Do the Texas Recreational Use Statute's liability limits for cities and counties apply to bike facilities, or only skating areas?

TX AG Opinion GA-0338: Did the Recreational Use Statute's liability limits for governments in section 75.002(f) and (g) cover bicycling premises?

Plain-English summary

The Texas Recreational Use Statute (Civil Practice and Remedies Code chapter 75) cuts down how easily a landowner can be sued when someone is hurt using the land for recreation, as long as the owner did not act with gross negligence, bad faith, or malice. A separate part of the statute, subsection 75.002(e), adds a special set of activities for governmental entities (the state, counties, cities): hockey, in-line hockey, and several forms of skating (in-line skating, roller-skating, skateboarding, roller-blading). For premises a government owns or operates for those listed activities, subsection (f) limits its liability and subsection (g) requires it to post a specific warning sign.

A state representative asked a narrow question: do subsections (f) and (g) also apply when the government owns or maintains premises for bicycle-related activities? The phrasing of subsection (e) ("in this section 'recreation' means, in addition to its meaning under Section 75.001, the following activities") raised the question of whether the broader recreation list in section 75.001 (which would arguably reach bicycling) got pulled into (f) and (g).

The Attorney General concluded it did not. Reading the statute by its plain language, the opinion found subsection (e) lists only the skating-type activities, and the warning-sign language in subsection (g) refers to only those activities. So subsections (f) and (g) applied only to a government that owns or operates premises for skating, not to one that operates premises for bicycling alone. The opinion was careful to say it was not deciding whether bicycling counts as "recreation" under section 75.001(3) generally. It also pointed out that the Legislature had just passed two bills, effective September 1, 2005, that amended the statute to add bicycling (and, in one bill, soap box derby racing).

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2005)

State, county, and municipal entities operating recreation premises: The opinion concluded the liability limit in subsection (f) and the warning-sign duty in subsection (g) applied to a governmental entity that owned, operated, or maintained premises for the activities listed in subsection (e) (hockey and the named forms of skating), and did not apply to one that did so only for bicycle-related activities.

Cyclists and the public: The opinion read subsection (g)'s mandated warning sign as referring only to hockey and skating, so the statutory sign and the (f) liability limit it accompanied were not, at that time, geared to bicycle facilities.

The opinion stopped at the question it was asked. It expressly did not address whether, or to what extent, bicycle-related activities counted as "recreation" under the general definition in section 75.001(3). And it flagged that the statute was about to change: Senate Bill 1224 and House Bill 616, both signed and effective September 1, 2005, amended section 75.001(3) to add bicycling and adjusted section 75.002(e)-(g) accordingly (with House Bill 616 also adding soap box derby racing).

Common questions

What does the Texas Recreational Use Statute do?
The opinion described it as limiting the premises liability of an owner, lessee, or occupant of real property for injuries to others using the property for recreation, as long as the owner did not engage in gross negligence or act with malicious intent or bad faith.

Which activities did subsection (e) list for governments?
The opinion quoted subsection (e) as covering, for premises owned, operated, or maintained by the state, a municipality, or a county for those purposes: hockey and in-line hockey; and skating, in-line skating, roller-skating, skateboarding, and roller-blading.

Did subsections (f) and (g) cover bicycle premises?
No. The opinion concluded that subsections (f) and (g) applied only to a government operating premises for the skating activities described in subsection (e), and not to one operating premises only for bicycle-related activities.

Why didn't the "in addition to Section 75.001" wording pull in bicycling?
The opinion concluded that, while that phrase read in isolation might appear to incorporate the broader section 75.001 definition, subsection (e) itself unambiguously described only skating, and subsection (g)'s warning language referred to only skating, so the plain language controlled.

Did the law change after this opinion?
Yes. The opinion noted that Senate Bill 1224 and House Bill 616, effective September 1, 2005, amended the recreation statute to add bicycling (and, under House Bill 616, soap box derby racing).

Background and statutory framework

The opinion turned on plain-language statutory construction. Texas courts read a statute to give effect to the Legislature's intent, found through the plain and common meaning of its words, and an unambiguous statute is applied as written (City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)). Section 75.001 defines "recreation" broadly (hunting, fishing, swimming, camping, hiking, pleasure driving, nature study, and similar outdoor activities) and defines "premises" to include land, roads, water, and attached structures and equipment (Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001(2), 75.001(3)(A)-(L)). Section 75.002(c)-(d) supplies the general liability limit for owners, lessees, and occupants.

Subsection 75.002(e) carves out an additional, government-specific category, listing hockey and the various skating activities, and subsections (f) and (g) attach the liability limit and the warning-sign duty to premises operated for "a recreational activity described in section 75.002." Because both the activity list in (e) and the warning text in (g) named only the skating-type activities, the opinion read (f) and (g) as limited to those, not to bicycling. The opinion also noted the contemporaneous legislation (Senate Bill 1224 and House Bill 616, effective September 1, 2005) that amended sections 75.001 and 75.002 to bring bicycling within the statute going forward.

Citations

Statutes and session laws:

• Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001(2), 75.001(3)(A)-(L), 75.002(c)-(d), 75.002(e)-(g) (Vernon Supp. 2004-05)
• Act of May 10, 2005, 79th Leg., R.S., S.B. 1224, §§ 1, 2 (to be codified at Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001(3)(N), 75.002(e)-(g))
• Act of May 27, 2005, 79th Leg., R.S., H.B. 616, §§ 1-2 (to be codified at Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-.002)

Cases:

• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0338
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0338.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

July 12, 2005

The Honorable Ismael "Kino" Flores
Chair, Committee on Licensing and Administrative Procedures
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0338

Re: 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 (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.[1]

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. PRAC. & REM. CODE ANN. § 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. § 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. § 75.002(e). Specifically, section 75.002(e) reads:

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," 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." See id. § 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 LIABILITY OF THE STATE AND A MUNICIPALITY OR COUNTY FOR DAMAGES ARISING DIRECTLY FROM HOCKEY, IN-LINE HOCKEY, SKATING, IN-LINE SKATING, ROLLER-SKATING, SKATEBOARDING, 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. §§ 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 . . . .") (emphasis added). More precisely, you ask if bicycle-related recreational activities are "described" in subsection (e) such that subsections (f) 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.

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. § 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. § 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 (f) 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).[4]

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.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

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

Footnotes

[1] See Letter from Honorable Ismael "Kino" Flores, Chair, Committee on Licensing and Administrative Procedures, Texas House of Representatives, 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].

[2] "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. PRAC. & REM. CODE ANN. § 75.001(2) (Vernon Supp. 2004-05).

[3] In this opinion, we generically refer to the activities expressly listed in section 75.002(e) as "skating."

[4] Senate Bill 1224, which has been signed by the Governor and will be effective September 1, 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. CODE ANN. § 75.001(3)(N)). The bill also amends section 75.002(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. § 2 (to be codified at TEX. CIV. PRAC. & REM. CODE ANN. § 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, §§ 1-2 (to be codified at TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.001-.002).