The Honorable John Connally 

Governor of Texas 

Capitol Station 

Austin 11, Texas 

Opinion No. c- a0 

Re: Constitutionality of 

House Bill 92 of the 

58th Legislature. 

Dear Governor Connally: 

We are in receipt of your request for opinion regarding the constitutionality of House Bill 92 passed by the Fiftyeighth Legislature. 

House Bill No. 92 reads in its entirety: 

"H.B. No. 92 

"AN ACT 

authorizing the Commissioners Court of any county 

bordering on the Gulf of Mexico or the tidewater 

limits thereof to regulate the speed of motor 

vehicles on beaches which are open and accessible 

to the public, and also to prohibit the littering 

of such beaches; providing for receptacles for 

such litter and posting of signs; providing that 

the Commissioners Courts of such counties may authorize sheriffs and other persons to enforce 

such regulations; authorizing such Commissioners 

Courts to provide penalties for violations of 

these re ulatlons within limitations; repealing 

Section 8 of Chapter 19, Acts of the Fifty-sixth 

Legislature, Second Called Session, 19% (compiled 

as Article 5415d of Vernon's Texas Civil Statutes), 

and all other laws and parts of laws In conflict 

herewith; providing certain exceptions; restricting 

certain regulatory powers of the Commissioners 

Court; providing for severability; and declaring an 

emergency. 

"BE IT ENACTED BY THE LEGISLATURE OF THE STATE 

OF TEXAS: 

"Section 1. The Commissioners Court of any 

county bordering on the Gulf of Mexico or the tldewater limits thereof may regulate the speed of motor 

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Honorable John Connally, page 2 (C- 

,, 

80 ) 

vehicles on any of the beaches of the county which 

are open and accessible to the public. These Commissioners Courts are also authorized to regulate 

the littering of such beaches, and toward this end 

they are authorized to define the term 'lltterlng.~ 

"Sec. 2. The Commissioners Court of any such 

county may authorize the sheriff and his deputies 

and other peace officers to enforce the regulations 

promulgated under this Act, and may authorize persons 

other than peace officers of that particular county 

to enforce such regulations. 

“Sec. 3. The Commissioners' Court may'provide' 

penalties for v'iolatl~hs'or'th8'~8g~latlon8'adb~te~' 

'M~alty' sh&ll'e%i&eC' 

(Emphasis added). 

“Sec. 4. Section 8 of Chapter 19, Acts of the 

Fifty-sixth Legislature, Second Called Session, lg.59 

(compiled as Article 5415d of Vernon's Texas Civil 

Statutes), Is hereby repealed. All other laws and 

parts of laws In conflict herewith are hereby repealed. 

"Sec. 5. The Commissioners Court of any county 

Included within the provisions of this Act undertaking to regulate motor traffic over a designated area 

of the public beach shall post signs at the usual 

points of entry notifying the general public of the 

speed limits governing such area. Failure to so post 

said signs relating to speed limits shall constitute 

a defense to said violation of this Act. Such Court 

shall place at the usual points of entry of such area 

receptacles for the disposal of refuse, garbage, junk 

and rubbish by the public in such area. Failure to 

place and maintain receptacles at the usual points of 

entry of any designated area shall constitute a defense to said violation of this Act. 

"sec. 6. This Act shall in no manner, either 

by its terms or application, in anywise affect the 

title to real estate owned or claimed by persons, firms 

0~ corporations, and any judgment of conviction entered 

in the prosecution of an offense under this Act shall 

not be considered admissible as evidence in any suit 

involving the title to realty. 

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Honorable John Connally, page 3 ,(c- 80 ) 

“Sec. 7. The provisions of this Act shall not 

be construed to give the Commissioners Court the power 

to prohibit any type of vehicular travel on any beach 

within this State. 

“Sec. 9. The importance of this legislation and 

the crowded condition of,the Calendars In both Houses 

create an emergency and an Imperative public necessity 

that the Constitutional Rule requiring bills to be read 

on three several days In each House w suspended, and 

this Rule is hereby suspended, and that this Act take 

effect and be in force from and after Its passage, and 

it Is so enacted." 

Section 1-A of Article IX of the Constitution of Texas, 

approved by the electorate on November 6, 1962, states as follows: 

"The Legislature may authorize the governing 

body of any county bordering on the Gulf f M exlco 

or the tidewater limits thereof to regulate and 

restrictthe speed, parking and travel of motor 

vehicles on beaches available to th public by 

virtue of public right and the litt&ng of such 

beaches. (Emphasis added). 

