Can a Texas city pass a civil-penalty ordinance for any class C misdemeanor under Local Government Code section 54.012(5), or only for health and safety violations?

TX AG Opinion GA-0267: Municipal Civil Penalty Scope

Plain-English summary

A state representative asked whether item five of Local Government Code section 54.012, which lets a municipality bring a civil action to enforce an ordinance "implementing civil penalties under this subchapter for conduct classified by statute as a class C misdemeanor," stands on its own as a general grant of civil-penalty authority for any class C misdemeanor, or whether it is limited to the same kind of health and safety subject matter covered by the other eight items listed alongside it.

The opinion concluded item five is limited to health and safety matters. Section 54.012 sits within subchapter B of chapter 54, titled "Municipal Health and Safety Ordinances," and the phrase "civil penalties under this subchapter" in item five ties the provision back to that subchapter's subject matter. The opinion also looked at the original 1985 legislative history, which showed lawmakers meant to let home-rule cities bring civil actions for violations of specific health and safety ordinances, reinforcing that item five was not meant to be a general-purpose civil-penalty tool for any class C misdemeanor.

Currency note

This opinion was issued in 2004. 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.

Who this opinion affected (as of 2004)

Texas municipalities drafting or enforcing civil-penalty ordinances under section 54.012(5): The opinion held that a civil-penalty ordinance enacted under item five must both be statutorily classified as a class C misdemeanor and fall within the health and safety subject matter of subchapter B; it cannot stand alone to cover any class C misdemeanor unrelated to that subject matter.

Municipalities bringing civil actions to enforce such ordinances under sections 54.012(5) and 54.017: The opinion explained that any civil action to enforce a section 54.012(5) civil penalty must likewise be encompassed within subchapter B.

Common questions

Can my city use Local Government Code section 54.012(5) to impose civil penalties for any class C misdemeanor ordinance violation?
No. This 2004 opinion held that item five's civil-penalty authority is limited to matters within subchapter B's health and safety subject matter, it is not a stand-alone grant covering any class C misdemeanor.

What subject matter does section 54.012(5) actually cover?
Based on this opinion, it covers the same kind of municipal health and safety matters addressed by the other items in section 54.012 and by the rest of subchapter B, such as building and fire safety, zoning, subdivision standards, dangerous structures, and public health nuisances.

Does it matter that the 1985 legislative history for section 54.012 focused on health and safety enforcement?
Yes, according to the opinion. It cited the original 1985 House bill analysis, which described the law as letting home-rule cities bring civil actions for violations of specific health and safety ordinances, as evidence the legislature intended to limit item five's scope rather than create an open-ended civil-penalty power.

Background and statutory framework

Chapter 54 of the Local Government Code, "Enforcement of Municipal Ordinances," has three subchapters. Subchapter A sets a general $500 cap on fines or penalties for violating a municipal rule, ordinance, or police regulation, with a higher $2,000 cap for violations relating to fire safety, zoning, or public health and sanitation. Subchapter B, "Municipal Health and Safety Ordinances," contains section 54.012, which lists nine categories of ordinances a municipality may enforce through a civil action, covering building and structural safety, fire safety, zoning, subdivision and construction standards, dangerously damaged structures, insect and rodent breeding conditions, sexually oriented business display regulations, and pollutant discharge into municipal sewer systems, plus item five, which authorizes "implementing civil penalties under this subchapter for conduct classified by statute as a class C misdemeanor."

The opinion applied the Texas Supreme Court's plain-meaning approach to statutory construction from Fitzgerald v. Advanced Spine Fixation Sys., Inc., finding the phrase "under this subchapter" in item five unambiguous, meaning it had to be read within subchapter B's own scope. The opinion pointed to other subchapter B provisions that likewise turn on health and safety concepts: section 54.015 requires a municipality's civil pleading to identify the real property involved in the violation and the defendant's relationship to it, section 54.016 requires a request for injunctive relief to show a substantial danger of injury or adverse health impact, and section 54.017 authorizes a civil penalty against the property owner or the owner's representative with control over the premises. The opinion also traced section 54.012's history to a 1985 bill that was originally limited to home-rule cities (until that limitation was repealed in 1991), noting the bill analysis described the law as addressing cities' inability to bring civil actions for violations of specific health and safety ordinances. On that basis, the opinion concluded item five's civil-penalty authority does not stand alone but is confined to subchapter B's health and safety subject matter, and that any civil action to enforce such a penalty under sections 54.012(5) and 54.017 must likewise fall within that subject matter.

