                       January 16, 1989

                               .'


Honorable Travis S. Ware     Opinion No.   JR-1009
Criminal District Attorney
P. 0. Box 10536              Re: Whether Attorney    General
Lubbock, Texas   79408       Opinion MW-52 (1979) applies to
                             violations of municipal traffic
                             ordinances adopted pursuant  to
                             article 6701d, V.T.C.S.
                             (RQ-1568)

Dear Mr. Ware:

     You ask whether Attorney General Opinion MW-52   (1979) I
which held in part that a county sheriff has no duty to
accept for incarceration in the county jail persons arrested
only for violations  of city ordinances,  applies to viola-
tions of traffic ordinances enacted by a city pursuant     to
state law, specifically article 6701d, V.T.C.S. We conclude
that the opinion applies to cases involving violations     of
ordinances which implement article 6701d or which   incorpo-
rate provisions of the statute, but that it does not apply
to cases involving violations     of municipal    ordinances
regulating forms of traffic not covered by'the statute.

     You inform us that the city of Lubbock and Lubbock
County disagree over the classification of prisoners   incar-
cerated in the Lubbock County Jail for the purpose         of
determining whether the city or the county is responsible
for the maintenance of such prisoners.    The county asserts,
on the strength of Attorney General Opinion MW-52, that a
prisoner who is arrested for a violation of a city ordinance
is a "city prisoner" regardless   of the source or nature- of
the ordinance.   The city, meanwhile, argues that there is a
distinction between purely local ordinances, such as zoning
or building   inspection ordinances,   and ordinances adopted
pursuant to state law and as part of a comprehensive,
statewide system of regulation.      The city contends that
prisoners arrested for violations of city traffic ordinances
adopted pursuant   to article 6701d, the Uniform Act Regu-
lating Traffic on Highways,   should be classified as "state
prisoners."




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      The relevant   issue presented   in Attorney    General
Opinion MW-52 was whether a person arrested for violating   a
municipal ordinance   could legally be incarcerated   in the
county jail in the absence of an agreement between the city
and the county under the Interlocal Cooperation Act, article
4413(32c), V.T.C.S. 'The attorney general answered in the
negative, relying primarily upon section 45.05 of the Code
of Criminal   Procedure which provides that defendants     in
cases before the municipal court %hall be committed to the
custody of the chief of police or city marshal1 . . . to be
held by him in accordance   with the ordinance providing  for
the custody of prisoners convicted before such . . . court."
The attorney general.determined that a city thus was respon-
sible for the maintenance of prisoners who are defendants in
municipal court. See also Attorney General Opinion O-7353
 (1946) . The opinion also observed that the state has only a
nominal interest in prosecutions involving only violations
of municipal   ordinances,  and no duty to prosecute     such
cases. The county sheriff, therefore,       had no duty to
incarcerate persons   convicted of. violating only municipal
ordinances   "absent a plain manifestation   of the legisla-
ture's intent that a city may impose such a duty on the
sheriff and the county" or an interlocal agreement.

     The opinion did not refer specifically to the kinds of
municipal ordinances under consideration.   Thus, it leaves
the impression  that incarceration  in the county jail for
violation of any municipal ordinance will trigger the city's
obligation for the maintenance .of a prisoner.   An examina-
tion of the authorities relied upon by the attorney general,
however, helps place the opinion in perspective.

     Article 45.05 of the Code of Criminal Procedure was
construed to impose on a city the duty to maintain prisoners
who are defendants in cases before the municipal     courts.
Article 45.03 of the Code of Criminal Procedure states the
county attorney "may, if he so desires, also represent   the
State in such prosecutions," which are conducted by the city
attorney.   In Howth v. Greer, 90 S.W. 211 (Tex. Civ. APP.
1905, writ ref'd), cited in Attorney General Opinion MW-52,
the court considered a claim by the county attorney that he
had the duty to represent the state in municipal court in
cases involving municipal ordinances which covered substan-
tially the same ground as state laws. Relying on article V,
section 21, of the Texas Constitution, the court held that

        the county attorney has the right, and is
        charged with the duty, to represent the state
        in all prosecutions     instituted  for   the




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Honorable Travis S. Ware - Page 3   (JM-1009)




        violation of the criminal laws of the state
        in the corporation   court,   notwithstanding
        such prosecutions   may appear to be       for
        violation of ordinances of the city covering
        the same ground.

