January 16, 1989
.'
Honorable Travis S. Ware Opinion No. JR-1009
Criminal District Attorney
P. 0. Box 10536 Re: Whether Attorney General
Lubbock, Texas 79408 Opinion MW-52 (1979) applies to
violations of municipal traffic
ordinances adopted pursuant to
article 6701d, V.T.C.S.
(RQ-1568)
Dear Mr. Ware:
You ask whether Attorney General Opinion MW-52 (1979) I
which held in part that a county sheriff has no duty to
accept for incarceration in the county jail persons arrested
only for violations of city ordinances, applies to viola-
tions of traffic ordinances enacted by a city pursuant to
state law, specifically article 6701d, V.T.C.S. We conclude
that the opinion applies to cases involving violations of
ordinances which implement article 6701d or which incorpo-
rate provisions of the statute, but that it does not apply
to cases involving violations of municipal ordinances
regulating forms of traffic not covered by'the statute.
You inform us that the city of Lubbock and Lubbock
County disagree over the classification of prisoners incar-
cerated in the Lubbock County Jail for the purpose of
determining whether the city or the county is responsible
for the maintenance of such prisoners. The county asserts,
on the strength of Attorney General Opinion MW-52, that a
prisoner who is arrested for a violation of a city ordinance
is a "city prisoner" regardless of the source or nature- of
the ordinance. The city, meanwhile, argues that there is a
distinction between purely local ordinances, such as zoning
or building inspection ordinances, and ordinances adopted
pursuant to state law and as part of a comprehensive,
statewide system of regulation. The city contends that
prisoners arrested for violations of city traffic ordinances
adopted pursuant to article 6701d, the Uniform Act Regu-
lating Traffic on Highways, should be classified as "state
prisoners."
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Honorable Travis S. Ware - Page 2 (JM-1009)
The relevant issue presented in Attorney General
Opinion MW-52 was whether a person arrested for violating a
municipal ordinance could legally be incarcerated in the
county jail in the absence of an agreement between the city
and the county under the Interlocal Cooperation Act, article
4413(32c), V.T.C.S. 'The attorney general answered in the
negative, relying primarily upon section 45.05 of the Code
of Criminal Procedure which provides that defendants in
cases before the municipal court %hall be committed to the
custody of the chief of police or city marshal1 . . . to be
held by him in accordance with the ordinance providing for
the custody of prisoners convicted before such . . . court."
The attorney general.determined that a city thus was respon-
sible for the maintenance of prisoners who are defendants in
municipal court. See also Attorney General Opinion O-7353
(1946) . The opinion also observed that the state has only a
nominal interest in prosecutions involving only violations
of municipal ordinances, and no duty to prosecute such
cases. The county sheriff, therefore, had no duty to
incarcerate persons convicted of. violating only municipal
ordinances "absent a plain manifestation of the legisla-
ture's intent that a city may impose such a duty on the
sheriff and the county" or an interlocal agreement.
The opinion did not refer specifically to the kinds of
municipal ordinances under consideration. Thus, it leaves
the impression that incarceration in the county jail for
violation of any municipal ordinance will trigger the city's
obligation for the maintenance .of a prisoner. An examina-
tion of the authorities relied upon by the attorney general,
however, helps place the opinion in perspective.
Article 45.05 of the Code of Criminal Procedure was
construed to impose on a city the duty to maintain prisoners
who are defendants in cases before the municipal courts.
Article 45.03 of the Code of Criminal Procedure states the
county attorney "may, if he so desires, also represent the
State in such prosecutions," which are conducted by the city
attorney. In Howth v. Greer, 90 S.W. 211 (Tex. Civ. APP.
1905, writ ref'd), cited in Attorney General Opinion MW-52,
the court considered a claim by the county attorney that he
had the duty to represent the state in municipal court in
cases involving municipal ordinances which covered substan-
tially the same ground as state laws. Relying on article V,
section 21, of the Texas Constitution, the court held that
the county attorney has the right, and is
charged with the duty, to represent the state
in all prosecutions instituted for the
P. 5194
Honorable Travis S. Ware - Page 3 (JM-1009)
violation of the criminal laws of the state
in the corporation court, notwithstanding
such prosecutions may appear to be for
violation of ordinances of the city covering
the same ground.
