Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
July 12,2005
The Honorable Ismael “Kino” Flores Opinion No. GA-0338
Chair, Committee on Licensing and
Administrative Procedures Re: Whether Civil Practice and Remedies Code
Texas House of Representatives section 75.002, subsections (f) and (g) apply to
Post Office Box 2910 the state, a county, or a municipality that owns,
Austin, Texas 78768-2910 operates, or maintains its premises for bicycle-
related recreational activities (RQ-0308-GA)
Dear Representative Flores:
You ask whether Civil Practice and Remedies Code section 75.002, subsections (f) and (g)
apply to the state, a county, or a municipality that owns, operates, or maintains its premises for
bicycle-related recreational activities.’
Civil Practice and Remedies Code section 75.002, the Texas Recreational Use Statute, limits
the premises’ liability of an owner, lessee, or occupant of real property for injuries sustained by
others using the property for recreation, provided that the owner, lessee, or occupant does not engage
in grossly negligent conduct or act with malicious intent or bad faith. See TEX. CIV. PFUC. &REM.
CODE ANN. 3 75.002(c)-(d) (Vernon Supp. 2004-05). Section 75.001 defines “recreation” as
activities such as hunting, fishing, swimming, camping, picnicking, hiking, pleasure driving, nature
study, including bird watching, cave exploration, water skiing and other water sports, or any other
activity associated with enjoying nature or the outdoors. See id. 8 75.001(3)(A)-(L).
Related to your question, section 75.002(e) defines additional activities that certain
governmental entities are permitted to allow on the premises they own, operate, or maintain for those
purposes and receive premises liability protection. See id. 4 75.002(e). Specifically, section
75.002(e) reads:
‘See Letter from Honorable Ismael “Kino” Flores, Chair, Committee on Licensing and Administrative
Procedures, Texas House OfRepresentatives, to Honorable Greg Abbott, Texas Attorney General (Jan. 4,2005) (on file
with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
“‘Premises” is defined to include “land, roads, water, watercourse, private ways, and buildings, structures,
machinery, and equipment attached to or located on the land, road, water, watercourse, or private way.” TEX. CIV.PRK.
&REM. CODEANN. 6 75.001(2) (Vernon Supp. 2004-05).
The Honorable Ismael “Kino” Flares - Page 2 (GA-0338)
In this section, “recreation” means, in addition to its meaning
under Section 75.001, the following activities only if the activities
take place on premises owned, operated, or maintained by the state or
municipality or county for the purposes of those activities:
(1) hockey and in-line hockey; and
(2) skating, in-line skating, roller-skating, skateboarding, and
roller-blading.
Id. (emphasis added).3
Section 75.002(f) limits these governmental entities’ premises liability for “damages arising
directly from a recreational activity described in [section 75.002](e),” but does not extend to the
governmental entities if the damage is caused as a result of their gross negligence or acts conducted
in bad faith or with malicious intent. See id. $ 75.002(f) (emphasis added). Section 75.002(g)
prescribes language that must appear on a sign that the governmental entity must post and maintain
in a clearly visible location on or near the premises that the governmental entity owns, maintains,
or operates for the purposes of the “recreational activities described in [section 75.002](e).” See id.
3 75.002(g) (emphasis added). Specifically, the sign must include the following language:
WARNING
TEXAS LAW (CHAPTER 75, CIVIL PRACTICE AND REMEDIES
CODE) LIMITS THE LIAEULITY- OF THE STATE AND A
MUNICIPALITY OR COUNTY FOR DAMAGES ARISING
DIRECTLY FROM HOCKEY, IN-LINE HOCKEY, SKATING, IN-
LINE SKATmG, ROLLEJ-SKATNG, SkYTEBOARDING, OR
ROLLER-BLADING ON PREMISES THAT THE STATE OR THE
MUNICIPALITY OR COUNTY OWNS, OPERATES, OR
MAINTAINS FOR THAT PURPOSE.