Howth at 213. The fact that in these cases only a violation
of a municipal ordinance was charged could not alter their
essential nature as state cases, %ases in which the state
is not only a nominal, but a real, party." &       The court
expressly declined to consider whether the county attorney
had any right to prosecute cases for violations of municipal
ordinances regulating purely municipal affairs and which did
not involve violations  of any criminal   laws of the state.
Attorney  General Opinion V-1147     (1951), also cited in
Attorney General Opinion MW-52, answered this question     in
the negative.

     Attorney General Opinion O-5416 (1943) was cited for
the proposition that justice courts have no jurisdiction  or
authority over violations of a city ordinance. That opinion,
however, held only that the justice courts were without
jurisdiction when the violation of the city ordinance    was
not also a violation of a penal law of the state. It is
therefore consistent with Wowth v. Greer, suora.    See also
Attorney General Opinion V-745   (1948) (a justice    of the
peace has jurisdiction in cases involving the failure to
obey ~instructions of traffic control signals placed within
limits of a city by either state or local authorities     in
accordance with article 6701d).

      Examined in light of these earlier authorities,  the
import of Attorney General Opinion WW-52 is that the main-
tenance of  prisoners incarcerated in the county jail for
violations of municipal ordinances  only is the responsi-
bility of the city when

        (1)   the prisoner  is not incarcerated  for
              violating a criminal law of the state,
              and ,'

        (2)   the ordinance involves the regulation of
              purely municipal  affairs and does not
              cover the same ground as a criminal  law
              of the state.

     We have not examined the municipal traffic ordinances
of the city of Lubbock, but it is clear from the discussion
thus far that the city       is not responsible   for   the




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Honorable Travis S. Ware - Page 4   (JM-1009)




maintenance of prisoners   housed  in the county jail for
violating traffic ordinances that incorporate the provisions
of article 6701d. What is not so clear is whether the city
is liable for the maintenance of prisoners when the ordi-
nances either validly deviate  from the standards set forth
in article 6701d or regulate forms of traffic hot covered by
the statute.  In our opinion, the city is liable when only
the second type of traffic ordinance is involved.

     In support of its argument, the city points to various
sections of article 6701d as evidence of the legislature's
intention to create a comprehensive       system of traffic
regulation throughout  the state that includes municipal
ordinances adopted pursuant to the statute. Section 26 of
the act states that the provisions of the act are applicable
and uniform throughout the state and that

        no local authority shall enact or enforce any
        ordinance, rule, or regulation   in conflict
        with the provisions  of this Act unless ex-
        pressly authorized herein.  Local authorities
        may, however,    adopt   additional   traffic
        regulations which are not in conflict with
        the provisions of this Act.

Section 31 authorizes municipalities   to place and maintain
traffic control devices in their jurisdictions necessary   to
warn or guide traffic    or to carry out the provisions    of
article 6701d or local traffic ordinances.    Section  169.(b)
authorizes municipalities to alter prima facie speed limits
under certain conditions.   Section 143 declares a violation
of the act to be a misdemeanor unless made a felony by the
act or other state law. The city concludes that a violation
of an ordinance   adopted pursuant to article 6701d is a
violation of the comprehensive system of traffic   regulation
and, implicitly, of article 6701d itself.

     Section 27 of article 6701d, however, recognizes   the
power of local authorities, including home rule cities, to
regulate certain kinds of traffic not governed by   article
6701d. Subsection (a) of section 27 provides that the act

        shall not be deemed to prevent local authori-
        ties with respect to streets and highways
        under their jurisdiction    and within    the
        reasonable exercise of the police power from

           1. Regulating the stopping, standing,    or
        parking of vehicles:




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    Honorable Travis S. Ware - Page 5     (JM-1009)




               2. Regulating traffic by means of       police
            officers or traffic-control devices;

               3. Regulating or prohibiting      processions
            or assemblages on the highways;
.
               4.   Designating particular      highways    as
            one-way highways . . . ;

               5. Regulating   the speed     of vehicles    in
            public parks;

               6. Designating any highway as a through
            highway . . . or designating any intersection
            as a stop intersection  or a yield intersec-
            tion:

               7. Regulating the operation of bicycles
            and requiring the registration and licensing
            of same, including the requirement     of a
            registration fee:

