Honorable   Jules Damiani,       Jr.                    Opinion    No. C-368
Criminal   District Attorney
Courthouse                                              Re:   Whether    the Galveston    County
Calves ton, Texas                                             Commissioners       Court is
                                                              authorized    to promulgate
                                                              regulations    for traffic  control
                                                              on public beaches in Galveston
Dear   Mr.   Damiani:                                         county.

      In a recent opinion     request   of this office you stated that the Galveston
County Commissioners          Court desires     to enact certain regulations  pertain-
ing to the area between       the mean low tide and the line of vegetation     along
the Calves ton beaches.        It was stated that the proposed    regulations  would
provide   in substance   as    follows:

             1. The zoning of designated       areas for non-vehicular     traffic
             in accordance with findings       of safety and welfare   of those
             who use the beaches;

             2. The promulgation     of a regulation    which would prescribe
             a civil penalty not to exceed the payment of $200.00 should
             anyone within such an area deposit litter upon the sand
             within a 200 foot distance   of any receptacle    placed by the
             county or city for the deposit    of litter unless such litter is
             placed within a receptacle    in the possession    of such persons
             using the beach.

     With regard to the proposed    regulations    as outlined above,                 you re-
quested an opinion from this office    on the following    questions:

             1. Is Section 8, Article      5415d, Vernon’s        Texas   Statutes,
                constitutional?

             2.   Are the proposed   regulations        to be enacted by the
                  County Commissioners       Court      legal and proper?

             3.   Would the constables      and sheriff  of Galveston  County
                  be authorized to cite,    instanter,  persons   who have


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Hon.   Jules        Damiani,     Jr.,   page   2 (C-368)



                     violated   said proposed   regulations,with said citation
                     requiring    such persons   to appear and answer for
                     the violation   of said regulation?

              4.     Would the District     Attorney   of Galveston    County be
                     authorized   to prosecute     the collection   of civil
                     penalties  for violation    of the proposed    regulations  ?

               5.    In which court would jurisdiction   lie to enforce  the
                     provisions  of the regulation  and the collection  of
                     such civil penalties  as may be prescribed?

     Article 9, Section l(a) of the Constitution   of Texas,   approved                    by the
Texas Electorate    on November    6, 1962, provides   as follows:

                           “The Legislature      may authorize      the governing
                      body of any county bordering          on the Gulf of Mexico
                      or the tidewater    limits    thereof   to regulate  and
                      restrict  speed, parking and travel         of motor vehicles
                      on beaches available       to the public by virtue of public
                      right and the littering      of such beaches.

                            “Nothing  in this amendment        shall increase    the
                       rights of any riparian     or littoral   landowner    with
                       regard to beaches     available    to the public by virtue
                       of public right or submerged         lands.

                            “The Legislature    may enact any laws not incon-
                       sistent with this Section which it may deem necessary
                       to permit said counties    to implement,   enforce and ad-
                       minister  the provisions    contained herein.

                            “Should the Legislature    enact legislation    in antici-
                       pation of the adoption   of this amendment,      such legis-
                       lation shall not be invalid by reason of its anticipatory
                       character.”

Section       8, Article       5415d, Vernon’s      Texas     Statutes   provides,   in part,   as
follows   :

                           “The Commissioners        Court of any county shall
                       have, and is hereby    granted,  the authority   to regulate
                       motor vehicular   traffic  and the littering   of such state-


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        Hon.   Jules     Damiani,     Jr.,   page   3, (C-368)



                           owned beaches,        or such larger      area, extending      from
                           the line of mean low tide to the line of vegetation
                           bordering     on the Gulf of Mexico,          in the event the
                           public has acquired         a right of use or easement         to or
                           over such area by prescription,             dedication,    or has
                           retained    a right by virtue of continuous           right in the
                           public, within the limits         of said county.      Such regu-
                           lations may include the speed of motor vehicles                  in
                           accordance      with existing      state laws and rules or
                           regulations     promulgated       by the Texas Highway         Com-
                           mission,    and the zoning of designated            areas for non-
                           vehicular    traffic.     The Commissioners           Court may
                           declare   the violation       of such regulations       to be and
                           the same shall be considered             as a violation    of this
                           Act, and the Commissioners              Court    may prescribe
                           civil penalties      therefor    not to exceed a penalty in
                           payment of two hundred dollars              in money.”

