The Honorable John Connally Opinion No. c- a0
Governor of Texas
Capitol Station Re: Constitutionalityof
Austin 11, Texas House Bill 92 of the
58th Legislature.
Dear Governor Connally:
We are in receipt of your request for opinion regard-
ing the constitutionalityof House Bill 92 passed by the Fifty-
eighth Legislature.
House Bill No. 92 reads in its entirety:
"H.B. No. 92
"AN ACT
authorizing the CommissionersCourt of any county
bordering on the Gulf of Mexico or the tidewater
limits thereof to regulate the speed of motor
vehicles on beaches which are open and accessible
to the public, and also to prohibit the littering
of such beaches; providing for receptacles for
such litter and posting of signs; providing that
the CommissionersCourts of such counties may au-
thorize sheriffs and other persons to enforce
such regulations;authorizing such Commissioners
Courts to provide penalties for violations of
these re ulatlons within limitations;repealing
Section 8 of Chapter 19, Acts of the Fifty-sixth
Legislature,Second Called Session, 19% (compiled
as Article 5415d of Vernon's Texas Civil Statutes),
and all other laws and parts of laws In conflict
herewith; providing certain exceptions;restricting
certain regulatory powers of the Commissioners
Court; providing for severability;and declaring an
emergency.
"BE IT ENACTED BY THE LEGISLATUREOF THE STATE
OF TEXAS:
"Section 1. The CommissionersCourt of any
county bordering on the Gulf of Mexico or the tlde-
water limits thereof may regulate the speed of motor
-391-
,,
Honorable John Connally, page 2 (C- 80 )
vehicles on any of the beaches of the county which
are open and accessible to the public. These Com-
missioners Courts are also authorized to regulate
the littering of such beaches, and toward this end
they are authorized to define the term 'lltterlng.~
"Sec. 2. The CommissionersCourt of any such
county may authorize the sheriff and his deputies
and other peace officers to enforce the regulations
promulgatedunder this Act, and may authorize persons
other than peace officers of that particular county
to enforce such regulations.
“Sec. 3. The Commissioners'
Court may'provide'
penalties for v'iolatl~hs'or'th8'~8g~latlon8'adb~te~'
'M~alty' sh&ll'e%i&eC'
(Emphasisadded).
“Sec. 4. Section 8 of Chapter 19, Acts of the
Fifty-sixthLegislature,Second Called Session, lg.59
(compiledas Article 5415d of Vernon's Texas Civil
Statutes), Is hereby repealed. All other laws and
parts of laws In conflict herewith are hereby repealed.
"Sec. 5. The CommissionersCourt of any county
Included within the provisions of this Act undertak-
ing to regulate motor traffic over a designated area
of the public beach shall post signs at the usual
points of entry notifying the general public of the
speed limits governing such area. Failure to so post
said signs relating to speed limits shall constitute
a defense to said violation of this Act. Such Court
shall place at the usual points of entry of such area
receptacles for the disposal of refuse, garbage, junk
and rubbish by the public in such area. Failure to
place and maintain receptaclesat the usual points of
entry of any designated area shall constitutea de-
fense to said violation of this Act.
"sec. 6. This Act shall in no manner, either
by its terms or application,in anywise affect the
title to real estate owned or claimed by persons, firms
0~ corporations,and any judgment of conviction entered
in the prosecution of an offense under this Act shall
not be consideredadmissible as evidence in any suit
involving the title to realty.
-392-
Honorable John Connally, page 3 ,(c-80 )
“Sec. 7. The provisions of this Act shall not
be construed to give the CommissionersCourt the power
to prohibit any type of vehicular travel on any beach
within this State.
“Sec. 9. The importanceof this legislationand
the crowded condition of,the Calendars In both Houses
create an emergency and an Imperativepublic necessity
that the ConstitutionalRule requiring bills to be read
on three several days In each House w suspended,and
this Rule is hereby suspended,and that this Act take
effect and be in force from and after Its passage, and
it Is so enacted."
Section 1-A of Article IX of the Constitutionof Texas,
approved by the electorate on November 6, 1962, states as follows:
"The Legislaturemay authorize the governing
body of any county bordering on the Gulf f Mexlco
or the tidewater limits thereof to regulate and
restrictthe speed, parking and travel of motor
vehicles on beaches available to th public by
virtue of public right and the litt&ng of such
beaches. (Emphasisadded).
