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)

DearMr.Ware:

You askwhether Attorney General Opinion MW-52 (1979)I which held in part that acounty sheriff has noduty to accept for incarceration inthe county jail persons arrested only forviolations of city ordinances, applies to violations of traffic ordinances enacted by acity 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 orwhich incorporate provisions of the statute, but that itdoes 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 ofprisoners incarcerated in the Lubbock County Jail for the purpose of determining whether the city or the county is responsible for themaintenance of suchprisoners. The county asserts, on the strength ofAttorney General Opinion MW-52, that a prisoner who isarrested foraviolation of acity ordinance isa "city prisoner" regardless of the source ornature- of the ordinance. The city, meanwhile, argues that there is a distinction between purely local ordinances, such as zoning orbuilding 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 forviolations of city traffic ordinances adopted pursuant to article 6701d, the Uniform Act Regulating Traffic onHighways, should be classified as "state prisoners."

p. 5193Honorable Travis S.Ware -Page 2 (JM-1009)

The relevant issue presented in Attorney General Opinion MW-52 waswhether aperson arrested forviolating a municipal ordinance could legally be incarcerated in the county jail in the absence ofan 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 ofCriminal Procedure which provides that defendants in
cases before themunicipal court %hall be committed to the custody of the chief ofpolice or citymarshal1 . . .to be held by him inaccordance with the ordinance providing for the custody ofprisoners convicted before such . . .court." The attorney general.determined that acity thus was responsible for themaintenance ofprisoners who aredefendants 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 ofmunicipal ordinances, and noduty 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 inthe county jail for violation ofanymunicipal ordinance will trigger the city's obligation for themaintenance .ofaprisoner. An examination of the authorities relied upon by the attorney general, however, helps place the opinion inperspective.
Article 45.05 of the Code of Criminal Procedure was construed to impose on acity the duty tomaintain prisoners who are defendants in cases before themunicipal courts. Article 45.03 of the Code ofCriminal Procedure states the county attorney "may, ifhe sodesires, also represent the State in such prosecutions," which are conducted by the city attorney. InHowth v. Greer, 90S.W. 211 (Tex.Civ. APP. 1905,writ ref'd), cited inAttorney General Opinion MW-52, the court considered aclaim by the county attorney that he had the duty to represent the state inmunicipal 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. 5194Honorable 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 sameground.

Howth at 213. The fact that inthese cases only aviolation of amunicipal ordinance was charged could not alter their essential nature as state cases, %ases inwhich the state isnot only anominal, but areal, party." & The court expressly declined to consider whether the county attorney had any right toprosecute cases for violations ofmunicipal ordinances regulating purely municipal affairs andwhich 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 overviolations ofacity 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 lawof the state. It is therefore consistent withWowth v. Greer, suora. See also Attorney General Opinion V-745 (1948) (ajustice of the peace has jurisdiction in cases involving the failure to obey ~instructionsof 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 ofAttorney General Opinion WW-52 is that the maintenance of prisoners incarcerated inthe county jail for violations of municipal ordinances only is the responsibility of the citywhen

(1) the prisoner is not incarcerated for violating a criminal lawof the state, and ,'
(2) the ordinance involves the regulation of purely municipal affairs and does not cover the same ground as acriminal law of the state.

We have not examined themunicipal traffic ordinances of the city ofLubbock, but it isclear fromthe discussion thus far that the city is not responsible for the

p* 5195Honorable Travis S.Ware -Page 4 (JM-1009)

maintenance of prisoners housed inthe county jail for violating traffic ordinances that incorporate the provisions of article 6701d. What isnot so clear iswhether the city is liable for themaintenance of prisoners when the ordinances either validly deviate from the standards set forth inarticle 6701d or regulate forms of traffic hot covered by the statute. Inour opinion, the city is liable when only the second type of traffic ordinance is involved.

In support of itsargument, 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 theprovisions of the act are applicable anduniform throughout the state and that

no local authority shall enact or enforce any ordinance, rule, orregulation in conflict with the provisions of this Act unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which arenot inconflict with the provisions of thisAct.
Section 31authorizes municipalities toplace 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 143declares a violation of the act tobe a misdemeanor unless made a felony by the act or other state law. The city concludes that aviolation of an ordinance adopted pursuant to article 6701d is a violation of the comprehensive system of traffic regulation and, implicitly, ofarticle 6701d itself.
Section 27of 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 27provides that the act

shall not be deemed toprevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of thepolice power from

1. Regulating the stopping, standing, or parking ofvehicles:

p. 5196Honorable Travis S.Ware -Page 5 (JM-1009)

. 2. Regulating traffic bymeans of police officers or traffic-control devices;

3. Regulating orprohibiting processions
or assemblages on thehighways;

4. Designating particular highways as one-way highways . . . ;
5. Regulating the speed ofvehicles in public parks;

6. Designating any highway as a through highway . . .ordesignating any intersection as a stop intersection orayield intersection:

7. Regulating the operation of bicycles and requiring the registration and licensing of same, including the requirement of a registration fee:

8. Regulating orprohibiting the turning ofvehicles or specified types ofvehicles at intersections:

9. Altering the speed limits as authorizedherein;

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 acity's power to adopt traffic ordinances inpursuit of itspolice power that either depart in some details from the regulatory standards inthe act or that regulate certain forms of traffic not covered by the act. It also demonstrates that acity need not rely solely on article 6701d forauthority to adopt ordinances regulating traffic. Section 26 merely confirms that the statute is a limitation ona city's ordinancemaking power in those areas governed by the statute.
Read together, sections 26and 27mean acitymay adopt three kinds of traffic ordinances. First, acitymay adopt ordinances that implement article 6701d and incorporate its

p. 5197Honorable Travis S.Ware -Page 6 (JM-1009)

provisions. Second, a city may promulgate ordinances that implement but are inconflict with article 6701dwhere the statute authorizes adeparture from its standards. See, m, oarte Devereaux, 389 S.W.2d 672 (Tex.Crim. APP. 1965) (discussed below). Third, acitymay adopt ordinances that regulate forms of traffic not governed by article 6701d.

The regulatory variances permitted by sections 26 and 27of article 6701d no doubt are intended to permit cities to tailor their traffic ordinances to address purely local interests. This accommodation ofpurely local interests might thus reflect the legislative intention that cities remain responsible for the maintenance of prisoners incarcerated forviolations of city traffic ordinances that depart inany 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 tobe treated asviolations of article 6701d.

InEx oarte Devereaux, 3ZXxa, the court upheld a conviction for speeding inviolation of amunicipal ordinance which apparently altered theprima facie speed limit set inarticle 6701d~ and.prescribed apunishment different than section 143 of the statute. The court invalidated the ordinance as topunishment, but said

[iInsofar as the ordinance alters the prima facie speed limits set out inSec. 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 isvalid and aconviction for violation of the state statute, implemented by the ordinance, with punishment authorized by Sec. 143 of saidArticle 6701d . . . .
Devereaux at 673. See also Nor isv. 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 suchprisoners once they are accepted for incarceration by the sheriff of the county. w Attorney General Opinions JM-151 (1984);H-169 (1973).

p. 5198Honorable Travis S.Ware -Page 7 (JM-1009)

Accordingly, we conclude thatAttorney General opinion MW-52 (1979)does not apply to cases involving the incarceration ofpersons arrested forviolating 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 themaintenance 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 FirstAssistant Attqrney General

L0UMCCREARY 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