Texas

Recreational Use/Recreational Trespass Laws

V.T.C.A. Civil Practice & Remedies Code 75.001 et. seq.

§ 75.001. Definitions

In this chapter:

(1) “Agricultural land” means land that is located in this state and that is suitable for:
(a) use in production of plants and fruits grown for human or animal consumption, or plants grown for the production of fibers, floriculture, viticulture, horticulture, or planting seed;
(b) forestry and the growing of trees for the purpose of rendering those trees into lumber, fiber, or other items used for industrial, commercial, or personal consumption; or
(c) domestic or native farm or ranch animals kept for use or profit.

(2) “Premises” includes 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.

(3) “Recreation” means an activity such as:
(a) hunting;
(b) fishing;
(c) swimming;
(d) boating;
(e) camping;
(f) picnicking;
(g) hiking;
(h) pleasure driving, including off-road motorcycling and off-road automobile driving and the use of all-terrain vehicles;
(i) nature study, including bird-watching;
(j) cave exploration;
(k) waterskiing and other water sports;
(l) any other activity associated with enjoying nature or the outdoors;
(m) bicycling and mountain biking;
(n) disc golf;
(o) on-leash and off-leash walking of dogs; or
(p) radio control flying and related activities.

(4) “Governmental unit” has the meaning assigned by Section 101.001.

§ 75.002. Liability limited

(a) An owner, lessee, or occupant of agricultural land:
(1) does not owe a duty of care to a trespasser on the land; and
(2) is not liable for any injury to a trespasser on the land, except for wilful or wanton acts or gross negligence by the owner, lessee, or other occupant of agricultural land.

(b) If an owner, lessee, or occupant of agricultural land gives permission to another or invites another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not:
(1) assure that the premises are safe for that purpose;
(2) owe to the person to whom permission is granted or to whom the invitation is extended a greater degree of care than is owed to a trespasser on the premises; or
(3) assume responsibility or incur liability for any injury to any individual or property caused by any act of the person to whom permission is granted or to whom the invitation is extended.

(c) If an owner, lessee, or occupant of real property other than agricultural land gives permission to another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not:
(1) assure that the premises are safe for that purpose;
(2) owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises; or
(3) assume responsibility or incur liability for any injury to any individual or property caused by any act of the person to whom permission is granted.

(d) Subsections (a), (b), and (c) shall not limit the liability of an owner, lessee, or occupant of real property who has been grossly negligent or has acted with malicious intent or in bad faith.

(e) 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 a governmental unit for the purposes of those activities:
(1) hockey and in-line hockey;
(2) skating, in-line skating, roller-skating, skateboarding, and roller-blading;
(3) soap box derby use; and
(4) paintball use.

(f) Notwithstanding Subsections (b) and (c), if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises.

(g) Any premises a governmental unit owns, operates, or maintains and on which the recreational activities described in Subsections (e)(1)-(4) are conducted shall post and maintain a clearly readable sign in a clearly visible location on or near the premises. The sign shall contain the following warning language:

WARNING
TEXAS LAW (CHAPTER 75, CIVIL PRACTICE AND REMEDIES CODE) LIMITS THE LIABILITY OF A GOVERNMENTAL UNIT FOR DAMAGES ARISING DIRECTLY FROM HOCKEY, IN-LINE HOCKEY, SKATING, IN-LINE SKATING, ROLLER-SKATING, SKATEBOARDING, ROLLER-BLADING, PAINTBALL USE, OR SOAP BOX DERBY USE ON PREMISES THAT THE GOVERNMENTAL UNIT OWNS, OPERATES, OR MAINTAINS FOR THAT PURPOSE.

(h) An owner, lessee, or occupant of real property in this state is liable for trespass as a result of migration or transport of any air contaminant, as defined in Section 382.003(2), Health and Safety Code, other than odor, only upon a showing of actual and substantial damages by a plaintiff in a civil action.

(i) Subsections (b) and (c) do not affect any liability of an owner, lessee, or occupant of real property for an injury occurring outside the boundaries of the real property caused by an activity described by Section 75.001(3)(P) that originates within the boundaries of the real property.

§ 75.003. Application and effect of chapter

(a) This chapter does not relieve any owner, lessee, or occupant of real property of any liability that would otherwise exist for deliberate, wilful, or malicious injury to a person or to property.

(b) This chapter does not affect the doctrine of attractive nuisance, except that the doctrine may not be the basis for liability of an owner, lessee, or occupant of agricultural land for any injury to a trespasser over the age of 16 years.

(c) Except for a governmental unit, this chapter applies only to an owner, lessee, or occupant of real property who:
(1) does not charge for entry to the premises;
(2) charges for entry to the premises, but whose total charges collected in the previous calendar year for all recreational use of the entire premises of the owner, lessee, or occupant are not more than 20 times the total amount of ad valorem taxes imposed on the premises for the previous calendar year; or
(3) has liability insurance coverage in effect on an act or omission described by Section 75.004(a) and in the amounts equal to or greater than those provided by that section.

