# 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 forthbelow:

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 HonorableAndy Kupper Hockley CountyAttorney Hocklev Countv Courthouse Levell&d, Texas 79336
DearMr. Kupper: opinionNo. Mw-558
Re: Whether or not a citvmav

_ I enact a curfew ordinance

an opinion concerning the legality of a ordinanceby 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 thepublic 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 adoptiveparent of a sub-minor, a guardian, or any adult person, 21 years of age or over, responsible for the cars and custodyof a sub-minor;

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(e) PUBLICPLACE. Any public street,highway, road, alley, park, playground. wharf, dock, publicbuilding or vacsnt lot; (f) REMAIN. To loiter, idle, wander, stroll or play in or upon, or park or cruise in or upon anyvehicle.

sec. . Unlawful Conductof Sub-minor. (a) No sub-minor shall remain in of upon any public place or any establishment between the hours of 11 o'clockp.m. and 6 o'clocka.m. of the following day, official city time, except that on Fridays and Saturdays and nights next preceding schoolholidays thehours shallbe from 12 o'clock p.m.midnight to 6 o'clocka.m. (b) The provisions of this section shall not apply to any sub-minoraccompaniedby a parent, or to a sub-minorupon an errand or other legitimate business directed by such sub-minor's parent, or to any sub-minorwho is engaged in gainful lawful employmentduring the curfewhours.
Sec. . Unlawful Conductof Parents. (a) No parent shall knowingly permit any sub-minorto remain in or upon any publicplace or any establishment between the hours of 11 o'clock p.m. and 6 o'clock a.m. of the followingday, official city time, except that on Fridays and Saturdays and nights next preceding school holidays the hours shall be from 12 o'clockp.m.midnight to 6 o'clocka.m. Sec. . Unlawful Conductof Owners or

Operatorsof Establishments.
No operatorof an establishmentor theiragents or employees shall knowinglypermit any sub-minor to remain upon the premises of said establishment between thehours of 11 o'clockp.m. and 6 o'clock a.m. of the following day, official city time, except that on Fridays and Saturdays and nights next preceding schoolholidays the hours shall be from 12 o'clockp.m.midnight to 6 o'clocka.m.

sec. . Enforcementand Penalties.

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(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 forwardedto the chief of the juveniledivisionof 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 parentwho shallviolate any provision of section afterhaving receivednotice of a priorviolation shallbe finedupon convictionany sumnot exceeding $200.00 for eachviolation. Cc) Any operator who shall violate =*y provision of section shall be fined upon convictionany 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

enactand enforcea curfew ordinance? 2. Is it legallypermissible forparents tobe 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 inviolation of the curfew ordinance? 4. If the answer to questionnumber 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 operatoron notice that the individualinvolved is a sub-minor? In this case no penalty would be assessed until a second violation involving the same sub-minor.

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Although Texas courtshave never held juvenile curfew ordinances to be unconstitutionalper 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 Stanleyv. Illinois, 405 - U.S. 645 (1972). The ordinance tiustprotect the legitimate liberty and first amendment interests of juveniles affected. Johnsonv. 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; Bykofskyv. 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 enactmentmust not be broader than is necessary to achieve legitimate governmental purposes. Johnson v. City of Opelousas, supsa; McCollester v. City of Keene. supra. Sufficientnoticemust be given to those subject to it of the conduct that is forbidden. so that the ordinance will withstand attacks claiming that it is unconstitutionallyvague. McCollesterv. City of Keene, supra;
_ see Papachristouv. City of Jacksonville, 405 U.S. 156, 162 (1972).
To be lawful,an ordinancemust be reasonably specificas to its terms: [A legislativeenactment]which either forbids or

requires the doing of an act in terms so vague that men of common intelligencemust 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). Theproposed enactment'sexception for legitimatebusiness and errands would appear to fallwithin thisproscribed category. What one person -Y consider to be legitimate business, another may not. For instance,a social call on a friend couldbe prohibited in that it is not business in terms of commercial activity, nor is it an errand, even though such a visitwould be protectedunder 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 ordinancewould also appear to be overbroad. A law is void on its face for overbreadth if it seeks to restrictactivities that in ordinary circumstancesconstitutean exercfse of protected expressive or associational rights. Johnson v. City of Opelousas, supra, at

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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 interferewith the personal liberty of others are basic values 'implicit in the concept of ordered liberty' protected by the due process clause of the fourteenthamendment. [Citationsomitted]. Bykofskyv. Borough ofMiddletown,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 constitutionallybe applied to adults may stand only if they serve a significant state interest not applicable to adults. Id. at 1073. Since age isnot a suspect class,differentialtreatmentonthat basis is upheld if the challenged legislation has a legitimate public purpose, based on promotion of the publicwelfare, 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 requiredhere, however, since the proposed enactmenthas been held to be deficient under the stricter test imposed upon legislationthat seeks to restrict fundamentalliberty interests. Other provisions of the ordinance require brief mention. No exception ismade 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 thosewho are unemancipated. Restricting the definitionof parents to those twenty-oneyears of age and older would appear to be violative of the equal protection clause, since no rational reason is apparent for the distinction. Regardlessof his age, a parent is chargedwith the responsibilityforhis child'swell-beingand is likewiseentitled to the supportof laws that assisthim in that endeavor. Ginsbergv. New York, 390 U.S. 629, 639 (1968). Restrictionson the basis of age are valid only if a special circumstance of youth creates a unique danger to youth as a categoryand presents the statewith 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 circumstanceispresent in this regulation. Assuming that the substantiveordinance isvalid, itwould appear that parents could be punished for willfully allowing their children to violate curfew or for aiding their children to do so. This would

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be similar to theprinciplebehind section4.24 of theTexas 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 theparent can show thathe isunable to compelhis child to attend school. Legislation imposingparental liability for unknowing conductwould 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~leviatehis dilemma. The operator would be responsbilefor ascertainingthe identity,aswell 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 anymeans 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 legitimacyof theyoungster'sbusiness. 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 traditionallybeen 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 tomake judgments concerning the legitimacyof the minor's actions. Based on the prior determination that the "legitimatebusiness" 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 constitutionalburden. The proposal to subject to liabilityoperators 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 opinionwas requested on this subject,none will be given. . .

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SUMMARY Curfew ordinances are not unconstitutionalper Se; the proposed curfew ordinance, however, is unconstitutionallyvague and overbroad.

MARK WHITE AttorneyGeneral of Texas JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral
RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Brenda Smith AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Jon Bible RickGilpin Jim Moellinger Brenda Smith

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