                                          The Attorney                General of Texas
                                                            December 31. 1982
MARK WHITE
Attorney General


                                         Honorable Andy Kupper                        opinion No. Mw-558
Supreme     Court Building
P. 0. Box 12546
                                         Hockley County Attorney
Austin,   TX. 76711. 2546                Hocklev Countv Courthouse                    Re: Whether or not a citv mav
                                                                                                              _   I




512,4752501                              Levell&d, Texas    79336                     enact a curfew ordinance
Telex    910/674.1367
Telecopier      5121475-0266             Dear Mr. Kupper:

1607 Main St.. Suite 1400
                                              You have requested an opinion concerning the legality of a
Dallas, TX. 75201-4709                   proposed juvenile curfew ordinance by a city in Texas. The ordinance
2141742.8944                             is set forth below:

4624 Alberta       Ave., Suite     160
                                                                    SUB-MINORS’ CURFEW ORDINANCE
El Paso. TX.       799052793
9151533~3464                                      sec. -.            Definitions.

                                                     In this ordinance the           following definitions
1220 Dallas Ave., Suite           202
Houston,     TX. 77002.6966                          apply:
7131650-0666
                                                     (a) ESTABLISHMENT. Any privately owned place
                                                     of business carried on for a profit or any
606 Broadway,         Suite 312
                                                     place of amusement or entertainment to which
Lubbock,     TX.    79401.3479
6061747-5236
                                                     the public is invited;

                                                     (b) SUB-MINOR. Any person under the age of
4309 N. Tenth,     Suite S                           seventeen (17) years;
McAllen,     TX. 76501-1665
5121662.4547
                                                     (c) OPERATOR. Any        individual,      firm,
                                                     association,   partnership    or    corporation
200 Main Plaza, Suite 400                            operating,   managing    or   conducting    =nY
San Antonio,  TX. 76205-2797                         establishment; and whenever used in any clause
5,2/225-4191
                                                     prescribing a penalty, the term ‘operator’ as
                                                     applied to associations or partnerships shall
An Equal      OpportunitYI                           include the members or partners thereof and as
Affirmative     Action     Employer                  applied to corporations, shall include the
                                                     officers thereof;

                                                     (d) PARENT. Any natural or adoptive parent of
                                                     a sub-minor, a guardian, or any adult person,
                                                     21 years of age or over, responsible for the
                                                     cars and custody of a sub-minor;




                                                                       p. 2043
Honorable Andy Kupper - Page 2   (MW-558)




             (e) PUBLIC PLACE. Any public street, highway,
             road, alley, park, playground. wharf, dock,
             public building or vacsnt lot;

             (f) REMAIN. To loiter, idle, wander, stroll
             or play in or upon, or park or cruise in or
             upon any vehicle.

          sec.       . Unlawful Conduct of Sub-minor.

             (a) No sub-minor shall remain in of upon any
          public place or any establishment between the
          hours of 11 o'clock p.m. and 6 o'clock a.m. of the
          following day, official city time, except that on
          Fridays and Saturdays and nights next preceding
          school holidays the hours shall be from 12 o'clock
          p.m. midnight to 6 o'clock a.m.

             (b) The provisions of this section shall not
          apply to any sub-minor accompanied by a parent, or
          to a sub-minor upon an errand or other legitimate
          business directed by such sub-minor's parent, or
          to any sub-minor who is engaged in gainful lawful
          employment during the curfew hours.

          Sec.       . Unlawful Conduct of Parents.

             (a) No parent shall knowingly permit any
             sub-minor to remain in or upon any public place
             or any establishment between the hours of 11
             o'clock p.m. and 6 o'clock a.m. of the
             following day, official city time, except that
             on Fridays and Saturdays and nights next
             preceding school holidays the hours shall be
             from 12 o'clock p.m. midnight to 6 o'clock a.m.

          Sec.       . Unlawful Conduct of Owners or
                       Operators of Establishments.

             No operator of an establishment or their agents
          or employees shall knowingly permit any sub-minor
          to remain upon the premises of said establishment
          between the hours of 11 o'clock p.m. and 6 o'clock
          a.m. of the following day, official city time,
          except that on Fridays and Saturdays and nights
          next preceding school holidays the hours shall be
          from 12 o'clock p.m. midnight to 6 o'clock a.m.

          sec.       . Enforcement and Penalties.