(d) This chapter does not create any liability.

(e) Except as otherwise provided, this chapter applies to a governmental unit.

(f) This chapter does not waive sovereign immunity.

(g) To the extent that this chapter limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under Chapter 101, this chapter controls.

(h) In the case of agricultural land, an owner, lessee, or occupant of real property who does not charge for entry to the premises because the individuals entering the premises for recreation are invited social guests satisfies the requirement of Subsection (c)(1).

Financial Incentives for Public Access

Property Tax Incentives:
Current Use Programs: 

Statute: “1-d-1 appraisal” (after Article 8, Section 1-d-1 of the Texas Constitution) 23.72.

Method of Assessment: Assessment based on the productive capacity of agricultural land.

Application: Burden on landowner.

Plan Requirements: An owner must provide a wildlife management plan to the appraisal district. The plan must be completed on a Texas Parks and Wildlife Department form for each tract for which wildlife management use qualification is sought. A chief appraiser may ask questions such as whether fencing is typical in the area for managing the target wildlife population, and what are typical population sizes. In addition, the chief appraiser should ask how many of the following activities are typical in the area (or which are typical for the area during some parts of the year): habitat management, predator management, erosion control, providing supplemental supplies of food or water, providing shelter and engaging in wildlife census counts.

Penalties: Tax imposed equal to the difference between the taxes imposed on the land for each of the five years preceding the year in which the change of use occurs and the tax that would have been imposed, plus interest at a rate of 7%.

Current Use Taxation for open-space land: 

Statute: “Open-space valuation” or “1-d-1 appraisal” (after Article 8, Section 1-d-1 of the Texas Constitution).

Purpose of Assessment: Tax fairness.

Method of Assessment: Land devoted to agricultural use is taxed according to the expected productivity that is attributable to the land. Landowners may apply for special appraisal based on their land's productivity value rather than what the land would sell for on the open market. Generally, all tangible property must be taxed on the basis of its current market value. A property’s market value is the price it would sell for when both buyer and seller seek the best price and neither is under pressure to buy or sell. Farm and ranch land can be valued on its capacity to produce crops or livestock instead of its market value. This is called agricultural appraisal. Similarly, special timberland appraisal is available to property owners whose land produces timber for commercial use. Open-space land devoted to timber production is entitled to taxation on the basis of its productive capacity.

Eligibility Requirements

Application: Burden on landowner. To receive “1-d-1 appraisal,” land must be devoted principally to agricultural use. Agricultural use includes the production of crops, livestock, poultry, fish or cover crops. It also can include leaving the land idle for a government program or for normal crop or livestock rotation. Land used for raising certain exotic animals or birds to produce human food or other items of commercial value and wood for use in fences or structures on adjacent agricultural land also qualifies, as does land used for wildlife management. Timberland must be used with the intent to produce income and be devoted principally to the production of timber. Both agricultural land and timberland must be devoted to production at a level of intensity that is common in the local area. The land must have been devoted to agricultural and/or timber production for at least five of the past seven years. Land within the city limits, however, must have been devoted to such use continuously for the preceding five years, unless the land did not receive substantially equal city services as other properties in the city. Wildlife management land must previously have qualified as open-space land for other purposes, except for land subject to federal permits. Wildlife management land must be used in at least three of seven specific ways to propagate a breeding population of wild animals for human use. See the Comptroller’s Guidelines for Qualification of Agricultural Land in Wildlife Management Use. Land qualified for timber appraisal is not eligible to qualify for wildlife management use. Timber land is qualified under Tax Code, Chapter 23, and Subchapter E. The law limits wildlife management use to land qualified under Subchapter D of Chapter 23. Similarly, land qualified for agricultural appraisal under Article VIII, Section 1-d, Texas Constitution and Chapter 23, Subchapter C, Tax Code, (also called 1-d agricultural appraisal-- the old law, referenced above) is not eligible for wildlife management use.

Renewal: Not required unless change in ownership.

Area Requirements: No minimum or maximum acreage, but proposed rules may change this.

