Can a Texas county make its courthouse and other county buildings smoke-free?

Plain-English summary

The Frio County Attorney asked the Attorney General a straightforward question: can the county commissioners court make county buildings smoke-free, or set aside designated smoking areas in them? The Attorney General said yes, the court may regulate smoking on all county property.

No Texas statute comes right out and says "a county can regulate smoking in its buildings," and at the time no Texas court or prior AG opinion had squarely answered the question. So the opinion worked from the commissioners court's general powers. Under the Texas Constitution (article V, section 18), the court exercises authority over all "county business." A separate statute (Local Government Code section 291.001) directs the court to maintain the courthouse, county offices, and other public buildings, and older Texas cases had read that duty to include implied authority to regulate how the courthouse is used and to keep the property usable. On top of that, counties have authority to look after the health and welfare of the people within them, and the Health & Safety Code lets a commissioners court enforce any law reasonably necessary to protect the public health.

The opinion relied on a settled principle: a commissioners court can act even without an express grant of power, as long as what it does is reasonably necessary to carry out some authority it does have under a statute or the constitution. Texas courts had upheld implied county authority in other settings (contracting with an appraisal firm, regulating massage parlors, running a soil-preservation program), and a 1989 AG opinion had found a commissioners court could regulate smoking in a county jail. Putting the maintenance-of-buildings authority together with the public-health authority, the opinion concluded the court is implicitly empowered to regulate smoking in county buildings and on county property. The opinion also noted, but did not need to decide, an argument that the court could adopt the state Penal Code's public-place smoking offense by order; because it found the broad authority sufficient, it did not reach that point.

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. Texas tobacco and indoor-smoking law has changed substantially since 1992 (the Penal Code public-place smoking provision and the Health & Safety Code public-health provisions have been amended and recodified), so confirm the current statutes before relying on anything described here.

Background and statutory framework

The Frio County Attorney asked whether the commissioners court was vested with authority to create a smoke-free environment or to designate restricted smoking areas in county buildings or facilities. The opinion concluded the court may regulate smoking on all county property.

The commissioners court derives its authority from article V, section 18 of the Texas Constitution, under which the court exercises "such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State" (Tex. Const. art. V, § 18(b)). The legislature prescribed the court's powers and duties in Local Government Code section 291.001, which directs the commissioners court to "maintain the courthouse, offices, and other public buildings." Texas courts had read that maintenance duty to carry implied authority over county buildings: Dodson v. Marshall, 118 S.W.2d 621, 623 (Tex. Civ. App.—Waco 1938, writ dism'd) (commissioners court possessed implied authority to regulate the use of the courthouse, construing predecessor statute V.T.C.S. art. 2351), and Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941) (the duty to keep county buildings in repair contemplates "inhabitable and usable" property, construing the same predecessor statute).

Counties also have general authority to provide for the health and welfare of persons within the county, and state law authorizes the commissioners court to exercise control over health and sanitation matters concerning the county and its residents (Health & Safety Code §§ 121.003 (local public health reorganization act), 122.001 (appropriation and spending authority for health and sanitation), 281.121 (creation of a hospital district); see Attorney General Opinions O-4725 (1942), O-2419, O-2580A (1940)). Specifically, Health & Safety Code section 121.003(a) vests the commissioners court with authority to "enforce any law that is reasonably necessary to protect the public health."

The opinion acknowledged that no legislation expressly vests the commissioners court with authority to regulate smoking in county buildings, and that no Texas judicial or attorney general decision directly addressed the question. But it relied on the principle that a commissioners court may act without express authority so long as its actions are reasonably necessary to pursue some authority granted by statute or the constitution (see Pritchard & Abbott v. McKenna, 162 Tex. 617, 350 S.W.2d 333 (1961) (implied authority to contract with a private appraisal firm); Schope v. State, 647 S.W.2d 675 (Tex. App.—Houston [14th Dist.] 1982, writ ref'd) (implied authority and broad discretion to regulate massage parlors); Rowan v. Pickett, 237 S.W.2d 734 (Tex. Civ. App.—San Antonio 1951, no writ) (broad discretion to carry out a soil-preservation program); Attorney General Opinion JM-1098 (1989) (authority to promulgate regulations on smoking in a county jail)). The opinion concluded that the commissioners court's broad authority over all county business, together with its more specific authority to provide for the health and welfare of persons within the county, implicitly empowers it to regulate smoking in county buildings.