"Nothing in this amendment shall increase the 

rights of any riparian or littoral landowner with regard to beaches available to the public by virtue of 

public right or submerged lands. 

"The Legislature may enact any laws not lnconsistent with this Section which it may deem necessary to permit said counties to Implement, enforce 

and administer the provisions contained herein. 

(Emphasis added). 

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Honorable John Connally, page 4 (C- a0 ) 

"Should the Legislature enact legislation in 

anticipation of the adoption of this amendment, 

such legislation shall not be Invalid by reason 

of Its anticipatory character." (Emphasis added). 

Section 1 of Article II of the Constitution of Texas 

provides: 

"The powers of the Government of the State of 

Texas shall be divided into three distinct departments, each of which shall be confided to a magistracy, to wit: Those which are Legislative to one; 

those which are Executive to another, and those 

which are Judicial to another; and no person, or 

collection of persons, being of one of these departments, shall exercise any power _ properly attached to 

either of the otheral exaept' ln'the~instanbes.her~~n' 

expressly perinltted:' (Emphasis added). 

Section 18 of Article v of the Constitution of Texas 

provides, in part: 

" . ..The County Commissioners so chosen, with 

the County Judge as presiding officer, shall compose 

the County Commissioners Court, which shall exercise 

such powers and jurisdiction over all county business, as la conferred by this Constitution and'the 

laws of th State;'or'as'map'be'herearter'gres~ribedl." 

‘(Emphasis Edded). 

Since the Constitution (Sec. l-A, Art. a) specifically authorizes the Legislature to enable the governing body 

of certain counties to regulate the speed of motor vehicles and 

littering on beaches available to the public, no constitutional 

question of delegation of powers exists. Particularly is this 

true In view of the emphasized portions of Articles II and V of 

the Constitution quoted above. To conclude otherwise would be 

tantamount to holding Section 1-A of Article M of the Constitution, unconstitutional. 

There can be no question that the bill in question constitutes an exercise of the police power of the State, which has 

been defined as "a grant of authority from the people to their 

aovernmental agents for the nrotectlon of the health. safetv. 

comfortand the~welfare of~theepublic." Spann v. City of Dailas, 

111 Tex. 350, 235 S.W. 513, 515 (1921). Section 1-A of Article 

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Honorable John Connally, page -y(c- 86 ‘): “’ ;’ 

IX clearly is a grant of the people to their,governmental agents 

of the kind of authority contemplated by the foregoing definition,, 

because regulation of speed and littering on beaches open to the 

public Is unquestionable calculated to protect and promote the 

health, safety, comfort and welfare of the public. 

The police power of the State more than all others affects most Intimately the private and personal Interests and relations of each individual. To a certain extent the power is 

indefinable; the limits of its exercise are never clearly established. To the Legislature, directly or as It may lawfully 

delegate the power, Is given the large discretion of passing 

measures necessary to effect the desired result, restricted 

only by constitutional limits; ,The Legislature is the judge of 

the wisdom and policy of all its enactments, and the courts are 

without the right to overrule that judgment unless the Legislature has clearly and beyond doubt exceeded the functions invested to It by the Constitution. The State has the power to 

select its agent for exercising the police power; It may constitutionally delegate to a subordinate public a ency the right 

to exercise this power. See straues'v;~ State; 7 f Grim. Rep. 

132, 173 S.W. 662, 665 (1915). 

Perceiving no clear or undoubted reason suggestive 

that the Legislature has exceeded any function Invested to it 

by the Constitution,md noting that the material provisions 

of House Bill 92 closely tract the language of Section 1-A of 

Article IX, Constitution of Texas, we conclude that House Bill 

92 would be sustained as valid legislation. 

SUMMARY 

House Bill 92 of the 58th Legislature 

is a constitutional delegation of the 

police power of the State and would be 

sustained as valid legislation. 

Very truly yours, 

WAGGONER CARR 

Attorney General 

F. R. Booth 

Assistant Attorney General 

FRB:ab 

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. 

Honorable John Connally, page 6 (c- a0 ) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Howard Fender 

John Reeves 

W. 0. Shultz 

Jerry Brook 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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