Untitled Texas Attorney General Opinion ( 1980 )

_ . .
The Attorney General of Texas
August 25, 1980
MARKWHITE
Attorney General
Honorable John T. Montford Opinion No. 14~1-228
Criminal District Attorney
Ltibock County Courthouse Re: Whether a home rule city can
Lubbock, Texas 79401 provide for the issuance of
administrative search warrants
Dear Mr. Montford:
You ask whether a home rule city can enact sn ordinance providing for
administrative search warrants, and whether a municipal court judge, acting
as a magistrate, can issue such administrative search warrants. For the
reasons to be hereinafter stated, we believe that both questions should be
answered in the affirmative.
The law is well settled that a home rule city derives its powers from
article Xl, section 5 of the Texas Constitution. Lower Colorado River
Authority v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975). A home rule
city is not required to look to the legislature for a grant of power to act, but
only to ascertain whether the legislature hes acted to limit the city’s
constitutional power. Burch v. City of San Antonio, 518 S.W.2d 540 (Tex.
1975). Therefore, all powers enumerated in its charter which ere not denied
it by the constitution or general laws of the State of Texes, may be lawfully
exercised by a home rule city.
We find no constitutional or statutory provision prohibiting a home rule
city from providb for the issllance of administrative search warrants to
ensure compliance with the city codes enacted to protect the health, safety
and welfare of its inhabitants.
City of Lubbock Ordinance No. 7859 provides for the issllance by
municipal court j-es of “code enforcement search warrants” to city
inspectors charged with enforcement of city codes dealing with, but not
limited to, zoning and environmental control, and housing and building
inspection. Such administrative search warrants may’be issued only lpon
sworn affidavits supported by probable muse and may authorize inspection
of premises to determine the presence of any code violations. No authority
to effect any arrest or seizure of any property is granted by these
administrative search warrants issued to city inspectors, none of whom are
commissioned peace officers tmder article 2.12 of the Code of Criminal
Procedure.
p. 724
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Honorable John T. Montford - Page Two (MW-228)
We believe Lubbock City Ordinance No. 7859 to be in stistantial compliance
with article 18.05 of the Code of Criminal Procedure, which specifically authorizes the
issuance of administrative search warrants to city health officers and fire marshals.
Article 18.05 was enacted by the legislature in response to decisions by the Supreme
Court of the United States, which established the need fcr compliance with the
warrant requirements of the Fourth Amendment in administrative searches of both
residential and commercial premises. Camera v. Municipal Court, 387 U.S. 523 (1967);
See v. City of Seattle, 367 U.S. 541 (1967). See also Michigan v. Tyler, 436 U.S. 499
11978); Marshall v. Barlow’s, Inc., 436 U.S. 307(197
We believe the issuance of such administrative search warrants by a home rule
city to be a reasonable exercise of its general police powers enumerated in article 1175,
V.T.C.S., which extend to the reasonable omtection of the wblic health. safetv end
welfare.. Texas Power and Light Company v. City of Garland, 431 S.W. ‘2d 5lliTex.
1968); John v. State, 577 S.W.2d 483 (Tex. Crim. App. 1979).
It is therefore our opinion that a home rule city may enact an ordinance
providirg for the issuance of administrative search warrants in compliance with the
provisions of article 18.05 of the Code of Criminal Procedure.
Article 18.01(c) of the Code of Criminal Procedure prohibits a municipal court
judge from issuing an evident&y search warrant under article 18.02(10), which provides
for the seizure of evidence in a criminal case. However, as recognized by the United
States Supnsme Court in Camara and See, M, there is a distinction between an
administrative search warrant and a m%inal search warrant, and each requires a
different standard of probable cause for its issuance.
A criminal search warrant may be issued only upon a finding of probable cause
supported by sn afficbvit that a criminal offense hss been committed and that certain
specified property is therefore stiject to seizure. Code Crim. Proc. arts. 18.01, 18.02.
Additionally, a criminal search warrant may order the arrest of the suspected
offender. Code Crim. Proc. art. 18.03.
An adminstrative search warrant under article 18.05 of the Code of Criminal
Procedure may cnly be issued for the purpose of allowing en inspection of specific
premises to determine the presence of hazardous conditions prohibited by law. In
determining probable cause for the issuance of an administrative search warrant under
article 18.05 the magistrate is not limited to evidence of specific knowledge, but may
consider any of the following:
(1) the ege and general condition of the premises;
(2) previous violations a hazards found present in the
premises;
(3) the type of premises;
(4) the purposes for which the premises are used; and
(5) the presence of hazards or violations in and the general
conditions of premises near the premises sought to be inspected.
p. 725
Honorable John T. Montfad - Page Three (NW-2281
Probable cause to believe that a criminal offense has been committed is not a
prerequisite to the Issllance of en administrative search warrant under article 18.05,
nor may en administrative search warrant order the arrest of any person or the seizure
of any property.
Accordingly, we believe that a municipal court judge sitting as a megistrate
pursuant to article 2.09 of the Code of Criminal Procedure would not be prohibited by
the language of article 18.01(c) of the Code of Criminal Procedure from Issuing an
administrative search warrant as authorized by article 18.05 and City of Lubbock
Ordinance No. 7859.
SUMMARY
A home rule city can enact en ordinance providing for administrative
search warrants to be issued by a municipal court judge.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Gerald C. Carruth
Assistant Attorney General
APPROVED:
OPINION COMMTTTEE
C. Robert Heath, Chairman
Jon Bible
Gerald C. Carruth
Susan Garrison
Rick Gilpin