   OFFICE   OF THE ATTORNEY   GENERAL   . STATE OF TEX,AS

   JOHN     CORNYN




                                               February 8,2002



The Honorable Tony Goolsby                                  Opinion No. JC-0460
Chair, Cornmittee on House Administration
Texas House of Representatives                              Re: Authority of a home-rule city to create a
P. 0. Box 2910                                              civil offense for the disregard of a traffic control
Austin, Texas 78768-2910                                    signal and to use automated enforcement systems
                                                            for traffic control (RQ-0426-JC)


Dear Representative     Goolsby:

          On behalf of the City of Richardson you ask whether state law permits the city to adopt an
ordinance making the disregard of a traffic-control signal within the city a civil violation, rather than
a criminal one, and authorizing the use of automated enforcement equipment to identify red-light
violations at roadway intersections. We conclude that because state law provides that the disregard
of a traffic-control device is a criminal violation, and because cities are prohibited from enacting
ordinances that conflict with state law, the City of Richardson may not adopt a valid ordinance
making the disregard of a traffic-control signal a civil, rather than a criminal, offense. The city is
not, however, prohibited from adopting an ordinance to use automated enforcement equipment at
intersections.

         The City of Richardson is a home-rule city. A home-rule city derives its legislative authority
directly from the Texas Constitution. See TEX. CONST. art. XI, 8 5; Lower Cola. River Auth. v. City
of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975). It has full powers of self-government                and
authority to adopt charter provisions and ordinances not inconsistent with the constitution or general
law. See TEX. CONST. art. XI, 0 5 (“The adoption or amendment of charters is subject to such
limitations as may be prescribed by the Legislature, and no charter or any ordinance passed under
said charter shall contain any provision inconsistent with the Constitution of the State, or of the
general laws enacted by the Legislature of this State.“); Dallas Merch. ‘s & Concessionaire’s Ass ‘n
v. City ofDallas, 852 S.W.2d 489,490 (Tex. 1993); City ofRichardson v. Responsible Dog Owners
of Tex., 794 S.W.2d 17, 18 (Tex. 1990). Thus, a home-rule city looks to legislation for limits on its
power, rather than for authorizations of power. See Lower Cola. River Auth., 523 S. W.2d at 643.
Because a home-rule city derives its powers directly from the constitution, its powers may be limited
or preempted by statute only when the legislature’s intention to do so appears with unmistakable
clarity. See Dallas Merch. ‘s & Concessionaire ‘s, 852 S.W.2d at 490. The state’s entry into a field
of legislation does not mean that the entire subject matter is completely preempted. See id. at 491.
A state law and a city ordinance will not be held to be repugnant to each other if any other reasonable
construction leaving both in effect can be reached. See id. (citing City of Beaumon t v. Fall, 29 1 S. W.
The Honorable Tony Goolsby       - Page 2         (JC-0460)




202 (1927)). Your questions require us to determine whether the City of Richardson’s          proposed
ordinance is limited by or conflicts with state law.

         As a general rule, in the absence of constitutional or statutory limits, a home-rule city may
use its police powers to adopt traffic-control ordinances. See Houston Chronicle Publ ‘g Co. v. City
ofHouston, 620 S.W.2d 833,836 (Tex. Civ. App.-Houston [ 14th Dist.] 1981, no writ). The Texas
Legislature, however, has acted in the area of traffic regulation. While not completely preempting
city powers with respect to traffic regulation, the legislature has placed clear limitations on a city’s
authority.

         Transportation Code title 7, subtitle C, sets out the “Rules of the Road” regulating traffic in
this state. The code places limitations on a city’s power to enact laws with respect to roadways
under the city’s jurisdiction. The general rule is this:

                         This subtitle applies uniformly throughout this state. A local
                authority may not enact or enforce an ordinance or rule that conflicts
                with this subtitle unless expressly authorized by this subtitle.
                However, a local authority may regulate traffic in a manner that does
                not conflict with this subtitle.

