In Texas, who pays to house someone in the county jail for a city traffic ticket, the city or the county?

Texas AG Opinion JM-1009: Who Pays the County Jail Bill for a City Traffic Ticket?

Plain-English summary

Lubbock and Lubbock County were arguing over money. When someone sat in the county jail for a city ordinance violation, who footed the bill for feeding and housing them, the city or the county? An earlier Attorney General opinion, MW-52 (1979), had said that a county sheriff has no duty to jail people arrested only for violating city ordinances, and that a city is responsible for maintaining those prisoners. The county read that opinion broadly: anyone in for a "city ordinance" was a city prisoner, full stop. The city disagreed, arguing that traffic ordinances it adopted to carry out the state's own traffic law were different from purely local rules like zoning or building codes.

The Attorney General sided mostly with the city. The key was that Texas has a statewide traffic law, article 6701d, the Uniform Act Regulating Traffic on Highways. A city ordinance that just enforces or copies that state law is not really a separate "city offense" at all; the person is being punished for breaking the state's traffic rules. So the reasoning behind MW-52 does not fit. When a prisoner is jailed for violating a city traffic ordinance that implements article 6701d, that prisoner is treated as a state-law violator, and once the county sheriff accepts him, the city is off the hook for his maintenance.

The line the opinion drew ran through the statute itself. Sections 26 and 27 of article 6701d, read together, let a city write three kinds of traffic ordinances. The first kind implements the state law and copies its provisions. The second departs from the state standards in places where the statute expressly allows a city to do so (for example, adjusting a prima facie speed limit). Both of those are treated as enforcing the state scheme. The third kind regulates traffic the state law simply does not reach, purely local matters. Only for that third kind does the city stay responsible for the jail costs, because that is the situation MW-52 was really about: a violation of purely municipal affairs that does not cover the same ground as any state criminal law.

The Attorney General worked through the older authorities MW-52 had relied on to show the point was consistent with them. Howth v. Greer (1905) held that the county attorney has both the right and the duty to represent the state in corporation (municipal) court whenever the prosecution is really for violating state criminal law, even if it looks like a city ordinance case, because such a case is a state case in substance. Opinion V-1147 (1951) confirmed that the county attorney has no such role in cases involving purely municipal ordinances that do not violate state law. And Ex parte Devereaux (1965) upheld a speeding conviction under a city ordinance that implemented the state statute, treating it as enforcement of the state law. Put together, these authorities showed that jailing someone for a traffic ordinance that carries out article 6701d is jailing a state-law violator, not a city-only offender.

Currency note

This opinion was issued in 1989. 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 traffic law has been recodified since 1989. Article 6701d, V.T.C.S., the Uniform Act Regulating Traffic on Highways, was repealed and recodified into the Transportation Code (chiefly subtitle C, "Rules of the Road," and related chapters), so the specific section numbers used here (sections 26, 27, 31, 143, 166, and 169) no longer match current law. The Code of Criminal Procedure provisions on municipal court prosecutions and the custody of prisoners have also been amended. Anyone dealing with the allocation of jail costs between a city and a county today should consult the current Transportation Code, the current Code of Criminal Procedure, and current AG opinions rather than the 1989 article and section numbers here.

Who this opinion affected (as of 1989)

Counties and county sheriffs: The opinion told them that when they accept into the county jail a prisoner charged under a city traffic ordinance that implements article 6701d, that prisoner is a state-law violator and the county cannot bill the city for the prisoner's maintenance.

Cities and city attorneys: The opinion relieved a city of maintenance costs for prisoners jailed on traffic ordinances that carry out the state statute, while leaving the city responsible for ordinances covering purely local traffic matters the state law does not reach.

People jailed on traffic charges: The opinion did not change anyone's guilt or punishment; it only settled which government paid for their time in the county jail.

Common questions

If I get a city speeding ticket and end up in the county jail, is that a city case or a state case?
If the city speeding ordinance enforces or copies the state traffic law (article 6701d), the Attorney General treated it as a state-law violation. Practically, that meant the county, not the city, bore the cost of maintaining the prisoner once the sheriff accepted him.

