                THE   ATTORNEY       GENERAL
                          OF TEXAS

                         December 16, 1988




Robert Bernstein, M.D., F.A.C.P.     Opinion No.   JM-994
Commissioner
Texas Department of Health           Re:   Preemption by Texas
1100 Nest 49th Street                Department of Health   of
Austin, Texas 78756-3199             local ordinances regulat-
                                     ing the sale of abusable
                                     glues and aerosol paints
                                     (RQ-1480)

Dear Dr. Bernstein:

     You ask:

           Does the Texas Department of Health's    new
        authority to regulate the sale of abusable
        glues   and aerosol   paints under      Article
        4476-15d preempt    local    ordinances    from
        controlling or prohibiting accessibility     to
        abusable glues and aerosol paints by business
        patrons   without assistance   from   business
        personnel?

     Prior to its amendment by the 70th Legislature, subsec-
tion (f)(2) of section 4.13 of the Texas Controlled     Sub-
stances Act, V.T.C.S., article  4476-15, made it an offense
if a person knowingly or intentionally

        display[ed]    abusable glue or aerosol paint in
        a'business     establishment  in a manner that
        makes the     abusable glue or aerosol paint
        accessible    to patrons of the business without
        assistance    of personnel of the business.

     House Bill 173 of the 70th Legislature deleted      this
provision.  Acts 1987, 70th Leg., ch. 753. The same bill
added inter alia, provisions to V.T.C.S. article    4476-13a
regarding offenses   in connection with l'inhalant parapher-
nalia"; provisions to article 4476-15 regarding offenses   in
connection with delivery of abusable glue or aerosol   paint
to minors; reguirements to article 4476-15 that businesses
selling such substances display conspicuous signs stating
that it is unlawful to sell or deliver such substances to a




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Robert Bernstein, M.D., F.A.C.P. - Page 2   (JM-994)




minor, to abuse such substances,  or to use or to possess
with intent to use inhalant paraphernalia,     and stating
penalties for such offenses.   House Bill 173 also added
article 4476-15d, providing for the issuance of permits by
the Department of Health to sellers of abusable glues and
aerosol paints.

     Your request asks whether     local ordinances   which
regulate accessibility to abusable glues and aerosol paints
in business  establishments are preempted in light of the
provision by article 4476-15d "for the entry by the State
into this field of legislation."

     We have not been provided with the texts of any such
existing or proposed ordinances.  Also, you have not speci-
fied the types of municipalities which have adopted       or
propose to adopt such ordinances.  Accordingly, we can offer
only general guidelines with respect to the preemption issue
you present, and we will not address, apart from the preemp-
tion issue, issues as to the scope of particular        type
municipalities' police power under state law.

     A city is preempted from regulating in a field if the
city's regulation is expressly prohibited, if the legisla-
ture intended state law to exclusively occupy that field, or
if the city regulation  conflicts with state law.   Attorney
General Opinions JM-790, JM-619      (1987); JM-226  (1984);
H-1071 (1977).

     We find no express prohibition      in the Controlled
Substances Act or elsewhere    in state law on municipal
regulation of abusable glues and aerosol paints.

     Section 1.08 of the Penal Code does explicitly prohibit
the enforcement of local ordinances which make "any conduct
covered by [the Penal Code] an offense."   That prohibition
is extended to conduct made offenses by other state laws,
such as the Controlled Substances Act, by Penal Code section
l.O3(b.). See Attorney General Opinion MW-291 (1981).    The
conduct of displaying abusable glues and aerosol paints   is
no longer covered by, or made an offense by state law, since
the repeal of subsection (f)(2) of section 4.13 of the Con-
trolled Substances Act by House Bill 173. Thus, we find no
express prohibition in the Penal Code or elsewhere in state
law of local ordinances regulating accessibility to abusable
glues and aerosol paints.

     Nor do we discern  a legislative intent to exclusively
occupy this field.   The assertion  of police power by the




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Robert Bernstein, M.D., F.A.C.P. - Page 3     (JM-994)




state in a field does not necessarily indicate a legislative
intent to preclude a city from asserting by local ordinance
its police power  in the same field, so long as the local
ordinance is not in conflict with the state provisions.   See
Citv of Brookside Villaue v. Comeau    633 S.W.~2d 790  (Tex.
1982); cert. denied 459 U.S. 1087 (1682) which noted:

           The entry of the state into a field of
        legislation, however, does not automatically
        preempt  that field from city regulation;
        local regulation, ancillary to and in harmony
        with the general scope and purpose    of the
        state enactment, is acceptable.

