Bill Language

Read the current Bill Language edited per the latest knowledge. Or check out the Texas Legislature's versions as well (opens new window):

• Senate Bill 155 - Bill Analysis
• House Bill 305

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 time.

(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. (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. (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 or things.
3. (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 to:
(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 purposes;
(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 feasible route.

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 vehicle use;
(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 chapter.
(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 unities;
(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 this chapter.
(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.