Lawful Activities Along Navigable Streams
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Texas courts have recognized that a member of the public may engage in a variety of lawful activities along a navigable stream. Besides boating, persons may swim, float, walk, wade, picnic, camp, and (with a license) fish. Public use must be confined to the stream bed and, to a limited extent, the banks. Hunting is permitted in some situations. However, a hunter should always check first with local law enforcement officials because of numerous local restrictions and exceptions. A law called the Sportsman’s Rights Act prohibits intentional interference with or disruption of lawful hunting or fishing.
In general, any unlawful activity is also unlawful along a river. The disorderly conduct provision of the Texas Penal Code forbids such activities as fighting, being unreasonably noisy, displaying a firearm in a manner calculated to alarm, discharging a firearm, and using abusive or profane language that tends to incite an immediate breach of peace. Damaging or destroying property is punished as criminal mischief. Under another law punishment for littering can range up to a fine of $4,000 and a year in jail, depending upon the amount of litter and any previous convictions.
The case of Dincans v. Keeran, 192 S.W. 603 (Tex.Civ.App. San Antonio 1917, no writ) recognized a public right to use the waters and shore line. In overturning the lower court’s decree for being too restrictive, the court stated:
[T]he trial court’s decree was too comprehensive [in that it] restrained appellants from the enjoyment of their lawful right to use the shore line of the navigable waters, which formed the western boundary of appellees’ land. ... Hunting, camping, and fishing are reasonable uses of the navigable waters and shore line.
Diversion Lake Club v. Heath, 126 Tex. 129, 86 S.W.2d 441, 445 (1935), stated:
Thus it is apparent that statutory navigable streams in Texas are public streams, and that their beds and waters are owned by the state in trust for the benefit and best interests of all the people, and subject to use by the public for navigation, fishing, and other lawful purposes, as fully and to the same extent that the beds and waters of streams navigable in fact are so owned and so held in trust and subject to such use.
Texas Attorney General’s Opinion S 208 (1956) concluded that the general public is authorized to walk down the dry or submerged bed of a navigable stream even if its bed is privately owned by virtue of the Small Bill (Article 5414a, R.C.S.) for the purpose of seining and fishing in water holes in the bed of the river. Such conduct was not a criminal trespass under the definition of the crime then in effect.
The Sportsman’s Rights Act
Parks and Wildlife Code§ 62.0125. Harassment of Hunters, Trappers, and Fishermen.
(a) This section may be cited as the Sportsman’s Rights Act.
(b) In this section:
(1) “Wildlife” means all species of wild mammals, birds, fish, reptiles, or amphibians.
(2) “Process of hunting or catching” means any act directed at the lawful hunting or catching of wildlife, including camping or other acts preparatory to hunting or catching of wildlife that occur on land or water on which the affected person has the right or privilege of hunting or catching that wildlife.
(c) No person may intentionally interfere with another person lawfully engaged in the process of hunting or catching wildlife.
(d) No person may intentionally harass, drive, or disturb any wildlife for the purpose of disrupting a person lawfully engaged in the process of hunting or catching wildlife.
(e) No person may enter or remain on public land or enter or remain on private land without the landowner’s or his agent’s consent if the person intends to disrupt another person lawfully engaged in the process of hunting or catching wildlife.
(f) This section does not apply to a peace officer of this state, a law enforcement officer of the United States, a member of the armed forces of the United States or of this state, or employees of the department or other state or federal agencies having statutory responsibility to manage wildlife or land during the time that the officer is in the actual discharge of official duties.
(g) A person who violates this section commits an offense. An offense under this section is a Class B misdemeanor.
(h) It is an affirmative defense to prosecution that the defendant’s conduct is protected by the right to freedom of speech under the constitution of this state or the United States.
See such laws as:
- Texas Penal Code § 42.01, Disorderly Conduct.
- Texas Penal Code § 49.02, Public Intoxication.
- Texas Penal Code § 49.06, Boating While Intoxicated.
- Texas Penal Code § 28.03, Criminal Mischief.
- Texas Penal Code § 22.07, Terroristic Threat.
- Texas Health and Safety Code, Chapter 365, Texas Litter Abatement Act.
- Texas Parks & Wildlife Code, Chapters 61, 62, and 82, regarding fishing, hunting, and preserves.