER AREAS
CHAPTER 90. ACCESS TO PROTECTED FRESHWATER AREAS
Sec. 90.001. DEFINITIONS. In this chapter:
(1) "Emergency" means a condition or circumstance in which a
person reasonably believes that an individual has sustained
serious bodily injury or is in imminent danger of serious bodily
injury or that property has sustained significant damage or
destruction or is in imminent danger of significant damage or
destruction.
(2) "Motor vehicle" means any wheeled or tracked vehicle,
machine, tractor, trailer, or semitrailer propelled or drawn by
mechanical power and used to transport a person or thing.
(3) "Navigable river or stream" means a river or stream that
retains an average width of 30 or more feet from the mouth or
confluence up.
(4) "Protected freshwater area" means that portion of the bed,
bottom, or bank of any navigable river or stream that lies at or
below the gradient boundary of the river or stream. The term does
not include that portion of a bed, bottom, or bank that lies
below tidewater limits.
Added by Acts 2003, 78th Leg., ch. 800, Sec. 2, eff. Sept. 1,
2003.
Sec. 90.002. OPERATION OF MOTOR VEHICLE IN PROTECTED FRESHWATER
AREA PROHIBITED. Except as provided by Section 90.003 or 90.004,
a person may not operate a motor vehicle in or on a protected
freshwater area on or after January 1, 2004.
Added by Acts 2003, 78th Leg., ch. 800, Sec. 2, eff. Sept. 1,
2003.
Sec. 90.003. EXEMPTIONS. (a) Section 90.002 does not apply to:
(1) a state, county, or municipal road right-of-way;
(2) a private road crossing established on or before December
31, 2003; or
(3) operation of a motor vehicle by:
(A) a federal, state, or local government employee if operation
of a motor vehicle is necessary for conducting official business;
(B) a person if operation of a motor vehicle is necessary for
reasonable purposes related to usual and customary agricultural
activities;
(C) a person if operation of a motor vehicle is necessary to and
is authorized by a mineral lease;
(D) a person if operation of a motor vehicle is necessary to and
authorized by a crossing easement granted by the General Land
Office under the Natural Resources Code;
(E) a person if operation of a motor vehicle is necessary to an
activity authorized by Chapter 86;
(F) a person in response to an emergency;
(G) a person if operation of a motor vehicle is necessary for
the lawful construction, operation, or maintenance of equipment,
facilities, or structures used for:
(i) the production, transportation, transmission, or
distribution of electric power;
(ii) the provision of telecommunications services or other
services delivered through a cable system;
(iii) the transportation of aggregates, oil, natural gas, coal,
or any product of oil, natural gas, or coal;
(iv) the production, treatment, or transportation of water or
wastewater; or
(v) dredge material disposal placement;
(H) an owner of the uplands adjacent to a protected freshwater
area, the owner's agent, lessee, sublessee, or the lessee or
sublessee's agent, representative, licensee, invitee, or guest
for reasonable purposes related to usual and customary operation
of:
(i) a camp regulated under Chapter 141, Health and Safety Code;
or
(ii) a retreat facility owned and operated by a nonprofit
corporation chartered under the laws of this state before January
1, 1970; or
(I) an owner of the adjacent uplands on both sides of a
protected freshwater area and the owner's agents, employees,
representatives, and lessees only for the purpose of accessing
the owner's property on the opposite side of the protected
freshwater area when no reasonable alternate access is available.
(b) This chapter does not apply to any river with headwaters in
a state other than Texas and a mouth or confluence in a state
other than Texas.
(c) A person exempt under this section who operates a motor
vehicle in or on a protected freshwater area shall do so in a
manner that avoids, to the extent reasonably possible, harming or
disturbing vegetation, wildlife, or wildlife habitat within the
protected freshwater area. A person exempt under this section who
is crossing a protected freshwater area shall cross by the most
direct feasible route.
Added by Acts 2003, 78th Leg., ch. 800, Sec. 2, eff. Sept. 1,
2003.
Sec. 90.004. LOCAL RIVER ACCESS PLAN. (a) A county,
municipality, or river authority may adopt a written local plan
to provide access to a protected freshwater area located within
the county's geographical boundaries or the river authority's or
municipality's jurisdiction.
(b) A local plan adopted under Subsection (a) may:
(1) notwithstanding Section 90.002, allow limited motor vehicle
use in a protected freshwater area;
(2) provide for the county, municipality, or river authority to
collect a fee from a person accessing a protected freshwater
area, the amount of which may not exceed the estimated cost that
the county, municipality, or river authority incurs by allowing
the limited use of motorized vehicles in protected freshwater
areas within its jurisdiction; or
(3) establish other measures consistent with the policy and
purposes of this chapter.
(c) Before a local plan adopted under Subsection (a) may take
effect, a county, municipality, or river authority must file the
plan with the department. A local plan does not take effect until
the plan is approved in writing by the department.