Why did the city and county fight over this at all?
Under the earlier Opinion MW-52, a city had to pay to maintain prisoners jailed for city-ordinance violations. The county wanted to treat every ordinance prisoner that way, which would have shifted a lot of traffic-case jail costs onto the city. The Attorney General limited MW-52 so it did not reach ordinances that just enforce the state traffic law.

When does the city still have to pay?
When the ordinance regulates a form of traffic that article 6701d does not cover, and the matter is purely municipal and does not overlap a state criminal law. That is the narrow situation MW-52 was really addressing.

Did this opinion decide whether Lubbock's specific ordinances counted?
No. The Attorney General said he had not examined the city of Lubbock's actual traffic ordinances and could not classify them; he only supplied the legal test for sorting them.

Background and statutory framework

Attorney General Opinion MW-52 (1979) addressed whether a person arrested for violating a municipal ordinance could be incarcerated in the county jail without an agreement between the city and county under the Interlocal Cooperation Act, article 4413(32c), V.T.C.S. Relying on article 45.05 of the Code of Criminal Procedure, which provides that defendants in cases before the municipal court are committed to the custody of the chief of police or city marshal, the opinion concluded that the city is responsible for maintaining prisoners who are defendants in municipal court, and that the county sheriff had no duty to incarcerate persons convicted of violating only municipal ordinances absent a clear legislative intent or an interlocal agreement. See also Attorney General Opinion O-7353 (1946).

MW-52 did not distinguish among kinds of municipal ordinances, leaving the impression that incarceration for any city ordinance triggered the city's maintenance obligation. Examining the authorities MW-52 relied on shows the point was narrower. In Howth v. Greer, 90 S.W. 211 (Tex. Civ. App. 1905, writ ref'd), relying on article V, section 21 of the Texas Constitution, the court held that the county attorney has the right and duty to represent the state in all prosecutions for violation of the criminal laws of the state in the corporation court, notwithstanding that the prosecution may appear to be for violation of a city ordinance covering the same ground; such cases are state cases in which the state is a real party. Article 45.03 of the Code of Criminal Procedure provides that the county attorney "may, if he so desires, also represent the State in such prosecutions." The court in Howth declined to decide whether the county attorney could prosecute ordinances regulating purely municipal affairs that did not violate state law; Attorney General Opinion V-1147 (1951) answered that question in the negative. Attorney General Opinion O-5416 (1943) held only that justice courts lack jurisdiction over a city-ordinance violation when the violation is not also a violation of a state penal law, consistent with Howth. See also Attorney General Opinion V-745 (1948) (a justice of the peace has jurisdiction over failure to obey traffic control signals placed within a city under article 6701d).

Read in light of those authorities, MW-52 means the city is responsible for maintaining a jailed prisoner only when (1) the prisoner is not incarcerated for violating a state criminal law, and (2) the ordinance regulates purely municipal affairs and does not cover the same ground as a state criminal law.

Article 6701d itself supplies the dividing line. Section 26 makes the act's provisions uniform throughout the state and bars local authorities from enacting ordinances in conflict with the act, while allowing additional traffic regulations that are not in conflict. Section 31 authorizes municipalities to place and maintain traffic control devices. Section 169(b) authorizes municipalities to alter prima facie speed limits under certain conditions. Section 143 makes a violation of the act a misdemeanor unless made a felony by the act or other state law. Section 27, however, recognizes the power of local authorities, including home rule cities, to regulate certain kinds of traffic the act does not govern, listing eleven categories (such as parking, one-way designations, speed in public parks, and school crossing zones). Reading sections 26 and 27 together, a city may adopt three kinds of traffic ordinances: ordinances that implement and incorporate article 6701d; ordinances that depart from the statute's standards where the statute authorizes a departure (see Ex parte Devereaux, 389 S.W.2d 672 (Tex. Crim. App. 1965)); and ordinances that regulate forms of traffic not governed by article 6701d.

