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    Honorable Mike Drlscoll         Opinion No. JM-737
    Harris County Attorney
    1001 Preston, Suite 634         Re: Whether a municipal anti-smoking
    Houston. Texas   77002          ordinance is applicable to county
                                    facilities located within that munici-
                                    pality

    Dear Mr. Driscoll:

         You ask whether a municipal anti-smoking ordinance is applicable
    to county facilities located within that municipality. Pursuant to
    its authority under section 34 of article 1175, V.T.C.S., "to enforce
    all ordinances necessary to protect health, life and property," the
    city of Houston, a home rule city. has adopted an ordinance which
    prohibits smoking in public places. "Public places" is defined to
    include governmental facilities.

         You question the authority of a city to impose its anti-smoking
    ordinance on county-owned facilities. First, you argue that as an
    "arm of the state" the county is immune from city regulation. You
    suggest that counties are distinguishable from other political
    subdivisions of the state in this regard. This office has validated
    the application of city ordinances to counties. See Attorney General
    Opinion NOS. JM-180 (1984); MW-508 (1982); WW-218(1957).  In Attorney
    General Opinion MU-508, this office rejected the argument that
    counties are immune from municipal ordinances. That opinion relied on
    the reasoning of the supreme court in Port Arthur Independent School
    District V. City of Groves, 376 S.W.Zd 330 (Tex. 1964).

         You offer language found in City of Houston v. Houston Indepen-
    dent School District, 436 S.W.Zd 568 (Tex. Civ. App. - Houston [14th
    Dist.] 1968), modified, 443 S.W.Zd 49 (Tex. 1969) to support your
    position of county immunity. At issue before the Houston court was
    the constitutionality of an ordinance that expressly exempted county
    and city governments from its terms. In justifying the exemption made
    by the ordinance for county governments,.the court analogized to the
    immunity of state property from municipal regulation:

                 Properties of the State are excluded as a
              matter of law from the application of City
              building regulations. Port Arthur Independent
              School Dist. v. City of Groves, supra. Counties,
              being arms of the state, would likewise be immune
              from city-imposed payment of fees as in the
              instant case.

                                  p. 3432
Honorable Mike Driscoll - Page 2   (JM-737)




Houston, 436 S.W.Zd at 572.

     As this office stated in Attorney General Opinion MU-508 (1982)
at 5, we doubt the precedential value of the language quoted above.
The supreme court reserved judgment on the question of county-city
relationships. We have found no supreme court decision that limits
City of Groves to require that counties be viewed differently from
other political subdivisions in regard to the application of a city
ordinance. In our opinion, a county is not immune from a municipal
anti-smoking ordinance.

     Next. you urge that state law confers upon the county sufficient
responsibility for the health of county residents and for the
construction and repair of county buildings to preempt the city's
authority to apply an anti-smoking ordinance to county facilities.
Specifically, you rely on article 4494n. V.T.C.S. (creation of a
hospital district); article 4436b, V.T.C.S. (local public health
reorganization act) ; article 4477-2, V.T.C.S. (mosquito control
district); article 2351(11), V.T.C.S. (support for mentally ill and
mentally retarded persons); article 5115, V.T.C.S. (establishment of a
county jail); and article 2351(7), V.T.C.S. (the duty to provide and
repair courthouses, jails , and all necessary public buildings).

     The general rules concerning preemption were summarized       in
Attorney General Opinion JM-619 (1987) at 1 as follows:

           A municipal ordinance may not conflict with state
        legislation. . . .    A  city is preempted from
        regulating in a field if the city's regulation is
        expressly prohibited, if the legislature intended
        state law to exclusively occupy that field, or if
        the city regulation conflicts with state law even
        if state law is not intended to occupy that
        field. . . . The state's entry into a field of
        legislation does not automatically preempt that
        field from municipal regulation. . . . Additionally,
        because a home rule city's powers derive directly
        from article XI, section 5, of the Texas Constitu-
        tlon, limits on those powers must appear with
        unmistakable clarity. . . . [Citations omitted].

     We are of the opinion that none of these general statutes
pertaining to a county's authority regarding certain health or
hospital matters reflects a legislative intent to occupy the field of
smoking regulations. Likewise, we are of the opinion that articles
5115 and 2351 do not preempt a municipal anti-smoking ordinance in
county buildings.

     Thirty years ago this office refused to read the general
buildings provision of article 2351(7) as vesting "sole police
jurisdiction with regard to regulation of county buildings with the
county commissioners' c0urt.u Attorney General Opinion WW-218 (1957).
Accord, Attorney General Opinion MW-508 (1982). We agree with those


                               p. 3433
      Honorable Mike Driscoll - Page 3   (JM-737)




      opinions. It was considered unreasonable in those earlier opinions to
      read article 2351(7) as preempting county buildings from municipal
      inspection fee requirements and municipal fire code provisions. It
      would be equally unreasonable to read that provision to preempt a
      city's anti-smoking ordinance.

           Having found no express county authority that preempts the
      anti-smoking ordinance. we must consider whether state law expressly
      prohibits or conflicts with such an ordinance. We hnve found no
      statute restricting a city's authority to adopt an anti-smoking
      ordinance.   Nor do we believe that the municipal anti-smoking
      ordinance conflicts with any state law.

           Section 48.01 of the Penal Code creates an offense for smoking in
      certain places. Subsection (a) provides:

                  (a) A person commits an offense if he is in
               .possessionof a burning tobacco product or smokes
               tobacco in a facility of a public primary or
               secondary school or an elevator, enclosed theater
               or movie house, library, museum, hospital, transit
               system bus, or intrastate bus, as defined by
               Section 4(b) of the Uniform Act Regulating Traffic
               on Highways (Article 6701d, Vernon's Texas Civil
.--            Statutes), plane, or train which is a public
               place.

      Not ali governmental facilities are covered by this provision.
      However, any argument that this statute conflicts with or preempts
      local ordinances is refuted by the language in section 2 of the bill
      creating the statute. Section 2 provides:

                   The provisions of this Act shall not preempt
                any ordinance adopted by a government entity now
                or in the future which prohibits the possession of
                lighted tobacco products or prohibits the smoking
                of tobacco within the jurisdiction of said
                governmental entity.

      Acts 1975, 64th Leg., ch. 290, §2, at 745.

           In our opinion, a homel rule city's anti-smoking ordinance does
      not conflict with state law.


           1. Legislation was introduced in the regular session of the
      Seventieth Legislature that would have prohibited smoking in public
      places in much the same fashion as the Houston ordinance. This
      legislation was not enacted into law. It defined public places to
      include buildings used for state or local governmental purposes. The
r‘    bill specifically allowed political subdivisions to adopt more
      stringent ordinances to regulate or prohibit smoking in a public
      place.

                                         p. 3434
Honorable Mike Driscoll - Page 4     (JM-737)




                              SUMMARY

               The city of Houston anti-smoking ordinance is
          not in conflict with state law. County buildings
          located within the city of Houston are subject to
          the ordinance.




                                        JIM     MATTOX
                                        Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STRAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen Gladney
Assistant Attorney General
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