In a footnote, the opinion offered the requester's alternative theory (that, in exercising its express authority over county business, the court had implied authority to adopt the state Penal Code's public-place smoking offense by order, and thus to designate smoking and non-smoking areas) but said that because the court has broad authority over county buildings and facilities, the opinion did not need to reach that point (noting Acts 1975, 64th Leg., ch. 290, § 2, at 745, that Penal Code section 48.01(a) does not preempt a local anti-smoking order). Another footnote surveyed out-of-state authority reaching similar conclusions (Kansas Attorney General Opinion No. 92-13 (1992); California Attorney General Opinion No. 91-719 (1991); Iowa Attorney General Opinion No. 88-1-11(L) (1988)).

Common questions

Can a Texas county ban smoking in the courthouse?
The opinion concluded that a county commissioners court is authorized to regulate smoking within and on county property, which includes creating a smoke-free environment in county buildings such as the courthouse.

Where does that power come from if no statute mentions smoking?
The opinion found the power implied. It rested on the court's constitutional authority over all county business (article V, section 18), its statutory duty to maintain county buildings (Local Government Code section 291.001), and its authority to protect the public health (Health & Safety Code section 121.003), under the rule that a commissioners court may act without express authority when reasonably necessary to carry out powers it does have.

Can the county set up designated smoking areas instead of a total ban?
Yes. The question presented covered both options, and the opinion concluded the court may either create a smoke-free environment or designate restricted areas for smoking in county buildings or facilities.

Did the state public-place smoking law limit the county's authority?
The opinion noted, in a footnote, that the Penal Code's public-place smoking offense (section 48.01) does not preempt a local anti-smoking order, and it did not need to rely on that statute because it found the county's general authority sufficient.

Citations

• Tex. Const. art. V, § 18(b) (commissioners court authority over all county business)
• Local Government Code § 291.001 (duty to maintain courthouse, offices, and public buildings)
• Health & Safety Code §§ 121.003(a) (enforce laws reasonably necessary to protect public health), 122.001, 281.121
• Penal Code § 48.01(a) (smoking in a public place; does not preempt a local anti-smoking order, Acts 1975, 64th Leg., ch. 290, § 2)
• Dodson v. Marshall, 118 S.W.2d 621 (Tex. Civ. App.—Waco 1938, writ dism'd)
• Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941)
• Pritchard & Abbott v. McKenna, 162 Tex. 617, 350 S.W.2d 333 (1961)
• Schope v. State, 647 S.W.2d 675 (Tex. App.—Houston [14th Dist.] 1982, writ ref'd)
• Rowan v. Pickett, 237 S.W.2d 734 (Tex. Civ. App.—San Antonio 1951, no writ)
• Attorney General Opinions JM-1098 (1989), O-4725 (1942), O-2419, O-2580A (1940)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0183
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0183.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; garbled case names were verified against the official reporters. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

November 23, 1992

Honorable James Warren Smith, Jr.
Frio County Attorney
P.O. Box V
Pearsall, Texas 78061-1138

Opinion No. DM-183

Re: Whether a county commissioners court is authorized to promulgate regulations creating a "smoke-free" environment or designate restricted areas in county buildings or facilities for smoking (RQ-363)

You ask whether the Frio County Commissioners Court is vested with the authority to create a smoke-free environment or to designate restricted areas in county buildings or facilities for smoking.[1] We conclude that the court may regulate smoking on all county property.

The commissioners court derives its authority from article V, section 18 of the Texas Constitution, which provides that the court shall "exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State . . . ." Tex. Const. art. V, § 18(b) (emphasis added). The powers and duties of the court are prescribed by the legislature in Local Government Code section 291.001, which provides the following, in pertinent part:

The commissioners court of a county shall:
. . . .
3. maintain the courthouse, offices, and other public buildings.