In Ex parte Devereaux, the court upheld a speeding conviction under a municipal ordinance that altered the prima facie speed limit set in article 6701d, holding that insofar as the ordinance implements the statute without altering the basic rule, a conviction for violation of the state statute as implemented by the ordinance is valid. See also Norris v. State, 576 S.W.2d 371 (Tex. Crim. App. 1978). Because persons incarcerated for violating municipal traffic ordinances that implement article 6701d are considered state-statute violators, the city is relieved of its obligation to maintain such prisoners once the county sheriff accepts them. See Attorney General Opinions JM-151 (1984), H-169 (1973).

Citations

Statutory authority:

• Tex. Rev. Civ. Stat. art. 6701d (Uniform Act Regulating Traffic on Highways), §§ 26, 27, 31, 143, 166, 169(b)
• Tex. Rev. Civ. Stat. art. 4413(32c) (Interlocal Cooperation Act)
• Code of Criminal Procedure art. 45.03 (county attorney may represent the state in municipal prosecutions); art. 45.05 (custody of municipal-court defendants)
• Tex. Const. art. V, § 21 (county attorney's duties)

Cases:

• Howth v. Greer, 90 S.W. 211 (Tex. Civ. App. 1905, writ ref'd)
• Ex parte Devereaux, 389 S.W.2d 672 (Tex. Crim. App. 1965)
• Norris v. State, 576 S.W.2d 371 (Tex. Crim. App. 1978)

Related opinions:

• Attorney General Opinions MW-52 (1979), O-7353 (1946), V-1147 (1951), O-5416 (1943), V-745 (1948), JM-151 (1984), H-169 (1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1009
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1009.pdf

Original opinion text

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

January 16, 1989

Honorable Travis S. Ware
Criminal District Attorney
P.O. Box 10536
Lubbock, Texas 79408

Opinion No. JM-1009

Re: Whether Attorney General Opinion MW-52 (1979) applies to violations of municipal traffic ordinances adopted pursuant to article 6701d, V.T.C.S. (RQ-1568)

Dear Mr. Ware:

You ask whether Attorney General Opinion MW-52 (1979), which held in part that a county sheriff has no duty to accept for incarceration in the county jail persons arrested only for violations of city ordinances, applies to violations of traffic ordinances enacted by a city pursuant to state law, specifically article 6701d, V.T.C.S. We conclude that the opinion applies to cases involving violations of ordinances which implement article 6701d or which incorporate provisions of the statute, but that it does not apply to cases involving violations of municipal ordinances regulating forms of traffic not covered by the statute.

You inform us that the city of Lubbock and Lubbock County disagree over the classification of prisoners incarcerated in the Lubbock County Jail for the purpose of determining whether the city or the county is responsible for the maintenance of such prisoners. The county asserts, on the strength of Attorney General Opinion MW-52, that a prisoner who is arrested for a violation of a city ordinance is a "city prisoner" regardless of the source or nature of the ordinance. The city, meanwhile, argues that there is a distinction between purely local ordinances, such as zoning or building inspection ordinances, and ordinances adopted pursuant to state law and as part of a comprehensive, statewide system of regulation. The city contends that prisoners arrested for violations of city traffic ordinances adopted pursuant to article 6701d, the Uniform Act Regulating Traffic on Highways, should be classified as "state prisoners."

The relevant issue presented in Attorney General Opinion MW-52 was whether a person arrested for violating a municipal ordinance could legally be incarcerated in the county jail in the absence of an agreement between the city and the county under the Interlocal Cooperation Act, article 4413(32c), V.T.C.S. The attorney general answered in the negative, relying primarily upon section 45.05 of the Code of Criminal Procedure which provides that defendants in cases before the municipal court "shall be committed to the custody of the chief of police or city marshal . . . to be held by him in accordance with the ordinance providing for the custody of prisoners convicted before such . . . court." The attorney general determined that a city thus was responsible for the maintenance of prisoners who are defendants in municipal court. See also Attorney General Opinion O-7353 (1946). The opinion also observed that the state has only a nominal interest in prosecutions involving only violations of municipal ordinances, and no duty to prosecute such cases. The county sheriff, therefore, had no duty to incarcerate persons convicted of violating only municipal ordinances "absent a plain manifestation of the legislature's intent that a city may impose such a duty on the sheriff and the county" or an interlocal agreement.

