                              QBfficeof tip Bttornep @enera
                                             &ate of IBexas
DAN MORALES
 ATTORNEY
      GENERAL                                November 23,1992



    Honorable James Warren Smith, Jr.               Opinion No. DM-183
    Frio County Attorney
    P.O.BoxV                                        Re: Whether a county commissioners court
    Pearsall, Texas 78061-1138                      is authorized to promulgate regulations
                                                    creating a “smoke-free” environment or
                                                    designate restricted areas in county buildings
                                                    or facilities for smoking (RQ-363)

            You ask whether the Frio County Commissioners Court is vested with the
    authority to create a smoke-free environment or to designate restricted areas in
    county buildings or facilities for smoking.* We conclude that the court may regulate
    smoking on all county property.

           The commissioners court derives its authority from article V, section 18 of
    the Texas Constitution, which provides that the court shall “exercise such powers
    and jurisdiction over all cowlty buriness, as is conferred by this Constitution and the
    laws of the State.. . .” Tex. Const. V, 8 18(b) (emphasis added). The powers and


            ‘You offer Texas Penal code section 4&01(a) as the relevant statute in this cast. This
    pwvision dates the followiog:

                     A person commits an offense if he is in posse&on of a burning tobacco
                productor smokes tobacco ia a facilityof a public primaryor secondaryschool
                or an elevator, enclosed theater or movie house, liiary, muscum. hospital
                traositsystembus, or intrastatebus . . . , plane, or trainwhich is a public place..

    Your rcaadag suggests that in the wwsc of cxdslag its express authority“onr all county business,’
    tbc wmmisaioaers court has implied authorityto adopt by order section 46.01 of the Texas Penal Cede
    and hence the authority to designate smokiog and non-smoking areas within county buildings or
    facilitica. Bccausc WCconclude.that the commissionerscourt has broad authorityover countybuildings
    aad facilih, we need not reach this point in our analysis. See Acts 1975,64tb Leg., ch. 290, P 2, at 745
    (Penal Code sectioo 4&01(a)dces not preempta local anti-smokingorder).




                                                 p. 961
Honorable James Warren Smith - Page 2         K?t-183)




duties of the court are prescribed by the legislature in Local Government Code
section 291.001, which provides the following, in pertinent part:
         The commissioners court of a county shall:
              . . . .

             3. maintain the courthouse, offices, and other public
         buildings.
See Godson v. Marshall, 118 S.W.2d 621, 623 (T’ex. Civ. App.-Waco 1938, writ
dism’d) (commissioners court possessed implied authority to regulate the use of
courthouse) (considering predesssor statute V.T.C.S. art. 2351). The statutory duty
of a commissioners court to keep county buildings and facilities in repair
contemplates “inhabitable and usable” property. See Anderson v. Wood, 152 S.W.2d
1084 (Tex. 1941) (considering predecessor statute V.T.C.S. art. 2351).

       In addition, the counties of this state have general authority to provide for
the health and welfare of persons within the county. State law authorizes the county
commissioners court to exercise control over health and sanitation matters
concerning the county and its residents. Health & Safety Code 5s 121.003 (local
public health reorganization act); 122.001 (appropriation and spending authority for
health and sanitation); 281.121 n.2 (creation of a hospital district); see L&OAttorney
General Opinions O-4725 (1942) (establishment of preventive medicine unit);
O-2419 (employment of a nurse), 0-2580A (1940) (operation of a health clinic
without the establishment of a county hospital). Specifically, section 121.003(a) of
the Health & Safety Code vests the commissioners court with the authority to
“enforce any law that is reasonably necessary to protect the public health.”

       Tlms no legislation expressly vests the commissioners court with authority to
regulate smoking in county buildings and facilities. Similarly, there are no judicial
or attorney general decisions directly addressing your concern. However, the
commissioners court may act without express authority, so long as its actions are
reasonably necessary to pursue some authority granted by either statute or the state
constitution. See genera& Pritchard &Abbott v. McKenna, 162 Tex. 617,350 S.W.2d
333 (1961) (implied authority to contract with private appraisal firm upheld);
Sdrope v. Stute, 647 S.W.2d 675 (Tex. App.-Houston [14th Dist.] 1982, writ refd)
(commissioners court granted implied authority to exercise broad discretion in
regulation of massage parlors); Rowan v. Picket& 237 S.W.2d 734 (Tex. Civ.
App.-San Antonio 1951, no writ) (commissioners court granted broad discretion to




                                     p. 962
Honorable James Warren Smith - Page 3 UBt-183)




exercise authority reasonably necessary to accomplish soil preservation program);
Attorney General Opinion JM-1098 (1989) (cxxnmi&oners court possessed
authority to promulgate regulations regarding smoking in county jail). In our
opinion, however, the county commissioners court’s broad authority over all county
business, as well as its more specifk authority to provide for the health and welfare
of persons within the county, implicitly empowers the court to regulate smoking in
cotmtybuildings?



               As the body responsible for the acquisition and maintenance
           of county buildings and facilities as well as the health and
           welfare of persons within the county, the commissioners court is
           authorized to regulate smoking within and on county properly.




                                                       DAN      MORALES
                                                       Attorney General of Texas




        %cved jmisdickioashave addred      your quq.   III KSUWIS
                                                                Atto~ncyGcnupl opinion No.
92-U (19!32),it was opined that the board of county aommicsionershasthcauthoritytod&gnateand
decidcwhichuusofamorthousc,cxccptthoscllscdforjudi~hrnctionc,uctobc~o~~~
Ia CaIifomia Attorney Gcucral Gpioioa No. 91-719 (Ml), the D&&t Attorney of Orange County
Lplrcdwhc~aco~Eo~cnart~adinanecnrbichbpnsrmokingin111co~~llad
caforce.theordhamxagainstmcmbersofthepubli~            Itwasconcludcdthatruch~wouldbe
pcrmimibleifitwouldaotbcinumflictwithgmu.rallawr          Idat3. Additionayl,tkwriteriuIowa
Atorncy General Opinion No. 88-1-11(L) (1988), asked vbcthcr a county board of sopuviron has
authaityto~aMdutimoror~~rmdringinpoPtionsoftbcwuntyeollrthousc
oatpiedbytheawtoritsempl~                  Itwascs&udcdthatwbiktheboardofsupcrvisorsis
rcspoasiblcforthcalstody~umtroldthccourthouse          itmaymtrcguIatcamoklagioareas~
toahtccdaciah TbcopinionEontaiartbcavutthptthcdceirionrbouldnotbcconstrucdtopcrmit
atateemployees to smoke ia other areas of the courthousecontraryto .stabli&cd policy. Id. at 2.




                                        p. 963
Honorable James Warren Smith - Page 4 (@t-183)




WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEAHIcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Toya C. Cook
Assistant Attorney General




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