TEX. TRANSP. CODE ANN. 8 542.201 (Vernon            1999); see also id. 8 541.002(3) (defining “local
authority” to include “a county, municipality, or other local entity authorized to enact traffic laws
under the laws of this state”). Other, more specific limitations on cities’ powers are set out in
various parts of subtitle C. See, e.g., id. 4 542.203(a) (local authority may not erect traffic-control
device on state highway without permission of Texas Department of Transportation).

          Subtitle C also recognizes the power of a local authority to regulate traffic within its
boundaries in specific ways, such as by regulating parking, designating intersections as stop or yield
intersections, designating school crossing zones and one-way streets, and altering a speed limit
within statutory limitations. Id. 6 542.202(a)(2), (S), (1 l), (12) (Vernon Supp. 2002); see also id.
$9 545.061, .065, .302, .356, .365 (Vernon 1999 & Supp. 2002). Construing the predecessor statute
to title 7, subtitle C, of the Transportation Code, Attorney General Opinion JM- 1009 opined that the
Transportation Code recognizes that a city need not rely solely on the code for authority to adopt
traffic ordinances and confirms that the statute is a limitation on power. The opinion summarized
a city’s powers under the code as follows:

                [A] city may adopt three kinds of traffic ordinances. First, a city may
                adopt ordinances that implement article 6701d and incorporate its
                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. Third, a city may adopt
                ordinances that regulate forms of traffic not governed by article
                6701d.
The Honorable      Tony Goolsby       - Page 3           (JC-0460)




Tex. Att’y Gen. Op. No. JM-1009 (1989) at 4. Thus, we must examine the City of Richardson’s
proposed ordinance in light of state law governing the same conduct.

        Transportation      Code section 544.007(d) requires a driver to stop at a red light and makes it
a crime not to do so:

                       (d) An operator of a vehicle facing only a steady red signal shall
                  stop at a clearly marked stop line. In the absence of a stop line, the
                  operator shall stop before entering the crosswalk on the near side of
                  the intersection. A vehicle that is not turning shall remain standing
                  until an indication to proceed is shown. After stopping, standing until
                  the intersection may be entered safely, and yielding right-of-way to
                  pedestrians lawfully in an adjacent crosswalk and other traffic
                  lawfully using the intersection, the operator may:

                           (1) turn right; or

                          (2) turn left, if the intersecting streets are both one-way streets
                  and a left turn is permissible.

TEX. TRANSP. CODE ANN. 8 544.007(d)          (Vernon 1999). Under the Transportation Code, traffic
violations are criminal offenses: “A person commits an offense if the person performs an act
prohibited or fails to perform an act required by this subtitle.” Id. 9 542.301. An offense under
subtitle C is a misdemeanor, unless otherwise provided, id., and is punishable by a fine of not less
than $1 or more than $200, id. 8 542.401. Subtitle C also contains provisions relating to the
disposition of fines collected by a city or county, and the arrest and prosecution of violators. See id.
85 543.001-.OlO (Vernon 1999 6%Supp. 2002).

         The City of Richardson proposes an ordinance that would create a civil offense for the
disregard of a traffic control signal and allow the city to use photographic traffic signal enforcement
systems at intersections within the city. A system would consist of “a camera system installed to
work in conjunction with an electrically operated traffic-control signal” that “is capable ofproducing
a recorded image that depicts the license plate attached to a motor vehicle that is not operated in
compliance with the instructions of the traffic-control signal.“* In other words, if a vehicle ran a red
light, a camera mounted atop a pole in the intersection would automatically snap a picture of the
car’s license plate.




          ‘See Letter from the Honorable Tony Goolsby, Chair, Committee on House Administration,       Texas House of
Representatives,   to Office of the Attorney General, State of Texas (Aug. 28,200l) (on file with Opinion Committee)
(enclosure of City of Richardson, Tex. Proposed Ordinance, article VII, section 22-185(3)) [hereinafter City of
Richardson, Tex. Proposed Ordinance].
The Honorable       Tony Goolsby        - Page 4             (JC-0460)




        The city’s ordinance would impose a civil penalty on the owner of a motor vehicle if the
vehicle is operated in violation of section 544.007(d) of the Transportation Code:

                   Sec. 22-l 86. Imposition of Civil Penalty for Red Light Violations.

