Untitled Texas Attorney General Opinion ( 1991 )

Office of tQe $Zlttornep@eneral
&ate of tEexa$
DAN MORALES December 31,199l
ATTORNEY
GENERAL
Honorable Gene Green Opinion No. DM-71
chairman
Jurisprudence Committee Re: Authority of public housing authority
Texas State Senate to regulate tenants’ legal possession of
P. 0. Box 12068 firearms (RQ-150)
Austin, Texas 78711
Dear Senator Green:
You ask several questions regarding whether a municipal housing authority
may adopt a rule under which a tenant of a public housing project it operates would
be. evicted “if the tenant possessed a firearm, including eviction for the possession of
a firearm found in the tenant’s home.“’ You ask 6rst whether section 215.001 of the
Local Government Code would restrict such action by a municipal housing
authority. Subsection (a) of section 215.001 provides:
A municipali@ may not adopt regulations relating to the transfer,
pniute ownership, keeping, transportation, licensing, or
registration of firearms, ammunition, or firearms supplies.
(Emphasis added.)
Subsection (b) of section 215.001 provides that subsection (a) “does not affect the
authority a municipality has under another law” to regulate, e.g., “the discharge of
firearms,” “the use of firearms in the case of an insurrection, riot, or natural
disaster,” or “the carrying of firearms” at certain public places or gatherings. A
lYou refer spcciIkdy to tbe San Antonio Public Housiq Authority. See Housing Aurh. of
San .4nfonio v. Newton, 235 S.W.2d 197 (Tcx. Civ. App.--Waco 1950, no writ) (San Antonio Public
Housing Authority is a municipal housing authority).
P- 357
Honorable Gene Green - Page 2 (DM-71)
regulation restricting mere “possession”of a firearm would not fall within any of the
exceptions set out in subsection (b) to the subsection (a) prohibition.2
The applicability of section 215.001 to a municipal housing authority depends
partly on whether a municipal housing authority is a division or agent of a
municipality, such that it would be subject to laws applicable to municipalities. The
provisions of state law regarding the creation and operation of municipal housing
authorities, Acts 1937,45th Leg., ch. 462, are now found in chapter 392 of the Local
Government Code. Section 392.011 provides that a municipal housing authority “is
created in each municipality in the state” as “a public body corporate and politic” but
that it “may not transact business or exercise its powers until the governing body of
the municipality declares by resolution that there is a need for the authority.” local
Gov’t Code $392.011(a) - (c). Powers of the authority are vested in five
commissioners appointed by the mayor of the municipality. Za!.$9 392.031,392.051.
While courts in some other jurisdictions have characterized municipal
housing authorities created under provisions similar to those in chapter 392 as
separate entities.3 Texas authorities presented with the issue have uniformly held
municipal housing authorities to be “divisions”of municipahties and, as such, subject
to the laws applicable to municipalities. Mm v. Ho&g Auth of Dallas, 266
S.W.2d 487 (Tex. Civ. App.--Dallas 1954, writ refd n.r.e.); Aemu Casualty & Surety
Co. v. Glidden Co., 283 S.W.2d 440 (Tex. Civ. App.-Eastland 1955), rev’d on other
groti, 291 S.W.2d 315 (Tex. 1956); Attorney General Opinions JM-687 (1987);
JM-573 (1986); MW-132 (1980).
The Miers court dealt in part with the issue whether a municipal housing
authority was within the scope of a statute excepting “this state, a county or a
municipal corporation, or an irrigation, water improvement, or water power control
district” from a bond requirement where there was pending litigation in condemna-
tion actions. See now Prop. Code Q21.021. The court found the housing authority
within the exception for “municipal corporations,” stating that the authority “is a
?4s WC,have not been supplied with the text of the regulation in question, we necessarily base
this opinion on your description of that proposed regulation.
3See, e.g., City of P&mm v. Housing Auth. of Pawson, 2.33 A.2d 98 (NJ. Super. Ct. Law Div.
