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HonorableMike Drlscoll Harris CountyAttorney 1001Preston, Suite 634 Houston.Texas 77002 OpinionNo. JM-737
Re: Whether amunicipal anti-smoking ordinance is applicable to county facilities locatedwithin thatmunicipality
DearMr. Driscoll:
You ask whether a municipal anti-smokingordinance is applicable to county facilities located within that municipality. Pursuant to its authorityunder 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 includegovernmental 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 applicationof city ordinances to counties. See Attorney General OpinionNOS. JM-180 (1984);MW-508 (1982);WW-218(1957). InAttorney General Opinion MU-508, this office rejected the argument that countiesare immune frommunicipal ordinances. That opinionrelied on the reasoning of the supreme court in Port Arthur Independent School DistrictV. 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 constitutionalityof an ordinance that expressly exempted county and city governmentsfrom its terms. In justifying the exemptionmade by the ordinance for county governments,.the court analogized to the immunityof stateproperty frommunicipal 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 likewisebe immune from city-imposed payment of fees as in the instant case.
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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-smokingordinance.
Next. you urge that state law confersupon 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 retardedpersons); article 5115,V.T.C.S. (establishmentof a county jail); and article 2351(7),V.T.C.S. (the duty to provide and repair courthouses, jails,and all necessarypublicbuildings). The general rules concerning preemption were summarized in AttorneyGeneral Opinion JM-619 (1987)at 1 as follows:

A municipal ordinancemay not conflictwith 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 frommunicipal 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 unmistakableclarity.
. . . [Citationsomitted].
We are of the opinion that none of these general statutes pertaining to a county's authority regarding certain health or hospitalmatters 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 countybuildings. 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 AttorneyGeneralOpinionWW-218 (1957). Accord, Attorney General Opinion MW-508 (1982). We agree with those

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r‘ opinions. It was consideredunreasonable in those earlieropinions 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-smokingordinance. Having found no express county authority that preempts the anti-smoking ordinance.we must considerwhether 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 ordinanceconflictswith any state law. Section 48.01 of thePenal Code createsan offense for smoking in certainplaces. Subsection (a)provides:

(a) A person commits an offense if he is in .possessionof a burning tobaccoproduct or smokes tobacco in a facility of a public primary or secondary school or an elevator, enclosed theater ormovie house, library,museum,hospital, transit system bus, or intrastate bus, as defined by Section 4(b) of theUniformAct RegulatingTraffic 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 creatingthe statute. Section 2 provides:

The provisions of this Act shall not preempt any ordinance adopted by a government entity now or in the futurewhich prohibits thepossessionof lighted tobaccoproducts or prohibits the smoking of tobacco within the jurisdiction of said governmentalentity.
Acts 1975, 64thLeg., ch. 290, §2, at 745.
In our opinion, a homelrule city's anti-smoking ordinance does not conflictwith 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 legislationwas not enacted into law. It defined public places to includebuildings used for state or local governmentalpurposes. The bill specifically allowed political subdivisions to adopt more stringent ordinances to regulate or prohibit smoking in a public place.

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SUMMARY The city of Houston anti-smokingordinance is not in conflictwith state law. County buildings locatedwithin the city of Houston are subject to the ordinance.

JIM MATTOX AttorneyGeneral of Texas
MARY KELLER ExecutiveAssistantAttorneyGeneral
JUDGE ZOLLIE STRAKLEY SpecialAssistantAttorneyGeneral RICK GILPIN Chairman,OpinionCommittee Preparedby Karen Gladney AssistantAttorneyGeneral --,

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