                     The Attorney               General of Texas
                                          May 30, 1981
MARK WHITE
Attorney General


                   Honorable Oscar II. Mauzy, Chairman       Opinion   X0.   RR-351
                   Senate Committee on Jurisprudence
                   Texas Senate Chamber                      Re: Regulation of the location of
                   Austin, Texas 78711                       establishments   selling material
                                                             harmful to minors.

                   Dear Senator Mauzy:

                           You have requested our opinion regarding the constitutionality of S.B.
                   129, presently pending before the 67th Legislature.    The bill would enact
                   article 2372y, V.T.C.S., which provides:

                        Art. 2372~.      LOCAL REGULATION OF MATERIAL HARMFUL TO
                   MINORS

                            Sec. 1. In this Article:
                            (a)    “Harmful material to minors” shall mean material of any
                   nature which depicts or describes ultimate sexual acts, normal or perverted,
                   actual or simulated, masturbation, excretory functions, or lewd exhibition of
                   the genitals in a manner that:
                                         considered as a whole, appeals to the prurient interest in
                   sex of minors i‘!nd
                                   (2)   is patently offensive to prevailing standards in the adult
                   community as a whole with respect to what is suitable material for minors;
                   and
                                   (31 considered as a whole, lack serious literary, artistic,
                   political and scientific value for minors.
                            (b)    “Minor” means any person under 18 years of age.
                            Cc)    “Prevailing standards” refers to the contemporary standards in
                   the local community covered by an ordinance under this Article.
                            Sec. 2.The governing body of an incorporated city, town, or village or
                   a commissioners court of a county may adopt ordinances:
                                   (1) to regulate the manner in which harmful material to
                   minors may be promoted, advertised,            sold, exhibited, displayed, or
                   distributed;
                                   (21 to regulate the location of establishments that sell or
                   commercially exhibit the harmful material; or
                                   (3) to provide for the enforcement of ordinances adopted
                   under this Act.




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Honorable Oscar Ii. Mauzy - Page Two         (NW-351)




       Sec. 3.    If an ordinance adopted under this Act by a commissioners court
conflicts with an ordinance of an incorporated city, town, or village, the municipal
ordinance prevails within the municipality’s jurisdiction to the extent of the conflict.
       Sec. 4 (a) If an ordinance adopted under this Act defines an offense, the offense
is a Class B misdemeanor.      However, if the governing body of a city, town, or village
has adopted a comprehensive zoning ordinance under Chapter 283, Acts of the 40th
Legislature, Regular Session, 1927, as amended (Article lOlla et seq., Vernon’s Texas
Civil Statutes), and if an ordinance adopted under this Act by the city, town, or village
defines an offense relating to the location of establishments that sell harmful material
to minors, the governing body of the city, town, or village may make the penalty for
the offense the same as the penalty prescribed for an offense under the zoning
ordinance.
             (bl The offense is prosecuted in the same manner as an offense defined
by state law.
       sec. 5.    A municipality or county may file an action to enjoin the violation or
threatened violation of an ordinance adopted by it under this Act.        The court may
grant appropriate relief.

      You first ask:

            1.     Will any city or county ordinance necessarily unlawfully
            infringe “free speech rights” where adopted pursuant to a state
            enabling act which authorizes a city or county to regulate the
            promotion, advertisement,    sale (including the location of such
            establishments), display or distribution of “harmful material to
            minors”?

       The portion of Senate Bill 129 which authorizes a city or county to regulate the
distribution of “harmful material to minors,” without regard to the location of any
establishment which distributes such material, permits the same kind of regulation
validated by the United States Supreme Court in Ginsberg v. New York, 390 U.S. 629
(1968). In that case, the Court upheld a New York statute which prohibited the sale to
minors under 17 of material defined by the statute as “harmful to minors.” The factors
to be considered in determining whether the material was “harmful to minors” were
essentially the same factors listed in section l(a) of proposed article 2372~. The Court
held that, although the material in question was not even arguably “obscene” as to
adults, “the concept of obscenity . . . may vary according to the group to whom the
questionable material is directed or from whom it is quarantined.” 390 U.S. at 636.
Since the power of the state to control the conduct of children reached beyond the
scope of its authority over adults, the statute did not invade the first amendment
rights of minors. &J. at 638. Furthermore, it was not irrational for the legislature to
conclude that exposure to the material condemned by the statute was harmful to
minors.     & at 643. On the basis of Ginsberg, we are of the opinion that Senate Bill
129 does not necessarily authorize a city or county to unlawfully infringe the “free
speech rights” of minors.           Of course, any particular         ordinance might be
unconstitutional as drafted or applied.




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Honorable Oscar H. Mauzy - Page Three       (1.9+351)




      You next ask:

            2.    Does it make any difference whether the ordinance is not
            a “zoning ordinance~~ regulating the location of establishments
            that sell such material?

            3.    Is it of any consequence       that an ordinance may be
            addressed to any establishment     which sells such material or
            must that be the “principal business” of the establishment?

        Part of your first question inquires about section 2(2) of proposed article 2372y,
which permits a city or county “to regulate the location of establishments” that sell or
commerically exhibit material deemed harmful to minors.            Such an ordinance, by
restricting the location of these businesses, would necessarily affect the access of
adults to this material.     Hence, the scope of this inquiry is broader than a question
limited to the distribution of the material to minors.