1967); O’Kmfe v. Dunn, 215 A.2d 66 (NJ. Super. Ct. Law Div. l%S), cited in Housing Auth. of Asbury
Park v. Richardson, 346 F. Supp. 1027, 1033 (D. NJ. 1972); Tumulry v. Jersey City, 155 A.2d 148 (NJ.
Super. Ct. App. Div. 1959); Housing Auth. v. City of Los Angeles, 243 P.2d 5l5 (Cd. 1952); State cr ml.
Great Fails HousingAuth. v. City of Great Falls, 1CQP.2d 915 (Mont. 1940).
p. 358
Honorable Gene Green - Page 3 (DM-71)
division of the City of Dallas and exists only with the consent of the City of Dallas.”
Mien, 266 S.WL?dat 490.
The Aeha court considered the applicability to a municipal housing authority
contract of the provisions of article 5160, V.T.C.S., which require construction
contractors with “this State or its counties or school districts or other subdivisions
thereof or any municipality therein” to execute a “Penal Bond.” 283 S.W.2d at 441.
The court cited Miers and stated: “[w]e believe that the words ‘any municipality’ as
used in said statute were intended to and did include Housing Authorities created
under Article 1269k.”283 S.W.2d at 441, 442. (Prior to their placement in chapter
392 of the Local Government Code in 1987, the provisions relating to municipal
housing authorities were found in now repealed article 1269k V.T.C.S. See Acts
1987,78th Leg., ch. 149, $9 1,49 (codification and repealer respectively).)
Attorney General Opinion MW-132 (1980) considered whether former
article 2368a, V.T.C.S., providing for competitive bidding requirements for cities’
and counties’ purchases, applied to purchases by municipal housing authorities.
Citing Mien and Aetna, the opinion concluded that article 2368a “applies to housing
authorities as divisions of cities.” (The provisions of article 2368a relating to
municipal purchases were codified in 1987 in chapter 252 of the Local Government
Code. See Acts 1987,7Oth Leg., ch. 149, supra.)
Attorney General Opinions JM-687 (1987) and JM-573 (1986) adhered to
the conclusion of Attorney General Opinion MW-132. Those opinions concluded
that purchases made by a municipal ,housing authority under the Consolidated
Supply Program administered by the federal government were nevertheless subject
to the provisions of former article 2368a respecting municipal purchases.4 See also
Attorney General Opinion C-760 (1966) (county housing authority must comply
with statutes applicable to counties where they do not conflict with provisions
specific to housing authority; overruling Attorney General Opinion O-6339 (1945)
which had held that a municipal housing authority vehicle was not within statute
providing for exempt license plates for city vehicles).
The provision, now in Local Government Code section 215.001, that a “muni-
cipality may not adopt regulations relating to the. . . ownership [or] keeping . . . of
firearms,” was first adopted in 1985. Acts 1985, 69th Leg., ch. 838, $1, at 2904. It
tie legislature has, since the issuance of Attorney General Opinions JM-687 and JM-573,
speciticaUy exempted such housing authority purchases from state law purchasing requirements. See
note 5, in*.
p. 359
Honorable Gene Green - Page 4 (DM-71)
must be presumed that in enacting the provisions of section 215.001 the legislature
was aware of the scope state court and attorney general opinions had theretofore
given to the term “municipality” -- specifically that the term included a municipal
housing authority, the latter being a “division”of a municipality. We find no state
statute, in chapter 392 or elsewhere, evidencing a legislative intent that municipal
housing authorities not be subject to the prohibition in section 215.OOl.S
Nor do we find anything in the federal law or regulations pertaining to
municipal housing authorities which under the supremacy clause, U.S. Const. art.