Citations

Statutes:

• TEX. LOC. GOV'T CODE ANN. § 54.001(a)-(b) (Vernon 1999)
• TEX. LOC. GOV'T CODE ANN. § 54.012
• TEX. LOC. GOV'T CODE ANN. § 54.012(5)
• TEX. LOC. GOV'T CODE ANN. § 54.015(a)(1)-(2) (Vernon 1999)
• TEX. LOC. GOV'T CODE ANN. § 54.016(a)
• TEX. LOC. GOV'T CODE ANN. § 54.017(a)

Cases:

• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0267
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2004/ga0267.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

November 1, 2004

The Honorable Helen Giddings
Chair, Committee on Business and Industry
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0267

Re: Whether, under section 54.012(5) of the Local Government Code, a municipality may enact an ordinance prescribing civil penalties for matters that do not relate to the substantive provisions of section 54.012 (RQ-0220-GA)

Dear Representative Giddings:

You ask whether, under section 54.012(5) of the Local Government Code, a municipality may enact an ordinance prescribing civil penalties for matters that do not relate to the substantive provisions of section 54.012.[1]

Chapter 54 of the Local Government Code, entitled "Enforcement of Municipal Ordinances," is divided into three subchapters. Subchapter A describes the general enforcement authority of Texas municipalities and imposes a general limit of $500 for a "fine or penalty for the violation of a rule, ordinance, or police regulation." TEX. LOC. GOV'T CODE ANN. § 54.001(a)-(b) (Vernon 1999). Violations of rules, ordinances, or regulations governing "fire safety, zoning, or public health and sanitation," however, may be punished by a fine or penalty not to exceed $2,000. Id. § 54.001(b).

Subchapter B of chapter 54 is denominated "Municipal Health and Safety Ordinances." Section 54.012 provides:

A municipality may bring a civil action for the enforcement of an ordinance:

(1) for the preservation of public safety, relating to the materials or methods used to construct a building or other structure or improvement, including the foundation, structural elements, electrical wiring or apparatus, plumbing and fixtures, entrances, or exits;

(2) relating to the preservation of public health or to the fire safety of a building or other structure or improvement, including provisions relating to materials, types of construction or design, interior configuration, illumination, warning devices, sprinklers or other fire suppression devices, availability of water supply for extinguishing fires, or location, design, or width of entrances or exits;

(3) for zoning that provides for the use of land or classifies a parcel of land according to the municipality's district classification scheme;

(4) establishing criteria for land subdivision or construction of buildings, including provisions relating to street width and design, lot size, building width or elevation, setback requirements, or utility service specifications or requirements;

(5) implementing civil penalties under this subchapter for conduct classified by statute as a class C misdemeanor;

(6) relating to dangerously damaged or deteriorated structures or improvements;

(7) relating to conditions caused by accumulations of refuse, vegetation, or other matter that creates breeding and living places for insects and rodents;

(8) relating to the interior configuration, design, illumination, or visibility of business premises exhibiting for viewing by customers while on the premises live or mechanically or electronically displayed entertainment intended to provide sexual stimulation or sexual gratification; or

(9) relating to point source effluent limitations or the discharge of a pollutant, other than from a non-point source, into a sewer system, including a sanitary or storm water sewer system, owned or controlled by the municipality.