       Nevertheless, the Supreme Court in Young v. American Mini Theatres, Inc., 427
U.S. 50 (19761, narrowly upheld a Detroit Ordinance which prohibited the operation of
any “adult” movie theater, book store, or similar establishment within 1000 feet of any
two other “regulated uses” or within 500 feet of any residential area.      The Court said
that regulation of location, whether by zoning or some other means, does not
necessarily     offend the first amendment.          427 U.S. at 63.       The city could
constitutionally    confine adult theaters to certain specified commercial zones, require
their dispersal throughout the city, or subject them to other zoning and licensing
requirements.      Id. at 62. In justifying its decision, the Court declared that society’s
interest in protecting erotic materials:

            is of a wholly different, and lesser, magnitude than the interest
            in untrammeled political debate . . . . Even though the First
            Amendment protects communication        in this area from total
            suppression, we hold that the State may legitimately      use the
            content of these materials as the basis for placing them in a
            different classification from other motion pictures.

E at 70-71.

       The Court also held that the classification    system employed by the City of
Detroit did not offend the equal protection clause.    The Court said that the city was
at liberty to classify theaters on the sole basis of content of material exhibited. 427
U.S. at 70-71. In our opinion, Young compels the conclusion that a city or county may,
consistent with the United States Constitution, regulate, by zoning or other means, the
location of establishments that sell material deemed “harmful to minors.” In addition,
such an ordinance may classify the purveyors of such material on any reasonable basis,
including content of material and quantity sold in relation to an establishment’s total
sales.

      You also ask:

              4.     May the legislature authorize a county and a city to
              exercise concurrent jurisdiction in adopting such an ordinance?

              5.   If your answer is in the negative, then may it be remedied
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Honorable Oscar H. Mauzy - Page Four       (Mw-351)




           by the legislature providing that the municipal (city) ordinance
           controls to the extent of any conflicts?

       Senate Bill 129 authorizes both cities and counties to adopt ordinances to carry
out the purpose of the statute.   If both a county and a city located therein adopt such
an ordinance, the municipal ordinance prevails within the jurisdiction            of the
municipality to the extent of any conflict.        Article 2372y, section 3.     The bill
apparently contemplates, however, that if a county adopts an ordinance and a city does
not, the county ordinance is effective within the municipality’s jurisdiction.          By
contrast, articles 2372~ and 2372w, V.T.C.S., which authorize cities and counties to
regulate massage parlors, nude modeling studios and similar establishments, permit a
commissioners court to regulate such establishments       only within the unincorporated
area of the county.

       Home-rule cities. nevertheless. are subject to the limitations of general law.
Lower Colorado River’ Authority v.‘City of San Marcos, 523 S.W.2d 64i, 644 (Tex.
1975). We have been cited to no authority indicating that the legislature is without
power to grant to a county regulatory authority within a municipality when the city
has not adopted a conflicting ordinance.    Indeed, a number of statutes, particularly in
the area of health and disease control, authorize concurrent jurisdiction by city and
county officials.    See Attorney General Opinion MM-113 (1979). See also Attorney
General Opinion MW=5 (1980). In our view, the legislature may validly authorize a
county and a city located within that county to exercise concurrent jurisdiction on the
subject of regulating the location of establishments selling material deemed “harmful
to minors.”

      Your last question is:

            6.    Will any county or city ordinance adopted concurrently
            (the same geographical area) be “void for vagueness” since the
            county and city may have different standards?

       As we have indicated, this problem will not arise under Senate Bill 129 because, if
both units of government adopt ordinances, the municipal ordinance will “prevail
within the municipality’s jurisdiction to the extent of the conflict.”     Article 2372y,
section 3. Furthermore, the Court of Criminal Appeals has recently held in LaRue v.
z,      6ll S.W.2d 63 (Tex.Crim.,App. 1980), that, where the legislature has failed
provtde a narrower geographic basis, the proper “community” for purposes of the
standards provided under an obscenity statute is the entire state.     6U S.W.2d at 64.
We conclude therefore that the adoption by a county and city of different ordinances
for the same geographical area would not present any problem of constitutional
vagueness.

      You also ask that we discuss the dicta in Stansberry v. Holmes, 613 F.2d 1285 (5th
Cir. 1980), which indicates that establishments regulated by articles 2372~ and 2372~
are not protected by the first amendment and hence do not enjoy even the minimal
free speech rights of a book store or movie theater.     In our opinion, the court is not
attempting here to enlarge the first amendment protection available to book stores




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Honorable Oscar H. Mauxy - Page Five       (m-251)




and theaters which purvey erotic materials.   The limited scope of that protection was
made clear by the Supreme Court in Young v. American Mini Theatres, Inc., m.        In
Stansberry,  the court is simply noting that, whatever limited first amendment
protection may be accorded 8 book store or theater, a massage parlor has none at aU.

                                      SUMMARY

                 Senate Bill 129 is not facially unconstitutional.




                                                        Very truly yours,    /)



                                                        MARK     WHITE
                                                        Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY Ill
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Peter Nolan




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