ATTORNEYGENERALOFTEXAS GREG ABBOTT

November 1,2004

The Honorable Helen Giddings Chair, Committee on Business and Industry Texas House of Representatives Post Office Box 2910 Austin, Texas 78768-2910 Opinion No. GA-0267 Re: Whether, under section 54.012(S) of the Local Government Code, a municipality may enact an ordinance prescribing civil penalties for matters that do not relate to the substantive provisions of section 54.012 (RQ-0220-GA)
Dear Representative Giddings: You ask whether, under section 54.012(S) of the Local Government Code, a municipality may enact an ordinance prescribing civil penalties for matters that do not relate to the substantive provisions of section 54.012.’ Chapter 54 ofthe Local Government Code, entitled “Enforcement ofMunicipal Ordinances,” is divided into three subchapters. Subchapter A describes the general enforcement authority ofTexas municipalities and imposes a general limit of $500 for a “tine or penalty for the violation of a rule, ordinance, or police regulation.” TEX. Lot. GOV’T CODE ANN. 5 54.001(a)-@) (Vernon 1999). Violations of rules, ordinances, or regulations governing “fire safety, zoning, or public health and sanitation,” however, may be punished by a tine or penalty not to exceed $2,000. Id. 5 54.001(b). Subchapter B of chapter 54 is denominated “Municipal Health and Safety Ordinances.” Section 54.012 provides:

A municipality may bring a civil action for the enforcement of an ordinance: (1) for the preservation of public safety, relating to the materials or methods used to construct a building or other structure or improvement, including the foundation, structural elements, electrical wiring or apparatus, plumbing and fixtures, entrances, or exits;



### ‘See LetterfromHonorable

HelenGiddings,

Chair,Committee

on Business

andIndushy,TexasHouse

of Representatives,

toHonorable

Greg Abbott, Texas Attorney General (May 7,2004) (ontilewith

theOpinion

Committee, also available 

### nfhttp://www.oag.state.tx.us) [hereinafkr

Request Letter].The Honorable Helen Giddings - Page 2 (GA-0267)

(2) relating to the preservation of public health or to the tire safety of a building or other structure or improvement, including provisions relating to materials, types of construction or design, interior configuration, illumination, warning devices, sprinklers or other fire suppression devices, availability of water supply for extinguishing tires, or location, design, or width ofentrances or exits; (3) for zoning that provides for the use of land or classifies a parcel of land according to the municipality’s district classification scheme; (4) establishing criteria for land subdivision or construction of buildings, including provisions relating to street width and design, lot size, building width or elevation, setback requirements, or utility service specifications or requirements; (5) implementing civil penalties under this subchapter 

### for conduct classified by statute as a class C misdemeanor; (6) relating to dangerously damaged or deteriorated structures or improvements; (7) relating to conditions caused by accumulations ofrefuse, vegetation, or other matter that creates breeding and living places for insects and rodents: (8) relating to the interior configuration, design, illumination, or visibility ofbusiness premises exhibiting for viewing by customers while on the premises live or mechanically or electronically displayed entertainment intended to provide sexual stimulation or sexual gratification; or (9) relating to point source effluent limitations or the discharge of a pollutant, other than from a non-point source, into a sewer system, including a sanitary or storm water sewer system, owned or controlled by the municipality. Id. 5 54.012 (emphasis added). You inquire as to whether item five in section 54.012 is a “stand alone” provision authorizing the imposition of civil penalties for any class C misdemeanor, or whether authority for a civil penalty under chapter 54 is restricted to the specific subject matter listed in items one through four and items six through nine of section 54.012.2


### %e predecessor

statute ofsection 54.012 was adopted fnstin 1985.