The opinion did not refer specifically to the kinds of municipal ordinances under consideration. Thus, it leaves the impression that incarceration in the county jail for violation of any municipal ordinance will trigger the city's obligation for the maintenance of a prisoner. An examination of the authorities relied upon by the attorney general, however, helps place the opinion in perspective.

Article 45.05 of the Code of Criminal Procedure was construed to impose on a city the duty to maintain prisoners who are defendants in cases before the municipal courts. Article 45.03 of the Code of Criminal Procedure states the county attorney "may, if he so desires, also represent the State in such prosecutions," which are conducted by the city attorney. In Howth v. Greer, 90 S.W. 211 (Tex. Civ. App. 1905, writ ref'd), cited in Attorney General Opinion MW-52, the court considered a claim by the county attorney that he had the duty to represent the state in municipal court in cases involving municipal ordinances which covered substantially the same ground as state laws. Relying on article V, section 21, of the Texas Constitution, the court held that

the county attorney has the right, and is charged with the duty, to represent the state in all prosecutions instituted for the violation of the criminal laws of the state in the corporation court, notwithstanding such prosecutions may appear to be for violation of ordinances of the city covering the same ground.

Howth at 213. The fact that in these cases only a violation of a municipal ordinance was charged could not alter their essential nature as state cases, "cases in which the state is not only a nominal, but a real, party." Id. The court expressly declined to consider whether the county attorney had any right to prosecute cases for violations of municipal ordinances regulating purely municipal affairs and which did not involve violations of any criminal laws of the state. Attorney General Opinion V-1147 (1951), also cited in Attorney General Opinion MW-52, answered this question in the negative.

Attorney General Opinion O-5416 (1943) was cited for the proposition that justice courts have no jurisdiction or authority over violations of a city ordinance. That opinion, however, held only that the justice courts were without jurisdiction when the violation of the city ordinance was not also a violation of a penal law of the state. It is therefore consistent with Howth v. Greer, supra. See also Attorney General Opinion V-745 (1948) (a justice of the peace has jurisdiction in cases involving the failure to obey instructions of traffic control signals placed within limits of a city by either state or local authorities in accordance with article 6701d).

Examined in light of these earlier authorities, the import of Attorney General Opinion MW-52 is that the maintenance of prisoners incarcerated in the county jail for violations of municipal ordinances only is the responsibility of the city when

(1) the prisoner is not incarcerated for violating a criminal law of the state, and

(2) the ordinance involves the regulation of purely municipal affairs and does not cover the same ground as a criminal law of the state.

We have not examined the municipal traffic ordinances of the city of Lubbock, but it is clear from the discussion thus far that the city is not responsible for the maintenance of prisoners housed in the county jail for violating traffic ordinances that incorporate the provisions of article 6701d. What is not so clear is whether the city is liable for the maintenance of prisoners when the ordinances either validly deviate from the standards set forth in article 6701d or regulate forms of traffic not covered by the statute. In our opinion, the city is liable when only the second type of traffic ordinance is involved.

In support of its argument, the city points to various sections of article 6701d as evidence of the legislature's intention to create a comprehensive system of traffic regulation throughout the state that includes municipal ordinances adopted pursuant to the statute. Section 26 of the act states that the provisions of the act are applicable and uniform throughout the state and that

no local authority shall enact or enforce any ordinance, rule, or regulation in conflict with the provisions of this Act unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this Act.

Section 31 authorizes municipalities to place and maintain traffic control devices in their jurisdictions necessary to warn or guide traffic or to carry out the provisions of article 6701d or local traffic ordinances. Section 169(b) authorizes municipalities to alter prima facie speed limits under certain conditions. Section 143 declares a violation of the act to be a misdemeanor unless made a felony by the act or other state law. The city concludes that a violation of an ordinance adopted pursuant to article 6701d is a violation of the comprehensive system of traffic regulation and, implicitly, of article 6701d itself.