VI, cl. 2, would restrict the applicability of section 215.001 to the proposed
regulation in question. Federal law provides for the making of loans and contribu-
tions of federal funds to “public housing agencies.” 42 U.S.C. 0 1437 et seq. ; see also
24 C.F.R. 0 811 et seq. “[Plublic housing agency” is defined as “any State, county,
municipality, or other governmental entity or public body (or agency or
instrumentality thereof) which is authorized to engage in or assist in the
development or operation of low-income housing.” 42 U.S.C. 8 1437a(b)(6); see uko
Local Gov’t Code 9 392.052(f)(l) (housing authority may “borrow money or accept
grants or other financial assistance from the federal government for, or in aid of, a
housing project in the authority’s area of operation”). We find no federal provisions
applicable to housing authorities which are in conflict with the provisions of section
215.001 or which indicate a congressional intent that federally-funded housing
authorities not be subject to such state law restrictions. See English v. General
Electric Co., 110 S. Ct. 2270 (1990) (test of whether state law is superseded under
supremacy clause).
We do note that title 42, section 1437d(Z)(5), of the United States Code
requires local housing agency leases to “provide that any criminal activity that
threatens the health, safety, or right to peaceful enjoyment of the
premises . . . engaged in by a public housing tenant, any member of the tenant’s
household, or any guest or other person under the tenant’s control, shall be cause
for termination of tenancy.” (Emphasis added.) This provision might support a
municipal housing authority regulation, to be incorporated in authority leases,
providing for eviction for the criminal possession of a firearm. It would not in our
opinion, however, supersede the section 215.001 restrictions with respect to the
regulation in question, which, as we understand it, would restrict possession that was
otherwise legal. See Penal Code $9 46.02 (carrying certain weapons on or about
‘Compare Local Gov’t Code D 392.0565(a), added in 1989 (authority exempt from state Jaw to
the extent necessary to allow authority’s participation in federal purchasimg programs). Acts 1989, 71st
Leg., ch. 1,5 al(a), at 107.
p. 360
Honorable Gene Green - Page 5 (DM-7 1)
one’s person a crime), 46.05 (crime for certain felons to “possess” a firearm “away
from the premises where [they] live”).6
Accordingly, we conclude that municipal housing authorities are, as
“divisions” of municipalities, subject to the provisions of section 215.001. They
would be precluded by subsection (a) of section 215.001 from adopting a regulation
restricting tenants’ otherwise legal possession of firearms. Such a regulation would
“relat(e] to” the “private ownership” or “keeping” of firearms within the subsection
(a) prohibition and would not fall within any of the exceptions to the subsection (a)
prohibition set out in subsection (b) of section 215.001. Nor, does applicable federal
law supersede the section 215.001 prohibition.
You also ask whether a municipal housing authority’s powers under chapter
392 of the Local Government Code are broad enough to permit adoption of the
regulation in question, and whether such a regulation would violate the provisions of
article I, section 23, of the Texas Constitution relating to the right to “keep and bear
arms.” In view of our conclusion that a municipal housing authority is precluded by
section 215.001 from adopting such a regulation, we need not reach these other
issues here.
SUMMARY
Section 215.001 of the Local Government Code prohibits a
municipal housing authority from adopting a regulation provid-
ing for a tenant’s eviction for the otherwise legal possession of a
firearm.
DAN MORALES
Attorney General of Texas
6we note also that a local public housing agency rccctig federal timds most enter into a
contract with the United States Secretary of Housing and Urban Development. In such a contract, the
secretary may make provisions pertaining, inter alia, to “the establishment of effective tenaot-
management relationships designed to assore that satisfactory standards of tenant security and project
maintenance are formulated.” 42 U.S.C. 5 1437d(c)(4)(C). As we do not have a particular contract
before as, we do not address here the effect of provisions therein, if any, bearing on an authority’s
regulation of tenants’ possession of firearms.
p. 361
Honorable Gene Green - Page 6 (DM-71)
WILL. PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
JUDGE ZOLJX STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by William Walker
Assistant Attorney General
P. 362