(d) The department may approve, disapprove, or modify a local
plan filed under Subsection (c). In determining whether to
approve, disapprove, or modify a local plan, the department shall
consider whether the plan:
(1) protects fish, wildlife, water quality, and other natural
resources;
(2) protects public safety;
(3) provides for adequate enforcement;
(4) coordinates with adjacent and overlapping jurisdictions;
(5) provides for and publicizes adequate public access to a
protected freshwater area;
(6) provides for adequate public services relating to access to
a protected freshwater area; and
(7) protects private property rights.
(e) The department by rule may adopt additional criteria or
procedures to govern approval of local plans. Lack of rules
adopted under this section alone is not a sufficient basis for
rejecting a local plan.
(f) The department may conduct periodic reviews of a local plan
filed under Subsection (c) to monitor the effectiveness of the
plan.
(g) A person who has reason to believe that a local plan filed
under Subsection (c) does not comply with this section may file a
petition for revocation of the plan with the department.
(h) The department shall revoke approval of a local plan if the
department finds, as a result of a periodic review conducted
under Subsection (f) or a petition for revocation filed under
Subsection (g), that the plan as implemented fails to meet any of
the criteria for approval established by Subsection (d).
(i) The department may adopt rules necessary to implement this
section and Section 90.002, including rules relating to locations
from which a person may launch or retrieve a vessel by trailer
from the banks of a protected freshwater area. For purposes of
this subsection, "vessel" has the meaning assigned by Section
12.101.
Added by Acts 2003, 78th Leg., ch. 800, Sec. 2, eff. Sept. 1,
2003.
Sec. 90.005. ASSISTANCE FROM DEPARTMENT. (a) The department
shall assist a requesting county, municipality, or river
authority in developing a local plan.
(b) A county, municipality, or river authority implementing a
local plan shall remit to the department 20 percent of the
county's, municipality's, or river authority's gross receipts
from fees charged under Section 90.004(b)(2) to offset the
department's administrative costs associated with implementing
this chapter.
Added by Acts 2003, 78th Leg., ch. 800, Sec. 2, eff. Sept. 1,
2003.
Sec. 90.006. STUDIES. The department may conduct studies
necessary to implement this chapter.
Added by Acts 2003, 78th Leg., ch. 800, Sec. 2, eff. Sept. 1,
2003.
Sec. 90.007. LANDOWNER RIGHTS. (a) A prescriptive easement
over private property cannot be created by recreational use of a
protected freshwater area, including by portage over or around
barriers, scouting of obstructions, or crossing of private
property to or from a protected freshwater area.
(b) Nothing in this section shall limit the right of a person to
navigate in, on, or around a protected freshwater area.
Added by Acts 2003, 78th Leg., ch. 800, Sec. 2, eff. Sept. 1,
2003.
Sec. 90.008. PUBLIC ACCESS. (a) Except as otherwise allowed by
law, a person may not restrict, obstruct, interfere with, or
limit public recreational use of a protected freshwater area.
(b) This section does not allow the public to use private
property to gain access to a protected freshwater area without
permission of the landowner.
Added by Acts 2003, 78th Leg., ch. 800, Sec. 2, eff. Sept. 1,
2003.
Sec. 90.009. MOTOR VEHICLE RECREATION SITES. (a) The
department shall establish a program to identify and to
facilitate the development of motor vehicle recreation sites that
are not located in or on a protected freshwater area. The
department shall seek the cooperation of political subdivisions,
landowners, nonprofit groups, and other interested persons in
identifying and facilitating the development of motor vehicle
recreation sites under this subsection.
(b) The department shall seek and use funding from the federal
government and other sources outside the general revenue fund to
identify and facilitate the development of motor vehicle
recreation sites under Subsection (a).
Added by Acts 2003, 78th Leg., ch. 800, Sec. 2, eff. Sept. 1,
2003.
Sec. 90.010. ENFORCEMENT. All peace officers of this state
shall enforce the provisions of this chapter.
Added by Acts 2003, 78th Leg., ch. 800, Sec. 2, eff. Sept. 1,
2003.
Sec. 90.011. PENALTY. (a) A person commits an offense if the
person violates Section 90.002 or 90.008.
(b) Except as provided by Subsection (c), an offense under
Subsection (a) is a Class C misdemeanor.
(c) If it is shown on the trial of an offense under this section
that the defendant was previously convicted two or more times
under Section 90.002 or 90.008, on conviction the defendant shall
be punished for a Class B misdemeanor.
(d) Each violation under this section is a separate offense.
(e) Notwithstanding Section 12.403 of this code, Subchapter B,
Chapter 12, Penal Code, applies to punishments under this
section.
Added by Acts 2003, 78th Leg., ch. 800, Sec. 2, eff. Sept. 1,
2003.