                           February 23, 1988




Honorable Abelardo Garza               Opinion No.     ~~-863
Duval County Attorney
P. 0. Drawer M                         Re:   Whether a county may
San Diego, Texas   78384               set a curfew for minors on
                                       public property  (RQ-1238)

Dear Mr. Garza:

     You ask whether the Duval County Commissioners Court
may enact an ordinance  setting a curfew for minors found
on public property within the county.

     Article V, section 18, of the             Texas    Constitution
gives to a commissioners court

       such powers and jurisdiction as is conferred
       by this constitution and the laws of the
       state, or as may be hereafter prescribed.

Under this provision,  a commissioners court may exercise
only those powers that the Texas Constitution and statutes
specifically confer upon it.    Canales v. Lauahlin,   214
S.W.2d 451 (Tex. 1948). To answer your question, then, we
must look first to specific statutory grants of authority.

     Several statutes confer on commissioners courts the
authority  to exercise control over particular     public
areas. Article 2351, V.T.C.S., provides in part:

          Each commissioners         court shall:

          .   .   .   .

          5. Exercise general control over all
       roads, highways, ferries and bridges in
       their counties.

Chapter 291 of the Local Government Code provides in part:

       g291.001.          Providing and Maintaining    County
       Buildings




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          The         commissioners      court   of   a      county
       shall:

          .   .   .    .

          (3) maintain   the courthouse,                   offices,
       and other public buildings.

       5291.003.           Control of'courthouse

          The county sheriff shall have charge and
       control of the county courthouse, subject to
       the regulations of the commissioners court.

Finally, section  331.005           of    the Local       Government   Code
provides in part:

           (a) Parks acquired under this chapter
       [on municipal and county parks, museums and
       historic sites] are under the control and
       management of the municipality    or county
       acquiring the park.

     These provisions   allow a commissioners     court to
regulate reasonably the use of county roads, buildings,
and parks. They do not, however, allow a commissioners
court to adopt regulations   unrelated   to the objectives
behind the enabling statutes. See La Cour du Roi. Inc. v.
Montaomerv Countv,  698 S.W.Zd   178, 187-88  (Tex. App. -
Beaumont 1985, no writ). A juvenile curfew ordinance is,
in our view, well beyond the intended scope of the
statutes cited above.   See aenerallv Shinlev v. Flovdada
Indeoendent School District,   250 S.W. 159, 161, judgment
adopted (Tex. Comm'n App. 1923).

     Thus, a commissioners   court lacks the authority    to
enact a juvenile curfew ordinance   -- even if such an act
would, as you suggest, promote "the safety and general
welfare" of the community.      Unlike home rule cities,
counties have no general police power.        Commissioners
Court of Harris Countv v. Kaiser, 23 S.W.2d 840 (Tex. Civ.
APP. - Galveston 1929, writ ref'd). Counties are agencies
for the administration    of matters   that are of state
concern, rather than of municipal concern or of concern of
any particular locality. Bexar Countv v. Linden, 220 S.W.
761 (Tex. 1920). Any powers conferred upon counties are
duties imposed rather than privileges granted.     Orndorff
v. State, 108 S.W.2d 206   (Tex. Civ. App. - El Paso 1937,
writ ref'd): see also Harrison County v. Citv of Marshall,




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253 S.W.2d  67 (Tex. Civ. App. - Fort Worth 1952, writ
ref'd) (contrasting powers of county with powers of city).
Thus, a county   is prohibited from acting solely on the
basis of a general desire to promote      the safety and
general welfare of the community.  See aenerally Attorney
General Opinions MW-419 (1981) (county has no authority to
prohibit discharge of sewage plant effluent into county
roadside ditch); H-374 (1974) (county has no authority to
regulate utility   rates, establish minimum  building  and
housing codes, license door-to-door salesmen, or require
registration and bonding of home builders).

     Moreover, whatever the justification behind      it, a
juvenile curfew ordinance      would raise a     number of
troubling constitutional questions.    In Attorney   General
Opinion MW-558    (1982), we held that juvenile       curfew
ordinances are not unconstitutional per se. We pointed
out, however, that any such ordinance must pass a number
of rigid constitutional tests:   for instance, in order to
be considered    valid, the ordinance must protect       the
legitimate   liberty and first amendment      interests   of
juveniles affected.    Johnson v. Citv of ODelousas,     658
F.2d 1065 (5th Cir. 1981); Ex Darte McCarver,   46 S.W. 936
(Tex. Crim. App. 1898).    In addition, the ordinance must
not be broader than is necessary     to achieve   leaitimate
governmental purposes.    Johnson -v. Citv of ODelousas,
SuDra; McCollester v. CitV of Keene, 514 F. Supp. 1046
(D.N.H. 1981), rev'd on other arounds, 668 F.2d 617 (1st
Cir. 1982).

     This latter requirement    is especially    troublesome
when applied to county action. Attorney     General Opinion
MW-558 dealt with a curfew proposed by a &         -- which,
under its police power, has the right to protect         the
health,  safety, morals,   and general welfare       of its
citizens by any reasonable     and necessary    regulations.
Lombard0 v. Dallas, 73 S.W.Zd 475    (Tex. 1934); see also
Local Gov't Code 554.004.      As noted above, a county,
unlike a city, has no general police power:     its "legiti-
mate governmental    purposes"   are   confined   to   those
specifically enumerated by statute. Thus, in the absence
of expansive   statutory  authority,   any   county curfew
ordinance would probably be unconstitutionally overbroad.

     Even if a county-wide juvenile curfew ordinance were
authorized by statute, it would still be vulnerable     to
constitutional attack under the various   tests set forth
in MW-558.    Recent years, moreover,   have witnessed   a
heightening, rather than a lessening, of judicial scrutiny




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in this area. Comoare Bvkofskv v. B rouah f Middletown
401 F. Supp. 1242 (M.D. Pa. 1975). :ff#d, ;35 F.2d 124;
(3d Cir.);-cert  denied,   424 U.S.-964 (1976), with Allen
v. Citv of Bordentown  524 A.2d 478 (N.J. Super. Ct. Law
Div. 1987); see a1so'S.W. v. State, 431 So.2d 339 (Fla.
Dist. Ct. APP. 1983).       Relevant  commentary  in legal
journals has reflected   this trend.   &B Note, Assessing
the Scooe of Minors' Fundamental Riahts: Juvenile Curfews
and the Constitution, 97 Harv. L. Rev. 1163-81      (1984);
Note, Nonemeraencv  Municioal   Curfew Ordinances  and the
Libertv Interests of Minors,   12 Fordham Urb. L.J. 513-61
(1984).

                       SUMMARY

            A commissioners court has no authority
       to enact a county-wide     juvenile  curfew
       ordinance.




                                    JIM     MATTOX              7,
                                    Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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