              It is obvious from reading Article         5415d, Section    8, that it constitutes
        a delegation     of power by the Legislature        to the Commissioners       Courts of
        various    counties.     The question   for determination     is whether     or not this is
        a constitutional     delegation  of power.     Article   2, Section 1 of the Constitution
        of the State of Texas provides        as follows:

                                 “The powers      of the government      of the State
                            of Texas shall be divided into three distinct
                            departments,     each of which shall be confided        to a
                            separate   body of magistracy,       to wit:   Those which
                            are Legislative     to one; those which are Executive         to
                            another,   and those which are Judicial         to another;  and
                            no person,    or collection    of persons,    being of one of
                            these departments,       shall exercise    any power properly
                            attached to either of the others,       except in the instances
                            herein expressly      permitted.”     (Emphasis     added)

               Article     5, Section    18 of the Constitution     of Texas    provides,    in part,   as
        follows:

                                 If
                                   . . .  The County Commissioners       so chosen,
                            with the County Judge as presiding      officer,  shall
                            compose      the County Commissioners     Court, which
                            shall exercise     such powers and jurisdiction    over
                            all county business,    as is conferred   by this Consti-




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Hon.    Jules   Damiani,   Jr.,   page 4 (C-368)




                  tution and the laws of the state, or as may be
                  hereinafter  prescribed.”   (Emphasis  added)

      Since the Constitution   [Article  9, Section l(a)] specifically   authorize@
the Legislature    to enable the governing     body of certain counties to regulate
the speed of motor vehicles      and the littering  on beaches available    to the
public, it is the opinion of this office that Article    5415d, Section 8, is a
constitutional   delegation  of power.   This is particularly    true in view of
Articles    2 and 5 of the Constitution  quoted above.

      The next question   presented   is whether    or not the proposed    regulations
as outlined by you would so conform       to Article   5415d, Section 8, that they
would be legal and proper.      In view of that portion of Article     5415d, Section 8,
which provides    that the County Commissioners         Court shall have authority      to
zone certain designated     areas of the beach for non-vehicular       traffic,  it is the
opinion of this office that the proposed     regulations   as outlined by you per-
taining to zoning designated     areas for non-vehicular     traffic  would be valid.
In this connection,   we call attention  to the fact that Section 1 of Article      5415d
states:

                       “It is hereby declared      and affirmed   to be
                  the public policy of this state that the public,
                  individually   and collectively,    shall have the
                  free and unrestricted      right of ingress   and egress
                  to and from the state-owned        beaches . . . or such
                  larger   area . . .” (of public easement      beaches).

      This overriding    purpose of the Act is given emphasis          in the emergency
clause of the Act wherein      it is recited   “that through long years of custom
and usage, the people of Texas have acquired           prescriptive     rights to free
and unrestricted     use of such beaches;     and there is an urgent and imperative
need to affirm    the public policy of this state in regard tc the right of the
public to the free and unrestricted        use and enjoyment      of the state beaches
      I
. . .


       We believe   these declarations      of legislative     policy should be taken into
consideration     in arriving    at the proper    interpretation      of Section 8, granting
to the Commissioners          Court “authority     to regulate    motor vehicular
traffic  . . . (which)   regulations    may include the speed of motor vehicles             . . .
and the zoning of designated         areas for non-vehicular         traffic.”  It is evident
that any traffic    regulations    by the Commissioners          Court, to be valid,
should be in keeping with the declared           legislative    policy of keeping the
public easement       beaches    open, and should bear a direct causal relation-




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Hon.   Jules     Damiani,   Jr.,    page    5 (C-368)




ship to the facilitation of the free and unrestricted                   right   of ingress   and
egress  to and from the state-owned    beaches.

      Although    Article   5415d, Section 8, is not specific       in outlining    the type
of regulations     which the Commissioners          Courts may prescribe         with
regard    to the littering    of such state-owned     beaches,    it should be pointed
out that the penalties      outlined in Section 8 are civil in nature and not
criminal.     Since the civil penalties     as proposed      by the suggested      regula-
tions are for a violation       of a civil regulation     and not a criminal      act, it is
the opinion of this office that the proposed          regulations     are specific    and
definite   enough to fall within the general        outlines of Section     8 and this
office is, therefore,      of the opinion that the two proposed         regulations    as
outlined by you, if passed by the Commissioners                Court of Galveston
County, would be valid.

      Since the penalties      prescribed      by Article  5415d, Section      8, and those
penalties   outlined in the proposed         regulations   to be enacted by the Com-
missioners      Court of Galveston       County are civil in nature rather than
criminal,   we are aware of no authority            which would authorize         the con-
stables and/or sheriff        of Galveston     County to cite, instanter,       persons     who
have violated     the proposed     regulations     if they are adopted.       It is assumed
that your question      of whether     or not they would be authorized           to “cite,
instanter”    is directed    to whether or not these officers          would have the
authority   to arrest    persons    violating    the proposed    regulations.       Article   212,
Texas Code of Criminal          Procedure,      provides   as follows:

                        “A peace officer    or any other person,    may,  wiChout
                   warrant,   arrest   an offender   when the offense is com-
                   mitted in his presence      or within his view, If the offense
                   is one classed    as a felony, or as an ‘offense    against the
                   public peace’.”

