The Attorney General of Texas 

December 31. 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin, TX. 76711. 2546 

512,4752501 

Telex 910/674.1367 

Telecopier 5121475-0266 

1607 Main St.. Suite 1400 You have requested 

Dallas, TX. 75201-4709 proposed juvenile curfew 

2141742.8944 is set forth below: 

4624 Alberta Ave., Suite 160 

El Paso. TX. 799052793 

9151533~3464 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002.6966 

7131650-0666 

606 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

6061747-5236 

4309 N. Tenth, Suite S 

McAllen, TX. 76501-1665 

5121662.4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 76205-2797 

5,2/225-4191 

An Equal OpportunitYI 

Affirmative Action Employer 

Honorable Andy Kupper 

Hockley County Attorney 

Hocklev Countv Courthouse 

Levell&d, Texas 79336 

Dear Mr. Kupper: 

opinion No. Mw-558 

Re: Whether or not a citv _ mav I 

enact a curfew ordinance 

an opinion concerning the legality of a 

ordinance by a city in Texas. The ordinance 

SUB-MINORS’ CURFEW ORDINANCE 

sec. -. Definitions. 

In this ordinance the following definitions 

apply: 

(a) ESTABLISHMENT. Any privately owned place 

of business carried on for a profit or any 

place of amusement or entertainment to which 

the public is invited; 

(b) SUB-MINOR. Any person under the age of 

seventeen (17) years; 

(c) OPERATOR. Any individual, firm, 

association, partnership or corporation 

operating, managing or conducting =nY 

establishment; and whenever used in any clause 

prescribing a penalty, the term ‘operator’ as 

applied to associations or partnerships shall 

include the members or partners thereof and as 

applied to corporations, shall include the 

officers thereof; 

(d) PARENT. Any natural or adoptive parent of 

a sub-minor, a guardian, or any adult person, 

21 years of age or over, responsible for the 

cars and custody of a sub-minor; 

p. 2043 
Honorable Andy Kupper - Page 2 (MW-558) 

(e) PUBLIC PLACE. Any public street, highway, 

road, alley, park, playground. wharf, dock, 

public building or vacsnt lot; 

(f) REMAIN. To loiter, idle, wander, stroll 

or play in or upon, or park or cruise in or 

upon any vehicle. 

sec. . Unlawful Conduct of Sub-minor. 

(a) No sub-minor shall remain in of upon any 

public place or any establishment between the 

hours of 11 o'clock p.m. and 6 o'clock a.m. of the 

following day, official city time, except that on 

Fridays and Saturdays and nights next preceding 

school holidays the hours shall be from 12 o'clock 

p.m. midnight to 6 o'clock a.m. 

(b) The provisions of this section shall not 

apply to any sub-minor accompanied by a parent, or 

to a sub-minor upon an errand or other legitimate 

business directed by such sub-minor's parent, or 

to any sub-minor who is engaged in gainful lawful 

employment during the curfew hours. 

Sec. . Unlawful Conduct of Parents. 

(a) No parent shall knowingly permit any 

sub-minor to remain in or upon any public place 

or any establishment between the hours of 11 

o'clock p.m. and 6 o'clock a.m. of the 

following day, official city time, except that 

on Fridays and Saturdays and nights next 

preceding school holidays the hours shall be 

from 12 o'clock p.m. midnight to 6 o'clock a.m. 

Sec. . Unlawful Conduct of Owners or 

Operators of Establishments. 

No operator of an establishment or their agents 

or employees shall knowingly permit any sub-minor 

to remain upon the premises of said establishment 

between the hours of 11 o'clock p.m. and 6 o'clock 

a.m. of the following day, official city time, 

except that on Fridays and Saturdays and nights 

next preceding school holidays the hours shall be 

from 12 o'clock p.m. midnight to 6 o'clock a.m. 

sec. . Enforcement and Penalties. 

p. 2044 
Honorable Andy Kupper - Page 3 (MW-558) 

(a) Any police officer who finds a sub-minor 

violating any provisions of section shall 

obtain information from such sub-minor as to his 

name and address, age and the name of his parent 

or parents. The sub-minor shall thereupon be 

instructed to proceed to his home forthwith. The 

information obtained from the sub-minor shall be 

forwarded to the chief of the juvenile division of 

the city police department, who shall cause a 

written notice to be mailed to the parent or 

parents of the sub-minor, advising of the 

violation of section ~ 

(b) Any parent who shall violate any provision 

of section after having received notice of a 

prior violation shall be fined upon conviction any 

sum not exceeding $200.00 for each violation. 