               8. Regulating or prohibiting the turning
            of vehicles or specified types of vehicles at
            intersections:

               9. Altering the   speed limits as       author-
            ized herein;

               10. Designating   school     crossing    guards
            and school crossing zones:

               11. Adopting such other traffic    regula-
            tions as are specifically authorized by this
            Act.

    Several of these provisions    recognize  a city's power to
    adopt traffic ordinances in pursuit of its police power that
    either depart in some details from the regulatory   standards
    in the act or that regulate certain forms of traffic not
    covered by the act. It also demonstrates that a city need
    not rely solely on article 6701d for authority      to adopt
    ordinances regulating traffic.    Section 26 merely  confirms
    that the statute is a limitation on a city's ordinance-
    making power in those areas governed by the statute.

         Read together, sections 26 and 27 mean a city may adopt
    three kinds of traffic ordinances.  First, a city may adopt
    ordinances that implement article 6701d and incorporate  its




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Honorable Travis S. Ware - Page 6   (JM-1009)




provisions.   Second, a city may promulgate ordinances   that
implement but are in conflict with article 6701d where the
statute authorizes   a departure   from its standards.   See,
m,       oarte   Devereaux, 389  S.W.2d  672 (Tex. Crim. APP.
1965) (discussed below). Third, a city may adopt ordinances
that regulate   forms of traffic not governed by article
6701d.

     The regulatory variances permitted  by sections 26 and
27 of article 6701d no doubt are intended to permit cities
to tailor their traffic ordinances to address purely   local
interests.  This accommodation   of purely   local interests
might thus reflect the legislative intention that cities
remain responsible    for the    maintenance   of  prisoners
incarcerated for violations of city traffic ordinances  that
depart in any   way from the standards provided in article
6701d. Attorney   General Opinion V-745     (1948), however,
concluded that justice courts have jurisdiction over cases
involving ordinances punishing the failure to obey traffic
control signals, thus suggesting   that violations  of such
ordinances are to be treated as violations of article 6701d.

     In Ex oarte Devereaux, 3ZXxa, the court upheld        a
conviction for speeding   in violation of a municipal  ordi-
nance which apparently altered the prima facie speed limit
set in article 6701d~ and.prescribed a punishment  different
than section 143 of the statute. The court invalidated   the
ordinance as to punishment, but said

        [iInsofar as the ordinance alters the prima
        facie speed limits set out in Sec. 166(a) of
        Article  6701d, under authority    of   Sets.
        166(a), 167, and 169, and implements     said
        statute without  altering or modifying    the
        basic rule established in paragraph (a) of
        Sec. 166, it is valid and a conviction    for
        violation of the state statute,   implemented
        by the ordinance, with punishment  authorized
        by Sec. 143 of said Article 6701d . . . .

Devereaux at 673. See also Nor is v. State, 576 S.W.2d  371
(Tex. Crim. App.   1978). Becauze persons incarcerated  for
violating  municipal   traffic  ordinances  that  implement
article 6701d are considered state statute violators,   the
city is relieved of its obligation     to provide  for the
maintenance of such prisoners   once they are accepted  for
incarceration by the sheriff of the county. w      Attorney
General Opinions JM-151 (1984); H-169 (1973).




                             p. 5198
Honorable Travis S. Ware - Page 7       (JM-1009)




     Accordingly, we conclude that Attorney General opinion
MW-52  (1979) does not apply to cases involving the incar-
ceration of persons arrested for violating municipal traffic
ordinances   that implement article     6701d, V.T.C.S.;  the
opinion does, however           to cases involving violations
of municipal                regulating forms of
               ordinan~e~pply                     traffic not
covered by article 6701d.

                           SUMMARY

           Attorney General Opinion WW-52 (1979) does
        not apply to cases involving the incarcera-
        tion of persons     arrested   for  violating
        municipal traffic ordinances that implement
        article  6701d, V.T.C.S.     A city is    not
        responsible for the maintenance of prisoners
        incarcerated in the county jail for viola-
        tions of municipal traffic ordinances    that
        implement article 6701d once they are accept-
        ed for incarceration by the sheriff of the
        county.




                                     ~JIM     WATTOX
                                      Attorney General cf Texas

WARYKRUER
First Assistant Attqrney     General

L0U MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEARLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Steve Aragon
Assistant Attorney General




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