                                  p. 2044
Honorable Andy Kupper - Page 3   (MW-558)




            (a) Any police officer who finds a sub-minor
         violating any provisions of section          shall
         obtain information from such sub-minor as to his
         name and address, age and the name of his parent
         or parents. The sub-minor shall thereupon be
         instructed to proceed to his home forthwith. The
         information obtained from the sub-minor shall be
         forwarded to the chief of the juvenile division of
         the city police department, who shall cause a
         written notice to be mailed to the parent or
         parents of the sub-minor, advising of the
         violation of section ~

            (b) Any parent who shall violate any provision
         of section       after having received notice of a
         prior violation shall be fined upon conviction any
         sum not exceeding $200.00 for each violation.

            Cc) Any   operator who    shall violate =*y
         provision of section         shall be fined upon
         conviction any sum not exceeding $200.00 for each
         violation.

     In regard to the contemplated enactment, you ask the following
questions:

            1. May a city in the state of Texas legally
         enact and enforce a curfew ordinance?

            2. Is it legally permissible for parents to be
         fined because of curfew violations by their
         children?

            3. Is it legally permissible to fine an
         operator of an establishment if he knowingly
         permits the sub-minor to remain upon his premises
         in violation of the curfew ordinance?

            4. If the answer to question number 3 is 'no,'
         would it be legally permissible if a notice were
         sent to the operator upon a first violation, the
         notice containing the name, address and physical
         description of the sub-minor so as to put the
         operator on notice that the individual involved is
         a sub-minor? In this case no penalty would be
         assessed until a second violation involving the
         same sub-minor.




                                 p. 2045
Honorable Andy Kupper - Page 4   mw-558)




     Although Texas courts have never held juvenile curfew ordinances
to be unconstitutional per se, rigid tests are applied to determine
their validity.    The ordinance must refrain from unreasonably
interfering with valid parental interests. McCollester v. City of
Keene, 514 F. Supp. 1046 (D.N.H. 1981); -see Stanley v. Illinois, 405
U.S. 645 (1972). The ordinance tiust protect the legitimate liberty
and first amendment interests of juveniles affected. Johnson v. City
of Opelo"sas, 658 F.2d 1065 (5th Cir. 1981); Ex parte McCarver, 46
S.W. 936 (Tex. Crim. App. 1898). Likewise, the right to interstate
travel must be consid&ed.     Johnson v. Opelousas,-supra, at 1072;
Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1270 (M.D. Pa.
1975), aff'd without published opinion, 535 F.2d 1245 (3rd Cir.),
cert. denied, 429 U.S. 964 (1976). The enactment must not be broader
than is necessary to achieve legitimate governmental purposes.
Johnson v. City of Opelousas, supsa; McCollester v. City of Keene.
supra. Sufficient notice must be given to those subject to it of the
conduct that is forbidden. so that the ordinance will withstand
attacks claiming that it is unconstitutionally vague. McCollester v.
City of Keene, supra; _see Papachristou v. City of Jacksonville, 405
U.S. 156, 162 (1972).

     To be lawful, an ordinance must be reasonably specific as to its
terms:

          [A legislative enactment] which either forbids or
          requires the doing of an act in terms so vague
          that men of common intelligence must necessarily
          guess at its meaning and differ as to its
          application violates the first essential of due
          process of law.

Connally v, General Construction Company, 269 U.S. 385, 391 (1926).
The proposed enactment's exception for legitimate business and errands
would appear to fall within this proscribed category. What one person
-Y   consider to be legitimate business, another may not.          For
instance, a social call on a friend could be prohibited in that it is
not business in terms of commercial activity, nor is it an errand,
even though such a visit would be protected under the first amendment.
Aladdin's Castle, Inc. v. City of Mesquite, 630 F.2d 1029, 1038 (5th
Cir. 1980), rev'd in part on other grounds, 451 U.S. 981 (1982). No
guidelines are provided for making such a determination, giving rise
to the possibility of discriminatory enforcement and failing to
provide limits for the exercise of discretion by law enforcement
officials. 630 F.2d at 1037.

     The ordinance would also appear to be overbroad. A law is void
on its face for overbreadth if it seeks to restrict activities that in
ordinary circumstances constitute an exercfse of protected expressive
or associational rights. Johnson v. City of Opelousas, supra, at




                                  p. 2046
.   .


        Honorable Andy Kupper - Page 5   (MN-558)




        1071; Aladdin's Castle, Inc. v. City of Mesquite, B,       at 1038 n.
        13.

                     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. [Citations omitted].

        Bykofsky v. Borough of Middletown, supra, at 1254.

