February 23, 1988 

Honorable Abelardo Garza 

Duval County Attorney 

P. 0. Drawer M 

San Diego, Texas 78384 

Opinion No. ~~-863 

Re: Whether a county may 

set a curfew for minors on 

public property (RQ-1238) 

Dear Mr. Garza: 

You ask whether the Duval County Commissioners Court 

may enact an ordinance setting a curfew for minors found 

on public property within the county. 

Article V, section 18, of the Texas Constitution 

gives to a commissioners court 

such powers and jurisdiction as is conferred 

by this constitution and the laws of the 

state, or as may be hereafter prescribed. 

Under this provision, a commissioners court may exercise 

only those powers that the Texas Constitution and statutes 

specifically confer upon it. Canales v. Lauahlin, 214 

S.W.2d 451 (Tex. 1948). To answer your question, then, we 

must look first to specific statutory grants of authority. 

Several statutes confer on commissioners courts the 

authority to exercise control over particular public 

areas. Article 2351, V.T.C.S., provides in part: 

Each commissioners court shall: 

. . . . 

5. Exercise general control over all 

roads, highways, ferries and bridges in 

their counties. 

Chapter 291 of the Local Government Code provides in part: 

g291.001. Providing and Maintaining County 

Buildings 

p. 4184 
Honorable Abelardo Garza - Page 2 (JM-863) 

The commissioners court of a county 

shall: 

. . . . 

(3) maintain the courthouse, offices, 

and other public buildings. 

5291.003. Control of'courthouse 

The county sheriff shall have charge and 

control of the county courthouse, subject to 

the regulations of the commissioners court. 

Finally, section 331.005 of the Local Government Code 

provides in part: 

(a) Parks acquired under this chapter 

[on municipal and county parks, museums and 

historic sites] are under the control and 

management of the municipality or county 

acquiring the park. 

These provisions allow a commissioners court to 

regulate reasonably the use of county roads, buildings, 

and parks. They do not, however, allow a commissioners 

court to adopt regulations unrelated to the objectives 

behind the enabling statutes. See La Cour du Roi. Inc. v. 

Montaomerv Countv, 698 S.W.Zd 178, 187-88 (Tex. App. - 

Beaumont 1985, no writ). A juvenile curfew ordinance is, 

in our view, well beyond the intended scope of the 

statutes cited above. See aenerallv Shinlev v. Flovdada 

Indeoendent School District, 250 S.W. 159, 161, judgment 

adopted (Tex. Comm'n App. 1923). 

Thus, a commissioners court lacks the authority to 

enact a juvenile curfew ordinance -- even if such an act 

would, as you suggest, promote "the safety and general 

welfare" of the community. Unlike home rule cities, 

counties have no general police power. Commissioners 

Court of Harris Countv v. Kaiser, 23 S.W.2d 840 (Tex. Civ. 

APP. - Galveston 1929, writ ref'd). Counties are agencies 

for the administration of matters that are of state 

concern, rather than of municipal concern or of concern of 

any particular locality. Bexar Countv v. Linden, 220 S.W. 

761 (Tex. 1920). Any powers conferred upon counties are 

duties imposed rather than privileges granted. Orndorff 

v. State, 108 S.W.2d 206 (Tex. Civ. App. - El Paso 1937, 

writ ref'd): see also Harrison County v. Citv of Marshall, 

p. 4185 
Honorable Abelardo Garza - Page 3 (JM-863) 

253 S.W.2d 67 (Tex. Civ. App. - Fort Worth 1952, writ 

ref'd) (contrasting powers of county with powers of city). 

Thus, a county 

basis of 

is prohibited from acting solely on the 

a general desire to promote the safety and 

general welfare of the community. See aenerally Attorney 

General Opinions MW-419 (1981) (county has no authority to 

prohibit discharge of sewage plant effluent into county 

roadside ditch); H-374 (1974) (county has 

regulate utility 

no authority to 

rates, establish minimum building and 

housing codes, license door-to-door salesmen, or require 

registration and bonding of home builders). 

Moreover, whatever the justification behind it, a 

juvenile curfew ordinance would raise a number of 

troubling constitutional questions. 

Opinion MW-558 (1982), 

In Attorney General 

ordinances are not 

we held that juvenile curfew 

unconstitutional per se. We pointed 

out, however, that any such ordinance must pass a number 

of rigid constitutional tests: for instance, in order to 

be considered valid, the ordinance must protect the 

legitimate liberty and first amendment interests of 

juveniles affected. Johnson v. Citv of ODelousas, 658 

F.2d 1065 (5th Cir. 1981); Ex Darte McCarver, 46 S.W. 936 

(Tex. Crim. App. 1898). In addition, the ordinance must 

not be broader than is necessary to achieve leaitimate 

governmental purposes. Johnson -v. Citv of ODelousas, 

SuDra; McCollester v. CitV of Keene, 514 F. Supp. 1046 

(D.N.H. 1981), rev'd on other arounds, 668 F.2d 617 (1st 

Cir. 1982). 

This latter requirement is especially troublesome 

when applied to county action. Attorney General Opinion 

MW-558 dealt with a curfew proposed by a & -- which, 

under its police power, has the right to protect the 

health, safety, morals, and general welfare of its 

citizens by any reasonable and necessary regulations. 

Lombard0 v. Dallas, 73 S.W.Zd 475 (Tex. 1934); see also 

Local Gov't Code 554.004. As noted above, a 

unlike a city, has no general police power: 

county, 

its "legitimate governmental purposes" are confined to those 

specifically enumerated by statute. Thus, in the absence 

of expansive statutory authority, any county curfew 

ordinance would probably be unconstitutionally overbroad. 

Even if a county-wide juvenile curfew ordinance were 

authorized by statute, it would still be vulnerable to 

constitutional attack under the various tests set forth 

in MW-558. Recent years, moreover, have witnessed a 

heightening, rather than a lessening, of judicial scrutiny 

P. 4186 
Honorable Abelardo Garza - Page 4 (JM-863) 

in this area. Comoare Bvkofskv v. B rouah f Middletown 

401 F. Supp. 1242 (M.D. Pa. 1975). :ff#d, ;35 F.2d 124; 

(3d Cir.);-cert denied, 424 U.S.-964 (1976), with Allen 

v. Citv of Bordentown 524 A.2d 478 (N.J. Super. Ct. Law 

Div. 1987); see a1so'S.W. v. State, 431 So.2d 339 (Fla. 

Dist. Ct. APP. 1983). Relevant commentary in legal 

journals has reflected this trend. &B Note, Assessing 

the Scooe of Minors' Fundamental Riahts: Juvenile Curfews 

and the Constitution, 97 Harv. L. Rev. 1163-81 (1984); 

Note, Nonemeraencv Municioal Curfew Ordinances and the 

Libertv Interests of Minors, 12 Fordham Urb. L.J. 513-61 

(1984). 

SUMMARY 

A commissioners court has no authority 

to enact a county-wide juvenile curfew 

ordinance. 

JIM MATTOX 

Attorney General of Texas 7, 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Karen C. Gladney 

Assistant Attorney General 

P. 4187