Untitled Texas Attorney General Opinion

October 11, 1989 Honorable David Cain Opinion No. JM-1109 Chairman Transportation Committee Re: Authority of a munici- Texas House of Representatives pality to prohibit the oper- P. 0. Box 2910 ation of bicycles on a state Austin, Texas 78769 roadway (RQ-1741) Dear Representative Cain: You ask whether a municipality has the authority to prohibit bicycles1 from operating on a state roadway. Section 179(a) of article 6701d, V.T.C.S., provides for the operation of bicycles in this state, as follows: Every person riding a bicycle shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this Act, except as to special regulations in this Article and except as to those provisions of this Act which by their nature can have no applica- tion. Other provisions of article 6701d, the Uniform Act Regulating Traffic on Highways, require that a person operating a bicycle must ride on a regular attached seat, id. 5 180(a), that no bicycle shall carry more persons at a time than the number for which it is designed and equipped, id. 5 180(b), and that a bicycle should be operated on a 1. Section 2(f) of article 6701d, V.T.C.S., defines bicycle: 'Bicycle' means every device propelled by human power upon which any person may ride, having two tandem wheels either of which is more than fourteen (14) inches in diameter. P. 5809 Honorable David -Cain - Page 2 (JM-1109) roadway as near as is practicable to the.appropriate curb, except under certain conditions. Id. § 182. Additional provisions relate to carrying packages, & 9 183, to the equipment required for nighttime operation, & § 184(a), and to the specifications for brakes. Id. 5 184(b). Section 26 of article 6701d addresses the applicability of the act to municipalities. Section 26 provides: The provisions of this Act shall be applicable and uniform throughout this state and in all political subdivisions and muni- cipalities therein and local no sa h 11 e n ac t or e nforce anv ord ante. r ule _ or reoulation in conflict with :Fe or ovisions of this Act unless exvresslv authorized here- . ocal authorities mav. however. adoDt add' ' na ltlo tra not *. (Emphasis added.) Section 27(a) of article 6701d details certain express powers local authorities are given to adopt traffic regulations. Section 27(a) provides: (a) The provisions of this Act shall not be deemed to prevent local authorities with resnect to streets and hiahwavs under their jurisdiction and within the reasonable exercise of the oolice Dower from -- 1. peaulatinq the stopping, standing or parking of vehicles: 2. p-q traffic by means of police officers or traffic-control devices; 3. P-q processions or assemblages on the highways; 4. Designating particular highways as one-way highways and requiring that all vehicles thereon be moved in one specific direction; 5. P-q the speed of vehicles in public parks; p. 5810 Honorable David Cain - Page 3 (JM-1109) 6. Designating any highway as a through highway and requiring that all vehicles stop or yield before entering or crossing the same, or designating any intersection as a stop intersection or a yield intersection and requiring all vehicles to stop or yield at one or more entrances to such intersection: 7. peculatina the oDeration of bicvcles and requiring the registration and licensing of same, including the requirement of a reg- istration fee. (Emphasis added.) Local authorities are additionally empowered to prohibit bicycles from any limited-access or controlled-access highway within their respective jurisdictions. Id. § 64. Street or highway is defined in section 13(a) of article 6701d as "[t]he entire width between the boundary lines of everv wav Dubliclv maintained when anv Dart thereof is open to the use of the DUbliC for DUrDOSeS of vehicular travel." (Emphasis added.) Roadway is defined as: That portion of a hiahwav imDrOVed. desianed or ordinarilv used for vehicular travel. exclusive of the berm or shoulder. In the event a highway includes two or more separate roadways the term 'roadway' as used herein shall refer to any such roadway separately but not to all such roadways collectively. (Emphasis added.) Id. s 13(c). The shoulder of a highway is "not intended for normal vehicular travel." Id. § 13(l) (4). Limited-access or controlled-access highway means: Every highway, street or roadway in respect to which owners or occupants of abutting lands and other persons have no legal right of access to or from the same except at such points only and in such manner as may be determined by the public authority having jurisdiction over such highway, street,, or roadway. Id. 5 13 (9). Your question is directed to prohibiting bicycles from operating on a state roadway. Section 64 of article 6701d P. 5811 Honorable David Cain - Page 4 (JM-1109) certainly gives municipalities authority to prohibit bicycles from limited-access or controlled-access roadways. The more