Can police enforce traffic laws on private streets inside a Texas city?

Texas AG Opinion JC-0016: Cities Cannot Enforce Traffic Laws on Privately Owned Streets

Plain-English summary

The City of Meadowlakes is a small Type A general-law city in Burnet County, but a private property owners association owns every street inside the city limits. None of those streets were ever dedicated to the public, and the association even keeps a gated entrance controlling access. The Burnet County Attorney asked whether the city could enforce state and municipal traffic laws on those private streets, and whether it could spend public money doing so.

The Attorney General concluded that the city could not. The traffic provisions in Transportation Code title 7, subtitle C apply, by their own terms, only to the operation of a vehicle "on a highway" unless a provision specifically says otherwise. The Code defines a "highway or street" as a publicly maintained way open to the public, and a "private road or driveway" as a privately owned way used only by the owner and those with the owner's permission. Because the Meadowlakes streets were neither publicly owned nor maintained, the state traffic laws did not reach them. A peace officer therefore could not issue a citation for a traffic offense on those streets, and any citation issued could not be prosecuted. The opinion drew on an earlier letter opinion reaching the same result for subdivision streets a commissioners court never accepted.

The city's own ordinance power did not change the answer. A local authority may regulate traffic only as subtitle C allows, and section 542.202 lets a city regulate traffic only "with respect to a highway under its jurisdiction," which again means a publicly maintained way. So the city had no authority to adopt ordinances governing traffic on the private streets either.

Finally, the opinion concluded the city could not spend public funds trying to enforce traffic laws on the private streets. Article III, section 52 and article XI, section 3 of the Texas Constitution bar giving public money to private interests, and while spending that directly accomplishes a public purpose is allowed even if it incidentally benefits a private party, there was no public purpose here because the city had no enforcement authority in the first place. Public funds may not be spent to maintain or police privately owned roads.

Currency note

This opinion was issued in 1999. 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.

Common questions

Can a city enforce traffic laws on private streets within its limits?
The opinion concluded no. Transportation Code traffic provisions apply only on publicly maintained highways and streets, so a city has no authority to enforce them on privately owned streets that were never dedicated to the public.

Can a police officer ticket someone for a traffic offense on a private street?
The opinion concluded a peace officer has no authority to issue a citation under state law for a traffic offense on the private streets, and that if one is issued, it may not be prosecuted.

Can the city pass its own traffic ordinances for the private streets?
No. The opinion explained that a city's authority under section 542.202 applies only "with respect to a highway under its jurisdiction," meaning a publicly maintained way, so the city could not adopt traffic ordinances for privately owned streets.

Can the city spend public money policing the private streets?
The opinion concluded no. Because the city had no authority to enforce traffic laws there, spending public funds on it served no public purpose and would violate article III, section 52 and article XI, section 3 of the Texas Constitution, which bar gratuitous grants of public money to private interests.

Background and statutory framework

The traffic rules in Transportation Code title 7, subtitle C (sections 541.001 through 600.003) cover signs and signals, right of way, speed, parking, equipment, and enforcement. Section 542.001 limits a provision "relating to the operation of a vehicle" to "the operation of a vehicle on a highway unless the provision specifically applies to a different place." Section 541.302(5) defines a "highway or street" as a publicly maintained way open to the public, while section 541.302(9) defines a "private road or driveway" as a privately owned way used only by the owner and those with permission. Together these mean the operation provisions apply only on publicly maintained highways and streets.

The opinion grounded the public-versus-private line in Commissioners Court v. Frank Jester Dev. Co. (dedicating streets in a plat is only an offer; the commissioners court must accept it to make them public) and Letter Opinion 95-064 (county could not enforce speed limits on never-accepted subdivision streets), along with Opinion JM-200. It cited Johnson v. State and Opinion M-265 for the rule that a prosecution premised on a "public road" must prove the road was public. On municipal ordinance power, sections 542.201, 541.002(3), and 542.202 let a local authority regulate traffic in specified ways, but only "with respect to a highway under its jurisdiction."

On the spending question, the opinion applied Texas Constitution article III, section 52 and article XI, section 3, which bar lending credit or donating public money to private interests, subject to the public-purpose principle that an expenditure directly accomplishing a public purpose is valid even if it incidentally benefits a private interest (Letter Opinion 94-078). Because the city had no authority to enforce traffic laws on the private streets, there was no public purpose, and under Ex parte Conger, Opinion DM-13, and Letter Opinion 94-078, public funds may not be spent on privately owned roads. The opinion expressly did not address other issues that private ownership of all city streets might raise, noting only that the city still owes duties like public access to its meetings and records under the Open Meetings Act and Public Information Act.