Plan Requirements: For the wildlife management classification, an owner must provide a wildlife management plan to the appraisal district. The plan must be completed on a Texas Parks and Wildlife Department form for each tract for which wildlife management use qualification is sought. The activities and practices contained in the plan must be consistent with the activities and practices recommended in the model Texas Parks and Wildlife Department regional management plan for the region in which the property is located. Section 23.51(7), Tax Code, defines wildlife management as, "actively using land that at the time the wildlife management began was appraised as qualified open-space land under this subchapter in at least three of the following ways to propagate a sustaining breeding, migrating, or wintering population of indigenous wild animals for human use, including food, medicine, or recreation: habitat control; erosion control; predator control; providing supplemental supplies of water; providing supplemental supplies of food; providing shelters; and making census counts to determine population." The use of animals for food and medicine is self explanatory. These uses result in a product and require active participation. A recreational use may be either active or passive and may include any type of use for pleasure or sport. Bird watching, hiking, hunting, photography and other non-passive recreational or hobby-type activities are qualifying recreational uses. The owner’s passive enjoyment in owning the land and managing it for wildlife also is a qualifying recreational use.

Unique or Functional Characteristics: N/A

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Tax incentive specifically for providing access: 

Texas has no tax incentives to provide hunter access.

Tax Incentive when land is subject to Conservation Easement: 

Texas has no tax incentives for land subject to conservation easements.

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Income Tax: 

Texas has no tax credits or incentives for the donation of land or conservation easements.

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Hunter Access Program: 

Name of Program: Short Term Public Hunting Lease Program

Number of Acres Enrolled: Unknown

Landowners receive between $2-6 per acre enrolled. Additionally, the Texas Parks and Wildlife Department agrees to post signs on the boundaries, designated roads and parking areas, restricted areas or other areas identified in the lease agreement. Data on conservation benefits is not collected.

For additional information regarding this state’s hunter access programs or efforts, please view the Hunting Heritage Action Plan Hunter Access Program Assessment Survey Report.

Case Law

Dubois v. Harris County 866 S.W.2d787

-Term “premises” as used in recreational use statute includes components of the recreational area which are of the same kind or class as those listed in the statute, and a structure used within a recreational area to provide parking for persons visiting the area is within the meaning of the term “premises.”
-Recreational use statute applied to claim of user of park against county which owned the park for injuries sustained when she tripped in a hole, where there was no fee charged for her use of the park and the area where the injury occurred was a park which she frequented in order to take walks along a nature trail.
-Recreational use statute mandates only that county not cause injury to users of park through wantonness, wilfulness, or gross negligence.

Stephen F. Austin State University v. Flynn (Sup. 2007) 228 S.W.3d 653

-State university had protection, under recreational use statute, from tort liability to bicyclist who was injured while riding bike on community trail which crossed university's campus, i.e., force of water from oscillating sprinkler, which was part of university's in-ground irrigation system, allegedly knocked bicyclist off her bike, though university had granted city an easement for use of trail for cycling; despite grant of easement, university retained ownership of underlying fee, so that university, as owner of the property, retained its status as member of class protected by recreational use statute.
-Recreational use statute, which provides that owner of real property is entitled to the statute's protection when it gives permission to another to enter for recreation, does not require that owner contemporaneously acknowledge each use; rather, permission may be implied from owner's knowledge of, and acquiescence in, public's use of its land for recreational purposes.

Kopplin v. City of Garland (App. 5 Dist. 1993) 869 S.W.2d 433

-Playing on playground equipment on city playground is “recreational activity” contemplated under recreational use statute.
-Statutory definitions of “recreation” for recreational use statute are not exclusive and do not exhaust the class.

City of Bellmead v. Torres 89 S.W.3d 611 Tex.,2002

-Fact that park patron came to city park with intent to participate in softball game was not determinative of whether Recreational Use Statute applied, where patron was injured on swing, not while playing softball; question was whether sitting on a swing, not playing softball, was recreational activity within meaning of Statute.

Flye v. City of Waco (App. 10 Dist. 2001) 50 S.W.3d 645

-Provision of Recreational Use Statute stating that liability is not limited for property owner who has been grossly negligent or has acted with malicious intent or in bad faith did not create liability where none would exist in its absence, and thus, provision merely confirmed that liability-limiting provisions of statute did not limit liability that otherwise existed for contemporaneous acts of gross negligence or acts committed with malicious intent or bad faith.

State of Texas Parks & Wildlife Dept. v. Morris (App. 13 Dist. 2004) 129 S.W.3d 804

-Allegations by family of three-year-old child who suffered burns from falling into campfire pit in State park which contained smoldering coals from a previous fire, that failure to have waist-high fire grills or rings around campfire pit involved extreme degree of risk, and that Parks and Wildlife Department had actual, subjective awareness of the risk involved but nevertheless proceeded in conscious indifference to rights, safety, or welfare of others, stated a claim of gross negligence, under recreational use statute.

State v. Shumake (Sup. 2006) 199 S.W.3d 279

-“Gross negligence,” for purposes of recreational use statute, requires that the landowner be subjectively aware of, and consciously indifferent to, an extreme risk of harm.
-Under recreational use statute, landowner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake; however, a landowner can be liable for gross negligence in creating a condition that a recreational user would not reasonably expect to encounter on the property in the course of the permitted use.