The HonorableJohn Connally

Governor of Texas Capitol Station Austin 11, Texas OpinionNo. 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 authorizingthe 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 countiesmay authorize sheriffsand other persons to enforce such regulations;authorizingsuch Commissioners Courts to provide penalties for violationsof 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'sTexas Civil Statutes), and all other laws and parts of laws In conflict herewith;providing certain exceptions;restricting certain regulatorypowers of the Commissioners Court; providing for severability; and declaringan emergency. "BE IT ENACTED BY THE LEGISLATUREOF THE STATE OF TEXAS: "Section 1. The Commissioners Court of any county borderingon the Gulf of Mexico or the tldewater limits thereofmay regulate the speed of motor

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vehicles on any of the beaches of the county which are open and accessible to the public. These Commissioners Courts are also authorizedto regulate the litteringof such beaches,and toward this end they are authorizedto define the term 'lltterlng.~ "Sec. 2. The Commissioners Court of any such countymay authorize the sheriff and his deputies and other peace officers to enforce the regulations promulgatedunder this Act, and may authorizepersons other than peace officers of that particularcounty 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-sixthLegislature,Second Called Session, lg.59 (compiledas Article 5415d of Vernon'sTexas Civil Statutes), Is hereby repealed. All other laws and parts of laws In conflictherewith are hereby repealed. "Sec. 5. The Commissioners Court of any county Includedwithin the provisionsof this Act undertaking to regulatemotor traffic over a designatedarea 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 violationof this Act. Such Court shall place at the usual points of entry of such area receptaclesfor the disposal of refuse, garbage, junk and rubbish by the public in such area. Failure to place and maintain receptaclesat the usual points of entry of any designatedarea shall constitutea defense to said violationof 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 claimedby persons, firms 0~ corporations,

and any judgmentof convictionentered in the prosecutionof an offense under this Act shall not be consideredadmissibleas evidence in any suit involvingthe title to realty.

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“Sec. 7. The provisionsof this Act shall not be construedto give the Commissioners Court the power to prohibit any type of vehicular travel on any beach within this State.

“Sec. 9. The importanceof this legislation and the crowded conditionof,the Calendars In both Houses create an emergencyand an Imperative public necessity that the Constitutional Rule requiringbills 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 Constitutionof Texas, approved by the electorateon November 6, 1962, states as follows:

"The Legislature

may authorize the governing body of any county bordering on the Gulf f Mexlco 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 landownerwith regard to beaches available to the public by virtue of public right or submerged lands. "The Legislature

may enact any laws not lnconsistentwith this Section which it may deem necessary to permit said counties to Implement,enforce and administerthe provisionscontainedherein. (Emphasis added).

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"Should the Legislatureenact legislationin anticipationof the adoption of this amendment, such legislationshall not be Invalidby reason of Its anticipatorycharacter." (Emphasis added). Section 1 of Article II of the Constitution of Texas provides: "The powers of the Governmentof 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 Legislativeto one; those which are Executive to another,and those which are Judicial to another;and no person, or collectionof persons,being of one of these departments, shall exercise any power properlyattached to

_ either of the otheral exaept' ln'the~instanbes.her~~n' expresslyperinltted:' (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 conferredby 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 authorizesthe Legislatureto enable the governingbody of certain counties to regulate the speed of motor vehicles and litteringon beaches available to the public, no constitutional question of delegationof powers exists. Particularlyis this true In view of the emphasizedportions of Articles II and V of the Constitution

quoted above. To concludeotherwisewould be tantamountto holding Section 1-A of Article M of the Constitution, unconstitutional.

There can be no question that the bill in question constitutesan 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 nrotectlonof the health. safetv. comfortand the~welfareof~theepublic." Spann v. City of Dailas, 111 Tex. 350, 235 S.W. 513, 515 (1921). Section 1-A of Article

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

by the foregoingdefinition,, of the kind of authority because regulationof speed and litteringon beaches open to the public Is unquestionable calculatedto protect and promote the health, safety, comfort and welfare of the public.

The police power of the State more than all others affects most Intimatelythe private and personal Interestsand 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 discretionof passing measures necessary to effect the desired result, restricted only by constitutional limits; ,TheLegislatureis the judge of the wisdom and policy of all its enactments,and the courts are without the right to overrule that judgmentunless the Legislature has clearlyand beyond doubt exceeded the functions invested to It by the Constitution. The State has the power to select its agent for exercisingthe police power; It may constitutionally

delegate to a subordinate public a ency the right to exercise this power. f See straues'v;~

State; 7 Grim. Rep. 132, 173 S.W. 662, 665 (1915).

Perceivingno clear or undoubtedreason 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 languageof Section 1-A of Article IX, Constitutionof Texas, we conclude that House Bill 92 would be sustainedas valid legislation.
SUMMARY House Bill 92 of the 58th Legislature is a constitutional delegationof the police power of the State and would be sustainedas valid legislation. Very truly yours, WAGGONER CARR Attorney General

F. R. Booth AssistantAttorney 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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