Id. (emphasis added).
With respect to your question, the language in subsection (e) seems to add section
75.001(3)‘s definition of “recreation” to its own, and thus you question whether the skating activities
expressly listed in section 75.002(e) represent an exhaustive list. See Request Letter, supra note 1,
at 1; TEX. CIV. PRAC. &REM. CODE ANN. $5 75.001(3) (Vernon Supp. 2004-05), .002(e) (“In this
section ‘recreation’ means, in addition to its meaning under Section 75.001, the following activities
. . . .“) (em ph asis added). More precisely, you ask if bicycle-related recreational activities are
“described” in subsection (e) such that subsections (fj and (g) would be operative provisions in the
instance that the state, a county, or a municipality owns, operates, or maintains its premises for
bicycle-related recreational activities. See Request Letter, supra note 1, at 1.
31nthis opinion, we generically refer to the activities expressly listed in section 75.002(e) as “skating.”
The Honorable Ismael “I&o” Flares - Page 3 (GA-0338)
You ask us to construe section 75.002. In construing a statute we are charged with
determining and giving effect to the legislature’s intent. See City of San Antonio v. City of Boerne,
111 S.W.3d 22, 25 (Tex. 2003). This is accomplished by establishing the “‘plain and common
meaning of the statute’s words.“’ Id. (citation omitted). Generally, if a statute’s meaning is
unambiguous, we interpret the statute according to its plain meaning. See id.
Subsections (f) and (g) on their face apply to only certain governmental entities that own,
operate, or maintain their premises for the purposes of skating as described in subsection (e). See
TEX. CIV. PRAC. & REM. CODE ANN. 0 75.002(e)-(g) (Vernon Supp. 2004-05). While section
75.002(e)‘s “in addition to” language read in isolation might appear to incorporate section 75.001’s
definition of “recreation” into subsections (f) and (g), section 75.002(e) itself unambiguously
describes only skating. See id. 3 75.002(e). Moreover, subsection (g) prescribes warning language
that refers to only skating. See id. $ 75.002(g). Thus, we conclude from the plain language that
subsections (I) and (g) are applicable only to the state, a county, or municipality that owns, operates,
or maintains its premises for skating. These subsections do not apply to the state, a county, or
municipality that owns, operates, or maintains its premises for only bicycle-related activities. You
do not ask and we do not address whether and to what extent bicycle-related activities constitute
“recreation” under section 75.001(3)i4
4Senate Bill 1224, which has been signed by the Governor and will be effective September I,2005 amends
section 75.001(3) expressly to include “bicycling.” See Act of May 10, 2005, 79th Leg., R.S., S.B. 1224, § 1 (to be
codified at TEX. CIV. PRAC.&REM. CODEANN. 9 75.001(3)(N)). The bill also amends section75.002(e)-(g) to continue
a governmental unit’s limited liability already afforded under the recreation statute if the governmental unit owns,
operates, or maintains its premises for bicycling. See id. 5 2 (to be codified at TEX. CIV. PRAC.& REM. CODEANN. Q
75.002(e)-(g)). However, the bill requires a governmental unit to comply with subsection (g) (warning signs) only if it
owns, operates, or maintains its premises for skating activities. See id. Similarly, House Bill 616, also signed by the
Governor and effective September 1,2005, amends the same sections amended by Senate Bill 1224, but also adds “soap
box derby racing” to 75.002(e), (g). See Act of May 27,2005,79th Leg., R.S., H.B. 616, $0 l-2 (to be codified at TEX.
CIV. PRAC.&REM. CODEANN. §Q 75.001-.002).
The Honorable Ismael “Kino” Flores - Page 4 (GA-0338)
SUMMARY
Civil Practice and Remedies Code section 75.002, subsections
(f) and (g) do not apply to the state, a county, or a municipality that
owns, operates, or maintains its premises for only bicycle-related
recreational activities.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General, Opinion Committee