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Untitled Texas Attorney General Opinion ( 1992 )


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DAN MORALES                           August 27,1992
ATTORNEY
GENERAL
Honorable Tim Curry                       opinion No. DM-159
Crimimd District Attorney
Tar-rant County                           Re: Constitutionality of section 756.042,
401 W. Belknap                            Health and Safety Code, which requires
Fort Worth, Texas 76196-0201              outdoor shooting ranges to be constructed
according to standards set by the National
Rifle Association (RQ385)
Dear Mr. Curry:
You have requested our opinion regarding the constitutionality of section
756.042 of the Health and Safety Code. That statute provides:
The owner of an outdoor shooting range shall construct and
maintain the range according to standards that are at least as
stringent as the standards printed in the National Rifle
Association range manual.
As you indicate, this statute does not specify a particular edition of the range
manual. You suggest that, as a result, section 756.042 is an unconstitutional
delegation of legislative authority.
In Dudding v. Automatic Gas Co.,
    193 S.W.2d 517 
    (Tex. 1946), the court
considered a 1939 statute which required that containers for the storage of liquefied
petroleum gas conform to standards “as recommended by the National Fire
Protection Association, effective July, 1937, a copy of said regulations known as the
National Board of Fire Underwriters Pamphlet No. 58 being on file with the Gas
Utilities Division of the Railroad Commission of Texas.”
    Id. at 519. 
    The court
distinguished the statute before it from the one held invalid in Stare v. Cmwford,
    177 P. 360 
    (Ran. 1919). In the Crawford case, the statute under attack adopted “present
as well as prospective rules of an unofficial association as a standard of conduct,
departure from which would have been a crime.” The Texas Supreme Court
p. 839
Honorable Tim Curry - Page 2              (m-159)
observed that such delegation of legislative powers to a private association would
contravene article III, section 1 of the Texas Constitution. The Texas court then
declared:
We do not have before us a situation where future rules of an
unofficial agency have been prospectively adopted by the
legislature.
Id at 520.
With regard to section 756.042, however, we do in fact “have before us a
situation where future rules of an unofficial agency have been prospectively adopted
by the legislature.” Since the ambit of the statute. is not limited to a particular
edition of the range manual, it fails to meet the standard adopted in L&Id@.
This view is confirmed by more recent cases from other jurisdictions. In
J&stem Fed Corp. v. Wksson,
    316 S.E.2d 373 
    (S.C. 1984). for example, the court held
that a statute which imposed a 20 percent tax on admissions only to those motion
pictures rated X by the Motion Picture Association of America, or not rated at all,
constituted an unlawful delegation of legislative authority to a private association”
    Id. at 374. 
    Likewise, in News PGnting Co. v. Bonn@ of Touwa,
    511 A.2d 139 
    (NJ.
Super. Ct. Law Div. 1986). the court said that an ordinance which banned newsracks
within 200 feet of any church unless the church waived the prohibition was
unconstitutional in granting legislative power to a private entity.
    Id. at 162; 
    see uLro
North Am Sa&v Valve h&s., Inc v. Wo&st,
    672 F. Supp. 488
    , 493-94 (D. Kan.
1987); Srpte v. Ch&ie, 766 P.2d 1198,120s (Haw. 1988 ) cert denied,
    490 U.S. 1067 
    (1989) Bulova Watch Co.. Inc v. Brand D&ribs. qf N Wilkebom, Im,
    206 S.E.2d 141
    .146 (N.C. 1974).
On the basis of the language in Dudding,
    193 S.W.2d 517
    , and the
unmistakable thrust of the law in other jurisdictions, we conclude that section
756.042, as currently written, is an invalid attempt to confer legislative authority on a
private association, in clear contravention of article III, section 1 of the Texas
COIlStitUtiOXL
Section 756.042, Health and Safety Code. which require
outdoor shooting ranges to be constructed according to
p. 840
Honorable Tim Curry - Page 3           m-159)
standards promulgated by the National Rifle Association, is an
invalid attempt to confer legislative authority on a private entity
in contravention of article Ill, section 1 of the Texas
ChlStitUtiOll.
DAN      MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARYKELLER
Deputy Assistant Attorney General
RENEAHIW
Special Assistant Attorney General
MADELEINB B. JOHNSON
Chair, Opinion Committee
Prepared by Rick Gilpin
Deputy Chief, Opinion Committee
p. 841