Who prosecutes a business in Texas for refusing to let a blind person bring their guide dog inside?

Texas AG Opinion JM-1089: Who Prosecutes a Guide Dog Discrimination Case?

Plain-English summary

The Executive Director of the Texas Commission for the Blind wrote to the Attorney General about a practical enforcement gap. Chapter 121 of the Human Resources Code protects visually handicapped persons who use support dogs (guide dogs): section 121.003 prohibits discriminating against them in their use of public facilities, and section 121.004(a) makes a violation a misdemeanor punishable by a fine of not less than $100 nor more than $300. But cities and counties had been unsure who was supposed to prosecute a violation, with each pointing at the other. The question was which prosecutor and which court handle the case.

The answer turns on how much the offense can be punished. Because a violation of section 121.004(a) is punishable by fine only, it is a "misdemeanor case punishable by fine only." Article V, section 19 of the Texas Constitution, as amended in 1985, gives justice of the peace courts original jurisdiction over exactly that category. The opinion concluded that the 1985 amendment is self-enacting and controls over an older, narrower jurisdictional provision in article 4.11 of the Code of Criminal Procedure. So at the county level, justice of the peace courts have jurisdiction over the offense, and depending on the county so do various criminal district courts and constitutional and statutory county courts. The prosecutor who represents the state in those courts is the county attorney, or in some counties the criminal district attorney or the district attorney. That officer is responsible for prosecuting the offense.

There is also a municipal wrinkle. Ordinary municipal courts have jurisdiction over state-law offenses only up to a $200 fine, so they cannot hear a section 121.004(a) case. But the legislature has let certain cities create a municipal court of record and, in some cases, given those courts broader jurisdiction. Austin, for example, may create municipal courts of record with concurrent jurisdiction over criminal cases punishable by fine only, so an Austin municipal court of record could hear a section 121.004(a) case and the city attorney could prosecute it there. The opinion noted this varies city by city (Dallas is similar, while Houston and Fort Worth municipal courts of record are more limited). Finally, on the policing side, any peace officer (a sheriff, a deputy, or a municipal police officer) has a duty to keep the peace and report state-law offenses committed in the officer's jurisdiction, so someone wanting to report a violation could contact the sheriff's office or, in an incorporated area, the municipal police.

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.

Chapter 121 of the Human Resources Code has been amended since 1989, including changes to its terminology, the conduct it covers, and its penalties, and the court-jurisdiction and municipal-court-of-record provisions of the Government Code have changed as well. The fine amounts and jurisdictional thresholds described here reflect the law as it stood in 1989. Anyone dealing with a present-day service-animal discrimination question should check the current text of chapter 121 and current jurisdictional statutes rather than rely on the 1989 figures.

Who this opinion affected (as of 1989)

County prosecutors: The opinion made clear that enforcing the support-dog offense was a county-level responsibility. The county attorney, or in some counties the criminal district attorney or district attorney, was the officer charged with prosecuting a section 121.004(a) violation in justice and county-level courts.

City attorneys and municipal courts: In cities with a municipal court of record whose jurisdiction reached fine-only offenses, the city attorney gained concurrent authority to prosecute the offense in that court. Whether that applied depended on the specific city's statute.

Visually handicapped Texans and the Commission for the Blind: The opinion gave a concrete answer to a person turned away from a public facility with a guide dog: the violation could be reported to the sheriff's office, or to municipal police if it happened in an incorporated area, and the county prosecutor was responsible for pursuing it.

Common questions

Is it a crime in Texas to refuse a guide dog user access to a business?
Under the law described in this 1989 opinion, yes. Section 121.004(a) of the Human Resources Code made discriminating against a visually handicapped person accompanied by a support dog in the use of public facilities a misdemeanor punishable by a fine of $100 to $300.

Which court hears the case?
Because the offense was punishable by fine only, justice of the peace courts had jurisdiction, and depending on the county so did certain criminal district courts and county courts. The opinion treated the 1985 constitutional amendment giving justice courts jurisdiction over fine-only misdemeanors as self-enacting.

Who is the prosecutor?
At the county level, the county attorney, or in some counties the criminal district attorney or the district attorney, prosecutes the offense.

Can a city attorney prosecute it?
Only where the city has a municipal court of record with jurisdiction over fine-only offenses (Austin was the example). Ordinary municipal courts could not hear the offense because their state-law jurisdiction was capped at a $200 fine.

How do you report a violation?
The opinion said it would be appropriate to contact the sheriff's office, or the municipal police if the offense occurred in an incorporated area, because peace officers have a duty to report state-law offenses committed in their jurisdiction.

Background and statutory framework

The request came from the Texas Commission for the Blind and concerned sections 121.003 and 121.004(a) of the Human Resources Code. Section 121.003 prohibits, among other things, discrimination against visually handicapped persons accompanied by support dogs in their use of public facilities. Section 121.004(a) provides that a person or organization (or its agent) who violates section 121.003 is guilty of a misdemeanor and on conviction shall be punished by a fine of not less than $100 nor more than $300.

On court jurisdiction, article V, section 19 of the Texas Constitution provides that justice of the peace courts have original jurisdiction in criminal matters of misdemeanor cases punishable by fine only. The Code of Criminal Procedure, article 4.11, still provided that justice courts have jurisdiction of misdemeanors where the fine may not exceed two hundred dollars; that provision was codified in 1965. Acts 1965, 59th Leg., ch. 722, at 331. At that time article V, section 19 extended justice court jurisdiction to criminal matters where the fine could not exceed two hundred dollars. The current "misdemeanor cases punishable by fine only" language was adopted in 1985. S.J.R. 14, Acts 1985, 69th Leg., § 7, at 3359. The opinion concluded that the current article V, section 19 provision is self-enacting, i.e., it does not require further legislative action to be given effect, and that it controls over the narrower provision still found in article 4.11. The opinion relied on the public notice for the amendment election and explanatory materials from the Legislative Council and the House Study Group. See Analyses of Proposed Constitutional Amendments Appearing on the November 5, 1985 Ballot, Texas Legislative Council Information Report No. 85-3, August 1985; House Study Group Special Legislative Report, 1985 Constitutional Amendments, August 23, 1985; see also Gov't Code § 27.031 (justice courts have the jurisdiction and powers provided by the constitution and other law).

Thus, at the county level, justice of the peace courts have jurisdiction over the offense in section 121.004(a). Depending on the county, various criminal district courts and constitutional and statutory county courts also have jurisdiction. See Gov't Code ch. 24, subch. E (particular criminal district courts); id. § 25.0003 (statutory county court jurisdiction generally); id. §§ 25.0031-25.2512 (particular statutory county courts). The officer performing the criminal-law duties of the county attorney is responsible for prosecuting offenses in these county courts. Code Crim. Proc. art. 2.02 (county attorney's duties in courts below the grade of district court). In some counties those duties are performed by the criminal district attorney (see Gov't Code ch. 44), and in a few counties by a district attorney (see Gov't Code ch. 43; e.g., § 43.180 (Harris County District Attorney)). Various particular district courts also have concurrent jurisdiction with county courts in criminal matters, in which case the district attorney responsible for those courts may prosecute the offense. Code Crim. Proc. art. 2.01; Gov't Code §§ 24.101-24.276, 24.351-24.507.

On the municipal side, ordinary municipal courts have jurisdiction over state-law criminal cases only where the offense is punishable by a fine not to exceed $200. Gov't Code § 29.003(b). Such courts therefore have no jurisdiction over a section 121.004(a) offense. But the legislature has authorized certain municipalities to create a municipal court of record and, in some instances, expanded the jurisdiction of those courts. The city of Austin, for example, may create municipal courts of record with concurrent jurisdiction with the justice court over criminal cases punishable by fine only. Gov't Code § 30.323. A municipal court of record in Austin could therefore have jurisdiction over a section 121.004(a) offense, and the city attorney or his deputies or assistants would be responsible for prosecuting it. Gov't Code §§ 30.329, 30.490; see, e.g., id. §§ 30.381, 30.383 (Dallas Municipal Court of Record has concurrent jurisdiction with the justice court over fine-only offenses). But see id. §§ 30.262-30.263 (Houston Municipal Court of Record jurisdiction limited to offenses within justice court jurisdiction punishable by a fine not to exceed $200); §§ 30.141, 30.143 (Fort Worth Municipal Court of Record jurisdiction over state-law offenses limited to that of a municipal court proper).

Finally, on reporting and enforcement, a peace officer (a sheriff, sheriff's deputy, or municipal police officer) has the duty to keep the peace and to report to a magistrate offenses under state law committed within the officer's jurisdiction. Code Crim. Proc. arts. 2.12, 2.13. A person wishing to report a violation of section 121.004(a) could contact the sheriff's office or, if the offense was committed in an incorporated area, the municipal police.

