Untitled Texas Attorney General Opinion

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DAN MORALES
ATTORSEY
GENERAL September 3.1993

Honorable David Cain OpinionNo. DM-253
Chair
Committee on Transportation Re: Whether a home-rule city bas authority to
Texas House of Representatives regulate outdoor displays and signs at pawn-
P.O. Box 2910 shops, and related questions (RQ-556)
Austin, Texas 78769

You have inquired of this office whether, in light of certain provisions of the
Pawnshop Act, V.T.C.S. articles 5069-51.01 etseq., the City of Dallas (the “city”) may by
ordinance regulate outdoor displays, signs, and storage at pawnshops within the city. You
direct our attention to article 5069-S1.17B of the Pawnshop Act. which deals with the
authority of the Consumer Credit Commissioner (the *commissioner”)to regulate the
operation of pawnshops, snd in particular to two subsections of that article, articles
5069-51.17B(p) and 5069-51.17B(r), which read:
@) The commissioner may adopt rules related to the use of
outdoor displays and signs at pawnshops and the maintenance of the
premises at pawnshops.
. . . .

(r) The legislature has exclusive authority regarding the
operation of pawnshops, except for those matters delegated in this
Act to the commissioner. Notwithstanding the provisions of this
Act, the commissioner has the authority to regulate only those
business practices which require a pawnshop license.
You inform us that the Dallas City Council “is currently considering an ordinance
that would prohibit the accessory outside sales, accessory outside storage, and accessory
outside display of merchandise”at pawnshops in the city. You ask a series of questions
concerning the authority of the city to enact such legislation, given the existence of the
already-cited provisions of the Pawnshop Act.

The City of Dallas is a home-rule city. As such, its powers are delimited by article
XI, section 5 of the Texas Constitution, which declares that “no charter [of a home-rule

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city] or any ordinance passed under said charter shall contain any provision inconsistent
with the h’st.iMion of the State, or of the general laws enacted by the Legislature of this
State.” Home-rule cities have all powers of seEgovernment not expressly denied them by
the kg2atum Dab Merchcmh & Concetimkerr’s Ash v. Ci@ qf D&as, 852
S.W.2d 489 (Tex. 1993); Attorney General Opiion DM-229 (1993). In attempting to
determine whether a local ordinance is preempted by a state law, courts must seek to
construe the two in such a way that both will remain in effect. Cily of Richardson v.
Responsible Dog Owners of Te.ws, 794 S.WSd 17, 19 (Tex. 1990). “[IIf the Legislature
chooses to preempt a subject matter usually encompassed by the broad powers of a home-
rule city, it must do so with unmistakableclarity.” I)rrllas Merchant’s & Concessionaire’s
As.+.. 852 S.W.Zdat 4%.

You first ask us whether, if the commissionerdoes not enact rules concerning the
use of outdoor displays and signs at pawnshops, the city may do so. It may not.

The most recent Texas Supreme Court preemption decision, the Alar
Merchant’s h Concessionairee’scase, govems here. In that case, the City of Dallas sought
by xoning regulations to restrict the sale of alcoholic beverages in certsin areas of South
Dallas. The Supreme Court held that the Texas Alcoholic Beverage Code (the “TABC”)
preempted any such local regulation or ordinance. The basis for the court’s decision was
section 109.57(b) of the TABC:
It is the intent of the legislature that this code shall exchrsively
govern the regulation of alcoholic beverages in this state, and that
except as permitted by this code, a governmental entity of this state
may not discrimmate against a business holding a license or permit
under this code.
In the view of the Texas Supreme Court, section 109.57(b) was a su5ciently clear
indication of legislative intent to preempt the home-rule powers of the City of Dallas with
respect to the zoning of liquor stores. See DalIas Merchant’s & Concessionaire’s Ash,
852 S.W.2d at 492, n.3.

In the present case, the language of article 5069-Sl.l7B(r) of the Pawnshop Act is
equally clear. The Pawnshop Act, like the TABC, speaks of the “exclusive”nature of
I-..:-,..:..,_ authority. The legislature has kept all powers to regulate pawnshops save those
Y -.-.-
it expressly delegates to the commissioner.

The Power to regulate outdoor displays and signs has been delegated to the
commissioner by article 5069-51.17B(p) of the Pawnshop Act. This grant is made with
the requisite “unmistakable clarity,” &liar Mercht’s & Cmtimiree’s As.+, 852
S.W.2d at 4%. and accordingly the city is preempted 6om legislating in this regard.

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Your second question presupposes an aBrmative answer to your 6rst question.
We therefore need not address it.

You next ash whether the.city may “adopt regulations prohibiting outside sales and
outside storage at pawnshops.“~ For the reasons already outlined above, the answer is
again that it may not. Regulation of these matters is delegated by V.T.C.S. article
5069~51.17EQ) to the commissioner, who is given authority to promulgate rules
concerning “the maintenance of the premises.” Prohibition of such displays or storage
would be no more than the severest form of regulation; and this is a matter which the city
is preempted from regulating.

Your tinal question is whether article 5069-Sl.l7B(r) “exempt[s] pawnshops from
city-wide regulations regarding high weeds and landscaping.” It does not. While article
5069~Sl.lTR(r) preempts cities from speci6cally regulating pawnshops, it does not
purport to exempt such establishments 6om the operation of generally applicable
ordinances. Accordingly, the Pawnshop Act should be read here in such a way as not to
conflict with such ordinances. Ci@of Richurdwn, 794 S.W.2d at 19.

SUMMARY

Articles 5069~51.17B(p)and 5069~51.17R(r)of the Pawnshop
Act, V.T.C.S. article 5069-51.01 et seq., preempt any regulation by
the City of Dallas of outdoor signs, displays, or storage at
pawnshops, because these matters have been delegated to the
Consumer Credit Commissioner by the legislature. However, the
Pawnshop Act does not purport to exempt such establishments6om
laws of general application such as the Dallas city regulations
concerning high weeds and landscaping.

DAN MORALES
Attorney General of Texas

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WILL PRYOR
Fii As&ant Attorney General

MARYKEUBR
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opiion Committee

Prepared by James Tourtelott
Assistant AnolneyGcneral

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