Untitled Texas Attorney General Opinion

QBfficeof tip Bttornep @enera &ate of IBexas DAN MORALES ATTORNEY GENERAL November 23,1992 Honorable James Warren Smith, Jr. Opinion No. DM-183 Frio County Attorney P.O.BoxV Re: Whether a county commissioners court Pearsall, Texas 78061-1138 is authorized to promulgate regulations creating a “smoke-free” environment or designate restricted areas in county buildings or facilities for smoking (RQ-363) You ask whether the Frio County Commissioners Court is vested with the authority to create a smoke-free environment or to designate restricted areas in county buildings or facilities for smoking.* We conclude that the court may regulate smoking on all county property. The commissioners court derives its authority from article V, section 18 of the Texas Constitution, which provides that the court shall “exercise such powers and jurisdiction over all cowlty buriness, as is conferred by this Constitution and the laws of the State.. . .” Tex. Const. V, 8 18(b) (emphasis added). The powers and ‘You offer Texas Penal code section 4&01(a) as the relevant statute in this cast. This pwvision dates the followiog: A person commits an offense if he is in posse&on of a burning tobacco productor smokes tobacco ia a facilityof a public primaryor secondaryschool or an elevator, enclosed theater or movie house, liiary, muscum. hospital traositsystembus, or intrastatebus . . . , plane, or trainwhich is a public place.. Your rcaadag suggests that in the wwsc of cxdslag its express authority“onr all county business,’ tbc wmmisaioaers court has implied authorityto adopt by order section 46.01 of the Texas Penal Cede and hence the authority to designate smokiog and non-smoking areas within county buildings or facilitica. Bccausc WCconclude.that the commissionerscourt has broad authorityover countybuildings aad facilih, we need not reach this point in our analysis. See Acts 1975,64tb Leg., ch. 290, P 2, at 745 (Penal Code sectioo 4&01(a)dces not preempta local anti-smokingorder). p. 961 Honorable James Warren Smith - Page 2 K?t-183) duties of the court are prescribed by the legislature in Local Government Code section 291.001, which provides the following, in pertinent part: The commissioners court of a county shall: . . . . 3. maintain the courthouse, offices, and other public buildings. See Godson v. Marshall, 118 S.W.2d 621, 623 (T’ex. Civ. App.-Waco 1938, writ dism’d) (commissioners court possessed implied authority to regulate the use of courthouse) (considering predesssor statute V.T.C.S. art. 2351). The statutory duty of a commissioners court to keep county buildings and facilities in repair contemplates “inhabitable and usable” property. See Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941) (considering predecessor statute V.T.C.S. art. 2351). In addition, the counties of this state have general authority to provide for the health and welfare of persons within the county. State law authorizes the county commissioners court to exercise control over health and sanitation matters concerning the county and its residents. Health & Safety Code 5s 121.003 (local public health reorganization act); 122.001 (appropriation and spending authority for health and sanitation); 281.121 n.2 (creation of a hospital district); see L&OAttorney General Opinions O-4725 (1942) (establishment of preventive medicine unit); O-2419 (employment of a nurse), 0-2580A (1940) (operation of a health clinic without the establishment of a county hospital). Specifically, section 121.003(a) of the Health & Safety Code vests the commissioners court with the authority to “enforce any law that is reasonably necessary to protect the public health.” Tlms no legislation expressly vests the commissioners court with authority to regulate smoking in county buildings and facilities. Similarly, there are no judicial or attorney general decisions directly addressing your concern. However, the commissioners court may act without express authority, so long as its actions are reasonably necessary to pursue some authority granted by either statute or the state constitution. See genera& Pritchard &Abbott v. McKenna, 162 Tex. 617,350 S.W.2d 333 (1961) (implied authority to contract with private appraisal firm upheld); Sdrope v. Stute, 647 S.W.2d 675 (Tex. App.-Houston [14th Dist.] 1982, writ refd) (commissioners court granted implied authority to exercise broad discretion in regulation of massage parlors); Rowan v. Picket& 237 S.W.2d 734 (Tex. Civ. App.-San Antonio 1951, no writ) (commissioners court granted broad discretion to p. 962 Honorable James Warren Smith - Page 3 UBt-183) exercise authority reasonably necessary to accomplish soil preservation program); Attorney General Opinion JM-1098 (1989) (cxxnmi&oners court possessed authority to promulgate regulations regarding smoking in county jail). In our opinion, however, the county commissioners court’s broad authority over all county business, as well as its more specifk authority to provide for the health and welfare of persons within the county, implicitly empowers the court to regulate smoking in cotmtybuildings? As the body responsible for the acquisition and maintenance of county buildings and facilities as well as the health and welfare of persons within the county, the commissioners court is authorized to regulate smoking within and on county properly. DAN MORALES Attorney General of Texas %cved jmisdickioashave addred your quq. III KSUWIS Atto~ncyGcnupl opinion No. 92-U (19!32),it was opined that the board of county aommicsionershasthcauthoritytod&gnateand decidcwhichuusofamorthousc,cxccptthoscllscdforjudi~hrnctionc,uctobc~o~~~ Ia CaIifomia Attorney Gcucral Gpioioa No. 91-719 (Ml), the D&&t Attorney of Orange County Lplrcdwhc~aco~Eo~cnart~adinanecnrbichbpnsrmokingin111co~~llad caforce.theordhamxagainstmcmbersofthepubli~ Itwasconcludcdthatruch~wouldbe pcrmimibleifitwouldaotbcinumflictwithgmu.rallawr Idat3. Additionayl,tkwriteriuIowa Atorncy General Opinion No. 88-1-11(L) (1988), asked vbcthcr a county board of sopuviron has authaityto~aMdutimoror~~rmdringinpoPtionsoftbcwuntyeollrthousc oatpiedbytheawtoritsempl~ Itwascs&udcdthatwbiktheboardofsupcrvisorsis rcspoasiblcforthcalstody~umtroldthccourthouse itmaymtrcguIatcamoklagioareas~ toahtccdaciah TbcopinionEontaiartbcavutthptthcdceirionrbouldnotbcconstrucdtopcrmit atateemployees to smoke ia other areas of the courthousecontraryto .stabli&cd policy. Id. at 2. p. 963 Honorable James Warren Smith - Page 4 (@t-183) WILL PRYOR First Assistant Attorney General MARY KELLER Deputy Assistant Attorney General RENEAHIcKs Special Assistant Attorney General MADELEINE B. JOHNSON Chair, Opinion Committee Prepared by Toya C. Cook Assistant Attorney General p. 964