Can a state require outdoor shooting ranges to be built to National Rifle Association standards?

Plain-English summary

The Tarrant County Criminal District Attorney asked the Attorney General whether a state statute on outdoor shooting ranges was constitutional. Section 756.042 of the Health and Safety Code told range owners to build and maintain their ranges "according to standards that are at least as stringent as the standards printed in the National Rifle Association range manual." The catch, as the requester pointed out, is that the statute did not say which edition of the manual. It just pointed at the NRA manual, whatever it said now and whatever it might say later.

The Attorney General concluded that this was an unconstitutional delegation of legislative power. The Texas Constitution puts the power to make law in the Legislature (article III, section 1). A statute can borrow an outside organization's standards as they exist at a fixed point in time, but it cannot hand that outside group an open-ended power to keep changing the legal standard going forward. By adopting the NRA manual without fixing an edition, section 756.042 effectively let a private association write and rewrite a rule that carried the force of state law. That, the Attorney General said, the Legislature cannot do.

The opinion grounded the distinction in Dudding v. Automatic Gas Co., a 1946 Texas Supreme Court case. There, a statute adopted a specific, dated fire-safety pamphlet on file with a state agency, and the court upheld it precisely because it was not an open adoption of an unofficial association's future rules. The court in Dudding contrasted a Kansas case, State v. Crawford, which had struck down a statute that adopted "present as well as prospective rules of an unofficial association as a standard of conduct." Section 756.042 fell on the Crawford side of that line. The Attorney General noted that more recent decisions from South Carolina, New Jersey, federal court in Kansas, Hawaii, and North Carolina reached the same conclusion when statutes or ordinances delegated power to private bodies like the Motion Picture Association of America.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Legislature could have cured the defect this opinion identified by tying section 756.042 to a specific edition of the NRA manual, and the Health and Safety Code has been amended many times since 1992, so confirm the current text and status of any shooting-range standard before relying on anything described here.

Background and statutory framework

At the time of this opinion, section 756.042 of the Health and Safety Code provided:

The owner of an outdoor shooting range shall construct and maintain the range according to standards that are at least as stringent as the standards printed in the National Rifle Association range manual.

The requester argued that because the statute did not specify a particular edition of the range manual, it was an unconstitutional delegation of legislative authority. The Attorney General agreed.

The analysis turned on the line drawn in Dudding v. Automatic Gas Co., 193 S.W.2d 517 (Tex. 1946). The statute in Dudding required containers for storing liquefied petroleum gas to conform to standards "as recommended by the National Fire Protection Association, effective July, 1937," referring to a specific pamphlet (National Board of Fire Underwriters Pamphlet No. 58) on file with a state agency. The Texas Supreme Court distinguished that fixed, dated adoption from the statute it had struck down in State v. Crawford, 177 P. 360 (Kan. 1919), which adopted "present as well as prospective rules of an unofficial association as a standard of conduct, departure from which would have been a crime." The Dudding court observed that delegating legislative power to a private association in that prospective way would contravene article III, section 1 of the Texas Constitution, but explained that the case before it did not involve "future rules of an unofficial agency" being "prospectively adopted by the legislature."

Section 756.042 was the situation Dudding warned about. Because the statute's reach was not limited to a particular edition of the NRA range manual, it adopted whatever the manual said in the future, so it failed the standard set in Dudding. The Attorney General noted that more recent decisions from other jurisdictions confirmed this view, citing Eastern Federal Corp. v. Wasson, 316 S.E.2d 373 (S.C. 1984) (tax tied to Motion Picture Association of America ratings was an unlawful delegation to a private association), News Printing Co. v. Borough of Totowa, 511 A.2d 139 (N.J. Super. Ct. Law Div. 1986) (ordinance giving a church veto power over newsrack placement unconstitutionally granted legislative power to a private entity), and also North American Safety Valve Industries, Inc. v. Wolgast, 672 F. Supp. 488 (D. Kan. 1987), State v. Christie, 766 P.2d 1198 (Haw. 1988), cert. denied, 490 U.S. 1067 (1989), and Bulova Watch Co. v. Brand Distributors of North Wilkesboro, Inc., 206 S.E.2d 141 (N.C. 1974). On that basis, the Attorney General concluded that section 756.042, as then written, was an invalid attempt to confer legislative authority on a private association, in clear contravention of article III, section 1 of the Texas Constitution.

Common questions

What exactly did this opinion decide?
It decided that section 756.042 of the Health and Safety Code, which made outdoor shooting range owners follow the National Rifle Association range manual, was an unconstitutional delegation of legislative power because it did not tie the requirement to a specific edition of the manual.

Why does naming a specific edition matter so much?
A statute can adopt an outside group's standards as they exist on a fixed date, because then the Legislature is the one choosing the content of the law. But pointing at a manual "as printed," with no edition fixed, lets the private group change the legal standard whenever it revises the manual. The opinion treated that open-ended adoption of future private rules as handing the lawmaking power itself to a private association.