See Actof May9,1985,69th

Leg., RX, ch. 178, 1985Tex. Gen.Laws737,737-79. Onlythe first six itemsin the presentsection54.012,withminor (continued...)The Honorable Helen Giddings - Page 3 (GA-0267)

We note initially that the provision in question is limited to the implementation of “civil penalties under this subchapter. ” As the Texas Supreme Court has declared, “it is cardinal law in Texas that a court construes a statute, ‘first, by looking to the plain and common meaning of the statute’s words.’ If the meaning of the statutory language is unambiguous, we adopt, with few exceptions, the interpretation supported by the plain meaning of the provision’s words and terms. Further, if a statute is unambiguous, rules of construction or other extrinsic aids cannot be used to create ambiguity.” Fitzgeraldv. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864,865-66 (Tex. 1999). The phrase “under this subchapter” is clear and unambiguous. Thus, we need look only to the provisions of subchapter B for the correct explication of item five of section 54.012. As we have noted, subchapter B is denominated “Municipal Health and Safety Ordinances.” The individual sections of subchapter B all relate to health and safety matters. Not only do items one through four and six through nine of section 54.012 refer exclusively to health and safety matters, other provisions within subchapter B do likewise. Section 54.015, for example, requires that a municipality in a civil action plead “the identification of the real property involved in the violation,” as well as “the relationship of the defendant to the real property or activity involved in the violation.” 

### TEX. Lot. 

### GOV’TCODE ANN. 5 54.015(a)(1)-(2) (Vemon 1999). Section 54.016 requires that a prayer for injunctive relief demonstrate “substantial danger of injury or an adverse health impact to any person or to the property of any person other than the defendant.” Id. 5 54.016(a). The injunction may obtain only “against the owner or owner’s representative with control over the premises.” Id. Finally, section 54.017 authorizes a civil penalty “against the owner or the owner’s representative with control over the premises.” Id. 5 54.017(a). When section 54.012 is read in the context of subchapter B of chapter 54 of the Local Government Code, it becomes apparent that the “civil penalty” authorized by item five of section 54.012 is limited to matters that relate to “municipal health and safety” that are encompassed within subchapter B. Item five specifically refers to implementation of “civil penalties under this subchapter.” Id. 5 54.012(5) (emphasis added). You also ask whether, if a municipality has enacted such an ordinance, it may bring a civil action “to enforce [the ordinance] which provides for civil penalties if the ordinance enacts the civil penalty provision pursuant to sections 54.012 (5) and 54.017 ofthe Texas Local Government Code.” Request Letter, supra note 1. Our answer here is simply a corollary to our answer to your first question: any such civil action must be encompassed within the ambit of subchapter B.



### ‘(-continued) modifications,

wereenacted

bythatlegislation.Furthermore, thestatute was thenlimited

tohome-rule

cities. Seeid. $ 1, 1985 Tex.Gen. Laws at738. Onlyin 1991

wasformer

section 54.011, which limited theeffectofsection

54.012 tohome-rulecities,

repealed.See

ActofMay21, 1991,72dLeg., RX, ch.753,$3, 1991

Tex.Gen. Laws 2646,2646- 47. Significantly,

however, thebillanalysis

oftheoriginal1985

legislationcontainedthe

following statement: “Current lawallows various penalties, generally anassessment

ofaClass Cmisdemeanor

tine,forviolation

ofcity ordinances

but does not 

### allow home-rule citiesto 

### bringcivilactions

for violations 

### of

specific health and safety ordinances.” HOUSE 

### COMM. ONURBANAFFAIRS,

BILLANALYSIS,

Tex. H.B. 783,69th Leg., R.S. (1985) (emphasis added).Thus,

thehistory oftheoriginal

legislation enacting section 54.012 seems toindicate anintent tolimitthescopeofitemfive.The Honorable Helen Giddings - Page 4 (GA-0267)

SUMMARY An ordinance enacted under section 54.012(5) of the Local Government Code must be statutorily classified as a class C misdemeanor and must, in addition, be encompassed within the subject matter of subchapter B. Yours very truly,

neral of Texas

BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee