                                    ATTORNEY            GENERAL OF TEXAS
                                                 GREG        ABBOTT




                                                       May 1,2006



The Honorable Norma Chavez                                        Opinion No. GA-0425
Chair, Committee on Border
     and International Affairs                                    Re:     Whether the state or its political
Texas House of Representatives                                    subdivisions may regulate international border
Post Office Box 2910                                              crossings by persons under the age of 18 years,
Austin, Texas 78768-2910                                          or whether the state may regulate the conduct
                                                                  of persons under the age of 18 years who are at
                                                                  or near an international border (RQ-0407-GA)

Dear Representative         Chavez:

        You ask whether the state or its political subdivisions may regulate international border
crossings by persons under the age of 18 years, or whether the state may regulate the conduct of
persons under the age of 18 years who are at or near an international border.’

        You inform us that you have been appointed to chair the Binational Alcohol and Substance
Abuse Task Force* (the “Task Force”), which is charged with “studying issues relating to binge
drinking along the Texas-Mexico border.“3 Request Letter, supra note 1, at 1. The Task Force, you



           ‘Letter from Honorable Norma Ch&z, Chair, House Committee on Border and International Affairs, to
Honorable Greg Abbott, Attorney General ofTexas (Oct. 25,2005) (on file with the Opinion Committee, also available
at http://~.oag.state.~.os)    [hereinafter Request Letter].

            *See TEX. HEALTH& SAFETYCODEANN. 5 12.072 (Vernon Supp. 2005) (creating the Task Force)

            ‘As a bill analysis for House Bill 3426, the legislation now codified as Health and Safety Code section 12.07i,
explains:

                     The problem of underage and binge drinking in Mexico is a unique issue for
                     communities along the southwest United States border. For many generations,
                     border cities in Mexico have been destinations for youth for the purpose oftourism
                     and evening entertainment. Differences in alcohol policies, the legal drinking age
                     (18 yeas of age in Mexico and 21 years of age in the United States), and the
                     standards and limitations of enforcement of United States and Mexico laws on
                     alcohol consumption and public intoxication have contributed to significant public
                     health and public safety problems on both sides of the international border.

SENATECOMM.ONINTERNATIONALRELATIONS
                                & TRADE,BILLANALYSIS,
                                                    Tex. H.B. 3426,79th Leg., R.S. (2005)
The Honorable Norma Chavez - Page 2                     (GA-0425)




aver, may recommend restricting a minor’s movements at the Mexican border, a recommendation
that mirrors legislation previously considered by the Seventy-eighth Legislature. Id. at l-2; see also
Tex. H.B. 3544, 78th Leg., R.S. (2003).4 You express doubt, however, about the state’s or its
political subdivisions’ “legal authority to regulate the movement ofpeople between countries as this
issue is primarily within the federal government’s jurisdiction and freedom ofmovement is generally
considered to be a civil liberty.” Request Letter, supra note 1, at 2. Thus, you have contacted this
office for an opinion on this issue.

         You provide us with the Task Force’s possible recommendation but not specific language
that will be incorporated into proposed, future legislation. Furthermore, we assume that whatever
the Task Force’s recommendation       may be, it may vary substantially from House Bill 3544’s
language. Consequently, we can advise you only on broad principles of the law as it affects your
generally articulated goal-to reduce the problems along the Texas-Mexico border associated with
minors who engage in binge drinking.

          Your letter asks about a law “regulatting] the movement of people between countries,” and
thus you frame your request both as a question of individual civil liberties and as a question of state
versus federal jurisdiction.     Id, at 2. In answer to your question about state versus federal
jurisdiction, it is clear that a state law regulating international travel would intrude on federal
jurisdiction and therefore would be preempted.5          However, to the extent the Task Force is
considering a state law limited to restricting minors’ conduct within Texas, we can see nothing that
would limit the state from using its police powers6 to carve out a geographic area within Texas in


         “House Bill 3544 would have authorized Texas peace offkers operating within Hidalgo and Cameron counties
to prevent a person younger than 18 years of age who was attempting to cross the border between this state and Mexico
from crossing unless the person was accompanied by a parent or guardian, or had written consent from the person’s
parent or guardian to cross the border, or held a current United States passport. See Tex. H.B. 3544, 78th Leg., R.S.
(2003). House Bill 3544 is similar to an existing California law, which reads in relevant part:

                  A peace officer ofany city shall prevent the entry from California into the Republic
                  of Mexico at the border by any resident of this state under the age of 18 years who
                  is unaccompanied by a parent or guardian or who does not have written consent for
                  such entry from a parent or guardian or who does not have a passport.

CAL..WELF.& INST.CODEANN. 5 1500 (West 1998).

          ‘See, e.g., Buttfield v. Stranahan, 192 U.S. 470, 492-93 (1904) (stating that the federal government has
“exclusive and absolute” power over foreign commerce); Zschernigv. M&Y, 389 U.S. 429,436 (1967) (stating that the
federal government has authority over foreign affairs and international relations); see a/so U.S. CONST.art. I, 5 8, cls.
3,1 l-12,16 (authorizing the federal government to regulate foreign commerce, to raise an army, and conduct war,); U.S.
CONST. art. II, 5 2, cl. 2 (authorizing the federal government to enter into treaties and send and receive ambassadors);
U.S. CONST.art. VI, cl. 2 (providing that federal law is the “supreme Law ofthe Land.“). See generally Michael Hahn,
Sub-national “Smctions” and the Federal Model, 32 Law & Pol’y Int’l Bus 197 (2000) (discussing the evolving
concepts of federal jurisdiction over foreign affairs and foreign commerce and how this jurisdiction affects states’rights
to regulate activities within their own borders).

       ‘It is axiomatic that the Texas public has granted authority over its health, safety, and welfare to the Texas
government, which operates exclusively in these arenas within its borders. See U.S. CONT. amend. X; cf LIS. v.
                                                                                                                   ..)
The Honorable Norma Chavez             - Page 3         (GA-0425)




which a minor’s conduct is restricted because of the dangerous condition’ the area presents to the
minor’s health and safety. A law as an exercise of state police power is no more an intrusion on the
federal government’s authority over foreign affairs and foreign commerce than a city police officer
stopping and issuing a speeding ticket to a person intending or about to cross the Texas border who
has exceededaposted    limit. Cf: Clurkv. Allen, 331 U.S. 503,517 (1947) (astate law is not invalid
though it may have an incidental or indirect effect in foreign countries). In short, the state may
regulate minors’ conduct at the border, but it may not regulate international border crossings.

        Because we have concluded that it is permissible for the Task Force to recommend regulating
minors’ conduct at the border, we must also address your question concerning a minor’s freedom of
movement and whether a state restricting a~minor’s freedom of movement is impermissibly
abridging that minor’s civil liberties-a question to which we now turn.

         We believe that the Task Force’s potential recommendation to restrict a minor’s conduct
within Texas so that the minor is prohibited from purposelessly being near a border crossing is
analogous to laws that have imposed curfews on minors during nighttime hours.’ These curfew laws
have been challenged principally on the basis that they impermissibly restrict a minor’s right to
freedom ofmovement.       See, e.g., Bykofsky Y. Borough ofMiddletown, 401 F. Supp. 1242,1254-58
(M.D. Penn. 1975), uff’d mem., 535 F.2d 1245 (3d Cir.), cert. denied, 429 U.S. 964 (1976)
(discussing a minor’s right to freedom of movement as the right is restricted by a curfew ordinance);
Qutb V. Strauss, 11 F.3d 488,492 (5th Cir. 1993) (discussing right to freedom of movement as the
right is restricted by a curfew ordinance).

         “The rights of locomotion, freedom of movement, to go where one pleases, and to use the
public streets in a way that does not interfere with the personal liberty of others are basic values
‘implicit in the concept of ordered liberty’ protected by the due process clause of the fourteenth
amendment.” Bykofsky, 401 F. Supp. at 1254 (citations omitted). Although minors are persons
under the United States Constitution “possessed of fundamental rights which the State must respect,”
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969), a state has an elevated
interest in protecting minors. See Qutb, 11 F.3d at 492; Bellotti v. Baird, 443 U.S. 622,634 (1979)
(listing three reasons that permit a court to treat minors’ rights differently from adults’ rights: (1)
to account for a minor’s peculiar vulnerability; (2) to insure against a minor’s inability to make




Morrison, 529 U.S. 598, 618 (2000) (reaftirming the intent in the United States Constitution to preserve the police
powers in the states); Ortiz v. U.S. Border Parrol, 39 F. Supp. 2d 1321, 1326 (D.N.M. 1999) (determining that Border
Patrol agents are not general law enforcement officers).

         ‘see SENATECOMM.ONINTERNATIONALRELATIONS&TRADE,BILLANALYSIS,                   Tex. H.B. 3426,79thLeg.,R.S.
(2005), supranote 3 (asserting that alcohol consumption and public intoxication pose significant public health andsafety
problems in Texasat the border).

          ‘We note that the El Paso City Council recently amended its curfew ordinance in order to restrict minors’ actions
at the border for the purpose of reducing problems associated with minors’ easy access to alcohol. See David Crowder,
Areas aim to stopteens‘partyinginJuarez, El Paso Times, Mar. 15,2006, available al h~p:llwww.elpasotimes.com
/apps/pbcs.dll/article?AID=/2OO6O315/NEWS/603150327/1001/ARCHIVES.
The Honorable Norma Chavez - Page 4                   (GA-0425)




critical decisions in an informed, mature manner; and (3) to afford parents the ability to rear their
children as they please). Thus, “[t]he state’s authority over children’s activities is broader than over
like actions of adults” and merely because a state could not wholly prohibit certain adult activities
“does not mean it cannot do so for children.” Prince v. Massachusetts, 321 U.S. 158, 168 (1944).

         State and federal courts would likely apply a strict scrutiny standard of review to a law that
infringes on a minor’s right to freedom of movement. See Qutb, 11 F.3d at 492 (assuming that
freedom of movement is a fundamental right and subjecting a Dallas ordinance restricting minors’
right to freedom ofmovement to strict scrutiny for infringing on that right).’ In determining whether
a law passes constitutional muster under a strict scrutiny standard, a court will ask whether the law
“promotes acompelling govermnentalinterest         and, if so, whether the [law] is narrowly tailored such
that there are no less restrictive means to effectuate the desired end.” Id. “To be narrowly tailored,
there must be a nexus between the stated government interest and the classification created by the
[law].” Id. at 493. “This test ‘ensures that the means chosen ‘fit’ this compelling goal so closely that
there is little or no possibility that the motive for classification was illegitimate.     .“’ Id. (citation
omitted).

          Applying these standards in Qufb, the Fifth Circuit upheld a Dallas curfew ordinance that,
among other things, made it an offense for a person under the age of seventeen to move about the
city during certain nighttime hours unless the minor could prove one of seven defenses. See id. at
49698. There the court found that the state had a compelling interest in increasing juvenile safety
and decreasing juvenile crime and that imposing a curfew on minors served the state’s compelling
interest, even though “the city was unable to provide precise data concerning the number ofjuveniles
who commit crimes during the curfew hours, or the number ofjuvenile victims of crimes committed
during the curfew.” Id. at 493. Moreover, the court held that the ordinance employed “the least
restrictive means of accomplishing its goals,” demonstrated by the ordinance’s various defenses that
“allow affected minors to remain in public areas during curfew hours,” defenses that included
traveling to or attending an official civic organization function, being engaged in an employment
activity, or going to or returning home from an employment activity. Id. at 494.

        By contrast, another curfew law affecting minors’ rights has not passed constitutional muster
because of its overbreadth.     See Johnson v. City of Opelousus, 658 F.2d 1065 (5th Cir. 1981).
Indeed, the Fifth Circuit struck down as overbroad a City of Opelousas, Louisiana curfew ordinance
that prohibited “unemancipated minors generally from being on public streets between certain hours
without their parents, with exception for minors on ‘emergency errands.“’ See id. at 1072. There
the court noted that:

                  [Ulnder this curfew ordinance minors are prohibited from attending
                  associational activities such as religious or school meetings,


         ‘But see Bykofiky, 401 F. Supp. at 1265 (applying rational basis analysis to a law affecting minors’ freedom
ofmovement because age is not a suspect class and, for minors, freedom ofmovement is not a fundamental right); Rams
Y.Town ofVernon, 353 F.3d 17 1, 175 (2d Cir. 2003) (applying intermediate scrutiny to a law affecting minors’ freedom
ofmovement because although freedom ofmovement is a fundamental right, strict scrutiny analysis cannot appropriately
account for the special needs of minors).
The Honorable Norma Chavez - Page 5                     (GA-0425)




                  organized dances, and theater and sporting events, when reasonable
                  and direct travel to or from these activities has to be made during the
                  curfew period. The same inhibition prohibits parents horn urging and
                  consenting to such protected associational activity by their minor
                  children. The curfew ordinance also prohibits a minor during the
                  curfew period from, for example, being on the sidewalk in front of his
                  house, engaging in legitimate employment, or traveling through [the
                  city] even on an interstate trip. These implicit prohibitions of the
                  curfew ordinance overtly and manifestly             infringe upon the
                  constitutional rights of minors in [the city].

Id. The lack of exceptions in the Louisiana curfew ordinance precluded a narrowing construction,
and the court was “compelled” to rule that the ordinance was overbroad. Id. at 1074. “To be sure,
the defenses are the most important            consideration     in determining      whether    [a law] is narrowly
tailored.” Qutb, 11 F.3d at 493-94.”

        In sum, we take from these cases that laws restricting a minor’s conduct within Texas, as the
Task Force may propose, can be designed to survive a constitutional challenge. Curfew ordinances
have permissibly restricted minors’ right to freedom of movement. Any such restriction on aminor’s
rights must be created to further a compelling state interest and it must be narrowly tailored to
achieve that end because a Texas court following Fifth Circuit precedent will likely apply strict
scrutiny analysis. A state’s interest is automatically elevated, however, by the affected person’s
status as a minor. Finally, special attention should be paid to providing defenses to minors who are
within the restricted area for protected purposes.




          %deed, failure to include defenses that allow for a minor to exercise his First Amendment rights is another
basis for challenging the constitutionality of the law the Task Force may recommend. See Bykojiky, 40 1 F. Supp. at 1258
(noting that an exception in a curfew law that allowed for the bona fide exercise of First Amendment rights for political,
religious, or communicative purposes was sufficient).
The Honorable Norma ChSlvez - Page 6         (GA-0425)




                                      SUMMARY

                       The state or its political subdivisions may not regulate
              international border crossings by persons under the age of 18 years.
              The state and its political subdivisions, however, may restrict persons
              under the age of 18 years from being in Texas areas near the Texas-
              Mexico border by creating a narrowly tailored law that furthers a
              compelling governmental interest.




                                                         eneral of Texas



BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee
