                      September 17, 1962

Mr. William J. Burke          Opinion No.   WW-1441
Executive Director
State Board of Control        Re:   Whether Article 861
Austin, Texas                       of the Penal Code
                                    is a plicable to
                                    andP or usable for
                                    parking control in
                                    the capitol grounds
                                    under the outlined
                                    conditions and
Dear Mr. Burke:                     related questions.
          You have requested an opinion on whether
Article 861 of the Penal Code authorizes the Board
of Control to regulate parking of vehicles In the
various parking lots and thoroughfares within the
capitol grounds and whether said Article would
authorize the Board of Control to restrict parking
In certain areas to members of the Legislature,
elected state officials, heads of state agencies,
state employees, members of the press assigned to the
Capitol, business visitors and tourists. You have
also asked whether, if Article 861 Is not applicable,
if the Legislature could pass a law authorizing the
regulation of parking and what State agency should
be delegated the responsibility of enforcing it.
           Article 861 of the Penal Code provides as
follows:
              "Whoever shall drive, ride or lead, or
           cause to be driven, ridden or led, any
           horse or other animal into the capitol
           grounds at Austin or Into the enclosure
           of the State cemetery, without the con-
           sent of the keeper or superintendant of
           said grounds or cemetery, shall be,,fined
           not exceeding Twenty-five Dollars.
          The language of the above statute is clear
and unambiguous and in our opinion does not apply to
Mr. William J. Burke, Page 2   (WW-1441)


the parking of vehicles. The Article could be amended
as you suggested by adding the word 'vehicle" but as
so amended the Article would not be broad enough to
authorize the Board of Control to regulate parking in
the manner set forth in your request. It is our
opinion, therefore, that If such parking regulation
can be authorized it should be by new Legislation.
          The Courts have on numerous occasions upheld
the power of municipalities to control and regulate
on-street parking as a necessary adjunct to their
responsibility of regulating traffic. The Courts
have also upheld the powers of munlclpalities, under
appropriate statutory and charter provisions, to
construct and operate off-street parking facilities
for the public. Zachry v. City of San Antonio,
296 S.W.2d~299, (Clv. App. 1956, affirmed 305 S.W.2d
558, 1957); Amstater v. Andreas, 273 S.W.2d 95, (Civ.
APP. 1954, r-v.                   City of Houston,
305 S.W.2d 798 (Clv. App. 1957, ref.n.r.e.); 8 ALR2d
373.
          This authority has been upheld on the
ground that the establishment of off-street parking
facilities are for a public purpose and Is a proper
exercise of the police power in relieving traffic
congestion upon the streets and highways.
          There is little doubt, therefore, that the
Legislature could properly authorize the acquisition
and construction of parking areas and facilities
within the capitol grounds. The question arises,
however, as to whether the Legislature could pro-
perly limit parking In such areas to certain classes
and refuse parking privileges to the public in
general.
          Article 1, Section 3, of the Texas Con-
stitution provides as follows:
             "All free men, when they form a social
          compact, have equal rights and no man, or
          set of men, is entitled to exclusive sep-
          arate public emoluments, or privileges,
          but In consideration of public services.'
The Courts have interpreted this llmitatlon liberally
in favor of the State and have held that the
Mr. William J. Burke, Page 3   (WW-1441)


Legislature has the power to make classifications and
exceptions unless they are arbitrary and unreasonable.
Berr% v. McDonald, 123 S.W.2d 88 (Clv. App. 1938);
Watts          187 S.W.2d 917 Civ.App. 1945, error
ref.). Under the above section Legislation may be
enacted granting certain rights and privileges to
one class of Individuals to the exclusion of another
class, provided there is a reasonable ground for
such classlflcatlon and the law ooerates eauallv on
all within the same class. State-v. Richards, i57
Tex. 166, 301 S.W.2d 597 (1957).
          In Commonwealth v. Sargent, 117 N.E.2d
154 (Mass.Sup. 1953); the Boston Traffic Commission
adopted a rule making parking along a certain street
illegal except for members and officers of the
General Court. The Court In upholding such classl-
fication said,
             "If the commisslon thought that the
          ability to park in this space would be a
          substantial convenience to members of the
          General Court, who come from all parts of
          the State, and that it would serve the
          public interest and would not too greatly
          interfere with the general purpose to
          keep the south side of the street clear,
          we cannot say that a special classifl-
          cation for th:se members in irrational
          or arbitrary.
          In City of Arkon v. Davies, 170 N.E.2d
494 (Ct. of App: Ohio, 1959) the Court, In passing
upona City ordinance making It unlawful to-park -
cars along certain streets, except municipally
owned vehicles, said,
             "The 'equal protection' clause of the
          state and federal constitutions do not
          prohibit Legislative classification and
          the lmpositlon of legislative restraints
          on one class which are not imposed on
          the other . . . The power given munlcl-
          palitles to regulate the parking of
          automobiles on streets within the corpor-
          ation Includes the power to adopt such
          regulations to fit existing conditions,
Mr. William J. Burke, Page 4   (WW-1441)


         and includes the power to recognize the
         character and use of buildings In the
         neighborhood and to make suitable ex-
         ceptions to that end." (emphasis added)
          In Village of Larchmont v. Gilbert, 137
N.Y.S.2d 389 (C.Ct. 1954) an ordinance establishing
a parking lot on public land for the exclusive use
of the village residents was upheld as a valid
classification.
          In Blakemore v. Cincinnati Metropolitan
Housing Authoritv, 57 N.E.2d 397 (Ct. of App.,
Ohio, 1943) the acquistion of land to be used as
a parking lot for the tenants of a public housing
project was upheld.
          It is our opinion that the Legislature
may, by statutory enactment, provide forlithe
regulation of parking within the capitol grounds,
and may place such limitations and restrictions
thereupon as are reasonable and necessary. It IS
our opinion also that it is within the province of
the Legislature to delegate the responsibility of
enforcing such statute to the State Board of
Control, or other appropriate state agency, and to
clothe the employees of such agency with the
authority to properly enforce such statute.
(Attorney General's Opinion No. w-128,   1957).


                        SUMMARY
             Article 861 of the Penal Code does not
          give the Board of Control the authority
          to regulate the parking of vehicles within
          the capitol grounds. The Legislature, by
          statutory'enactment, may regulate the
          parking of vehicles within the capitol
          grounds and may place such restrictions
          thereon as are reasonable and necessary.
          The Legislature may delegate the enforce-
          ment of such statute to the State Board
          of Control, or other appropriate state
          agency, and clothe the employees of such
          agency with the authority to properly
          enforce the statute.
Mr. William J. Burke, Page 5   (Ww-1441)


                               Very truly yours,
                               WILL WILSON
                               Attorney General of Texas




                                 Assistant Attorney
                                        General

MS:cjs
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Elmer McVey
Dudley McCalla
Sam Wilson
Frank Booth
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Leonard Passmore
