                   The Attorney              General        of Texas
                              !      January 6, 1981
MARKWHITE
Wormy General

                Honorable Charles Evans                  Opinion No.   MN-291
                Chairman
                Government Organisation Committee        Re: Whether cities may enact
                House of Representatives                 ordinances regulntirg possession or
                Austin, Texas 76711                      sale of dru5 paraphernalia

                Dear Representative Evens:

                      You have asked whether mmMp.slities hmfe the authority to enact
                ordinances regulatiq the posse&on or sale of drug paraphernalia by an
                individual or enterprise. Home rule cities may enact any ordinance not
                inconsistent with the constitution or statutes of the state of Texas. Tex.
                Const. art. XI, S5; V.T.C.S. art. ll75; Lower Colorado River Authority v.
                City                    523 S.W. 2d 641 (Tex. 1975). General law cities may
                enact ‘brdinances, rules tmd police regulations, not contrary to the
                [cl onstitution of this [sl tate, for the goOa government, peace and order of
                the [cl ity.” V.T.C.S. art. l6lL The enswer to your h~quiry.nscessarily
                depends on whether the proposed ordinances are repu@tant to state law, or
                whether the regulation of, the conduct sought to be proscribed by, such
                ordinances hss been preempted by state law.

                      The possession of controlled substance paraphernalia is regulnted by
                the ControLled Substances Act, article 4476-15, V.T.C.S., which provides in
                section 4.07 as follows:

                               (4   A Person, except a practitioner or a person
                           acting m&r his directbn, commits an offense if he
                           pcaeses    a hypodermic’ syrhge, need@ Or other
                           instrument. that bss on it any qunntity &~~luding a
                           trace) of a controlled t&stance in Penalty Group 1 or
                           2 with .intent to use it for administration of the
                           controlled i3e3tsnce by s~taneous      injection in a
                           human bee.

                              (b) An offense tmder Subsection (a) is a Class A
                           misdemeanor.

                Penal Code section LO8 provides:

                           No governmental subdivision or agency may enact or
                           enforce a law thnt makes any conduct covered by this




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Honorable Charles Evans - Page Two         @lh-291)




           code an offense subject to a criminal penalty. This section shall
           apply only as long as the law governing the conduct proscribed
           by this code is legally enforceable.

Penal Code section LO8 is made applicable to the Controlled Substances Act by Penal
Code section LO3(b), which provides that the provisions of Titles 1, 2 and 3 ‘of the Penal
Code apply to offenses defined by other laws, unless the statute defining the offense
provides otherwise.

       Since the possession of control14 s&stance paraphernalia, as defined by section
4.07 of article 4476-15 is punishable as a Class A misdemeanor under the ControBed
Substances Act, cities would be preempted by state law from enacting ordinances
regulating the same conduct proscribed by section 4.07 as long as SXtion 4.07 is
legaliy enforceable.

      However, we recognize that ‘drug paraphernalia” may be defined to include many
more items than “a hypodermic syringe, needle, or other instrument ~thet has on it any
quantity (including e trace) of e controlled substance in Penalty Group 1 or 2” intended
to be used “for edmjnistretion of the controlled substance by subcutaneousinjection in
a human being,” which is regulated by section 4.07. “Drug peraphemaliti” has been
defined to include a variety of objects used to process, package, and administer
controlled substances. See Model Drug Paraphernalia Act prepared by the Drug
Enforcement Administrationof the United States Department of Justice (August 1979).
We do not believe that Penal Code section LO8 would prohibit cities from enacting
ordinences regulating the possession and/or sale of drug paraphernalia, other than e
hypodermic syr&e, needle, or other instrument as described by section 4.07 of article
4476-15,V.T.C.S.

      We note, however, that some statutes and ordinances regulating the possession
and sale of &ug paraphernalia have been held invalid on constitutional grounds.
Housworth v. Glisson, 485 P. Supp. 29 (N.D. Ga. l978), efPd -,        614F. 2d 1295(5th
Cir. 1980) (void for vagueness); High OF Times, Inc. v. Busbee, 456 F. Supp. 1035(N.D.
Ga l978), eff’d per curiem, 621 F. 2d 141(5th Cir. 1980) (statute was overbroad end
proscribed protected speechb See also-                                           488 F.
Supp. 390 fE.D. Mid 1960); Knoedler v. Roxb~ry Township, 485 F. Supp. 990 (D.N.J.
7980); Record Museum v. Lawrence Township 481 F. Supp. 768 (D.N.J. 1979) (void for
vegueness).                     , Hoffman Es&es. inc. v. Village of Hoffman Estates,
485 F. Supp.-%%%.%w” 1980) (ordinance regulating items designed or marketed for
use                                                  clause, equal protection clause, or
  . with i&gel drugs does not violate due process
first amendment).      The Model Drug Paraphernalia Act is being challenged on
constitutional grounds in Fort Worth, where it was adopted 8s an ordinance of the city
of Fort Worth. Atkins v. Woods, No. CA-4-80-249 (N.D. Tex., filed July Sl, 1980). We
express no opinion herein regarding the constitutionality of such an ordinance.

                                     SUMMARY

              Section LO8 of the Penal Code does not prohibit cities from
           enacting ordinances reguletiw the possession and/or sale of




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                                             L




    Honorable Charles Evens - Page Three   (Mw-291)




               &ug paraphernalia not presently regulated by section 4.07 of
               the Controlled Substances Act. Whether e particular ordinance
               could withstand attack on constitutional grands is beyond the
               scope of this opinion.




                                                 MARK      WHITE
                                                 Attorney General of Texas

    JOHN W. FAINTER, JR.
    First Assistant Attorney General

    RICHARD E. GRAY HI
    Executive Assistant Attorney General

    Prepared by 0erald.C. Cerruth
    Assistant Attorney General

    APPROVED:
    OPtiION COMMI'ITEE

    Susani,. Garrison, Acting Chairman
    Gerald C. Cerruth
    Rick Gilpii




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