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 violations 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 incorporate 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 incarcerated 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 Regulating Traffic on Highways, should be classified as "state 

prisoners." 

p. 5193 
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 responsible 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 legislature'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 examination 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 substantially 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 maintenance of prisoners incarcerated in the county jail for 

violations of municipal ordinances only is the responsibility 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 

p* 5195 
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 ordinances 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 expressly 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 authorities 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: 

p. 5196 
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 intersection: 

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 authorized herein; 

10. Designating school crossing guards 

and school crossing zones: 

11. Adopting such other traffic regulations 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 ordinancemaking 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 ordinance 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 incarceration of persons arrested for violating municipal traffic 

ordinances that implement article 6701d, V.T.C.S.; the 

opinion does, however 

ordinan~e~pply 

to cases involving violations 

of municipal regulating forms of traffic not 

covered by article 6701d. 

SUMMARY 

Attorney General Opinion WW-52 (1979) does 

not apply to cases involving the incarceration 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 violations of municipal traffic ordinances that 

implement article 6701d once they are accepted 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