difficult question is whether municipalities' authority to regulate the operation of bicycles on streets and highways within their jurisdiction, pursuant to section 27 of article 6701d, includes the right to prohibit the operation of bicycles on roadways other than limited-access or controlled-access highways. The matter of whether the authority to regulate in- cludes the power to prohibit is considered at 76 C.J.S. Reaulate, pages 612 and 613, where it is stated: The power to regulate includes the power to restrain, and indicates restriction in some respects, and the term 'regulate' embraces the idea of fixing limitations and restrictions, and contemplates the power of restriction or restraint. T h+ rlv denotes some dearee of restraint of acts al usu 1 d be reaulated. and neaatives the idea that all acts which ordinarilv would be Derformed in 1 on ctio 1.'th ta It has been said that to reoulate means Duttina into effVe t sue eces 7 tee es ha n ans and imDlies both aovernment and restriction; It has often been said that the power to regulate does not necessarily include the power to prohibit, and ordinarily g 'Drohibit.' This is true in a general sense, and in the sense that mere regulation is not the same as absolute prohibition. On the other powe 2 0 c ec wer to prohibit under certain circumstances, as here w t ious reaulation consists and it has been said that it does include the power to prohibit, except on the observance of authorized regu- lation. The word *regulate' denotes some degree of prohibition of acts usually done in connection with ~the thing to be -regulated, and negatives the idea that all acts which ordinarily would be performed in connection P. 5812 Honorable David Cain - Page 5 (JM-1109) therewith may be so performed without any prohibition whatever. (Footnotes omitted.) (Emphasis added.) We believe that a municipality's authority to regulate the operation of bicycles on streets and highways within its jurisdiction, pursuant to section 27(a)(7) of article 6701d, does not necessarily include absolute authority to ban bicycles from a state roadway. We think the legislature intended to distinguish the terms "regulation" and "prohibi- tion" for purposes of article 6701d, V.T.C.S., since section 27(a)(7) authorizes local authorities to tBregulate'* the operation of bicycles and section 27(a)(3) authorizes local authorities to "regulate or prohibit" processions or assemblages. See Vailev Int'l Prboerties V.-LOS Camoeones. Inc., 568 S.W.2d 680 (Tex. Civ. App. - Corpus Christi 1978, writ ref'd n.r.e.1 (everv word or DhraSe in a statute is presumed to have been used intentionhlly, with a meaning and purpose). The legislature gave local authorities express power to prohibit bicycles from certain roadways pursuant to section 64: it is therefore unreasonable to conclude that, absent equally express authority, the legislature also intended local authorities to have equivalent authority to prohibit the operation of bicycles under section 27(a). &g Chastain v. Koonce 700 S.W.2d 579, 583 (Tex. 1985) ("a word used in different parts of a statute will generally be given the same meaning throughout"): There may be situations, of course, where the "only efficacious regulation consists of suppression," see 76 C.J.S. Reaulate, at 613, in which case prohibition might be construed as a "reasonable exercise of the police power" granted to local authorities by section 27(a) of article 6701d. See aenerallv Garonzik v. State, 100 S.W. 374 (Tex. Crim. App. 1906) (designation of areas within city where liquor may not be sold is regulation, not prohibition). The determination of which particular situations meet this reasonableness criterion is a factual matter that cannot be resolved in the opinion process. The determination of what constitutes the exercise of the reasonable police power of a municipality in regulating the operation of bicycles on streets and highways pursuant to section 27(a) must be made on a case-by-case basis. SUMMARY A municipality has the authority to prohibit the operation of bicycles on a limited-access or controlled-access highway, P. 5813 Honorable David Cain - Page 6 (JM-1109) road, or street within its jurisdiction. A municipality may prohibit the operation of bicycles on roadways other than limited- access or controlled-access highways if it is the only efficacious regulation to protect the public from harm, and thus a reasonable exercise of a municipality*s police power. The determination of what constitutes the exercise of the reasonable police power of a municipality in regulating the operation of bicycles on state roadways must be made on a case-by-case basis. TIM MATTOX - Attorney General of Texas MARYKELLER First Assistant Attorney General LOU MCCKEAKY Executive Assistant Attorney General JUDGE ZOLLIE STEAKLKY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Karen C. Gladney Assistant Attorney General p. 5814