DAN MORALES 

ATTORNEY GENERAL 

Office of tQe $Zlttornep @eneral 

&ate of tEexa$ 

December 31,199l 

Honorable Gene Green 

chairman 

Jurisprudence Committee 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Opinion No. DM-71 

Re: Authority of public housing authority 

to regulate tenants’ legal possession of 

firearms (RQ-150) 

Dear Senator Green: 

You ask several questions regarding whether a municipal housing authority 

may adopt a rule under which a tenant of a public housing project it operates would 

be. evicted “if the tenant possessed a firearm, including eviction for the possession of 

a firearm found in the tenant’s home.“’ You ask 6rst whether section 215.001 of the 

Local Government Code would restrict such action by a municipal housing 

authority. Subsection (a) of section 215.001 provides: 

A municipali@ may not adopt regulations relating to the transfer, 

pniute ownership, keeping, transportation, licensing, or 

registration of firearms, ammunition, or firearms supplies. 

(Emphasis added.) 

Subsection (b) of section 215.001 provides that subsection (a) “does not affect the 

authority a municipality has under another law” to regulate, e.g., “the discharge of 

firearms,” “the use of firearms in the case of an insurrection, riot, or natural 

disaster,” or “the carrying of firearms” at certain public places or gatherings. A 

lYou refer spcciIkdy to tbe San Antonio Public Housiq Authority. See Housing Aurh. of 

San .4nfonio v. Newton, 235 S.W.2d 197 (Tcx. Civ. App.--Waco 1950, no writ) (San Antonio Public 

Housing Authority is a municipal housing authority). 

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regulation restricting mere “possession” of a firearm would not fall within any of the 

exceptions set out in subsection (b) to the subsection (a) prohibition.2 

The applicability of section 215.001 to a municipal housing authority depends 

partly on whether a municipal housing authority is a division or agent of a 

municipality, such that it would be subject to laws applicable to municipalities. The 

provisions of state law regarding the creation and operation of municipal housing 

authorities, Acts 1937,45th Leg., ch. 462, are now found in chapter 392 of the Local 

Government Code. Section 392.011 provides that a municipal housing authority “is 

created in each municipality in the state” as “a public body corporate and politic” but 

that it “may not transact business or exercise its powers until the governing body of 

the municipality declares by resolution that there is a need for the authority.” local 

Gov’t Code $392.011(a) - (c). Powers of the authority are vested in five 

commissioners appointed by the mayor of the municipality. Za!. $9 392.031,392.051. 

While courts in some other jurisdictions have characterized municipal 

housing authorities created under provisions similar to those in chapter 392 as 

separate entities.3 Texas authorities presented with the issue have uniformly held 

municipal housing authorities to be “divisions” of municipahties and, as such, subject 

to the laws applicable to municipalities. Mm v. Ho&g Auth of Dallas, 266 

S.W.2d 487 (Tex. Civ. App.--Dallas 1954, writ refd n.r.e.); Aemu Casualty & Surety 

Co. v. Glidden Co., 283 S.W.2d 440 (Tex. Civ. App.-Eastland 1955), rev’d on other 

groti, 291 S.W.2d 315 (Tex. 1956); Attorney General Opinions JM-687 (1987); 

JM-573 (1986); MW-132 (1980). 

The Miers court dealt in part with the issue whether a municipal housing 

authority was within the scope of a statute excepting “this state, a county or a 

municipal corporation, or an irrigation, water improvement, or water power control 

district” from a bond requirement where there was pending litigation in condemnation actions. See now Prop. Code Q 21.021. The court found the housing authority 

within the exception for “municipal corporations,” stating that the authority “is a 

?4s WC, have not been supplied with the text of the regulation in question, we necessarily base 

this opinion on your description of that proposed regulation. 

3See, e.g., City of P&mm v. Housing Auth. of Pawson, 2.33 A.2d 98 (NJ. Super. Ct. Law Div. 

1967); O’Kmfe v. Dunn, 215 A.2d 66 (NJ. Super. Ct. Law Div. l%S), cited in Housing Auth. of Asbury 

Park v. Richardson, 346 F. Supp. 1027, 1033 (D. NJ. 1972); Tumulry v. Jersey City, 155 A.2d 148 (NJ. 

Super. Ct. App. Div. 1959); Housing Auth. v. City of Los Angeles, 243 P.2d 5l5 (Cd. 1952); State cr ml. 

Great Fails HousingAuth. v. City of Great Falls, 1CQ P.2d 915 (Mont. 1940). 

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division of the City of Dallas and exists only with the consent of the City of Dallas.” 

Mien, 266 S.WL?d at 490. 

The Aeha court considered the applicability to a municipal housing authority 

contract of the provisions of article 5160, V.T.C.S., which require construction 

contractors with “this State or its counties or school districts or other subdivisions 

thereof or any municipality therein” to execute a “Penal Bond.” 283 S.W.2d at 441. 

The court cited Miers and stated: “[w]e believe that the words ‘any municipality’ as 

used in said statute were intended to and did include Housing Authorities created 

under Article 1269k.” 283 S.W.2d at 441, 442. (Prior to their placement in chapter 

392 of the Local Government Code in 1987, the provisions relating to municipal 

housing authorities were found in now repealed article 1269k V.T.C.S. See Acts 

1987,78th Leg., ch. 149, $9 1,49 (codification and repealer respectively).) 

Attorney General Opinion MW-132 (1980) considered whether former 

article 2368a, V.T.C.S., providing for competitive bidding requirements for cities’ 

and counties’ purchases, applied to purchases by municipal housing authorities. 

Citing Mien and Aetna, the opinion concluded that article 2368a “applies to housing 

authorities as divisions of cities.” (The provisions of article 2368a relating to 

municipal purchases were codified in 1987 in chapter 252 of the Local Government 

Code. See Acts 1987,7Oth Leg., ch. 149, supra.) 