"Nothing in this amendment shall increase the
rights of any riparian or littoral landownerwith re-
gard to beaches available to the public by virtue of
public right or submerged lands.
"The Legislaturemay enact any laws not lncon-
sistent with this Section which it may deem neces-
sary to permit said counties to Implement,enforce
and administer the provisions contained herein.
(Emphasis added).
-393-
Honorable John Connally, page 4 (C- a0 )
"Should the Legislatureenact legislationin
anticipationof the adoption of this amendment,
such legislationshall not be Invalid by reason
of Its anticipatorycharacter." (Emphasisadded).
Section 1 of Article II of the Constitutionof Texas
provides:
"The powers of the Government of the State of
Texas shall be divided into three distinct depart-
ments, each of which shall be confided to a magis-
tracy, to wit: Those which are Legislativeto one;
those which are Executive to another, and those
which are Judicial to another; and no person, or
collectionof persons, being of one of these depart-
ments, shall exercise any power
_ properly attached to
either of the otheral exaept'ln'the~instanbes.her~~n'
expressly perinltted:' (Emphasisadded).
Section 18 of Article v of the Constitutionof Texas
provides, in part:
"...The County Commissionersso chosen, with
the County Judge as presiding officer, shall compose
the County CommissionersCourt, which shall exercise
such powers and jurisdictionover all county busi-
ness, as la conferred by this Constitutionand'the
laws of th State;'or'as'map'be'herearter'gres~ribedl."
‘(EmphasisEdded).
Since the Constitution (Sec. l-A, Art. a) specifi-
cally authorizes the Legislatureto enable the governing body
of certain counties to regulate the speed of motor vehicles and
littering on beaches available to the public, no constitutional
question of delegation of powers exists. Particularlyis this
true In view of the emphasized portions of Articles II and V of
the Constitutionquoted above. To conclude otherwise would be
tantamount to holding Section 1-A of Article M of the Constitu-
tion, unconstitutional.
There can be no question that the bill in question con-
stitutes an exercise of the police power of the State, which has
been defined as "a grant of authority from the people to their
aovernmentalagents for the nrotectlon of the health. safetv.
comfortand the~welfare of~theepublic." Spann v. City of Dailas,
111 Tex. 350, 235 S.W. 513, 515 (1921). Section 1-A of Article
-394-
Honorable John Connally, page -y(c- 86 ‘): “’ ;’
IX clearly is a grant of the people to their,governmentalagents
of the kind of authority contemplatedby the foregoing definition,,
because regulation of speed and littering on beaches open to the
public Is unquestionablecalculated to protect and promote the
health, safety, comfort and welfare of the public.
The police power of the State more than all others af-
fects most Intimatelythe private and personal Interests and re-
lations of each individual. To a certain extent the power is
indefinable;the limits of its exercise are never clearly esta-
blished. To the Legislature,directly or as It may lawfully
delegate the power, Is given the large discretion of passing
measures necessary to effect the desired result, restricted
only by constitutionallimits; ,The Legislatureis the judge of
the wisdom and policy of all its enactments,and the courts are
without the right to overrule that judgment unless the Legis-
lature has clearly and beyond doubt exceeded the functions in-
vested to It by the Constitution. The State has the power to
select its agent for exercising the police power; It may con-
stitutionallydelegate to a subordinatepublic a ency the right
to exercise this power. See straues'v;~ State; 7f Grim. Rep.
132, 173 S.W. 662, 665 (1915).
Perceiving no clear or undoubted reason suggestive
that the Legislaturehas exceeded any function Invested to it
by the Constitution,md noting that the material provisions
of House Bill 92 closely tract the language of Section 1-A of
Article IX, Constitutionof Texas, we conclude that House Bill
92 would be sustained as valid legislation.
SUMMARY
House Bill 92 of the 58th Legislature
is a constitutionaldelegation of the
police power of the State and would be
sustained as valid legislation.
Very truly yours,
WAGGONER CARR
Attorney General
F. R. Booth
Assistant Attorney General
FRB:ab
-395-
.
Honorable John Connally, page 6 (c- a0 )
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Howard Fender
John Reeves
W. 0. Shultz
Jerry Brook
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
-396-