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                      The Attorney General of Texas
                                         August    25,    1980

MARKWHITE
Attorney General
                   Honorable John T. Montford                  Opinion No. 14~1-228
                   Criminal District Attorney
                   Ltibock County Courthouse                   Re: Whether a home rule city can
                   Lubbock, Texas 79401                        provide     for  the  issuance of
                                                               administrative search warrants

                   Dear Mr. Montford:

                         You ask whether a home rule city can enact sn ordinance providing for
                   administrative search warrants, and whether a municipal court judge, acting
                   as a magistrate, can issue such administrative  search warrants.    For the
                   reasons to be hereinafter stated, we believe that both questions should be
                   answered in the affirmative.

                          The law is well settled that a home rule city derives its powers from
                   article Xl, section 5 of the Texas Constitution.         Lower Colorado River
                   Authority v. City of San Marcos, 523 S.W. 2d 641 (Tex. 1975). A home rule
                   city is not required to look to the legislature for a grant of power to act, but
                   only to ascertain     whether the legislature hes acted to limit the city’s
                   constitutional  power. Burch v. City of San Antonio, 518 S.W. 2d 540 (Tex.
                   1975). Therefore, all powers enumerated in its charter which ere not denied
                   it by the constitution or general laws of the State of Texes, may be lawfully
                   exercised by a home rule city.

                         We find no constitutional or statutory provision prohibiting a home rule
                   city from providb     for the issllance of administrative  search warrants to
                   ensure compliance with the city codes enacted to protect the health, safety
                   and welfare of its inhabitants.

                          City of Lubbock Ordinance No. 7859 provides for the issllance by
                   municipal court j-es       of “code enforcement      search warrants” to city
                   inspectors charged with enforcement       of city codes dealing with, but not
                   limited to, zoning and environmental        control, and housing and building
                   inspection.    Such administrative  search warrants may’be issued only lpon
                   sworn affidavits supported by probable muse and may authorize inspection
                   of premises to determine the presence of any code violations.     No authority
                   to effect any arrest or seizure of any property is granted by these
                   administrative   search warrants issued to city inspectors, none of whom are
                   commissioned peace officers tmder article 2.12 of the Code of Criminal
                   Procedure.




                                                   p.    724
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    Honorable John T. Montford   - Page Two        (MW-228)




           We believe Lubbock City Ordinance No. 7859 to be in stistantial        compliance
    with article 18.05 of the Code of Criminal Procedure, which specifically authorizes the
    issuance of administrative    search warrants to city health officers and fire marshals.
    Article 18.05 was enacted by the legislature in response to decisions by the Supreme
    Court of the United States, which established the need fcr compliance with the
    warrant requirements of the Fourth Amendment in administrative          searches of both
    residential and commercial premises. Camera v. Municipal Court, 387 U.S. 523 (1967);
    See v. City of Seattle, 367 U.S. 541 (1967). See also Michigan v. Tyler, 436 U.S. 499
    11978); Marshall v. Barlow’s, Inc., 436 U.S. 307(197

           We believe the issuance of such administrative search warrants by a home rule
    city to be a reasonable exercise of its general police powers enumerated in article 1175,
    V.T.C.S., which extend to the reasonable omtection of the wblic health. safetv end
    welfare.. Texas Power and Light Company v. City of Garland, 431 S.W. ‘2d 5lliTex.
    1968); John v. State, 577 S.W. 2d 483 (Tex. Crim. App. 1979).

           It is therefore our opinion that a home rule city may enact an ordinance
    providirg for the issuance of administrative search warrants in compliance with the
    provisions of article 18.05 of the Code of Criminal Procedure.

           Article 18.01(c) of the Code of Criminal Procedure prohibits a municipal court
    judge from issuing an evident&y search warrant under article 18.02(10), which provides
    for the seizure of evidence in a criminal case. However, as recognized by the United
    States Supnsme Court in Camara and See, M,             there is a distinction between an
    administrative   search warrant and a m%inal search warrant, and each requires a
    different standard of probable cause for its issuance.

           A criminal search warrant may be issued only upon a finding of probable cause
    supported by sn afficbvit that a criminal offense hss been committed and that certain
    specified property is therefore stiject to seizure. Code Crim. Proc. arts. 18.01, 18.02.
    Additionally,   a criminal search warrant may order the arrest of the suspected
    offender. Code Crim. Proc. art. 18.03.

           An adminstrative   search warrant under article 18.05 of the Code of Criminal
    Procedure may cnly be issued for the purpose of allowing en inspection of specific
    premises to determine the presence of hazardous conditions prohibited by law. In
    determining probable cause for the issuance of an administrative search warrant under
    article 18.05 the magistrate is not limited to evidence of specific knowledge, but may
    consider any of the following:

                   (1) the ege and general condition of the premises;
                   (2) previous violations a hazards found present in the
               premises;
                   (3) the type of premises;
                   (4) the purposes for which the premises are used; and
                   (5) the presence of hazards or violations in and the general
               conditions of premises near the premises sought to be inspected.




                                              p.   725
Honorable John T. Montfad    - Page Three      (NW-2281




      Probable cause to believe that a criminal offense has been committed is not a
prerequisite to the Issllance of en administrative search warrant under article 18.05,
nor may en administrative search warrant order the arrest of any person or the seizure
of any property.

      Accordingly, we believe that a municipal court judge sitting as a megistrate
pursuant to article 2.09 of the Code of Criminal Procedure would not be prohibited by
the language of article 18.01(c) of the Code of Criminal Procedure from Issuing an
administrative   search warrant as authorized by article 18.05 and City of Lubbock
Ordinance No. 7859.

                                   SUMMARY

               A home rule city can enact en ordinance providing for administrative
           search warrants to be issued by a municipal court judge.




                                            MARK        WHITE
                                            Attorney   General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

Prepared by Gerald C. Carruth
Assistant Attorney General

APPROVED:
OPINION COMMTTTEE

C. Robert Heath, Chairman
Jon Bible
Gerald C. Carruth
Susan Garrison
Rick Gilpin