Howth at 213. The fact that in these cases only a violation
of a municipal ordinance was charged could not alter their
essential nature as state cases, %ases in which the state
is not only a nominal, but a real, party." & The court
expressly declined to consider whether the county attorney
had any right to prosecute cases for violations of municipal
ordinances regulating purely municipal affairs and which did
not involve violations of any criminal laws of the state.
Attorney General Opinion V-1147 (1951), also cited in
Attorney General Opinion MW-52, answered this question in
the negative.
Attorney General Opinion O-5416 (1943) was cited for
the proposition that justice courts have no jurisdiction or
authority over violations of a city ordinance. That opinion,
however, held only that the justice courts were without
jurisdiction when the violation of the city ordinance was
not also a violation of a penal law of the state. It is
therefore consistent with Wowth v. Greer, suora. See also
Attorney General Opinion V-745 (1948) (a justice of the
peace has jurisdiction in cases involving the failure to
obey ~instructions of traffic control signals placed within
limits of a city by either state or local authorities in
accordance with article 6701d).
Examined in light of these earlier authorities, the
import of Attorney General Opinion WW-52 is that the main-
tenance of prisoners incarcerated in the county jail for
violations of municipal ordinances only is the responsi-
bility of the city when
(1) the prisoner is not incarcerated for
violating a criminal law of the state,
and ,'
(2) the ordinance involves the regulation of
purely municipal affairs and does not
cover the same ground as a criminal law
of the state.
We have not examined the municipal traffic ordinances
of the city of Lubbock, but it is clear from the discussion
thus far that the city is not responsible for the
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Honorable Travis S. Ware - Page 4 (JM-1009)
maintenance of prisoners housed in the county jail for
violating traffic ordinances that incorporate the provisions
of article 6701d. What is not so clear is whether the city
is liable for the maintenance of prisoners when the ordi-
nances either validly deviate from the standards set forth
in article 6701d or regulate forms of traffic hot covered by
the statute. In our opinion, the city is liable when only
the second type of traffic ordinance is involved.
In support of its argument, the city points to various
sections of article 6701d as evidence of the legislature's
intention to create a comprehensive system of traffic
regulation throughout the state that includes municipal
ordinances adopted pursuant to the statute. Section 26 of
the act states that the provisions of the act are applicable
and uniform throughout the state and that
no local authority shall enact or enforce any
ordinance, rule, or regulation in conflict
with the provisions of this Act unless ex-
pressly authorized herein. Local authorities
may, however, adopt additional traffic
regulations which are not in conflict with
the provisions of this Act.
Section 31 authorizes municipalities to place and maintain
traffic control devices in their jurisdictions necessary to
warn or guide traffic or to carry out the provisions of
article 6701d or local traffic ordinances. Section 169.(b)
authorizes municipalities to alter prima facie speed limits
under certain conditions. Section 143 declares a violation
of the act to be a misdemeanor unless made a felony by the
act or other state law. The city concludes that a violation
of an ordinance adopted pursuant to article 6701d is a
violation of the comprehensive system of traffic regulation
and, implicitly, of article 6701d itself.
Section 27 of article 6701d, however, recognizes the
power of local authorities, including home rule cities, to
regulate certain kinds of traffic not governed by article
6701d. Subsection (a) of section 27 provides that the act
shall not be deemed to prevent local authori-
ties with respect to streets and highways
under their jurisdiction and within the
reasonable exercise of the police power from
1. Regulating the stopping, standing, or
parking of vehicles:
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Honorable Travis S. Ware - Page 5 (JM-1009)
2. Regulating traffic by means of police
officers or traffic-control devices;
3. Regulating or prohibiting processions
or assemblages on the highways;
.