                       (a) Except as provided in (b) and (c) below the owner of a motor
                   vehicle is liable for a civil penalty of seventy-five dollars ($75) if,
                   while facing only a steady red signal displayed by an electrically
                   operated traffic control signal located in the City, the vehicle is
                   operated in violation of the instructions of that traffic control signal,
                   contrary to Section 544.007(d) of the Texas Transportation Code.

                       (b) For a third or subsequent violation committed by the same
                   owner of a motor vehicle during any 12-month period, the amount of
                   the civil penalty shall be one hundred dollars ($100).

                       (c) A person who fails to timely pay the civil penalty shall be
                   subject to a late payment penalty of fifty dollars ($50).

See supra note 1, City of Richardson, Tex. Proposed Ordinance, art. VII, 8 22-186. The penalty
would be imposed by mailing a summons to the owner of the vehicle. See id. 9 22-l 87. The owner
of the vehicle could contest the penalty in an administrative hearing. See id. fj 22- 188. In any such
hearing, it would be presumed that the registered owner of the vehicle is the person who operated
the vehicle at the time and place of the violation. See id. 8 22-190. No penalty would be assessed
on the vehicle owner if the operator of the vehicle was issued a citation or arrested for the same
violation. See id. 5 22- 19 1(b). According to the ordinance, the imposition of a civil penalty under
the ordinance “is not a criminal conviction for any purpose.” Id. 8 22-191(a).

         We see the proposed ordinance as differing from section 544.007(d) of the Transportation
Code in three significant ways. First, it would impose a penalty upon the owner of the car for his
or her presumed conduct, rather than upon the driver for the driver’s conduct. Second, an offense
under the proposed ordinance would be a civil offense, adjudicated in an administrative procedure,
rather than a criminal offense. And third, the penalty under the proposed ordinance would be $75,
while under state law the penalty is not less than $1 or more than $200.

        Although the City of Richardson          in its initial letter described the ordinance as
“decriminalizing” the offense of running a red light, the city has clarified that the proposed ordinance
would not eliminate the state criminal offense in the city.2 Certainly, a city may not suspend the



          2See Letter from Peter G. Smith, Nichols, Jackson, Dillard, Hager & Smith, L.L.P., to Honorable Tony
Goolsby, State Representative, at 1 (Aug. 24,200l) (asking for help in requesting opinion concerning “authority of the
City [of Richardson] to enact local legislation to decriminalize the disregard of a traffic control signal”); Brief from Peter
                                                                                                               (continued...)
The Honorable Tony Goolsby            - Page 5           (JC-0460)




operation of a state law. See TEX. CONST. art. I, 8 28 (“No power of suspending laws in this State
shall be exercised except by the Legislature.“); Brown Cracker & Candy Co. v. City ofDallas, 137
SW. 342, 343 (Tex. 1911). Thus, the proposed ordinance would not prevent a law enforcement
officer from stopping and ticketing a driver for a violation of section 544.007(d) of the
Transportation Code. However, under the ordinance, an arrest or issuance of a criminal citation
under section 544.007(d) would preclude the imposition of a civil penalty upon the vehicle’s owner.
The City of Richardson therefore argues that the proposed ordinance does not conflict with the
Transportation Code, but creates an entirely different, nonconflicting, civil offense.

         We believe that the ordinance proposed by the City of Richardson conflicts with state law.
In our view, the legislature has clearly and unmistakably indicated its intent to regulate exclusively
the conduct proscribed by the “Rules of the Road,” unless it expressly provides otherwise. Subtitle
C “applies uniformly throughout this state” except where otherwise permitted by the legislature. See
TEX. TRANSP. CODE ANN. 8 542.201 (Vernon 1999). The legislature has expressly listed areas where
a local government authority may regulate, and has permitted traffic regulations in other areas not
regulated by the Transportation Code. See Tex. Att’y Gen. Op. No. JM-1009 (1989) at 4. While the
proposed ordinance creates a civil rather than a criminal red-light offense, it nevertheless seeks to
regulate the same conduct regulated by state law - i.e., the running of a red light. And while it
purports to fine the owner of the vehicle rather than the driver, it creates a presumption that the
owner of the vehicle is the person who operated the vehicle at the time-and place of the violation,
thereby intending, in our view, to penalize the operator. Only the nature of the punishment--civil
versus criminal-and      the corresponding procedures and penalty amounts, are different.

