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
Untitled Texas Attorney General Opinion
Combined Opinion