Cc) Any operator who shall violate =*y 

provision of section shall be fined upon 

conviction any sum not exceeding $200.00 for each 

violation. 

In regard to the contemplated enactment, you ask the following 

questions: 

1. May a city in the state of Texas legally 

enact and enforce a curfew ordinance? 

2. Is it legally permissible for parents to be 

fined because of curfew violations by their 

children? 

3. Is it legally permissible to fine an 

operator of an establishment if he knowingly 

permits the sub-minor to remain upon his premises 

in violation of the curfew ordinance? 

4. If the answer to question number 3 is 'no,' 

would it be legally permissible if a notice were 

sent to the operator upon a first violation, the 

notice containing the name, address and physical 

description of the sub-minor so as to put the 

operator on notice that the individual involved is 

a sub-minor? In this case no penalty would be 

assessed until a second violation involving the 

same sub-minor. 

p. 2045 
Honorable Andy Kupper - Page 4 mw-558) 

Although Texas courts have never held juvenile curfew ordinances 

to be unconstitutional per se, rigid tests are applied to determine 

their validity. The ordinance must refrain from unreasonably 

interfering with valid parental interests. McCollester v. City of 

Keene, 514 F. Supp. 1046 (D.N.H. 1981); see Stanley v. Illinois, 405 - 

U.S. 645 (1972). The ordinance tiust protect the legitimate liberty 

and first amendment interests of juveniles affected. Johnson v. City 

of Opelo"sas, 658 F.2d 1065 (5th Cir. 1981); Ex parte McCarver, 46 

S.W. 936 (Tex. Crim. App. 1898). 

travel must be consid&ed. 

Likewise, the right to interstate 

Johnson v. Opelousas,-supra, at 1072; 

Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1270 (M.D. Pa. 

1975), aff'd without published opinion, 535 F.2d 1245 (3rd Cir.), 

cert. denied, 429 U.S. 964 (1976). The enactment must not be broader 

than is necessary to achieve legitimate governmental purposes. 

Johnson v. City of Opelousas, supsa; McCollester v. City of Keene. 

supra. Sufficient notice must be given to those subject to it of the 

conduct that is forbidden. so that the ordinance will withstand 

attacks claiming that it is unconstitutionally vague. McCollester v. 

City of Keene, supra; _ see Papachristou v. City of Jacksonville, 405 

U.S. 156, 162 (1972). 

To be lawful, an ordinance must be reasonably specific as to its 

terms : 

[A legislative enactment] which either forbids or 

requires the doing of an act in terms so vague 

that men of common intelligence must necessarily 

guess at its meaning and differ as to its 

application violates the first essential of due 

process of law. 

Connally v, General Construction Company, 269 U.S. 385, 391 (1926). 

The proposed enactment's exception for legitimate business and errands 

would appear to fall within this proscribed category. What one person 

-Y consider to be legitimate business, another may not. For 

instance, a social call on a friend could be prohibited in that it is 

not business in terms of commercial activity, nor is it an errand, 

even though such a visit would be protected under the first amendment. 

Aladdin's Castle, Inc. v. City of Mesquite, 630 F.2d 1029, 1038 (5th 

Cir. 1980), rev'd in part on other grounds, 451 U.S. 981 (1982). No 

guidelines are provided for making such a determination, giving rise 

to the possibility of discriminatory enforcement and failing to 

provide limits for the exercise of discretion by law enforcement 

officials. 630 F.2d at 1037. 

The ordinance would also appear to be overbroad. A law is void 

on its face for overbreadth if it seeks to restrict activities that in 

ordinary circumstances constitute an exercfse of protected expressive 

or associational rights. Johnson v. City of Opelousas, supra, at 

p. 2046 
. . 

Honorable Andy Kupper - Page 5 (MN-558) 

1071; Aladdin's Castle, Inc. v. City of Mesquite, B, at 1038 n. 

13. 

The rights of locomotion, freedom of movement, 

to go where one pleases, and to use the public 

streets in a way that does not interfere with the 

personal liberty of others are basic values 

'implicit in the concept of ordered liberty' 

protected by the due process clause of the 

fourteenth amendment. [Citations omitted]. 

Bykofsky v. Borough of Middletown, supra, at 1254. 

Minors are entitled to constitutional protection, Bellotti v. 

Baird, 443 U.S. 622, 633 (1979), although their rights are not 

co-extensive with those of adults, Johnson v. City of Opelousas, 

supra, at 1072. Restrictions on minors that could not 

constitutionally be applied to adults may stand only if they serve a 

significant state interest not applicable to adults. Id. at 1073. 