             Minors are entitled to constitutional protection, Bellotti v.
        Baird, 443 U.S. 622, 633 (1979), although their rights are not
        co-extensive with those of adults, Johnson v. City of Opelousas,
        supra,   at   1072.    Restrictions   on   minors   that   could  not
        constitutionally be applied to adults may stand only if they serve a
        significant state interest not applicable to adults. Id. at 1073.
        Since age is not a suspect class, differential treatment onthat basis
        is upheld if the challenged legislation has a legitimate public
        purpose, based on promotion of the public welfare, health, or safety,
        which bears a rational relation to that end. Aladdin's Castle, Inc.
        v. City of Mesquite, supra, at 1039. No analysis of equal protection
        questions is required here, however, since the proposed enactment has
        been held to be deficient under the stricter test imposed upon
        legislation that seeks to restrict fundamental liberty interests.

             Other provisions of the ordinance require brief mention. No
        exception is made for interstate travel, which has been recognized to
        be a fundamental constitutional right. Sosna v. Iowa, 419 U.S. 393
        (1975).   The ordinance fails to accord this interest adequate
        protection. No distinction is made between emancipated minors and
        those who are unemancipated. Restricting the definition of parents to
        those twenty-one years of age and older would appear to be violative
        of the equal protection clause, since no rational reason is apparent
        for the distinction. Regardless of his age, a parent is charged with
        the responsibility for his child's well-being and is likewise entitled
        to the support of laws that assist him in that endeavor. Ginsberg v.
        New York, 390 U.S. 629, 639 (1968). Restrictions on the basis of age
        are valid only if a special circumstance of youth creates a unique
        danger to youth as a category and presents the state with an interest
        in regulating youth activities that is not present in regard to
        adults. Aladdin's Castle, Inc. v. City of Mesquite, supra, at 1042.
        No such special circumstance is present in this regulation.

             Assuming that the substantive ordinance is valid, it would appear
        that parents could be punished for willfully allowing their children
        to violate curfew or for aiding their children to do so. This would




                                           p. 2047
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Honorable Andy Kupper - Page 6   (MW-558)




be similar to the principle behind section 4.24 of the Texas Education
Code, dealing with thwarting the compulsory-attendance law, which
subjects to a fine those parents who willfully fail to require their
children to attend school. An exception is provided if the parent can
show that he is unable to compel his child to attend school. Legisla-
tion imposing parental liability for unknowing conduct would pose due
process problems. -See McCollester V. City of Keene, supra, at
1051-53.

     The proposed ordinance would subject operators of public
establishments to punishment when lh-P3I-S are found within such
establishments in violation of the curfew ordinance.          Although
authority on the legality of such a provision is scant, several due
process problems appear. The operator is not informed how he is to
determine the age of a minor. He would be required to determine
whether any minors in his establishment are engaged in legitimate
business or errands, and risk fine if his judgment differs from that
of local law enforcement officials. The sending of a prior warning
letter would not al~leviate his dilemma. The operator would be
responsbile for ascertaining the identity, as well as the age, of each
young patron of his establishment in order to determine whether the
prior offender is among them. The operator is not given any means by
which to distinguish between two or more youngsters with the same
name.   Even though the youngster might previously have been in
violation, the operator would still be required to determine the
legitimacy of the youngster's business.

     The proposed ordinance is distinguishable from the statute
prohibiting the sale of alcohol to minors. Tex. Alto. Be". Code
§106.03. The distribution of alcohol has traditionally been subject
to pervasive regulation. Colonnade Catering Corp. v. United States,
397 U.S. 72 (1970). The duty thrust upon one who sells alcohol is
relatively simple and is set-forth in ciear, unmistakable terms: he
need only determine that the buyer's age is nineteen or over. The
seller is not required to make judgments concerning the legitimacy of
the minor's actions. Based on the prior determination that the
"legitimate business" and "errands" exceptions are vague and fail to
give notice of the restricted proscribed activity, to require a lay
person to make such inquiries would be to impose an insurmountable
constitutional burden.

     The proposal to subject to liability operators of establishments
who allow juveniles to remain in those establishments after curfew
presents novel problems; the ordinances challenged in the cited cases
merely prohibited youngsters from being outdoors, in streets, parks,
or outdoor areas. see, e.g., Ex pate McCarver, supra; see also &
pate Yelton, 298 S.W.Zd 285 (Tex. Civ. App. - Beaumont 1957, no
writ). Since no opinion was requested on this subject, none will be
given.




                                  p. 2048
.   .


        Honorable Andy Kupper - Page 7     (?4w-558)




                                      SUMMARY

                    Curfew ordinances are not unconstitutional per
                 Se; the proposed curfew ordinance, however, is
                 unconstitutionally vague and overbroad.




                                                MARK      WHITE
                                                Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        RICHARD E. GRAY III
        Executive Assistant Attorney General

        Prepared by Brenda Smith
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Susan L. Garrison, Chairman
        Jon Bible
        Rick Gilpin
        Jim Moellinger
        Brenda Smith




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