DAN MORALES 

ATTORNEY GENERAL 

QBffice of tty !Zlttomep Qhneral 

Btate of flCexae 

August 27,1992 

Honorable Tim Curry 

Crimimd District Attorney 

Tar-rant County 

401 W. Belknap 

Fort Worth, Texas 76196-0201 

opinion No. DM-159 

Re: Constitutionality of section 756.042, 

Health and Safety Code, which requires 

outdoor shooting ranges to be constructed 

according to standards set by the National 

Rifle Association (RQ385) 

Dear Mr. Curry: 

You have requested our opinion regarding the constitutionality of section 

756.042 of the Health and Safety Code. That statute provides: 

The owner of an outdoor shooting range shall construct and 

maintain the range according to standards that are at least as 

stringent as the standards printed in the National Rifle 

Association range manual. 

As you indicate, this statute does not specify a particular edition of the range 

manual. You suggest that, as a result, section 756.042 is an unconstitutional 

delegation of legislative authority. 

In Dudding v. Automatic Gas Co., 193 S.W.2d 517 (Tex. 1946), the court 

considered a 1939 statute which required that containers for the storage of liquefied 

petroleum gas conform to standards “as recommended by the National Fire 

Protection Association, effective July, 1937, a copy of said regulations known as the 

National Board of Fire Underwriters Pamphlet No. 58 being on file with the Gas 

Utilities Division of the Railroad Commission of Texas.” Id. at 519. The court 

distinguished the statute before it from the one held invalid in Stare v. Cmwford, 177 

P. 360 (Ran. 1919). In the Crawford case, the statute under attack adopted “present 

as well as prospective rules of an unofficial association as a standard of conduct, 

departure from which would have been a crime.” The Texas Supreme Court 

p. 839 
Honorable Tim Curry - Page 2 (m-159) 

observed that such delegation of legislative powers to a private association would 

contravene article III, section 1 of the Texas Constitution. The Texas court then 

declared: 

We do not have before us a situation where future rules of an 

unofficial agency have been prospectively adopted by the 

legislature. 

Id at 520. 

With regard to section 756.042, however, we do in fact “have before us a 

situation where future rules of an unofficial agency have been prospectively adopted 

by the legislature.” Since the ambit of the statute. is not limited to a particular 

edition of the range manual, it fails to meet the standard adopted in L&Id@. 

This view is confirmed by more recent cases from other jurisdictions. In 

J&stem Fed Corp. v. Wksson, 316 S.E.2d 373 (S.C. 1984). for example, the court held 

that a statute which imposed a 20 percent tax on admissions only to those motion 

pictures rated X by the Motion Picture Association of America, or not rated at all, 

constituted an unlawful delegation of legislative authority to a private association” 

Id. at 374. Likewise, in News PGnting Co. v. Bonn@ of Touwa, 511 A.2d 139 (NJ. 

Super. Ct. Law Div. 1986). the court said that an ordinance which banned newsracks 

within 200 feet of any church unless the church waived the prohibition was 

unconstitutional in granting legislative power to a private entity. Id. at 162; see uLro 

North Am Sa&v Valve h&s., Inc v. Wo&st, 672 F. Supp. 488, 493-94 (D. Kan. 

1987); Srpte v. Ch&ie, 766 P.2d 1198,120s (Haw. 1988 ) cert denied, 490 U.S. 1067 

(1989) Bulova Watch Co.. Inc v. Brand D&ribs. qf N Wilkebom, Im, 206 S.E.2d 

141.146 (N.C. 1974). 

On the basis of the language in Dudding, 193 S.W.2d 517, and the 

unmistakable thrust of the law in other jurisdictions, we conclude that section 

756.042, as currently written, is an invalid attempt to confer legislative authority on a 

private association, in clear contravention of article III, section 1 of the Texas 

COIlStitUtiOXL 

Section 756.042, Health and Safety Code. which require 

outdoor shooting ranges to be constructed according to 

p. 840 
Honorable Tim Curry - Page 3 m-159) 

standards promulgated by the National Rifle Association, is an 

invalid attempt to confer legislative authority on a private entity 

in contravention of article Ill, section 1 of the Texas 

ChlStitUtiOll. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARYKELLER 

Deputy Assistant Attorney General 

RENEAHIW 

Special Assistant Attorney General 

MADELEINB B. JOHNSON 

Chair, Opinion Committee 

Prepared by Rick Gilpin 

Deputy Chief, Opinion Committee 

p. 841