See Dodson v. Marshall, 118 S.W.2d 621, 623 (Tex. Civ. App.—Waco 1938, writ dism'd) (commissioners court possessed implied authority to regulate the use of courthouse) (considering predecessor statute V.T.C.S. art. 2351). The statutory duty of a commissioners court to keep county buildings and facilities in repair contemplates "inhabitable and usable" property. See Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941) (considering predecessor statute V.T.C.S. art. 2351).

In addition, the counties of this state have general authority to provide for the health and welfare of persons within the county. State law authorizes the county commissioners court to exercise control over health and sanitation matters concerning the county and its residents. Health & Safety Code §§ 121.003 (local public health reorganization act); 122.001 (appropriation and spending authority for health and sanitation); 281.121 n.2 (creation of a hospital district); see also Attorney General Opinions O-4725 (1942) (establishment of preventive medicine unit); O-2419 (employment of a nurse), O-2580A (1940) (operation of a health clinic without the establishment of a county hospital). Specifically, section 121.003(a) of the Health & Safety Code vests the commissioners court with the authority to "enforce any law that is reasonably necessary to protect the public health."

Thus no legislation expressly vests the commissioners court with authority to regulate smoking in county buildings and facilities. Similarly, there are no judicial or attorney general decisions directly addressing your concern. However, the commissioners court may act without express authority, so long as its actions are reasonably necessary to pursue some authority granted by either statute or the state constitution. See generally Pritchard & Abbott v. McKenna, 162 Tex. 617, 350 S.W.2d 333 (1961) (implied authority to contract with private appraisal firm upheld); Schope v. State, 647 S.W.2d 675 (Tex. App.—Houston [14th Dist.] 1982, writ ref'd) (commissioners court granted implied authority to exercise broad discretion in regulation of massage parlors); Rowan v. Pickett, 237 S.W.2d 734 (Tex. Civ. App.—San Antonio 1951, no writ) (commissioners court granted broad discretion to exercise authority reasonably necessary to accomplish soil preservation program); Attorney General Opinion JM-1098 (1989) (commissioners court possessed authority to promulgate regulations regarding smoking in county jail). In our opinion, however, the county commissioners court's broad authority over all county business, as well as its more specific authority to provide for the health and welfare of persons within the county, implicitly empowers the court to regulate smoking in county buildings.[2]

SUMMARY

As the body responsible for the acquisition and maintenance of county buildings and facilities as well as the health and welfare of persons within the county, the commissioners court is authorized to regulate smoking within and on county property.

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 Toya C. Cook
Assistant Attorney General

[1] You offer Texas Penal Code section 48.01(a) as the relevant statute in this case. This provision states the following: "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 . . . , plane, or train which is a public place . . . ." Your reading suggests that in the course of exercising its express authority "over all county business," the commissioners court has implied authority to adopt by order section 48.01 of the Texas Penal Code and hence the authority to designate smoking and non-smoking areas within county buildings or facilities. Because we conclude that the commissioners court has broad authority over county buildings and facilities, we need not reach this point in our analysis. See Acts 1975, 64th Leg., ch. 290, § 2, at 745 (Penal Code section 48.01(a) does not preempt a local anti-smoking order).

[2] Several jurisdictions have addressed your query. In Kansas Attorney General Opinion No. 92-13 (1992), it was opined that the board of county commissioners has the authority to designate and decide which areas of a courthouse, except those used for judicial functions, are to be smoking or non-smoking. In California Attorney General Opinion No. 91-719 (1991), the District Attorney of Orange County inquired whether a county board of supervisors could adopt an ordinance which bans smoking in all county buildings and enforce the ordinance against members of the public. It was concluded that such an ordinance would be permissible if it would not be in conflict with general laws. Id. at 3. Additionally, the writer in Iowa Attorney General Opinion No. 88-1-11(L) (1988) asked whether a county board of supervisors has authority to adopt a resolution or ordinance restricting smoking in portions of the county courthouse occupied by the county or its employees. It was concluded that while the board of supervisors is responsible for the custody and control of the courthouse, it may not regulate smoking in areas reserved to other officials. The opinion contains the caveat that the decision should not be construed to permit state employees to smoke in other areas of the courthouse contrary to established policy. Id. at 2.