Could a Texas county commissioners court impose a countywide curfew on minors found on public property?

Texas AG Opinion JM-863: County Juvenile Curfews

Plain-English summary

The Duval County attorney asked whether the commissioners court could enact an ordinance setting a curfew for minors found on public property within the county.

The Attorney General answered no. Under Texas Constitution article V, section 18, commissioners courts could exercise only powers specifically conferred by the Constitution or state statutes. Counties did not possess the general police power available to home-rule cities.

Several statutes gave commissioners courts control over particular public places, including county roads, buildings, courthouses, and parks. The opinion concluded that those grants permitted reasonable regulation of those facilities but did not authorize a countywide juvenile curfew unrelated to the statutes' specific purposes.

The opinion also discussed constitutional concerns. Prior Attorney General Opinion MW-558 had said juvenile curfews were not unconstitutional in every circumstance, but any ordinance had to protect minors' liberty and First Amendment interests and could not be broader than necessary to serve legitimate governmental purposes. Because a county's legitimate purposes were limited to specifically granted powers, JM-863 said a county curfew enacted without broader statutory authority would probably be unconstitutionally overbroad.

Currency note

This opinion was issued in 1988. 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

Could control over county roads and parks support a juvenile curfew?

No. The opinion said those statutes authorized reasonable management of the specified property, not a general curfew serving broader public-safety goals.

Did a county have the same police power as a home-rule city?

No. The opinion contrasted counties, which had only specifically conferred powers, with home-rule cities that could regulate for health, safety, morals, and general welfare.

Did the Attorney General say every juvenile curfew was unconstitutional?

No. It repeated MW-558's conclusion that juvenile curfews were not unconstitutional per se, but said they had to satisfy demanding constitutional limits.

Which constitutional interests did the opinion identify?

It referred to juveniles' liberty and First Amendment interests and to the rule that a curfew could not be broader than necessary for legitimate governmental purposes.

What was the direct holding for Duval County?

The commissioners court lacked authority to enact a countywide juvenile curfew ordinance.

Background and statutory framework

Canales v. Laughlin established that commissioners courts exercised only powers granted by the Constitution or statutes. Article 2351 gave general control over county roads, highways, ferries, and bridges. Local Government Code sections 291.001 and 291.003 addressed county buildings and courthouse control, and section 331.005 addressed county parks.

La Cour du Roi limited county regulation to the objectives behind the enabling statutes. Shipley likewise supported the need to keep local action within the statutory grant.

Kaiser, Linden, Orndorff, and Harrison County described counties as state administrative agencies without general municipal police power. The opinion cited earlier Attorney General materials reaching the same result for sewage discharge, utility rates, building codes, door-to-door licensing, and home-builder registration.

On constitutional limits, Johnson v. City of Opelousas and Ex parte McCarver addressed minors' liberty interests. McCollester discussed overbreadth, while Lombardo described municipal police power. The opinion also compared older and newer curfew decisions and noted growing judicial scrutiny.

Citations

Constitutional and statutory materials:

• Texas Constitution article V, section 18
• V.T.C.S. article 2351
• Local Government Code sections 54.004, 291.001, 291.003, and 331.005

Cases:

• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• La Cour du Roi, Inc. v. Montgomery County, 698 S.W.2d 178, 187-88 (Tex. App. - Beaumont 1985, no writ)
• Shipley v. Floydada Independent School District, 250 S.W. 159, 161 (Tex. Comm'n App. 1923, judgment adopted)
• Commissioners' Court of Harris County v. Kaiser, 23 S.W.2d 840 (Tex. Civ. App. - Galveston 1929, writ ref'd)
• Bexar County v. Linden, 220 S.W. 761 (Tex. 1920)
• Orndorff v. State, 108 S.W.2d 206 (Tex. Civ. App. - El Paso 1937, writ ref'd)
• Harrison County v. City of Marshall, 253 S.W.2d 67 (Tex. Civ. App. - Fort Worth 1952, writ ref'd)
• Johnson v. City of Opelousas, 658 F.2d 1065 (5th Cir. 1981)
• Ex parte McCarver, 46 S.W. 936 (Tex. Crim. App. 1898)
• McCollester v. City of Keene, 514 F. Supp. 1046 (D.N.H. 1981), reversed on other grounds, 668 F.2d 617 (1st Cir. 1982)
• Lombardo v. City of Dallas, 73 S.W.2d 475 (Tex. 1934)
• Bykofsky v. Borough of Middletown, 401 F. Supp. 1242 (M.D. Pa. 1975), affirmed, 535 F.2d 1245 (3d Cir.), cert. denied, 424 U.S. 964 (1976)
• Allen v. City of Bordentown, 524 A.2d 478 (N.J. Super. Ct. Law Div. 1987)
• S.W. v. State, 431 So. 2d 339 (Fla. Dist. Ct. App. 1983)

Prior Attorney General materials referenced: H-374 (1974), MW-419 (1981), and MW-558 (1982).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-863
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0863.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

February 23, 1988

Honorable Abelardo Garza Opinion No. JM-863
Duval County Attorney
P.O. Drawer M Re: Whether a county may
San Diego, Texas 78384 set a curfew for minors on
public property (RQ-1238)

Dear Mr. Garza:

You ask whether the Duval County Commissioners Court may enact an ordinance setting a curfew for minors found on public property within the county.

Article V, section 18, of the Texas Constitution gives to a commissioners court

such powers and jurisdiction as is conferred by this constitution and the laws of the state, or as may be hereafter prescribed.

