MARK

WHITE Wormy General 

# The Attorney General of Texas

! January 6, 1981

Honorable Charles Evans Opinion No. MN-291 Chairman Government Organisation Committee Re: Whether cities may enact Houseof Representatives Austin, Texas 76711 ordinances regulntirg possessionor sale of dru5paraphernalia Dear Representative Evens: You have asked whether mmMp.slities hmfe the authority to enact ordinances regulatiq the posse&on or sale of drug paraphernalia by an individual **or** enterprise. Home rule cities may enact any ordinance not inconsistent with the constitution or statutes of the state of Texas. Tex. Const. art. XI, S5; V.T.C.S. art. ll75; Lower Colorado River Authority v. General law cities may City 523 S.W. 2d 641 (Tex. 1975). enact ‘brdinances, rules tmd police regulations, not contrary to the 

### [clonstitution of this [sltate, for the goOagovernment, peace and order of the [cl ity.” V.T.C.S. art. l6lL The enswer to your h~quiry.nscessarily depends on whether the proposed ordinances are repu@tantto state law, or whether the regulation of, the conduct sought to be proscribed by,such ordinanceshss beenpreempted by state law. The possession of controlled substance paraphernalia is regulnted by the ControLled SubstancesAct, article 4476-15,V.T.C.S., which provides in section 4.07 as follows:

(4 A Person, except a practitioner or a person acting m&r his directbn, commits an offense if he pcaeses a hypodermic’ syrhge, need@ Or other instrument. that bss on it any qunntity &~~luding a trace) of a controlled t&stance in Penalty Group 1or 2 with .intent to use it for administration of the controlled i3e3tsnce by s~taneous injection in a humanbee. (b) An offense tmder Subsection (a) is a Class A misdemeanor. Penal Code section LO8provides:

No governmental subdivision **or** agency may enact or enforce a law thnt makes any conduct covered by this

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Honorable Charles Evans - Page Two @lh-291)

code an offense subject to a criminal penalty. This section shall apply only as long as the law governing the conduct proscribed by this code is legally enforceable. Penal Code section LO8is madeapplicable to the Controlled SubstancesAct by Penal Code section LO3(b), whichprovides that the provisions of Titles 1,2 and3‘of the Penal Code apply to offenses defined by other laws, unlessthe statute defining the offense provides otherwise. Since the possessionof control14 s&stance paraphernalia, as defined by section 4.07 of article 4476-15is punishableas a Class A misdemeanor underthe ControBed Substances Act, cities would be preempted by state law from enacting ordinances regulating the same conduct proscribed by section 4.07 as long as SXtion 4.07 is legaliy enforceable. However, we recognize that ‘drug paraphernalia” may be defined to includemany more items than “a hypodermic syringe, needle, or other instrument~thethason it any quantity (including e trace) of e controlled substancein Penalty Group 1or 2” intended to be used“for edmjnistretion of the controlled substanceby subcutaneous injection in a humanbeing,” which is regulated by section 4.07. “Drug peraphemaliti” has been defined to include a variety of objects used to process, package, and administer controlled substances. See Model Drug Paraphernalia Act prepared by the Drug Enforcement Administrationof the United States Department of Justice (August 1979). We do not believe that Penal Code section LO8 would prohibit cities from enacting ordinences regulating the possessionand/or sale of drug paraphernalia, other than e hypodermic syr&e, needle, or other instrument as described bysection 4.07of article 4476-15,

V.T.C.S. We note, however, that some statutes and ordinances regulating the possession and sale of &ug paraphernalia have been held invalid on constitutional grounds. Housworth v. Glisson, 485 P. Supp. 29 (N.D. Ga. l978), efPd -, 614F. 2d 1295(5th Cir. 1980)(void for vagueness); High OF Times, Inc. v. Busbee,456 F. Supp. 1035(N.D. Ga l978), eff

’d per curiem, 621F. 2d 141(5th Cir. 1980) (statute was overbroad end proscribed protected speechb See also- 488F. Supp. 390 fE.D. Mid 1960);Knoedler v. Roxb~ry Township, 485 F. Supp.990 (D.N.J. 7980);Record Museumv. Lawrence Township 481F. Supp. 768 (D.N.J. 1979)(void for vegueness). 485 F. Supp.-%%%.%w” , Hoffman Es&es. inc. v. Village of Hoffman Estates, 1980)(ordinance regulating items designed or marketed for use with i&gel drugs does not violate due process clause, equal protection clause, or

. first amendment). The Model Drug Paraphernalia Act is being challenged on constitutional groundsin Fort Worth, where it was adopted 8s an ordinanceof the city of Fort Worth. Atkins v. Woods, No. CA-4-80-249 (N.D. Tex., filed July Sl, 1980). We expressnoopinionherein regarding the constitutionality of suchan ordinance. SUMMARY Section LO8 of the Penal Code does not prohibit cities from enacting ordinances reguletiw the possession and/or sale of

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&ug paraphernalia not presently regulated by section 4.07 of the Controlled SubstancesAct. Whether e particular ordinance could withstand attack on constitutional grands is beyond the scope of this opinion.

MARK WHITE Attorney General 

### of Texas JOHN W. FAINTER, JR. First Assistant Attorney General RICHARD E. GRAY HI Executive Assistant Attorney General Prepared by 0erald.C. Cerruth Assistant Attorney General APPROVED: OPtiION COMMI'ITEE Susani,. Garrison, Acting Chairman Gerald C. Cerruth Rick Gilpii

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