Citations

Constitutional and statutory provisions:

• TEX. TRANSP. CODE ANN. §§ 541.001-600.003, 541.002(3), 541.302, 542.001, 542.201, 542.202 (Vernon 1999)
• TEX. GOV'T CODE ANN. §§ 551.001-.146, 552.001-.353 (Vernon 1994 & Supp. 1999)
• TEX. CONST. art. III, § 52; art. XI, § 3

Cases:

• Commissioners Court v. Frank Jester Dev. Co., 199 S.W.2d 1004, 1007 (Tex. Civ. App.-Dallas 1947, writ ref'd n.r.e.)
• Johnson v. State, 31 S.W.2d 1084, 1086-87 (Tex. Crim. App. 1930)
• Ex parte Conger, 357 S.W.2d 740 (Tex. 1962)

Prior Attorney General opinions discussed: LO-95-064, JM-200, M-265, LO-94-078, DM-13.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0016
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0016.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL, STATE OF TEXAS
JOHN CORNYN

March 8, 1999

The Honorable Robert A. Klaeger
Burnet County Attorney
220 South Pierce
Burnet, Texas 78611-3136

Opinion No. JC-0016

Re: Enforcement of traffic laws on privately owned streets (RQ-1199)

Dear Mr. Klaeger:

You inquire whether state and municipal traffic laws may be enforced on privately-owned streets. We conclude that such laws apply only on public streets and may not be enforced on privately-owned streets.

You inform us that the City of Meadowlakes ("the City") in Burnet County is a Type A general-law municipality with an estimated population of eleven hundred residents. The Meadowlakes Property Owners Association ("MPOA"), a private association, owns all of the streets located within the city limits of the City of Meadowlakes. None of these streets have been dedicated to the City for use by the general public. The MPOA also maintains a privately-owned gate house at the only point of entrance to or exit from the City to regulate access on the private streets. You ask whether the City has authority to enforce state and municipal traffic regulations on the privately-owned streets.

We do not address other legal issues that may arise with the private ownership of all streets within the boundaries of an incorporated city, except to note that the governing body of an incorporated municipality in this state has numerous duties and responsibilities under the constitution and statutes, including the responsibility to provide non-residents with access to the public meetings and records of the city. See TEX. GOV'T CODE ANN. §§ 551.001-.146 (Open Meetings Act); §§ 552.001-.353 (Public Information Act) (Vernon 1994 & Supp. 1999). You have not asked and we do not comment here on the application of these guarantees or any others that may be afforded to persons residing within the City or to the public in general in relation to the City.

We addressed a question similar to the one you ask in Attorney General Letter Opinion No. 95-064: whether county law enforcement officers were authorized to issue traffic citations to drivers speeding on streets that were not part of the county road system. The streets at issue in Letter Opinion No. 95-064 were dedicated to the public in the subdivision plat filed by the developer, but the dedication was not accepted by the commissioners court. Accordingly, the streets never became public. See Commissioners Court v. Frank Jester Dev. Co., 199 S.W.2d 1004, 1007 (Tex. Civ. App.-Dallas 1947, writ ref'd n.r.e.) (dedication of streets in filed plat is an offer, and acceptance by commissioners court is necessary to make them public streets); Tex. Att'y Gen. Op. No. JM-200 (1984) at 4 (filing plat alone is insufficient to authorize county road maintenance). Letter Opinion No. 95-064 concluded that the county had no authority to regulate and enforce speed limits on such roads because they were not public roads. We reach the same conclusion with respect to the authority of the City of Meadowlakes to enforce traffic laws on the private streets within its boundaries.

Provisions on regulating traffic are found in the Transportation Code, title 7, subtitle C. See TEX. TRANSP. CODE ANN. §§ 541.001-600.003 (Vernon 1999). Included are provisions on traffic signs and signals, right of way, speed restrictions, parking restrictions, vehicle equipment, and arrest and prosecution of violators. See id. chs. 543-547. A provision of subtitle C "relating to the operation of a vehicle applies only to the operation of a vehicle on a highway unless the provision specifically applies to a different place." Id. § 542.001. A "[h]ighway or street" is "the width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular traffic." Id. § 541.302(5). In contrast, a "[p]rivate road or driveway," is "a privately owned way or place used for vehicular traffic and used only by the owner and persons who have the owner's express or implied permission." Id. § 541.302(9). Thus, provisions relating to the operation of a vehicle found in title 7, subtitle C of the Transportation Code apply only on publicly maintained highways and streets.

