Read the current Bill Language edited
per the latest knowledge. Or check out the Texas Legislature's
versions as well (opens new window):
Proposed Revisions not on State Bill Tracker
The bill presented to the house and senate committee(s) is generally
not the same bill originally introduced. Sponsors can request
changesand the new bill presented for consideration is known
as the committee substitute.
What is presented below is not necessarily the committee substitute
- there may be more changes or revisions before we see that -
but it is pretty likely that what you see below will be what
will be considered.
One of the changes is about prescriptive easement and the right
to portage. The language that says the public can't gain a prescriptive
easement through portaging or scouting. While paddlers have always
claimed a right to portage, even over private property if necessary,
we never felt that right to portage should allow us to claim
private property. Nonetheless, we weren't willing to give up
the possibility that somewhere there may be an access point that
has been gained prescriptively (the Hidalgo Falls road, for instance).
Then, there were some changes in the section on Public Access:
Sec. 90.008. PUBLIC ACCESS.
(a) The public has the right to portage and scout obstructions,
including incidental use of adjacent private property when
necessary for use of navigable waters.
Part (a) codifies our right to portage for the first
(b) Except as otherwise allowed by law or by a local plan
adopted under this chapter, no person may restrict, obstruct,
interfere with, or limit public recreational use of a protected
freshwater area. Except as provided in subsection (a) of this
section this section does not allow the public to use private
property to gain access to a protected freshwater area without
permission of the landowner.
Part (b) makes it an offense (to the same degree as the offense
of driving in the river) to block the public's access at public
property. We will now be able to file charges against folks who
block public access at public rights of way.
The most significant change to the bill is the section on Local
River Access Plans (Section 90.005). This language was added
to satisfy localities wanting to permit other controlled uses
in the local river as they see fit. Under this provision, a county
government, or a river authority can implement a plan allowing
limited vehicular access to an area on a river provided it passes
a TP&WD review according to a set of general criteria.
This is to deal with two major issues. First, there are some
areas, like on the Canadian River, where locals have virtually
no opposition to driving in rivers, and an annual event is held
drawing 40,000 or more. This should also allow local authorities
to permit residents the right to drive their elderly parents
down to the waters edge.
The question remains what changes are heading our way?
Current Bill Language
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 5, Parks and Wildlife Code, is amended by adding Subtitle
I to read as follows:
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 persons
- (3) "Protected freshwater area" means that -portion-e?
the bottom, bed, or bank of any navigable river or stream within
the gradient boundaries. The term does not include that portion
of a bed, bottom, or bank that lies below tidewater limits
or is privately owned.
Sec. 90.002. STATEMENT OF POLICY. The Legislature recognizes
that navigable rivers and their beds are precious and irreplaceable
state resources that deserve protection. Public access to these
areas is a right and an important economic and recreational interest
of Texans and must also be protected, however, not at the cost
of infringement on private property rights or uncontrolled damage
to these resources.
Sec. 90.003. OPERATION OF MOTOR VEHICLE IN PROTECTED FRESHWATER
AREA PROHIBITED. Effective January 1, 2004, no person may operate
a motor vehicle in or on a protected freshwater area.
Sec. 90.004. EXEMPTIONS. (a) Section 90.003 does not apply
(1) a state, county, or municipal road right-of-way;
(2) a private road crossing established before January 1, 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) an owner of the adjacent uplands and the owner's agents, employees, representatives,
and lessees for reasonable purposes related to usual and customary agricultural
(C) a person if operation of a motor vehicle is necessary to and is authorized
by a mineral lease or crossing easement granted by the General Land Office
under the Natural Resources Code;
(D) a person if operation of a motor vehicle is necessary to an activity authorized
by Chapter 86; or
(E) a person in response to an emergency.
(b) 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
Sec. 90.005. LOCAL RIVER ACCESS PLANS. (a) A county or river
authority may adopt a local plan that applies to protected freshwater
areas within its jurisdiction.
(b) A local_ plan adopted under this section may
(1) Notwithstanding the prohibition in section 90.003, allow for limited motor
(2) Provide for collection of a fee based on the limited use of motorized vehicles
in protected freshwater areas within its jurisdiction or access and services
provided under the local plan; and
(3) Establish other measures consistent with the policy and purposes of this
(c) A local plan adopted under this section is not effective until approved
in writing by the department.
(d) TP&WD shall consider the following criteria in determining whether
to approve, disapprove or modify a local plan:
(1) Whether the plan provides for and publicizes adequate public access opportunities
(2) Whether the plan protects private property rights;
(3) Whether the plan protects fish, wildlife, water quality, and other resources;
(4) Whether the plan protects public safety;
(5) Whether the plan provides for adequate enforcement;
(6) Whether the plan provides for adequate public services; and
(7) Whether the plan coordinates with adjacent and overlapping jurisdictions.
(e) TP&WD may adopt by rule additional criteria or procedures to govern
approval of local plans. Lack of rules adopted under this authority is not
a basis for rejecting a local plan.
Sec. 90.006. ASSISTANCE FROM TP&WD. () The Department shall
assist counties and river authorities in developing local plans.
(b) TP&WD may conduct studies as necessary to implementing its duties under
(c) TP&WD shall prioritize the use of grant funds under chapter 24 of the
Parks and Wildlife Code to achieve the objectives of this chapter.
(d) A jurisdiction operating under a local plan shall remit to TP&WD 20%
of its gross receipts, if any, from the fees charged under section 90.006(b)
to cover TPW's administrative costs associated with implementing this chapter.
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
or by scouting of obstructions,
(b) Nothing in this section shall limit the right of a person to navigate in,
on, or around a protected freshwater area.
Sec. 90.008. PUBLIC ACCESS.
(a) The public has the right to portage and scout obstructions, including incidental
use of adjacent private property, when
necessary for use of navigable waters.
(b) Except as otherwise allowed by law or by a local plan adopted under this
chapter, no person may restrict, obstruct, interfere with, or limit public
recreational use of a protected freshwater area. Except as provided in subsection
(a) of this section this section does not allow the public to use private property
to gain access to a protected freshwater area without permission of the landowner.
Sec. 90.009. ENFORCEMENT. All peace officers of this state shall
enforce the provisions of this Act.
Sec. 90.010. PENALTY. (a) A person commits an offense if the
person violates Section 90.003 or 90.008(b).
(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 90.003 or 90.008(b),
or Sections 90.002 and 90.065, on conviction the defendant shall be punished
for a Class B misdemeanor.
(d) Each day of a violation under this section is a separate offense.
SECTION 2. This Act takes effect September 1, 2003.