Was the National Rifle Association itself doing anything wrong here?
No. The constitutional problem was with how the Legislature wrote the statute, not with the NRA or its manual. The same problem would arise with any private association's standards adopted in open-ended, prospective form.

Did this opinion ban outdoor shooting ranges or their safety standards?
No. It addressed only whether this particular statute validly imposed the NRA manual as a binding legal standard. It did not say the state cannot set range-safety standards; it said the Legislature has to set them in a constitutionally valid way rather than delegating that choice to a private group on an open-ended basis.

Citations

• Health and Safety Code § 756.042
• Texas Constitution article III, section 1
• Dudding v. Automatic Gas Co., 193 S.W.2d 517 (Tex. 1946)
• State v. Crawford, 177 P. 360 (Kan. 1919)
• Eastern Federal Corp. v. Wasson, 316 S.E.2d 373 (S.C. 1984)
• News Printing Co. v. Borough of Totowa, 511 A.2d 139 (N.J. Super. Ct. Law Div. 1986)
• North American Safety Valve Industries, Inc. v. Wolgast, 672 F. Supp. 488 (D. Kan. 1987)
• State v. Christie, 766 P.2d 1198 (Haw. 1988), cert. denied, 490 U.S. 1067 (1989)
• Bulova Watch Co. v. Brand Distributors of North Wilkesboro, Inc., 206 S.E.2d 141 (N.C. 1974)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0159
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0159.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

August 27, 1992

Honorable Tim Curry
Criminal District Attorney
Tarrant County
401 W. Belknap
Fort Worth, Texas 76196-0201

Opinion No. DM-159

Re: Constitutionality of section 756.042, Health and Safety Code, which requires outdoor shooting ranges to be constructed according to standards set by the National Rifle Association (RQ385)

Dear Mr. Curry:

You have requested our opinion regarding the constitutionality of section 756.042 of the Health and Safety Code. That statute provides:

      The owner of an outdoor shooting range shall construct and maintain the range according to standards that are at least as stringent as the standards printed in the National Rifle Association range manual.

As you indicate, this statute does not specify a particular edition of the range manual. You suggest that, as a result, section 756.042 is an unconstitutional delegation of legislative authority.

In Dudding v. Automatic Gas Co., 193 S.W.2d 517 (Tex. 1946), the court considered a 1939 statute which required that containers for the storage of liquefied petroleum gas conform to standards "as recommended by the National Fire Protection Association, effective July, 1937, a copy of said regulations known as the National Board of Fire Underwriters Pamphlet No. 58 being on file with the Gas Utilities Division of the Railroad Commission of Texas." Id. at 519. The court distinguished the statute before it from the one held invalid in State v. Crawford, 177 P. 360 (Kan. 1919). In the Crawford case, the statute under attack adopted "present as well as prospective rules of an unofficial association as a standard of conduct, departure from which would have been a crime." The Texas Supreme Court observed that such delegation of legislative powers to a private association would contravene article III, section 1 of the Texas Constitution. The Texas court then declared:

      We do not have before us a situation where future rules of an unofficial agency have been prospectively adopted by the legislature.

Id. at 520.

With regard to section 756.042, however, we do in fact "have before us a situation where future rules of an unofficial agency have been prospectively adopted by the legislature." Since the ambit of the statute is not limited to a particular edition of the range manual, it fails to meet the standard adopted in Dudding.

This view is confirmed by more recent cases from other jurisdictions. In Eastern Federal Corp. v. Wasson, 316 S.E.2d 373 (S.C. 1984), for example, the court held that a statute which imposed a 20 percent tax on admissions only to those motion pictures rated X by the Motion Picture Association of America, or not rated at all, constituted an unlawful delegation of legislative authority to a private association. Id. at 374. Likewise, in News Printing Co. v. Borough of Totowa, 511 A.2d 139 (N.J. Super. Ct. Law Div. 1986), the court said that an ordinance which banned newsracks within 200 feet of any church unless the church waived the prohibition was unconstitutional in granting legislative power to a private entity. Id. at 162; see also North American Safety Valve Industries, Inc. v. Wolgast, 672 F. Supp. 488, 493-94 (D. Kan. 1987); State v. Christie, 766 P.2d 1198, 1205 (Haw. 1988), cert. denied, 490 U.S. 1067 (1989); Bulova Watch Co. v. Brand Distributors of North Wilkesboro, Inc., 206 S.E.2d 141, 146 (N.C. 1974).

On the basis of the language in Dudding, 193 S.W.2d 517, and the unmistakable thrust of the law in other jurisdictions, we conclude that section 756.042, as currently written, is an invalid attempt to confer legislative authority on a private association, in clear contravention of article III, section 1 of the Texas Constitution.

                               SUMMARY

      Section 756.042, Health and Safety Code, which requires outdoor shooting ranges to be constructed according to standards promulgated by the National Rifle Association, is an invalid attempt to confer legislative authority on a private entity in contravention of article III, section 1 of the Texas Constitution.

                                            DAN MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Deputy Chief, Opinion Committee