Untitled Texas Attorney General Opinion

,

Honorable Mike Drlscoll Opinion No. JM-737
Harris County Attorney
1001 Preston, Suite 634 Re: Whether a municipal anti-smoking
Houston. Texas 77002 ordinance is applicable to county
facilities located within that munici-
pality

Dear Mr. Driscoll:

You ask whether a municipal anti-smoking ordinance is applicable
to county facilities located within that municipality. Pursuant to
its authority under section 34 of article 1175, V.T.C.S., "to enforce
all ordinances necessary to protect health, life and property," the
city of Houston, a home rule city. has adopted an ordinance which
prohibits smoking in public places. "Public places" is defined to
include governmental facilities.

You question the authority of a city to impose its anti-smoking
ordinance on county-owned facilities. First, you argue that as an
"arm of the state" the county is immune from city regulation. You
suggest that counties are distinguishable from other political
subdivisions of the state in this regard. This office has validated
the application of city ordinances to counties. See Attorney General
Opinion NOS. JM-180 (1984); MW-508 (1982); WW-218(1957). In Attorney
General Opinion MU-508, this office rejected the argument that
counties are immune from municipal ordinances. That opinion relied on
the reasoning of the supreme court in Port Arthur Independent School
District V. City of Groves, 376 S.W.Zd 330 (Tex. 1964).

You offer language found in City of Houston v. Houston Indepen-
dent School District, 436 S.W.Zd 568 (Tex. Civ. App. - Houston [14th
Dist.] 1968), modified, 443 S.W.Zd 49 (Tex. 1969) to support your
position of county immunity. At issue before the Houston court was
the constitutionality of an ordinance that expressly exempted county
and city governments from its terms. In justifying the exemption made
by the ordinance for county governments,.the court analogized to the
immunity of state property from municipal regulation:

Properties of the State are excluded as a
matter of law from the application of City
building regulations. Port Arthur Independent
School Dist. v. City of Groves, supra. Counties,
being arms of the state, would likewise be immune
from city-imposed payment of fees as in the
instant case.

p. 3432
Honorable Mike Driscoll - Page 2 (JM-737)

Houston, 436 S.W.Zd at 572.

As this office stated in Attorney General Opinion MU-508 (1982)
at 5, we doubt the precedential value of the language quoted above.
The supreme court reserved judgment on the question of county-city
relationships. We have found no supreme court decision that limits
City of Groves to require that counties be viewed differently from
other political subdivisions in regard to the application of a city
ordinance. In our opinion, a county is not immune from a municipal
anti-smoking ordinance.

Next. you urge that state law confers upon the county sufficient
responsibility for the health of county residents and for the
construction and repair of county buildings to preempt the city's
authority to apply an anti-smoking ordinance to county facilities.
Specifically, you rely on article 4494n. V.T.C.S. (creation of a
hospital district); article 4436b, V.T.C.S. (local public health
reorganization act) ; article 4477-2, V.T.C.S. (mosquito control
district); article 2351(11), V.T.C.S. (support for mentally ill and
mentally retarded persons); article 5115, V.T.C.S. (establishment of a
county jail); and article 2351(7), V.T.C.S. (the duty to provide and
repair courthouses, jails , and all necessary public buildings).

The general rules concerning preemption were summarized in
Attorney General Opinion JM-619 (1987) at 1 as follows:

A municipal ordinance may not conflict with state
legislation. . . . A city is preempted from
regulating in a field if the city's regulation is
expressly prohibited, if the legislature intended
state law to exclusively occupy that field, or if
the city regulation conflicts with state law even
if state law is not intended to occupy that
field. . . . The state's entry into a field of
legislation does not automatically preempt that
field from municipal regulation. . . . Additionally,
because a home rule city's powers derive directly
from article XI, section 5, of the Texas Constitu-
tlon, limits on those powers must appear with
unmistakable clarity. . . . [Citations omitted].

We are of the opinion that none of these general statutes
pertaining to a county's authority regarding certain health or
hospital matters reflects a legislative intent to occupy the field of
smoking regulations. Likewise, we are of the opinion that articles
5115 and 2351 do not preempt a municipal anti-smoking ordinance in
county buildings.

Thirty years ago this office refused to read the general
buildings provision of article 2351(7) as vesting "sole police
jurisdiction with regard to regulation of county buildings with the
county commissioners' c0urt.u Attorney General Opinion WW-218 (1957).
Accord, Attorney General Opinion MW-508 (1982). We agree with those

p. 3433
 Honorable Mike Driscoll - Page 3 (JM-737)

opinions. It was considered unreasonable in those earlier opinions to
read article 2351(7) as preempting county buildings from municipal
inspection fee requirements and municipal fire code provisions. It
would be equally unreasonable to read that provision to preempt a
city's anti-smoking ordinance.

Having found no express county authority that preempts the
anti-smoking ordinance. we must consider whether state law expressly
prohibits or conflicts with such an ordinance. We hnve found no
statute restricting a city's authority to adopt an anti-smoking
ordinance. Nor do we believe that the municipal anti-smoking
ordinance conflicts with any state law.

Section 48.01 of the Penal Code creates an offense for smoking in
certain places. Subsection (a) provides:

(a) A person commits an offense if he is in
.possessionof a burning tobacco product or smokes
tobacco in a facility of a public primary or
secondary school or an elevator, enclosed theater
or movie house, library, museum, hospital, transit
system bus, or intrastate bus, as defined by
Section 4(b) of the Uniform Act Regulating Traffic
on Highways (Article 6701d, Vernon's Texas Civil
.-- Statutes), plane, or train which is a public
place.

Not ali governmental facilities are covered by this provision.
However, any argument that this statute conflicts with or preempts
local ordinances is refuted by the language in section 2 of the bill
creating the statute. Section 2 provides:

The provisions of this Act shall not preempt
any ordinance adopted by a government entity now
or in the future which prohibits the possession of
lighted tobacco products or prohibits the smoking
of tobacco within the jurisdiction of said
governmental entity.

Acts 1975, 64th Leg., ch. 290, §2, at 745.

In our opinion, a homel rule city's anti-smoking ordinance does
not conflict with state law.

1. Legislation was introduced in the regular session of the
Seventieth Legislature that would have prohibited smoking in public
places in much the same fashion as the Houston ordinance. This
legislation was not enacted into law. It defined public places to
include buildings used for state or local governmental purposes. The
r‘ bill specifically allowed political subdivisions to adopt more
stringent ordinances to regulate or prohibit smoking in a public
place.

p. 3434
Honorable Mike Driscoll - Page 4 (JM-737)

SUMMARY

The city of Houston anti-smoking ordinance is
not in conflict with state law. County buildings
located within the city of Houston are subject to
the ordinance.

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STRAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen Gladney
Assistant Attorney General
--,

p. 3435