, 

Honorable Mike Drlscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston. Texas 77002 

Opinion No. JM-737 

Re: Whether a municipal anti-smoking 

ordinance is applicable to county 

facilities located within that municipality 

Dear Mr. Driscoll: 

You ask whether a municipal anti-smoking ordinance is applicable 

to county facilities located within that municipality. Pursuant to 

its authority under section 34 of article 1175, V.T.C.S., "to enforce 

all ordinances necessary to protect health, life and property," the 

city of Houston, a home rule city. has adopted an ordinance which 

prohibits smoking in public places. "Public places" is defined to 

include governmental facilities. 

You question the authority of a city to impose its anti-smoking 

ordinance on county-owned facilities. First, you argue that as an 

"arm of the state" the county is immune from city regulation. You 

suggest that counties are distinguishable from other political 

subdivisions of the state in this regard. This office has validated 

the application of city ordinances to counties. See Attorney General 

Opinion NOS. JM-180 (1984); MW-508 (1982); WW-218(1957). In Attorney 

General Opinion MU-508, this office rejected the argument that 

counties are immune from municipal ordinances. That opinion relied on 

the reasoning of the supreme court in Port Arthur Independent School 

District V. City of Groves, 376 S.W.Zd 330 (Tex. 1964). 

You offer language found in City of Houston v. Houston Independent School District, 436 S.W.Zd 568 (Tex. Civ. App. - Houston [14th 

Dist.] 1968), modified, 443 S.W.Zd 49 (Tex. 1969) to support your 

position of county immunity. At issue before the Houston court was 

the constitutionality of an ordinance that expressly exempted county 

and city governments from its terms. In justifying the exemption made 

by the ordinance for county governments,.the court analogized to the 

immunity of state property from municipal regulation: 

Properties of the State are excluded as a 

matter of law from the application of City 

building regulations. Port Arthur Independent 

School Dist. v. City of Groves, supra. Counties, 

being arms of the state, would likewise be immune 

from city-imposed payment of fees as in the 

instant case. 

p. 3432 
Honorable Mike Driscoll - Page 2 (JM-737) 

Houston, 436 S.W.Zd at 572. 

As this office stated in Attorney General Opinion MU-508 (1982) 

at 5, we doubt the precedential value of the language quoted above. 

The supreme court reserved judgment on the question of county-city 

relationships. We have found no supreme court decision that limits 

City of Groves to require that counties be viewed differently from 

other political subdivisions in regard to the application of a city 

ordinance. In our opinion, a county is not immune from a municipal 

anti-smoking ordinance. 

Next. you urge that state law confers upon the county sufficient 

responsibility for the health of county residents and for the 

construction and repair of county buildings to preempt the city's 

authority to apply an anti-smoking ordinance to county facilities. 

Specifically, you rely on article 4494n. V.T.C.S. (creation of a 

hospital district); article 4436b, V.T.C.S. (local public health 

reorganization act) ; article 4477-2, V.T.C.S. (mosquito control 

district); article 2351(11), V.T.C.S. (support for mentally ill and 

mentally retarded persons); article 5115, V.T.C.S. (establishment of a 

county jail); and article 2351(7), V.T.C.S. (the duty to provide and 

repair courthouses, jails , and all necessary public buildings). 

The general rules concerning preemption were summarized in 

Attorney General Opinion JM-619 (1987) at 1 as follows: 

A municipal ordinance may not conflict with state 

legislation. . . . A city is preempted from 

regulating in a field if the city's regulation is 

expressly prohibited, if the legislature intended 

state law to exclusively occupy that field, or if 

the city regulation conflicts with state law even 

if state law is not intended to occupy that 

field. . . . The state's entry into a field of 

legislation does not automatically preempt that 

field from municipal regulation. . . . Additionally, 

because a home rule city's powers derive directly 

from article XI, section 5, of the Texas Constitutlon, limits on those powers must appear with 

unmistakable clarity. . . . [Citations omitted]. 

We are of the opinion that none of these general statutes 

pertaining to a county's authority regarding certain health or 

hospital matters reflects a legislative intent to occupy the field of 

smoking regulations. Likewise, we are of the opinion that articles 

5115 and 2351 do not preempt a municipal anti-smoking ordinance in 

county buildings. 

Thirty years ago this office refused to read the general 

buildings provision of article 2351(7) as vesting "sole police 

jurisdiction with regard to regulation of county buildings with the 

county commissioners' c0urt.u Attorney General Opinion WW-218 (1957). 

Accord, Attorney General Opinion MW-508 (1982). We agree with those 

p. 3433 
Honorable Mike Driscoll - Page 3 (JM-737) 

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opinions. It was considered unreasonable in those earlier opinions to 

read article 2351(7) as preempting county buildings from municipal 

inspection fee requirements and municipal fire code provisions. It 

would be equally unreasonable to read that provision to preempt a 

city's anti-smoking ordinance. 

Having found no express county authority that preempts the 

anti-smoking ordinance. we must consider whether state law expressly 

prohibits or conflicts with such an ordinance. We hnve found no 

statute restricting a city's authority to adopt an anti-smoking 

ordinance. Nor do we believe that the municipal anti-smoking 

ordinance conflicts with any state law. 

Section 48.01 of the Penal Code creates an offense for smoking in 

certain places. Subsection (a) provides: 

(a) A person commits an offense if he is in 

.possession of a burning tobacco product or smokes 

tobacco in a facility of a public primary or 

secondary school or an elevator, enclosed theater 

or movie house, library, museum, hospital, transit 

system bus, or intrastate bus, as defined by 

Section 4(b) of the Uniform Act Regulating Traffic 

on Highways (Article 6701d, Vernon's Texas Civil 

Statutes), plane, or train which is a public 

place. 

Not ali governmental facilities are covered by this provision. 

However, any argument that this statute conflicts with or preempts 

local ordinances is refuted by the language in section 2 of the bill 

creating the statute. Section 2 provides: 

The provisions of this Act shall not preempt 

any ordinance adopted by a government entity now 

or in the future which prohibits the possession of 

lighted tobacco products or prohibits the smoking 

of tobacco within the jurisdiction of said 

governmental entity. 

Acts 1975, 64th Leg., ch. 290, §2, at 745. 

In our opinion, a homel rule city's anti-smoking ordinance does 

not conflict with state law. 

1. Legislation was introduced in the regular session of the 

Seventieth Legislature that would have prohibited smoking in public 

places in much the same fashion as the Houston ordinance. This 

legislation was not enacted into law. It defined public places to 

include buildings used for state or local governmental purposes. The 

bill specifically allowed political subdivisions to adopt more 

stringent ordinances to regulate or prohibit smoking in a public 

place. 

p. 3434 
Honorable Mike Driscoll - Page 4 (JM-737) 

SUMMARY 

The city of Houston anti-smoking ordinance is 

not in conflict with state law. County buildings 

located within the city of Houston are subject to 

the ordinance. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STRAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Karen Gladney 

Assistant Attorney General 

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p. 3435