Could Houston enforce its municipal anti-smoking ordinance inside Harris County buildings located in the city?

Texas AG Opinion JM-737: Houston Smoking Rules in County Buildings

Plain-English summary

The Harris County Attorney asked whether Houston's ordinance prohibiting smoking in public places applied to county facilities located inside the city. The ordinance defined public places to include government facilities.

The Attorney General concluded that the county was not immune from the municipal ordinance merely because a county was an arm of the state. Earlier Attorney General opinions had applied city ordinances to counties, and the opinion found no Texas Supreme Court decision requiring counties to be treated differently from other political subdivisions for this purpose.

The opinion also rejected the argument that state laws concerning county hospitals, public health, mosquito control, mental-health support, jails, and public buildings preempted the city ordinance. Those general grants of county authority did not show a legislative intent to occupy the field of smoking regulation, and the duty to provide and repair county buildings did not give the county exclusive regulatory control over those buildings.

Finally, the opinion found no state statute prohibiting the city ordinance or creating a conflict. Penal Code section 48.01 prohibited smoking in certain public places, but the 1975 act that created the provision expressly said it did not preempt government ordinances restricting smoking. The opinion therefore concluded that Houston's anti-smoking ordinance applied to county buildings inside the city.

Currency note

This opinion was issued in 1987. 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.

Common questions

Were Harris County buildings immune from Houston's anti-smoking ordinance?

No. The opinion concluded that a county was not immune from a municipal anti-smoking ordinance and found no controlling decision that required counties to be treated differently from other political subdivisions.

Did the county's authority over public health and county buildings preempt the city rule?

No. The opinion concluded that the general statutes cited by the county did not show a legislative intent to occupy the field of smoking regulation or give the county exclusive police authority over its buildings.

Did the state smoking law prevent cities from adopting their own rules?

No. The 1975 act creating Penal Code section 48.01 expressly stated that it did not preempt government ordinances prohibiting lighted tobacco products or smoking within the government's jurisdiction.

What was the final result for county buildings in Houston?

The opinion concluded that county buildings located within Houston were subject to the city's anti-smoking ordinance.

Background and statutory framework

Houston relied on section 34 of article 1175, which authorized a home-rule city to enforce ordinances necessary to protect health, life, and property. The county argued both immunity and preemption. On immunity, the opinion followed earlier Attorney General opinions and the reasoning of Port Arthur Independent School District v. City of Groves, while treating contrary language in an intermediate appellate decision as doubtful after the Texas Supreme Court reserved the county-city question.

On preemption, the opinion applied the rule that a city could be barred when state law expressly prohibited local regulation, when the Legislature intended to occupy the field exclusively, or when the local rule conflicted with state law. It also noted that a home-rule city's powers came directly from article XI, section 5 of the Texas Constitution, so limits on those powers had to appear with unmistakable clarity.

The cited county statutes did not meet that standard. Nor did Penal Code section 48.01 create a conflict, because its enacting legislation preserved local smoking ordinances.

Citations and references

Statutory authorities:

• Article 1175, section 34, V.T.C.S. (home-rule health, life, and property ordinances)
• Articles 4494n, 4436b, 4477-2, 2351(11), 5115, and 2351(7), V.T.C.S. (county health, hospital, jail, and building authority discussed by the opinion)
• Texas Constitution article XI, section 5 (home-rule authority)
• Penal Code section 48.01 and Acts 1975, 64th Legislature, chapter 290, section 2 (state smoking offense and nonpreemption language)

Cases:

• Port Arthur Independent School District v. City of Groves, 376 S.W.2d 330 (Tex. 1964)
• City of Houston v. Houston Independent School District, 436 S.W.2d 568 (Tex. Civ. App.-Houston [14th Dist.] 1968), modified, 443 S.W.2d 49 (Tex. 1969)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0737
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0737.pdf

Original opinion text

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

THE ATTORNEY GENERAL
OF TEXAS

July 3, 1987

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002

Opinion No. JM-737

Re: Whether a municipal anti-smoking ordinance is applicable to county facilities located within that municipality

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 MW-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.2d 330 (Tex. 1964).

You offer language found in City of Houston v. Houston Independent School District, 436 S.W.2d 568 (Tex. Civ. App.-Houston [14th Dist.] 1968), modified, 443 S.W.2d 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.

Houston, 436 S.W.2d at 572.

As this office stated in Attorney General Opinion MW-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 Constitution, 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' court." Attorney General Opinion WW-218 (1957). Accord, Attorney General Opinion MW-508 (1982). We agree with those 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 have 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 possession of 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 all 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 home 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 bill specifically allowed political subdivisions to adopt more stringent ordinances to regulate or prohibit smoking in a public place.

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.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen Gladney
Assistant Attorney General