Untitled Texas Attorney General Opinion ( 1988 )

February 23, 1988
Honorable Abelardo Garza Opinion No. ~~-863
Duval County Attorney
P. 0. Drawer M Re: Whether a county may
San Diego, Texas 78384 set a curfew for minors on
public property (RQ-1238)
Dear Mr. Garza:
You ask whether the Duval County Commissioners Court
may enact an ordinance setting a curfew for minors found
on public property within the county.
Article V, section 18, of the Texas Constitution
gives to a commissioners court
such powers and jurisdiction as is conferred
by this constitution and the laws of the
state, or as may be hereafter prescribed.
Under this provision, a commissioners court may exercise
only those powers that the Texas Constitution and statutes
specifically confer upon it. Canales v. Lauahlin, 214
S.W.2d 451 (Tex. 1948). To answer your question, then, we
must look first to specific statutory grants of authority.
Several statutes confer on commissioners courts the
authority to exercise control over particular public
areas. Article 2351, V.T.C.S., provides in part:
Each commissioners court shall:
. . . .
5. Exercise general control over all
roads, highways, ferries and bridges in
their counties.
Chapter 291 of the Local Government Code provides in part:
g291.001. Providing and Maintaining County
Buildings
p. 4184
Honorable Abelardo Garza - Page 2 (JM-863)
The commissioners court of a county
shall:
. . . .
(3) maintain the courthouse, offices,
and other public buildings.
5291.003. Control of'courthouse
The county sheriff shall have charge and
control of the county courthouse, subject to
the regulations of the commissioners court.
Finally, section 331.005 of the Local Government Code
provides in part:
(a) Parks acquired under this chapter
[on municipal and county parks, museums and
historic sites] are under the control and
management of the municipality or county
acquiring the park.
These provisions allow a commissioners court to
regulate reasonably the use of county roads, buildings,
and parks. They do not, however, allow a commissioners
court to adopt regulations unrelated to the objectives
behind the enabling statutes. See La Cour du Roi. Inc. v.
Montaomerv Countv, 698 S.W.Zd 178, 187-88 (Tex. App. -
Beaumont 1985, no writ). A juvenile curfew ordinance is,
in our view, well beyond the intended scope of the
statutes cited above. See aenerallv Shinlev v. Flovdada
Indeoendent School District, 250 S.W. 159, 161, judgment
adopted (Tex. Comm'n App. 1923).
Thus, a commissioners court lacks the authority to
enact a juvenile curfew ordinance -- even if such an act
would, as you suggest, promote "the safety and general
welfare" of the community. Unlike home rule cities,
counties have no general police power. Commissioners
Court of Harris Countv v. Kaiser, 23 S.W.2d 840 (Tex. Civ.
APP. - Galveston 1929, writ ref'd). Counties are agencies
for the administration of matters that are of state
concern, rather than of municipal concern or of concern of
any particular locality. Bexar Countv v. Linden, 220 S.W.
761 (Tex. 1920). Any powers conferred upon counties are
duties imposed rather than privileges granted. Orndorff
v. State, 108 S.W.2d 206 (Tex. Civ. App. - El Paso 1937,
writ ref'd): see also Harrison County v. Citv of Marshall,
p. 4185
Honorable Abelardo Garza - Page 3 (JM-863)
253 S.W.2d 67 (Tex. Civ. App. - Fort Worth 1952, writ
ref'd) (contrasting powers of county with powers of city).
Thus, a county is prohibited from acting solely on the
basis of a general desire to promote the safety and
general welfare of the community. See aenerally Attorney
General Opinions MW-419 (1981) (county has no authority to
prohibit discharge of sewage plant effluent into county
roadside ditch); H-374 (1974) (county has no authority to
regulate utility rates, establish minimum building and
housing codes, license door-to-door salesmen, or require
registration and bonding of home builders).
Moreover, whatever the justification behind it, a
juvenile curfew ordinance would raise a number of
troubling constitutional questions. In Attorney General
Opinion MW-558 (1982), we held that juvenile curfew
ordinances are not unconstitutional per se. We pointed
out, however, that any such ordinance must pass a number
of rigid constitutional tests: for instance, in order to
be considered valid, the ordinance must protect the
legitimate liberty and first amendment interests of
juveniles affected. Johnson v. Citv of ODelousas, 658
F.2d 1065 (5th Cir. 1981); Ex Darte McCarver, 46 S.W. 936
(Tex. Crim. App. 1898). In addition, the ordinance must
not be broader than is necessary to achieve leaitimate
governmental purposes. Johnson -v. Citv of ODelousas,
SuDra; McCollester v. CitV of Keene, 514 F. Supp. 1046
(D.N.H. 1981), rev'd on other arounds, 668 F.2d 617 (1st
Cir. 1982).
This latter requirement is especially troublesome
when applied to county action. Attorney General Opinion
MW-558 dealt with a curfew proposed by a & -- which,
under its police power, has the right to protect the
health, safety, morals, and general welfare of its
citizens by any reasonable and necessary regulations.
Lombard0 v. Dallas, 73 S.W.Zd 475 (Tex. 1934); see also
Local Gov't Code 554.004. As noted above, a county,
unlike a city, has no general police power: its "legiti-
mate governmental purposes" are confined to those
specifically enumerated by statute. Thus, in the absence
of expansive statutory authority, any county curfew
ordinance would probably be unconstitutionally overbroad.
Even if a county-wide juvenile curfew ordinance were
authorized by statute, it would still be vulnerable to
constitutional attack under the various tests set forth
in MW-558. Recent years, moreover, have witnessed a
heightening, rather than a lessening, of judicial scrutiny
P. 4186
Honorable Abelardo Garza - Page 4 (JM-863)
in this area. Comoare Bvkofskv v. B rouah f Middletown
401 F. Supp. 1242 (M.D. Pa. 1975). :ff#d, ;35 F.2d 124;
(3d Cir.);-cert denied, 424 U.S.-964 (1976), with Allen
v. Citv of Bordentown 524 A.2d 478 (N.J. Super. Ct. Law
Div. 1987); see a1so'S.W. v. State, 431 So. 2d 339 (Fla.
Dist. Ct. APP. 1983). Relevant commentary in legal
journals has reflected this trend. &B Note, Assessing
the Scooe of Minors' Fundamental Riahts: Juvenile Curfews
and the Constitution, 97 Harv. L. Rev. 1163-81 (1984);
Note, Nonemeraencv Municioal Curfew Ordinances and the
Libertv Interests of Minors, 12 Fordham Urb. L.J. 513-61
(1984).
SUMMARY
A commissioners court has no authority
to enact a county-wide juvenile curfew
ordinance.
JIM MATTOX 7,
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
P. 4187