Under this provision, a commissioners court may exercise only those powers that the Texas Constitution and statutes specifically confer upon it. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948). To answer your question, then, we must look first to specific statutory grants of authority.

Several statutes confer on commissioners courts the authority to exercise control over particular public areas. Article 2351, V.T.C.S., provides in part:

Each commissioners court shall:

. . . .

5. Exercise general control over all roads, highways, ferries and bridges in their counties.

Chapter 291 of the Local Government Code provides in part:

§ 291.001. Providing and Maintaining County Buildings

The commissioners court of a county shall:

. . . .

(3) maintain the courthouse, offices, and other public buildings.

§ 291.003. Control of courthouse

The county sheriff shall have charge and control of the county courthouse, subject to the regulations of the commissioners court.

Finally, section 331.005 of the Local Government Code provides in part:

(a) Parks acquired under this chapter [on municipal and county parks, museums and historic sites] are under the control and management of the municipality or county acquiring the park.

These provisions allow a commissioners court to regulate reasonably the use of county roads, buildings, and parks. They do not, however, allow a commissioners court to adopt regulations unrelated to the objectives behind the enabling statutes. See La Cour du Roi, Inc. v. Montgomery County, 698 S.W.2d 178, 187-88 (Tex. App. - Beaumont 1985, no writ). A juvenile curfew ordinance is, in our view, well beyond the intended scope of the statutes cited above. See generally Shipley v. Floydada Independent School District, 250 S.W. 159, 161, judgment adopted (Tex. Comm'n App. 1923).

Thus, a commissioners court lacks the authority to enact a juvenile curfew ordinance, even if such an act would, as you suggest, promote "the safety and general welfare" of the community. Unlike home rule cities, counties have no general police power. Commissioners' Court of Harris County v. Kaiser, 23 S.W.2d 840 (Tex. Civ. App. - Galveston 1929, writ ref'd). Counties are agencies for the administration of matters that are of state concern, rather than of municipal concern or of concern of any particular locality. Bexar County v. Linden, 220 S.W. 761 (Tex. 1920). Any powers conferred upon counties are duties imposed rather than privileges granted. Orndorff v. State, 108 S.W.2d 206 (Tex. Civ. App. - El Paso 1937, writ ref'd); see also Harrison County v. City of Marshall, 253 S.W.2d 67 (Tex. Civ. App. - Fort Worth 1952, writ ref'd) (contrasting powers of county with powers of city). Thus, a county is prohibited from acting solely on the basis of a general desire to promote the safety and general welfare of the community. See generally Attorney General Opinions MW-419 (1981) (county has no authority to prohibit discharge of sewage plant effluent into county roadside ditch); H-374 (1974) (county has no authority to regulate utility rates, establish minimum building and housing codes, license door-to-door salesmen, or require registration and bonding of home builders).

Moreover, whatever the justification behind it, a juvenile curfew ordinance would raise a number of troubling constitutional questions. In Attorney General Opinion MW-558 (1982), we held that juvenile curfew ordinances are not unconstitutional per se. We pointed out, however, that any such ordinance must pass a number of rigid constitutional tests: for instance, in order to be considered valid, the ordinance must protect the legitimate liberty and first amendment interests of juveniles affected. Johnson v. City of Opelousas, 658 F.2d 1065 (5th Cir. 1981); Ex parte McCarver, 46 S.W. 936 (Tex. Crim. App. 1898). In addition, the ordinance must not be broader than is necessary to achieve legitimate governmental purposes. Johnson v. City of Opelousas, supra; McCollester v. City of Keene, 514 F. Supp. 1046 (D.N.H. 1981), rev'd on other grounds, 668 F.2d 617 (1st Cir. 1982).

This latter requirement is especially troublesome when applied to county action. Attorney General Opinion MW-558 dealt with a curfew proposed by a city, which, under its police power, has the right to protect the health, safety, morals, and general welfare of its citizens by any reasonable and necessary regulations. Lombardo v. City of Dallas, 73 S.W.2d 475 (Tex. 1934); see also Local Gov't Code § 54.004. As noted above, a county, unlike a city, has no general police power: its "legitimate governmental purposes" are confined to those specifically enumerated by statute. Thus, in the absence of expansive statutory authority, any county curfew ordinance would probably be unconstitutionally overbroad.

Even if a county-wide juvenile curfew ordinance were authorized by statute, it would still be vulnerable to constitutional attack under the various tests set forth in MW-558. Recent years, moreover, have witnessed a heightening, rather than a lessening, of judicial scrutiny in this area. Compare Bykofsky v. Borough of Middletown, 401 F. Supp. 1242 (M.D. Pa. 1975), aff'd, 535 F.2d 1245 (3d Cir.), cert. denied, 424 U.S. 964 (1976), with Allen v. City of Bordentown, 524 A.2d 478 (N.J. Super. Ct. Law Div. 1987); see also S.W. v. State, 431 So. 2d 339 (Fla. Dist. Ct. App. 1983). Relevant commentary in legal journals has reflected this trend. See Note, Assessing the Scope of Minors' Fundamental Rights: Juvenile Curfews and the Constitution, 97 Harv. L. Rev. 1163-81 (1984); Note, Nonemergency Municipal Curfew Ordinances and the Liberty Interests of Minors, 12 Fordham Urb. L.J. 513-61 (1984).

SUMMARY

A commissioners court has no authority to enact a county-wide juvenile curfew ordinance.

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 Karen C. Gladney
Assistant Attorney General