4. Designating particular highways as
one-way highways . . . ;
5. Regulating the speed of vehicles in
public parks;
6. Designating any highway as a through
highway . . . or designating any intersection
as a stop intersection or a yield intersec-
tion:
7. Regulating the operation of bicycles
and requiring the registration and licensing
of same, including the requirement of a
registration fee:
8. Regulating or prohibiting the turning
of vehicles or specified types of vehicles at
intersections:
9. Altering the speed limits as author-
ized herein;
10. Designating school crossing guards
and school crossing zones:
11. Adopting such other traffic regula-
tions as are specifically authorized by this
Act.
Several of these provisions recognize a city's power to
adopt traffic ordinances in pursuit of its police power that
either depart in some details from the regulatory standards
in the act or that regulate certain forms of traffic not
covered by the act. It also demonstrates that a city need
not rely solely on article 6701d for authority to adopt
ordinances regulating traffic. Section 26 merely confirms
that the statute is a limitation on a city's ordinance-
making power in those areas governed by the statute.
Read together, sections 26 and 27 mean a city may adopt
three kinds of traffic ordinances. First, a city may adopt
ordinances that implement article 6701d and incorporate its
p. 5197
Honorable Travis S. Ware - Page 6 (JM-1009)
provisions. Second, a city may promulgate ordinances that
implement but are in conflict with article 6701d where the
statute authorizes a departure from its standards. See,
m, oarte Devereaux, 389 S.W.2d 672 (Tex. Crim. APP.
1965) (discussed below). Third, a city may adopt ordinances
that regulate forms of traffic not governed by article
6701d.
The regulatory variances permitted by sections 26 and
27 of article 6701d no doubt are intended to permit cities
to tailor their traffic ordinances to address purely local
interests. This accommodation of purely local interests
might thus reflect the legislative intention that cities
remain responsible for the maintenance of prisoners
incarcerated for violations of city traffic ordinances that
depart in any way from the standards provided in article
6701d. Attorney General Opinion V-745 (1948), however,
concluded that justice courts have jurisdiction over cases
involving ordinances punishing the failure to obey traffic
control signals, thus suggesting that violations of such
ordinances are to be treated as violations of article 6701d.
In Ex oarte Devereaux, 3ZXxa, the court upheld a
conviction for speeding in violation of a municipal ordi-
nance which apparently altered the prima facie speed limit
set in article 6701d~ and.prescribed a punishment different
than section 143 of the statute. The court invalidated the
ordinance as to punishment, but said
[iInsofar as the ordinance alters the prima
facie speed limits set out in Sec. 166(a) of
Article 6701d, under authority of Sets.
166(a), 167, and 169, and implements said
statute without altering or modifying the
basic rule established in paragraph (a) of
Sec. 166, it is valid and a conviction for
violation of the state statute, implemented
by the ordinance, with punishment authorized
by Sec. 143 of said Article 6701d . . . .
Devereaux at 673. See also Nor is v. State, 576 S.W.2d 371
(Tex. Crim. App. 1978). Becauze persons incarcerated for
violating municipal traffic ordinances that implement
article 6701d are considered state statute violators, the
city is relieved of its obligation to provide for the
maintenance of such prisoners once they are accepted for
incarceration by the sheriff of the county. w Attorney
General Opinions JM-151 (1984); H-169 (1973).
p. 5198
Honorable Travis S. Ware - Page 7 (JM-1009)
Accordingly, we conclude that Attorney General opinion
MW-52 (1979) does not apply to cases involving the incar-
ceration of persons arrested for violating municipal traffic
ordinances that implement article 6701d, V.T.C.S.; the
opinion does, however to cases involving violations
of municipal regulating forms of
ordinan~e~pply traffic not
covered by article 6701d.
SUMMARY
Attorney General Opinion WW-52 (1979) does
not apply to cases involving the incarcera-
tion of persons arrested for violating
municipal traffic ordinances that implement
article 6701d, V.T.C.S. A city is not
responsible for the maintenance of prisoners
incarcerated in the county jail for viola-
tions of municipal traffic ordinances that
implement article 6701d once they are accept-
ed for incarceration by the sheriff of the
county.
~JIM WATTOX
Attorney General cf Texas
WARYKRUER
First Assistant Attqrney General
L0U MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEARLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General
p. 5199