Citations

Statutory and constitutional authorities:

• Human Resources Code § 121.003 (prohibited discrimination); § 121.004(a) (misdemeanor offense; $100-$300 fine)
• Texas Constitution art. V, § 19 (justice of the peace court jurisdiction over fine-only misdemeanors)
• Code of Criminal Procedure art. 4.11 (justice court jurisdiction, older provision); art. 2.01 (district attorney's duty); art. 2.02 (county attorney's duty); arts. 2.12, 2.13 (peace officer duties)
• Government Code § 27.031 (justice court jurisdiction); § 25.0003 (statutory county court jurisdiction); §§ 25.0031-25.2512 (particular statutory county courts); §§ 24.101-24.276, 24.351-24.507 (particular district courts); ch. 43 and § 43.180 (district attorneys); ch. 44 (criminal district attorneys); ch. 24, subch. E (criminal district courts)
• Government Code § 29.003(b) (municipal court jurisdiction cap); § 30.323 (Austin municipal court of record); §§ 30.329, 30.490; §§ 30.381, 30.383 (Dallas); §§ 30.262-30.263 (Houston); §§ 30.141, 30.143 (Fort Worth)
• S.J.R. 14, Acts 1985, 69th Leg., § 7, at 3359 (1985 amendment to art. V, § 19); Acts 1965, 59th Leg., ch. 722, at 331

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1089
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1089.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. A few badly garbled section citations for particular county courts were left as noted where the numbers were not legible in the scan.

August 24, 1989

Mr. Pat D. Westbrook
Executive Director
Texas Commission for the Blind
P. O. Box 12866
Austin, Texas 78711

Opinion No. JM-1089

Re: Enforcement of the support dog laws under chapter 121 of the Human Resources Code (RQ-1749)

Dear Mr. Westbrook:

You refer to the provisions of sections 121.003 and 121.004(a) of the Human Resources Code. Section 121.003 prohibits, inter alia, discrimination against visually handicapped persons accompanied by support dogs in their use of public facilities. Section 121.004(a) provides:

(a) A person, firm, association, corporation, or other organization, or the agent of a person, firm, association, corporation, or other organization who violates Section 121.003 of this chapter is guilty of a misdemeanor and on conviction shall be punished by a fine of not less than $100 nor more than $300. (Emphasis added.)

You say that "there appears to be confusion regarding the appropriate legal jurisdiction in enforcing this law . . . . It appears as though the City is not sure whether the County should prosecute this matter, and the County is not sure whether the City should prosecute this matter." You ask our advice in this respect.

Article V, section 19, of the Texas Constitution provides in full:

Justice of the peace courts shall have original jurisdiction in criminal matters of misdemeanor cases punishable by fine only, exclusive jurisdiction in civil matters where the amount in controversy is two hundred dollars or less, and such other jurisdiction as may be provided by law. Justices of the peace shall be ex officio notaries public.

The Code of Criminal Procedure, article 4.11, still provides that justice courts have jurisdiction of misdemeanors "where the fine to be imposed by law may not exceed two hundred dollars." This provision was codified into the current Code of Criminal Procedure in 1965. Acts 1965, 59th Leg., ch. 722, at 331. At that time article V, section 19, of the constitution still provided that justice court jurisdiction extended to "criminal matters of all cases where the penalty or fine to be imposed by law may not be more than for two hundred dollars." S.J.R. 14, Acts 1985, 69th Leg., § 7, at 3359. The current provisions of article V, section 19, expanding justice court jurisdiction to "misdemeanor cases punishable by fine only" were adopted in 1985. Id.

We think that the current article V, section 19, provision in question indicates on its face that it is self-enacting, i.e., that its provision for justice court jurisdiction over "misdemeanor cases punishable by fine only" does not require further legislative action to be given effect. The public notice given for that constitutional amendment election ("The amendment would provide for the jurisdiction of justice courts, which may have additional jurisdiction as provided by law.") as well as the explanatory materials prepared by the Legislative Council and House Study Group, support, we think, our conclusion that the provision is self-enacting and controls over the narrower jurisdictional provision still found in article 4.11 of the Code of Criminal Procedure. See Analyses of Proposed Constitutional Amendments Appearing on the November 5, 1985 Ballot, Texas Legislative Council Information Report No. 85-3, August 1985 ("changes . . . redefine . . . justice court jurisdiction"); House Study Group Special Legislative Report, 1985 Constitutional Amendments, August 23, 1985 ("The specific constitutional grants of jurisdiction to justice-of-the-peace courts in Art. 5, sec. 19, would be eliminated, except for original jurisdiction over misdemeanors punishable by fine only . . . ."); see also Gov't Code § 27.031 (providing that justice courts have "the jurisdiction and powers provided by the constitution and other law").

