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 forminors on public property (RQ-1238)
DearMr. Garza:
You askwhether the Duval County Commissioners Court may enact an ordinance setting acurfew for minors found onpublic property within the county. Article V, section 18, of the Texas Constitution gives to a commissioners court

suchpowers and jurisdiction as is conferred by this constitution and the laws of the state, or asmay behereafter prescribed. Under this provision, acommissioners court may exercise only those powers that theTexas 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 inpart:

Each commissioners court shall:

. . . . 5. Exercise general control over all roads, highways, ferries and bridges in their counties. Chapter 291 of the LocalGovernment Codeprovides inpart:

g291.001. Providing andMaintaining County Buildings

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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 inpart:

(a) Parks acquired under this chapter [onmunicipal and county parks, museums and historic sites] areunder the control and management of the municipality or county acquiring thepark. These provisions allow a commissioners court to regulate reasonably the use of county roads, buildings, and parks. They donot, however, allow a commissioners court to adopt regulations unrelated to the objectives behind the enabling statutes. See La Cour duRoi. Inc.v. Montaomerv Countv, 698S.W.Zd 178, 187-88 (Tex.App. - Beaumont 1985, nowrit). A juvenile curfew ordinance is, inour 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 ifsuch 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 ofHarris 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 ofmunicipal concern or of concern of anyparticular locality. Bexar Countv v. Linden, 220 S.W. 761 (Tex.1920). Any powers conferred upon counties are duties imposed rather thanprivileges granted. Orndorff v. State, 108 S.W.2d 206 (Tex.Civ.App. -El Paso 1937, writ ref'd): see also Harrison County v. Citv ofMarshall,

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253 S.W.2d 67 (Tex. Civ.App. -Fort Worth 1952, writ ref'd) (contrasting powers of countywith powers of city). Thus, acounty basis of isprohibited from acting solely on the

a general desire topromote the safety and general welfare of the community. See aenerally Attorney General Opinions MW-419 (1981) (countyhas no authority to prohibit discharge of sewage plant effluent into county roadside ditch); H-374 (1974) (countyhas regulate utility no authority to rates, establish minimum building and housing codes, license door-to-door salesmen, or require registration andbonding ofhome builders). Moreover, whatever the justification behind it, a juvenile curfew ordinance would raise a number of troubling constitutional questions. Opinion MW-558 (1982), InAttorney General ordinances arenot we held that juvenile curfew unconstitutional per se. We pointed out, however, that any such ordinance must pass anumber 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 ofODelousas, 658 F.2d 1065 (5thCir. 1981); ExDarte McCarver, 46 S.W. 936 (Tex.Crim. App. 1898). Inaddition, the ordinance must notbe broader than isnecessary 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 acity, has nogeneral 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 beunconstitutionally overbroad.
Even ifa county-wide juvenile curfew ordinance were authorized by statute, it would still bevulnerable to constitutional attack under thevarious tests set forth inMW-558. Recent years, moreover, have witnessed a heightening, rather than a lessening, of judicial scrutiny

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inthis area. Comoare Bvkofskv v. Brouah fMiddletown 401 F. Supp. 1242 (M.D.Pa. 1975). :ff#d, ;35 F.2d 124; (3dCir.);-cert denied, 424U.S.-964 (1976), with Allen v. Citv ofBordentown 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 ofMinors' Fundamental Riahts: Juvenile Curfews and the Constitution, 97 Harv. L. Rev. 1163-81 (1984); Note, Nonemeraencv Municioal Curfew Ordinances and the Libertv Interests ofMinors, 12Fordham 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 ofTexas 7,

MARY KELLER First Assistant Attorney General
LOUMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared byKaren C.Gladney Assistant Attorney General

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