       Article    213, Texas       Code    of Criminal     Procedure,      provides    as follows:

                        “A peace officer   may arrest,  without warrant,
                   when the felony or breach of peace has been com-
                   mitted in the presence    or within the view of a
                   magistrate,   and such magistrate   verbally  orders
                   the arrest  of the offender.”

     It is, of course,   obvious that these statutes provide for the arrest    with-
out warrant    of a person only when said person has committed      an offense
such as is enumerated      in the statutes.


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Hon.    Jules    Damiani,    Jr., page    6 (C-368)



       Article    3, Texas      Penal   Code,   provides   as follows:

                        “In order that the system      of penal law in
                   force in this state may be complete        within itself,
                   and that no system    of foreign    laws, written    or un-
                   written,  may be appealed      to, it is declared   that no
                   person shall be punished for any act or omission,
                   unless the same is made a penal offense,          and a
                   penalty is affixed thereto     by the written law of
                   this state.”

      In view of the fact that a violation   of the proposed    regulations   as out-
lined by you would not be a violation      of the penal law of the State of Texas,
and in view of the fact that to arrest     without warrant    must be predicated
on one of the violations   as outlined in Articles    212 and 213 above, it is the
opinion of this office that the sheriff    and constables    of Galveston    County
would not have the authority    to cite, instanter,   persons    who violate   the
proposed     regulations.

      In the event that the proposed          regulations      outlined by you are adopted
by the County Commissioners              Court of Galveston         County, it is the opinion
of this office that it would be the duty of the Criminal                 District    Attorney    of
Galveston     County to effect the enforcement             of the proposed       regulations.
Article    5415d, Section 8, authorizes         the Commissioners           Court to enact such
regulations      and to prescribe      a civil penalty therefor.         Since any violation
of such a proposed         regulation    would be a violation        of a county enacted
regulation,     it would be the duty of the person charged with the responsi-
bility of representing        the county in civil matters          to prosecute     the litigation.
Article    326k-28, Section 3, Vernon’s           Civil Statutes, provides,         among other
things, that it is the duty of the Criminal            District     Attorney     of Galveston
County, or his assistants,         to represent     Galveston      County in all matters
pending before        the courts of that county, and in any other court where
Galveston     County has pending business            of any kind. It is the opinion of this
office,   therefore,     that in the event that an attempt is made to collect                 a
civil penalty for violation         of the proposed      regulations,     if same are adopted,
it would be the duty of the Criminal            District     Attorney    of Galveston      County
to prosecute       said civil litigation    on behalf of Galveston          County.

      Article      5, Section    19, of the Texas     Constitution   provides,    in part,   as
follows:

                         “Justices  of the peace shall have jurisdiction
                    in criminal    matters of all cases where the penalty

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Hon.    Jules    Damiani,   Jr.,   page   7 (C-368)




                   or fine to be imposed    by law may not be more
                   than two hundred dollars,     and in civil matters       of
                   all cases where the amount in controversy            is two
                   hundred dollars   or less, exclusive      of interest,    of
                   which exclusive   original  jurisdiction     is not given
                   to the District or County Courts;       . . . .‘I

       Article    2385 of Vernon’s        Texas    Civil   Statutes    provides        as follows:

                        “Justice     courts    shall, in addition to their other
                   powers     and duties, have and exercise          the original
                   jurisdiction     in civil matters      of all cases where the
                   amount in controversy            is two hundred dollars     or
                   less, exclusive       of interest,    of which exclusive
                   original    jurisdiction      is not given to the District     or
                   County Courts,        . . . .‘I

      Since corporation      courts have jurisdiction     only of criminal   cases
(Article    1195, Vernon’s    Texas Statutes),   it is the opinion of this office
that the appropriate      justice   court would have jurisdiction     of a case aris-
ing under the proposed        ordinances   if adopted by the Commissioners
Court    of Galveston   County, Texas.

                                           SUMMARY

             Article    5415d, Section    8, Vernon’s    Texas Civil Statutes,
             is constitutional.      The proposed     regulations   set out
             previously    in this opinion are legal.       The constables
             and sheriff    of Galveston     County, Texas would not be
             authorized    to cite, instanter,    persons    who have violated
             said regulations      if they are adopted.      The District   Attorney
             of Galveston     County, Texas, would be authorized          to prose-
             cute the collection   of civil penalties   for violations   of the
             regulations   if they are adopted.     The appropriate    justice
             of the peace court would have jurisdiction        over a lawsuit
             brought as a result of a violation      of one of the regulations.

                                                            Very      truly   yours,

                                                            WAGGONER     CARR
                                                            Attorney General




SLK:sss                                                         Assistant

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Hon.   Jules   Damiani,     Jr.,   page   8 (C-368)




APPROVED:

OPINION    COMMITTEE:
W. V. Geppert,   Chairman
J. Arthur Sandlin
George   Black
Kerns Taylor
Robert Owen

APPROVEDFOR               THEATTORNEYGENERAL
BY:    Stanton   Stone




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