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 

House of Representatives 

Austin, Texas 76711 

ordinances regulntirg possession or 

sale of dru5 paraphernalia 

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. 

City 523 S.W. 2d 641 (Tex. 1975). General law cities may 

enact ‘brdinances, rules tmd police regulations, not contrary to the 

[cl onstitution of this [sl tate, for the goOa government, 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@tant to state law, or 

whether the regulation of, the conduct sought to be proscribed by, such 

ordinances hss been preempted by state law. 

The possession of controlled substance paraphernalia is regulnted by 

the ControLled Substances Act, 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 1 or 

2 with .intent to use it for administration of the 

controlled i3e3tsnce by s~taneous injection in a 

human bee. 

(b) An offense tmder Subsection (a) is a Class A 

misdemeanor. 

Penal Code section LO8 provides: 

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 LO8 is made applicable to the Controlled Substances Act by Penal 

Code section LO3(b), which provides that the provisions of Titles 1, 2 and 3 ‘of the Penal 

Code apply to offenses defined by other laws, unless the statute defining the offense 

provides otherwise. 

Since the possession of control14 s&stance paraphernalia, as defined by section 

4.07 of article 4476-15 is punishable as a Class A misdemeanor under the 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 include many 

more items than “a hypodermic syringe, needle, or other instrument ~thet has on it any 

quantity (including e trace) of e controlled substance in Penalty Group 1 or 2” intended 

to be used “for edmjnistretion of the controlled substance by subcutaneous injection in 

a human being,” 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 possession and/or sale of drug paraphernalia, other than e 

hypodermic syr&e, needle, or other instrument as described by section 4.07 of 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 -, 614 F. 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, 621 F. 2d 141 (5th Cir. 1980) (statute was overbroad end 

proscribed protected speechb See also- 488 F. 

Supp. 390 fE.D. Mid 1960); Knoedler v. Roxb~ry Township, 485 F. Supp. 990 (D.N.J. 

7980); Record Museum v. Lawrence Township 481 F. 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 grounds in Fort Worth, where it was adopted 8s an ordinance of the city 

of Fort Worth. Atkins v. Woods, No. CA-4-80-249 (N.D. Tex., filed July Sl, 1980). We 

express no opinion herein regarding the constitutionality of such an 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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L 

Honorable Charles Evens - Page Three (Mw-291) 

&ug paraphernalia not presently regulated by section 4.07 of 

the Controlled Substances Act. 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 

Susan i,. Garrison, Acting Chairman 

Gerald C. Cerruth 

Rick Gilpii 

p. 931