Thus, at the county level, justice of the peace courts would have jurisdiction over the offense described in section 121.004(a) of the Human Resources Code.

Also, at the county level, various criminal district courts and constitutional and statutory county courts would have jurisdiction over such offense depending on the particular county in question. See Gov't Code ch. 24, subch. E (particular criminal district courts), [section illegible in scan] (county court jurisdiction generally), [section illegible in scan] (particular county courts), 25.0003 (statutory county court jurisdiction generally), 25.0031-25.2512 (particular statutory county courts).

The officer performing the criminal law duties of the county attorney has responsibility for prosecuting offenses in the above-mentioned courts of the county. Code Crim. Proc. art. 2.02 (regarding county attorney's duties in courts of the county "below the grade of district court"). In some counties these duties are performed by the officer known as the criminal district attorney. See Gov't Code ch. 44 (for duties of criminal district attorneys in particular counties). In a few counties they are performed by a district attorney. See Gov't Code ch. 43 (for duties of district attorneys in specific counties; particularly, for example, § 43.180 regarding duties of Harris County District Attorney to represent the state in criminal cases pending in district and inferior courts of the county).

Thus, in answer to your question, at the county level the prosecutor responsible for representing the state in justice of the peace courts, and in the criminal district courts and constitutional and statutory county courts where those latter courts also have jurisdiction over the offense in question, would be responsible for prosecuting such offense.1

Also, in a few cities the city attorney would have concurrent responsibility with the county level prosecutor for prosecuting the offense in question. While the jurisdiction of municipal courts proper with respect to criminal cases arising under state law is limited to offenses punishable by a fine not to exceed $200 under section 29.003(b) of the Government Code, and such courts would thus have no jurisdiction over an offense under section 121.004(a), the legislature has authorized certain municipalities to create a distinct tribunal called the municipal court of record. In some instances the legislature has expanded the jurisdiction of such municipal courts of record beyond that provided for municipal courts proper, which, as noted above, have no jurisdiction over the offense you ask about.

For example, the city of Austin is authorized to create municipal courts of record having concurrent jurisdiction with the justice court over criminal cases punishable by fine only. See Gov't Code § 30.323. Thus a municipal court of record created in Austin could have jurisdiction over a section 121.004(a) offense, and the city attorney or his deputies or assistants would be responsible for prosecuting such case. Gov't Code §§ 30.329, 30.490; see, e.g., id. §§ 30.381, 30.383 (a Dallas Municipal Court of Record has concurrent jurisdiction with justice court over offenses punishable by fine only). But see id. §§ 30.262-30.263 (Houston Municipal Court of Record jurisdiction over offenses for which justice court has jurisdiction only where punishable by fine not to exceed $200), 30.141, 30.143 (Fort Worth Municipal Court of Record jurisdiction over offenses under state law limited to that of municipal court proper). See id. ch. 30 (the provisions for particular municipal courts of record).

We also understand that you are concerned about apparent confusion among municipal police and county sheriff's office personnel as to their respective responsibilities for responding to reports of violations of section 121.004(a). A peace officer, whether a sheriff or sheriff's deputy or a municipal police officer, has the duty to act to keep the peace and to report to a magistrate offenses under state law committed within his jurisdiction. Code Crim. Proc. arts. 2.12, 2.13. Therefore it would be appropriate for a person wishing to report a violation of section 121.004(a) to contact the sheriff's office or, if the offense was committed in an incorporated area, the municipal police.

1. We also note that various particular district courts are given concurrent jurisdiction with county courts in criminal matters. In such cases the district attorney responsible for prosecuting cases in such courts may prosecute the offense described in section 121.004(a) of the Human Resources Code. See Code Crim. Proc. art. 2.01 (district attorney's duty to represent the state in district court); Gov't Code §§ 24.101-24.276, 24.351-24.507 (regarding particular district courts and judicial districts).

SUMMARY

The prosecutor at the county level -- the county attorney or in some cases the criminal district attorney or district attorney -- has responsibility for prosecuting the offense described in section 121.004(a) of the Human Resources Code, relating to discrimination against visually handicapped persons using support dogs in public facilities. Where the offense is committed in a city having a municipal court of record with jurisdiction over such offense, the city attorney may also prosecute such offense in that court.

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 William Walker
Assistant Attorney General