         A city ordinance is invalid if it prescribes a greater, lesser, or different punishment than that
fixed by state law for the same unlawful act. See Honeycutt v. State, 627 S.W.2d 417,420 (Tex.
Crim. App. [Panel Op.] 1981); Young v. State, 267 S.W.2d 423,424-25 (1954); Ex Parte Watson,
225 S.W.2d 850, 85 l-52 (1949); Tex. Att’y Gen. Op. No. JC-0048 (1999) at 2. “If the state
denounces an offense and fixes the punishment for it, and the city or town undertakes to pass an
ordinance punishing the same offense, then the ordinance must be the same as the state law both as
to definition and as to punishment.” Ex Parte Farley, 144 SW. 530 (19 12). While the Texas courts
cited above applied this rule in cases where a city proposed a criminal ordinance with a different
penalty than the state criminal penalty, we believe that the same reasoning applies when a city
proposes to impose a civil rather than a criminal penalty for the same conduct. An Ohio court
applying the same test used by Texas courts took this view in considering whether a home-rule city’s
criminal ordinance conflicted with a state civil statute prohibiting the same conduct:

                      In enacting [the city ordinance], [the City of] Youngstown
                  changed the classification of the offense of committing deceptive acts




G. Smith, Nichols, Jackson, Dillard, Hager & Smith, L.L.P., to Office of the Attorney General, State of Texas, at 4-7
(Aug. 24,200l) (clarifying that proposed ordinance would not eliminate state criminal offense) (documents on file with
Opinion Committee).
The Honorable   Tony Goolsby     - Page 6         (JC-0460)




                or practices in connection with consumer transactions from a civil
                violation to a criminal violation.     Comparatively, if changing a
                misdemeanor offense to a felony, or vice versa, is in conflict with
                general state law, changing the classification of an act from a civil to
                a criminal violation would also be in conflict.              Therefore,
                Youngstown has created an ordinance that is in conflict with a
                general law of the state, and, as a result, [the city ordinance] is
                unconstitutional.

State v. Rosa, 716 N.E.2d 216,2 19 (Ohio Ct. App. 1998). In our view, section 544.007(d) of the
Transportation Code regulates the same conduct sought to be regulated by the proposed ordinance,
and the City of Richardson may not adopt an ordinance that departs from state law unless it is
expressly authorized to do so. See Tex. Att’y Gen. Op. No. JM-1009 (1989) at 4.

         We believe this case is distinguishable from cases that have upheld city ordinances that are
more broad or more narrow than the state law, or which regulate different conduct. For example,
in City of Richardson v. Responsible Dog Owners of Tex., 794 S.W.2d 17 (Tex. 1990), at issue were
a city ordinance and a state law that regulated the keeping of vicious animals. The city ordinance
applied to all animals, while the state law applied only to dogs. The city ordinance addressed
broadly the control of animals, while the state law required only that an owner restrain a dog and
carry insurance coverage. And the city ordinance applied to animals that “might” be dangerous,
while the state law applied only to dogs that had already taken a “first bite.” The court found that
because the scopes of the two laws were different, they were not inconsistent. See Responsible Dog
Owners, 794 S.W.2d at 19. And in Ex Parte Dickson, 261 S.W.2d 709 (1953), the court considered
whether a city ordinance proscribing “reckless driving” was in conflict with a provision in the
predecessor to the Transportation Code, also proscribing “reckless driving.” An essential element
of the city ordinance offense was a collision between vehicles, while the state offense was complete
without the occurrence of a collision. The court concluded that the two provisions did not conflict.
See Dickson, 261 S.W.2d at 710. By contrast, the ordinance proposed by the City of Richardson
seeks to regulate the same conduct regulated by section 544.007(d) of the Transportation Code and
penalize the presumed operator of the vehicle.       See Knott v. State, 648 S.W.2d 20, 21 (Tex.
App.-Dallas 1983, no pet.). We find the city ordinance to be in conflict with state law.