As you describe the streets of the City of Meadowlakes, they are neither publicly owned nor maintained and are therefore not subject to the state traffic regulations in question. Accordingly, the City of Meadowlakes has no authority to enforce such laws on those private streets. A peace officer has no authority to issue a citation under state law for a traffic offense on the private streets, and if such a citation is issued, it may not be prosecuted. See Johnson v. State, 31 S.W.2d 1084, 1086-87 (Tex. Crim. App. 1930) (in prosecution for driving on a public road while intoxicated, evidence established that the road was a public road); Tex. Att'y Gen. Op. No. M-265 (1968) at 3 (in prosecution for obstruction of a "public road," prosecution must prove that road was a "public road").

The provisions of Transportation Code, title 7, subtitle C apply uniformly throughout the state, and a local authority, such as a city, may enact an ordinance that conflicts with a provision of subtitle C, only where subtitle C expressly authorizes it to do so. TEX. TRANSP. CODE ANN. § 542.201 (Vernon 1999); see id. § 541.002(3) (defining "local authority" to include "a county, municipality, or other local entity authorized to enact traffic laws under the laws of this state"). Section 542.202 of the Transportation Code expressly authorizes a local authority to regulate traffic within its boundaries in specific ways, such as by regulating parking, designating intersections as stop or yield intersections, designating school crossing zones, and altering a speed limit within statutory limitations. Id. § 542.202(a)(2), (8), (11), (12). However, a city's regulatory authority under section 542.202 of the Transportation Code applies only "with respect to a highway under its jurisdiction." Id. § 542.202(a) (emphasis added). We have already noted that a "[h]ighway or street" is "the width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular traffic." Id. § 541.302(5). Thus, a city has no authority under section 542.202 to adopt municipal ordinances regulating traffic on privately-owned streets.

You specifically ask whether the City of Meadowlakes may use public monies for the enforcement of state and municipal traffic laws on the private streets owned by the MPOA. Because we conclude that the City lacks authority to enforce state or local traffic laws on the privately-owned streets within its boundaries, we conclude that it may not expend public funds for that purpose.

Article III, section 52 of the Texas Constitution prohibits the legislature from authorizing a county, city, town, or other political corporation to lend its credit or grant public money or anything of value to an individual, association, or corporation, with exceptions not relevant to your question. Article XI, section 3 of the constitution provides that no "county, city, or other municipal corporation shall . . . make any appropriation or donation" to any private corporation or association. These provisions prevent the gratuitous application of funds to a private use, but they do not invalidate an expenditure that is made for the direct accomplishment of a public purpose, even though it may incidentally benefit a private interest. See Tex. Att'y Gen. LO-94-078, at 2 (and authorities cited therein). Because the City of Meadowlakes has no authority to enforce state and municipal traffic laws on the private streets owned by the MPOA, there is no public purpose for expending public funds in attempting to do so. Under Texas law, public funds may not be expended to maintain privately-owned roads. See generally Ex parte Conger, 357 S.W.2d 740 (Tex. 1962); Tex. Att'y Gen. Op. No. DM-13 (1991); Tex. Att'y Gen. LO-94-078. We conclude that in the absence of authority to enforce traffic laws on the privately-owned streets within the City, the expenditure of public funds on such activity does not serve a public purpose and is prohibited by article III, section 52 and article XI, section 3 of the Texas Constitution.

SUMMARY

Provisions in the Transportation Code, title 7, subtitle C, relating to the operation of a vehicle, apply only on public roadways and not on private roads or streets unless expressly applicable. Accordingly, the City of Meadowlakes has no authority to enforce state and municipal traffic laws on privately-owned streets within its boundaries. A peace officer has no authority to issue a citation for a traffic offense on the private streets, and if such a citation is issued, it may not be prosecuted.

Article III, section 52 and article XI, section 3 of the Texas Constitution prohibit the City of Meadowlakes to use public monies to enforce state and municipal traffic laws on its private streets.

Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General