DAN MORALES

ATTORNEY GENERAL 

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Qhneral Btate of flCexae August 27,1992

Honorable Tim Curry Crimimd District Attorney Tar-rantCounty 401W.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 756.042ofthe 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 oflegislative authority. In Dudding v. Automatic Gas Co., 193 S.W.2d 517 (Tex. 1946), the court considered a 1939statute whichrequired that containers for the storage ofliquefied 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 inStarev. Cmwford, 177 P. 360 (Ran. 1919). In the Crawfordcase, 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

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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 ofan unofficial agency have been prospectively adopted by the legislature.” Since the ambit of the statute. is not limited to a particular edition ofthe range manual, it failsto meet the standard adopted inL&Id@. This view is confirmed by more recent cases from other jurisdictions. In J&stemFed Corp.v. Wksson,316S.E.2d373(S.C. 1984).for example, the court held that a statute which imposed a 20percent tax on admissions only to those motion pictures rated X bythe Motion Picture Association ofAmerica, or not rated at all, constituted an unlawful delegation of legislative authority to a private association” Id. at 374. Likewise, in NewsPGntingCo.v.Bonn@ of Touwa, 511A.2d 139 (NJ. Super. Ct. LawDiv. 1986).the court said that an ordinance whichbanned newsracks within 200 feet of any church unless the church waived the prohibition was unconstitutional in granting legislative power to aprivate entity. Id. at 162;see uLro NorthAm Sa&v Valveh&s., Inc v. Wo&st, 672 F. Supp. 488, 493-94 (D. Kan. 1987); Srptev. Ch&ie, 766P.2d 1198,120s (Haw. 1988) cert denied, 490U.S. 1067 (1989) Bulova WatchCo..Inc v.BrandD&ribs. qfN 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

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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 ofTexas WILLPRYOR First Assistant Attorney General MARYKELLER Deputy Assistant Attorney General RENEAHIW SpecialAssistant Attorney General MADELEINB B.JOHNSON Chair, Opinion Committee Prepared by Rick Gilpin Deputy Chief, Opinion Committee

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