See also, Attorney General Opinion MW-291    (1981).

     State law currently requires that manufactured,  deliv-
ered, or possessed abusable glues and aerosol paints contain
additives to discourage abuse as designated by rule of the
Department of Health: criminalizes the knowing, intentional,
or reckless delivery of these abusable substances to minors;
criminalizes  the knowing or intentional     abuse of such
substances as well as the knowing and intentional use of
"inhalant paraphernalia"   to abuse such substances;     and
requires businesses selling such substances to post informa-
tional signs containing prescribed warnings.  V.T.C.S. arts.
4476-13a and 4476-15, S 4.13.

     Also, article 4476-1561, added by H.B. 173,'provides for
the issuance of permits by the Department of Health          for
the sale of abusable glues and aerosol paints. YOU suggest
in your request that these latter provisions        might have
a preemptive effect vis a vis local ordinances       regulating
accessibility to such substances.    The provisions of article
4476-15d require the department to issue permits to "eligi-
ble sellers."   But the eligibility requirements are simply
that the seller has obtained a valid sales tax permit       and
has applied for, and remitted the fee for, the permit.      The
department is authorized to adopt rules "as necessary         to
administer [the] article."      The department's    rule-making
power does not extend to regulating the manner in which such
substances are sold or to adding eligibility       requirements
for permits beyond those in the statute.         &j8 Attorney
General Opinion JM-206    (1984). Article 4476-15d,    together
with the other statutory provisions cited above, does not
appear to provide a comprehensive regulatory       scheme such
that we could infer a legislative      intent that state law
exclusively occupy the field of regulation      of conduct    in
connection   with   abusable    glues and    aerosol    paints.



                               p. 5086
Robert Bernstein, M.D., F.A.C.P. - Page 4   (JM-994)




Brookside Vill8g.8  sunra: Attorney   General Opinion MN-291
(1981). See al& Attorney     General Opinion JM-790    (1987)
(finding a legislative   intent in the provisions     of the
Property  Code   to   exclusively   occupy   the   field. of
landlord-tenants rights, thus preempting    local ordinance-
making power in that field).

     We also note specifically that we find no Texas author-
ity for the proposition that the repeal of a state statutory
provision, here the provision formerly in subsection (f)(2),
section 4.13 of article 4476-15, indicates that the legisla-
ture intended to reserve the field previously addressed   by
the repealed provision from the operation    of local ordi-
nances.

     Nor do we find any necessary conflict between        such
local ordinances and state  law.  "A statute and an ordinance
should not be held repugnant to each other if any other
reasonable   construction  leaving both in effect can be
reached."   Johnson v. Citv of Dallas, 702 S.W.Zd 291    (Tex.
App. - Dallas 1985, writ ref'd n.r.e., ). See also Citv of
Houston v. Reves   527 S.W.2d 489 (Tex. Civ. App. - Houston
[lst Dist.]  1975:  writ ref'd n.r.e.).   So long as actual      --
provisions of local ordinances do not have the effect of
prohibiting or unreasonably restricting   the sales of abus-
able glues and .aerosol paints, which sales are clearly
permitted under state law, we believe such local ordinances
can operate harmoniously   with the state law provisions    in
this field and with Department of Health'rules adopted under
the authority of such provisions.

     Accordingly, we conclude that local ordinances      re-
stricting accessibility to abusable glues and aerosol paints
by business patrons without assistance from business person-
nel are not per se preempted by the provisions of article
4476-15d for the entry of the state into this field.     The
viability of particular  local ordinances would depend,   of
course, on the particular provisions    of such ordinances
which are not before us in connection with this request.

                       SUMMARY

             Local ordinances restricting accessibil-
        ity to abusable glues and aerosol paints by
        business  patrons without   assistance   from
        business personnel are not per se preempted
        by the provisions of article 4476-15d for the
        entry of the state into this field.




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Robert Bernstein, M.D., F.A.C.P. - Page 5     (JM-994)




                                     JIM     MATTOX
                                     Attorney General of Texas

MARYKELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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