Section 27 of article 6701d, however, recognizes the power of local authorities, including home rule cities, to regulate certain kinds of traffic not governed by article 6701d. Subsection (a) of section 27 provides that the act

shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from

1. Regulating the stopping, standing, or parking of vehicles;

2. Regulating traffic by means of police officers or traffic-control devices;

3. Regulating or prohibiting processions or assemblages on the highways;

4. Designating particular highways as one-way highways . . . ;

5. Regulating the speed of vehicles in public parks;

6. Designating any highway as a through highway . . . or designating any intersection as a stop intersection or a yield intersection;

7. Regulating the operation of bicycles and requiring the registration and licensing of same, including the requirement of a registration fee;

8. Regulating or prohibiting the turning of vehicles or specified types of vehicles at intersections;

9. Altering the speed limits as authorized herein;

10. Designating school crossing guards and school crossing zones;

11. Adopting such other traffic regulations as are specifically authorized by this Act.

Several of these provisions recognize a city's power to adopt traffic ordinances in pursuit of its police power that either depart in some details from the regulatory standards in the act or that regulate certain forms of traffic not covered by the act. It also demonstrates that a city need not rely solely on article 6701d for authority to adopt ordinances regulating traffic. Section 26 merely confirms that the statute is a limitation on a city's ordinance-making power in those areas governed by the statute.

Read together, sections 26 and 27 mean a city may adopt three kinds of traffic ordinances. First, a city may adopt ordinances that implement article 6701d and incorporate its provisions. Second, a city may promulgate ordinances that implement but are in conflict with article 6701d where the statute authorizes a departure from its standards. See, e.g., Ex parte Devereaux, 389 S.W.2d 672 (Tex. Crim. App. 1965) (discussed below). Third, a city may adopt ordinances that regulate forms of traffic not governed by article 6701d.

The regulatory variances permitted by sections 26 and 27 of article 6701d no doubt are intended to permit cities to tailor their traffic ordinances to address purely local interests. This accommodation of purely local interests might thus reflect the legislative intention that cities remain responsible for the maintenance of prisoners incarcerated for violations of city traffic ordinances that depart in any way from the standards provided in article 6701d. Attorney General Opinion V-745 (1948), however, concluded that justice courts have jurisdiction over cases involving ordinances punishing the failure to obey traffic control signals, thus suggesting that violations of such ordinances are to be treated as violations of article 6701d.

In Ex parte Devereaux, supra, the court upheld a conviction for speeding in violation of a municipal ordinance which apparently altered the prima facie speed limit set in article 6701d and prescribed a punishment different than section 143 of the statute. The court invalidated the ordinance as to punishment, but said

[I]nsofar as the ordinance alters the prima facie speed limits set out in Sec. 166(a) of Article 6701d, under authority of Secs. 166(a), 167, and 169, and implements said statute without altering or modifying the basic rule established in paragraph (a) of Sec. 166, it is valid and a conviction for violation of the state statute, implemented by the ordinance, with punishment authorized by Sec. 143 of said Article 6701d . . . .

Devereaux at 673. See also Norris v. State, 576 S.W.2d 371 (Tex. Crim. App. 1978). Because persons incarcerated for violating municipal traffic ordinances that implement article 6701d are considered state statute violators, the city is relieved of its obligation to provide for the maintenance of such prisoners once they are accepted for incarceration by the sheriff of the county. See Attorney General Opinions JM-151 (1984); H-169 (1973).

Accordingly, we conclude that Attorney General Opinion MW-52 (1979) does not apply to cases involving the incarceration of persons arrested for violating municipal traffic ordinances that implement article 6701d, V.T.C.S.; the opinion does, however, apply to cases involving violations of municipal ordinances regulating forms of traffic not covered by article 6701d.

SUMMARY

Attorney General Opinion MW-52 (1979) does not apply to cases involving the incarceration of persons arrested for violating municipal traffic ordinances that implement article 6701d, V.T.C.S. A city is not responsible for the maintenance of prisoners incarcerated in the county jail for violations of municipal traffic ordinances that implement article 6701d once they are accepted for incarceration by the sheriff of the county.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Steve Aragon
Assistant Attorney General