                    The Attorney             General of Texas
                                         May 29, 1981
MARK WHITE
Attorney General


                   Honorable Oscar II. Mauzy                Opinion No. NW-345
                   Senate Committee on Jurisprudence
                   Texas Senate, State Capitol              Re:   Constitutionalityof
                   Austin, Texas 707ll                            House Bill 733

                   Dear Senator Mauzy:

                         On April 21, 1981, we issued Attorney General Opinion MW-326 (1981),
                    which upheld as constitutional the provisions of House Bill 733, pending
                   ‘before the 67th Legislature. You now ask a number of further questions
                    regarding this legislation.

                        In Attorney General Opinion MW-326, we said that “House Bill 733, as
                   amended, has been upheld in all respects by the only federal appellate court
                   which has considered the matter.‘I Althoush the bii itself was of course not
                   before the court in Record                                            638 F.
                   2d 916 (6th Cir., 19601,each provision of the bill to which a constitutional
                   objection might reasonably be raised was considered and upheld by the court.
                   Thus, we believe it is fair to infer from the decision that each provision of
                   House Bill 733 has been upheld by the Court of Appeals for the Sixth Circuit.

                        You ask whether House Bill 733 as presented to us provides sufficient
                   guidelines to prevent selective discriminatory enforcement. Although the
                   60th in Record Revolution No. 6, Inc. v. City of Parma,
                   the oossibilitv of discriminatory enforcement of this kind
                   de&ed to hold the ordinance unconstitutionalon this ground. &8 F. 26; at
                    931. Rather, it held invalid the definition of “drug paraphernalia”on the
                   basis of the vagueness and overbreadth of the “designed for use”standard,a
                   standard which has been omitted from the present version of House Bill 733.

                        Furthermore, both the court’s decision in City of Parma, and Attorney
                   General Opinion MW-326 uphold only the facial constitutionality of various
                   provisions of the ordinance and House Bill 733, respectively. It is well
                   established that the constitutionality of a statute will not be measured by
                   some possible future application thereof. Solesbee v. Balkcom, 339 U.S. 9,11
                   USSO). In Joseph E. Seagram & Sons, Inc. v. Hcstetter, 384 U.S. 35 (19661,
                   the Supreme Court said that where a statute not yet in effect is attacked on
                    constitutional grounds, its facial constitutionality is the only relevant in-
                   quiry. 384 U.S. at 41.




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Oscar H. Mauzy - page 2     (m-345)



      You also ask whether two of the evidentiary rules contained in House Bill 733,
specifically items (9) and (10) in section 5.15,~mightpromote selective discriminatory
enforcement by suggesting to law enforcement officials that “only businesses which
seIl prohibited items in certain quantities, such as ‘head shops,’should be prosecuted.”
The court in City of Parma rejected the contention that any of the evidentiary rules
[there called ‘logically relevant factors”] present in House Bill 733 are facially
unconstitutional. 638 F. 2d at 934. Rather, the court recognized that the list of
evidentiary rules does not supersede state rules of evidence and that state law
naturally incorporates principles of due process. In our opinion, a court would similarly
construe the evidentiary rules of House Bill 733 to conform to state evidentiary rules
and to principles of due process.

      You also question item (1) of section 5.15 of the evidentiary rules. In City of
Parma, the court affirmed that “guilt must be based on personal action, statements, or
knowledge, not on association with other persons suspected of criminal conduct.” 638
F. 2d at 933. As we have previously noted, however, the evidentiary rules in
themselves incorporate state rules of evidence and principles of due process. For this
reason, the court declined to declare any of the rules similar to those present in House
BiIl 733 to. be facially unconstitutional. We believe that a court would construe the
evldentiary rules of House Bill 733 in a similar manner, and thus, uphold their facial
constitutionality. Also, 8s we have indicated, the question of unconstitutional
enforcement is not a proper inquiry here.

      You ask whether the “should reasonably know” standard in item (5) of the
evidentiary rules renders this factor unconstitutional. The court in Cit of Parma
rejected the “reason to know” standard as vague and overbroad in       *+ de unng the
prohibited conduct. 638 F. 2d, at 935-36. The court did not reject the standardas part
of the evidentiary rules, because, as we have noted, it presumed that state rules of
evidence and principles of due process would temper the construction of the
evidentiary rules. Id. at 933-34.

     Finally, you ask us to consider House Bill 733 in light of David Clark v. City of
B,      presently pending in the United States District Court, Northern District of
Texas, and three cases, pending in federal district court in Oklahoma, which challenge
the validity of recently enacted drug paraphernalia legislation in that state. We
understand that plaintiffs have taken a voluntary nonsuit in the City of Irving case,
and as of this date, none of the courts in the Oklahoma cases have rendered a decision
on the merits. In any event, the Oklahoma statute at issue differs substantially in
several respects from House Bill 733.

     House Bill 733 as presented to us is not unconstitutionalas against the objections
you have suggested.


                                      SUMMARY

      House Bill 733 is not unconstitutionalwith respect to objections raised.




                                       p. 1141
Oscar H. Mauzy - page 3      (MU-345)




                                                  MARK WHITE
                                                  Attorney General of Texas

JOHN W. FAINTER,JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Rick GiIpin
Assistant Attorney General

APPROVED:
OPINIONCOMMITTRE

SusanL. Garrison, Chairman
Ride Gilpin
Jim Moellinger
Bruce Youngblood




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