Since age is not a suspect class, differential treatment onthat basis 

is upheld if the challenged legislation has a legitimate public 

purpose, based on promotion of the public welfare, health, or safety, 

which bears a rational relation to that end. Aladdin's Castle, Inc. 

v. City of Mesquite, supra, at 1039. No analysis of equal protection 

questions is required here, however, since the proposed enactment has 

been held to be deficient under the stricter test imposed upon 

legislation that seeks to restrict fundamental liberty interests. 

Other provisions of the ordinance require brief mention. No 

exception is made for interstate travel, which has been recognized to 

be a fundamental constitutional right. Sosna v. Iowa, 419 U.S. 393 

(1975). The ordinance fails to accord this interest adequate 

protection. No distinction is made between emancipated minors and 

those who are unemancipated. Restricting the definition of parents to 

those twenty-one years of age and older would appear to be violative 

of the equal protection clause, since no rational reason is apparent 

for the distinction. Regardless of his age, a parent is charged with 

the responsibility for his child's well-being and is likewise entitled 

to the support of laws that assist him in that endeavor. Ginsberg v. 

New York, 390 U.S. 629, 639 (1968). Restrictions on the basis of age 

are valid only if a special circumstance of youth creates a unique 

danger to youth as a category and presents the state with an interest 

in regulating youth activities that is not present in regard to 

adults. Aladdin's Castle, Inc. v. City of Mesquite, supra, at 1042. 

No such special circumstance is present in this regulation. 

Assuming that the substantive ordinance is valid, it would appear 

that parents could be punished for willfully allowing their children 

to violate curfew or for aiding their children to do so. This would 

p. 2047 
Honorable Andy Kupper - Page 6 (MW-558) 

be similar to the principle behind section 4.24 of the Texas Education 

Code, dealing with thwarting the compulsory-attendance law, which 

subjects to a fine those parents who willfully fail to require their 

children to attend school. An exception is provided if the parent can 

show that he is unable to compel his child to attend school. Legislation imposing parental liability for unknowing conduct would pose due 

process problems. - See McCollester V. City of Keene, supra, at 

1051-53. 

The proposed ordinance would subject operators of public 

establishments to punishment when lh-P3I-S are found within such 

establishments in violation of the curfew ordinance. Although 

authority on the legality of such a provision is scant, several due 

process problems appear. The operator is not informed how he is to 

determine the age of a minor. He would be required to determine 

whether any minors in his establishment are engaged in legitimate 

business or errands, and risk fine if his judgment differs from that 

of local law enforcement officials. The sending of a prior warning 

letter would not al~leviate his dilemma. The operator would be 

responsbile for ascertaining the identity, as well as the age, of each 

young patron of his establishment in order to determine whether the 

prior offender is among them. The operator is not given any means by 

which to distinguish between two or more youngsters with the same 

name. Even though the youngster might previously have been in 

violation, the operator would still be required to determine the 

legitimacy of the youngster's business. 

The proposed ordinance is distinguishable from the statute 

prohibiting the sale of alcohol to minors. Tex. Alto. Be". Code 

§106.03. The distribution of alcohol has traditionally been subject 

to pervasive regulation. Colonnade Catering Corp. v. United States, 

397 U.S. 72 (1970). The duty thrust upon one who sells alcohol is 

relatively simple and is set-forth in ciear, unmistakable terms: he 

need only determine that the buyer's age is nineteen or over. The 

seller is not required to make judgments concerning the legitimacy of 

the minor's actions. Based on the prior determination that the 

"legitimate business" and "errands" exceptions are vague and fail to 

give notice of the restricted proscribed activity, to require a lay 

person to make such inquiries would be to impose an insurmountable 

constitutional burden. 

The proposal to subject to liability operators of establishments 

who allow juveniles to remain in those establishments after curfew 

presents novel problems; the ordinances challenged in the cited cases 

merely prohibited youngsters from being outdoors, in streets, parks, 

or outdoor areas. see, e.g., Ex pate McCarver, supra; see also & 

pate Yelton, 298 S.W.Zd 285 (Tex. Civ. App. - Beaumont 1957, no 

writ). Since no opinion was requested on this subject, none will be 

given. 

. . 

p. 2048 
. . 

Honorable Andy Kupper - Page 7 (?4w-558) 

SUMMARY 

Curfew ordinances are not unconstitutional per 

Se; the proposed curfew ordinance, however, is 

unconstitutionally vague and overbroad. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Brenda Smith 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Jim Moellinger 

Brenda Smith 

p. 2049