Attorney General Opinions JM-687 (1987) and JM-573 (1986) adhered to 

the conclusion of Attorney General Opinion MW-132. Those opinions concluded 

that purchases made by a municipal ,housing authority under the Consolidated 

Supply Program administered by the federal government were nevertheless subject 

to the provisions of former article 2368a respecting municipal purchases.4 See also 

Attorney General Opinion C-760 (1966) (county housing authority must comply 

with statutes applicable to counties where they do not conflict with provisions 

specific to housing authority; overruling Attorney General Opinion O-6339 (1945) 

which had held that a municipal housing authority vehicle was not within statute 

providing for exempt license plates for city vehicles). 

The provision, now in Local Government Code section 215.001, that a “municipality may not adopt regulations relating to the. . . ownership [or] keeping . . . of 

firearms,” was first adopted in 1985. Acts 1985, 69th Leg., ch. 838, $1, at 2904. It 

tie legislature has, since the issuance of Attorney General Opinions JM-687 and JM-573, 

speciticaUy exempted such housing authority purchases from state law purchasing requirements. See 

note 5, in*. 

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must be presumed that in enacting the provisions of section 215.001 the legislature 

was aware of the scope state court and attorney general opinions had theretofore 

given to the term “municipality” -- specifically that the term included a municipal 

housing authority, the latter being a “division” of a municipality. We find no state 

statute, in chapter 392 or elsewhere, evidencing a legislative intent that municipal 

housing authorities not be subject to the prohibition in section 215.OOl.S 

Nor do we find anything in the federal law or regulations pertaining to 

municipal housing authorities which under the supremacy clause, U.S. Const. art. 

VI, cl. 2, would restrict the applicability of section 215.001 to the proposed 

regulation in question. Federal law provides for the making of loans and contributions of federal funds to “public housing agencies.” 42 U.S.C. 0 1437 et seq. ; see also 

24 C.F.R. 0 811 et seq. “[Plublic housing agency” is defined as “any State, county, 

municipality, or other governmental entity or public body (or agency or 

instrumentality thereof) which is authorized to engage in or assist in the 

development or operation of low-income housing.” 42 U.S.C. 8 1437a(b)(6); see uko 

Local Gov’t Code 9 392.052(f)(l) (housing authority may “borrow money or accept 

grants or other financial assistance from the federal government for, or in aid of, a 

housing project in the authority’s area of operation”). We find no federal provisions 

applicable to housing authorities which are in conflict with the provisions of section 

215.001 or which indicate a congressional intent that federally-funded housing 

authorities not be subject to such state law restrictions. See English v. General 

Electric Co., 110 S. Ct. 2270 (1990) (test of whether state law is superseded under 

supremacy clause). 

We do note that title 42, section 1437d(Z)(5), of the United States Code 

requires local housing agency leases to “provide that any criminal activity that 

threatens the health, safety, or right to peaceful enjoyment of the 

premises . . . engaged in by a public housing tenant, any member of the tenant’s 

household, or any guest or other person under the tenant’s control, shall be cause 

for termination of tenancy.” (Emphasis added.) This provision might support a 

municipal housing authority regulation, to be incorporated in authority leases, 

providing for eviction for the criminal possession of a firearm. It would not in our 

opinion, however, supersede the section 215.001 restrictions with respect to the 

regulation in question, which, as we understand it, would restrict possession that was 

otherwise legal. See Penal Code $9 46.02 (carrying certain weapons on or about 

‘Compare Local Gov’t Code D 392.0565(a), added in 1989 (authority exempt from state Jaw to 

the extent necessary to allow authority’s participation in federal purchasimg programs). Acts 1989, 71st 

Leg., ch. 1,5 al(a), at 107. 

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one’s person a crime), 46.05 (crime for certain felons to “possess” a firearm “away 

from the premises where [they] live”).6 

Accordingly, we conclude that municipal housing authorities are, as 

“divisions” of municipalities, subject to the provisions of section 215.001. They 

would be precluded by subsection (a) of section 215.001 from adopting a regulation 

restricting tenants’ otherwise legal possession of firearms. Such a regulation would 

“relat(e] to” the “private ownership” or “keeping” of firearms within the subsection 

(a) prohibition and would not fall within any of the exceptions to the subsection (a) 

prohibition set out in subsection (b) of section 215.001. Nor, does applicable federal 

law supersede the section 215.001 prohibition. 

You also ask whether a municipal housing authority’s powers under chapter 

392 of the Local Government Code are broad enough to permit adoption of the 

regulation in question, and whether such a regulation would violate the provisions of 

article I, section 23, of the Texas Constitution relating to the right to “keep and bear 

arms.” In view of our conclusion that a municipal housing authority is precluded by 

section 215.001 from adopting such a regulation, we need not reach these other 

issues here. 

SUMMARY 

Section 215.001 of the Local Government Code prohibits a 

municipal housing authority from adopting a regulation providing for a tenant’s eviction for the otherwise legal possession of a 

firearm. 

DAN MORALES 

Attorney General of Texas 

6we note also that a local public housing agency rccctig federal timds most enter into a 

contract with the United States Secretary of Housing and Urban Development. In such a contract, the 

secretary may make provisions pertaining, inter alia, to “the establishment of effective tenaotmanagement relationships designed to assore that satisfactory standards of tenant security and project 

maintenance are formulated.” 42 U.S.C. 5 1437d(c)(4)(C). As we do not have a particular contract 

before as, we do not address here the effect of provisions therein, if any, bearing on an authority’s 

regulation of tenants’ possession of firearms. 

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WILL. PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

JUDGE ZOLJX STEAKLEY (Ret.) 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

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