         We recognize that both a criminal penalty and a civil fine may be imposed for the same
conduct, provided the civil fine does not create a “punishment” that would preclude prosecution for
both offenses pursuant to the double jeopardy provisions of the United States and Texas
Constitutions. SeeU.S. CONST.art. V; TEX. CONST.art. I, 5 4; Tharp v. State, 935 S.W.2d 157,160-
61) (Tex. Crim. App. 1996) (en bane) (double jeopardy prohibits multiple punishments for the same
offense). In fact, the legislature has expressly authorized certain cities to impose civil penalties for
parking and stopping violations that otherwise would be misdemeanors under state law. See TEX.
TFUNSP.CODEANN. 5 682.002(a) (Vernon Supp. 2002) (“A municipality may declare the violation
of a municipal ordinance relating to parking or stopping a vehicle to be a civil offense.“). But our
opinion in this case is not based upon double jeopardy grounds. Rather, we believe that such an
The Honorable   Tony Goolsby         - Page 7         (JC-0460)




ordinance could be adopted by the city if the legislature amended state law so as to expressly permit
it or otherwise eliminate the conflict.

          While we conclude that a city ordinance creating a civil red-light violation is impermissible,
we do not find any constitutional or statutory impediment to the adoption by the City of Richardson
of an ordinance authorizing the use of automated enforcement equipment to identify criminal red-
light violations at roadway intersections. The Transportation Code does not prescribe the method
of traffic-law enforcement for local authorities, and cities may use their police powers to choose the
method of enforcement.

        In answering this question, we considered the question of whether the proposed automated
enforcement equipment is a “traffic-control device” that must meet certain requirements under the
Transportation Code. Any traffic-control device placed or maintained by a city must conform to the
manual adopted by the Texas Transportation Commission. See TEX.TRANSP.CODEANN. $5 544.001,
.002(b) (Vernon 1999). A “traffic-control device” is defined as a device that is used to regulate,
warn, or guide traffic:

                In this subtitle:

                        (1) ‘Official traffic-control      device’ means    a sign, signal,
                marking, or device that is:

                                (A) consistent with this subtitle;

                                (B) placed or erected by a public body or officer having
                jurisdiction;     and

                                (C) used to regulate, warn, or guide traffic.

TEX. TFUNSP.CODEANN. 6 541.304 (Vernon 1999).

         In the context of this provision, we believe that the word “regulate” refers to controlling the
flow of traffic, not enforcing traffic regulations. See Tex. Att’y Gen. LO-97-01 8, at 4 (concluding
that fatality marker does not regulate flow of traffic and is therefore not traffic-control device for
purposes of chapter 544). Thus, we do not believe that the automated enforcement equipment
described in the City of Richardson’s proposed ordinance is subject to the requirements of section
541 .OOl of the Transportation Code.

         We recognize the practical difficulties that a city might have in successfully prosecuting red-
light runners based upon evidence obtained by an intersection camera. However, we believe that
because the legislature has already defined a red-light violation and prescribed the penalty therefore,
it is within the purview of the legislature to amend the law to allow cities to act in this area if it
wishes to do so. We note that in the most recent legislative session, the Texas Legislature
The Honorable   Tony Goolsby    - Page 8        (JC-0460)




considered a bill that would have expressly permitted cities to adopt exactly the kind of ordinance
proposed by the City of Richardson. See Tex. H.B. 1115,77th Leg., R.S. (2001). That legislation
failed to pass.
The Honorable Tony Goolsby     - Page 9        (JC-0460)




                                      SUMMARY

                        Absent specific legislative     authorization,  a home-rule
               municipality   such as the City of Richardson may not adopt an
               ordinance that imposes a civil penalty for violation of section
               544.007(d) of the Transportation Code, which makes the running of
               red light a crime. The city is not prohibited from adopting an
               ordinance authorizing the use of automated enforcement equipment
               to identify criminal red-light violations at roadway intersections.

                                             Y urs very truly,


                                          eiQ%T
                                             JO&N     CbRNYN
                                             Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General