Id. § 54.012 (emphasis added). You inquire as to whether item five in section 54.012 is a "stand alone" provision authorizing the imposition of civil penalties for any class C misdemeanor, or whether authority for a civil penalty under chapter 54 is restricted to the specific subject matter listed in items one through four and items six through nine of section 54.012.[2]

We note initially that the provision in question is limited to the implementation of "civil penalties under this subchapter." As the Texas Supreme Court has declared, "it is cardinal law in Texas that a court construes a statute, 'first, by looking to the plain and common meaning of the statute's words.' If the meaning of the statutory language is unambiguous, we adopt, with few exceptions, the interpretation supported by the plain meaning of the provision's words and terms. Further, if a statute is unambiguous, rules of construction or other extrinsic aids cannot be used to create ambiguity." Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). The phrase "under this subchapter" is clear and unambiguous. Thus, we need look only to the provisions of subchapter B for the correct explication of item five of section 54.012.

As we have noted, subchapter B is denominated "Municipal Health and Safety Ordinances." The individual sections of subchapter B all relate to health and safety matters. Not only do items one through four and six through nine of section 54.012 refer exclusively to health and safety matters, other provisions within subchapter B do likewise. Section 54.015, for example, requires that a municipality in a civil action plead "the identification of the real property involved in the violation," as well as "the relationship of the defendant to the real property or activity involved in the violation." TEX. LOC. GOV'T CODE ANN. § 54.015(a)(1)-(2) (Vernon 1999). Section 54.016 requires that a prayer for injunctive relief demonstrate "substantial danger of injury or an adverse health impact to any person or to the property of any person other than the defendant." Id. § 54.016(a). The injunction may obtain only "against the owner or owner's representative with control over the premises." Id. Finally, section 54.017 authorizes a civil penalty "against the owner or the owner's representative with control over the premises." Id. § 54.017(a).

When section 54.012 is read in the context of subchapter B of chapter 54 of the Local Government Code, it becomes apparent that the "civil penalty" authorized by item five of section 54.012 is limited to matters that relate to "municipal health and safety" that are encompassed within subchapter B. Item five specifically refers to implementation of "civil penalties under this subchapter." Id. § 54.012(5) (emphasis added).

You also ask whether, if a municipality has enacted such an ordinance, it may bring a civil action "to enforce [the ordinance] which provides for civil penalties if the ordinance enacts the civil penalty provision pursuant to sections 54.012(5) and 54.017 of the Texas Local Government Code." Request Letter, supra note 1. Our answer here is simply a corollary to our answer to your first question: any such civil action must be encompassed within the ambit of subchapter B.

SUMMARY

An ordinance enacted under section 54.012(5) of the Local Government Code must be statutorily classified as a class C misdemeanor and must, in addition, be encompassed within the subject matter of subchapter B.

Yours very truly,

[Signature]
Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Helen Giddings, Chair, Committee on Business and Industry, Texas House of Representatives, to Honorable Greg Abbott, Texas Attorney General (May 7, 2004) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] The predecessor statute of section 54.012 was adopted first in 1985. See Act of May 9, 1985, 69th Leg., R.S., ch. 178, 1985 Tex. Gen. Laws 737, 737-79. Only the first six items in the present section 54.012, with minor modifications, were enacted by that legislation. Furthermore, the statute was then limited to home-rule cities. See id. § 1, 1985 Tex. Gen. Laws at 738. Only in 1991 was former section 54.011, which limited the effect of section 54.012 to home-rule cities, repealed. See Act of May 21, 1991, 72d Leg., R.S., ch. 753, § 3, 1991 Tex. Gen. Laws 2646, 2646-47. Significantly, however, the bill analysis of the original 1985 legislation contained the following statement: "Current law allows various penalties, generally an assessment of a Class C misdemeanor fine, for violation of city ordinances but does not allow home-rule cities to bring civil actions for violations of specific health and safety ordinances." HOUSE COMM. ON URBAN AFFAIRS, BILL ANALYSIS, Tex. H.B. 783, 69th Leg., R.S. (1985) (emphasis added). Thus, the history of the original legislation enacting section 54.012 seems to indicate an intent to limit the scope of item five.