Can a Texas city still regulate how stores sell abusable glue and spray paint after the state started permitting sellers?

Texas AG Opinion JM-994: Can Cities Still Regulate Abusable Glue and Spray Paint Sales?

Plain-English summary

Some glues and spray paints can be inhaled to get high, and Texas has long tried to keep them out of the wrong hands. For years, one of the tools was a state criminal law that made it an offense for a store to display these products where customers could grab them off the shelf without a clerk's help. In 1987 the legislature reshuffled the whole scheme. House Bill 173 repealed that self-access display offense, added new offenses about inhalant paraphernalia and selling to minors, required warning signs, and set up a new system where the Department of Health issues permits to businesses that sell these products.

The Health Commissioner asked a natural follow-up question: now that the state runs a permit system, are cities shut out? If a city has an ordinance requiring these products to be kept behind the counter, does the new state law wipe it out? The Attorney General said no, not automatically.

Texas uses a three-part test for whether state law knocks out a local ordinance. A city loses only if the state expressly forbids local regulation, if the legislature clearly meant to take over the entire field, or if the local rule actually clashes with state law. The Attorney General walked through all three and found none of them met here.

On express prohibition: there was a Penal Code rule that bars cities from criminalizing conduct the state has already made an offense, but the self-access display conduct was no longer a state offense once House Bill 173 repealed it, so that rule did not apply. On occupying the field: the permit system was thin. To get a permit a seller just needed a sales tax permit, an application, and a fee, and the department's power to write rules did not reach how the products are sold. That is not the kind of comprehensive scheme that signals the legislature wanted local governments out. On conflict: courts read a statute and an ordinance together whenever they reasonably can, and a city rule limiting shelf access does not conflict with a state law that permits the sales, as long as the ordinance does not prohibit or unreasonably restrict sales the state allows.

So the Attorney General concluded that ordinances restricting how customers reach these products are not preempted just because the state stepped in with a permit system. The opinion was careful, though: it did not bless any particular ordinance. The department had not provided the text of any actual ordinance or said what kinds of cities had passed them, so whether a specific ordinance survives depends on what it actually says.

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.

The Texas Controlled Substances Act provisions cited here (the V.T.C.S. article 4476 series) have since been recodified into the Health and Safety Code, and the abusable-inhalant and permit rules have their own later statutory history. The Penal Code preemption provisions have also been amended and renumbered. The three-part preemption framework the Attorney General applied reflects long-standing Texas law, but anyone dealing with a local inhalant-sales ordinance today should check the current Health and Safety Code and Penal Code rather than relying on the 1988 article numbers described here.

Who this opinion affected (as of 1988)

Cities and their police power: The opinion told local governments that the new state permit scheme did not, by itself, strip them of authority to regulate customer access to abusable glues and aerosol paints. The survival of any specific ordinance turned on its own terms.

The Texas Department of Health: The opinion clarified that the department's article 4476-15d permit authority and rulemaking did not reach the manner of sale, and so did not preempt local access rules.

Retailers selling glues and aerosol paints: The opinion meant a store could face both the state permit and signage requirements and a local access ordinance, provided the local rule did not prohibit or unreasonably restrict the sales that state law permits.

Common questions

Did the state permit system for abusable glue and spray paint cancel out city ordinances?
No. In this opinion the Attorney General concluded that article 4476-15d did not automatically preempt local ordinances restricting customer access to those products.

Why wasn't the field considered fully occupied by the state?
Because the permit requirements were minimal (a sales tax permit, application, and fee) and the department's rulemaking did not reach how the products are sold, so the statutes were not a comprehensive regulatory scheme.

Could a city still make self-access display a crime?
The opinion noted that the Penal Code bars cities from criminalizing conduct the state has already made an offense, but the self-access display conduct was no longer a state offense after House Bill 173 repealed it. The opinion addressed preemption generally, not the validity of any specific criminal ordinance.

Does this mean any access ordinance is valid?
No. The Attorney General said access-restricting ordinances are not preempted as such, but the validity of any particular ordinance would depend on its actual provisions, which were not before the office.

Background and statutory framework

Before its amendment by the 70th Legislature, subsection (f)(2) of section 4.13 of the Texas Controlled Substances Act, V.T.C.S. article 4476-15, made it an offense to display abusable glue or aerosol paint in a business establishment in a manner accessible to patrons without assistance of personnel. House Bill 173 deleted that provision. Acts 1987, 70th Leg., ch. 753. The same bill added inhalant-paraphernalia offenses to V.T.C.S. article 4476-13a, delivery-to-minor offenses and signage requirements to article 4476-15, and created article 4476-15d, providing for the Department of Health to issue permits to sellers of abusable glues and aerosol paints.

A city is preempted from regulating in a field if its regulation is expressly prohibited, if the legislature intended state law to exclusively occupy the field, or if the city regulation conflicts with state law. Attorney General Opinions JM-790, JM-619 (1987); JM-226 (1984); H-1071 (1977). The Attorney General found no express prohibition in the Controlled Substances Act or elsewhere. Penal Code section 1.08 prohibits enforcement of local ordinances that make conduct covered by the Penal Code an offense, extended to conduct made an offense by other state laws by Penal Code section 1.03(b). See Attorney General Opinion MW-291 (1981). But the display conduct was no longer covered or made an offense by state law after the repeal, so no express prohibition applied.

The Attorney General also discerned no intent to exclusively occupy the field. The entry of the state into a field does not automatically preempt city regulation that is ancillary to and in harmony with the general scope and purpose of the state enactment. City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982), cert. denied, 459 U.S. 1087 (1982); see also Attorney General Opinion MW-291 (1981). While state law requires abuse-deterrent additives, criminalizes delivery to minors and abuse, bars inhalant paraphernalia, and requires warning signs (V.T.C.S. arts. 4476-13a and 4476-15, § 4.13), the article 4476-15d permit scheme required only a valid sales tax permit, an application, and a fee, and the department's rulemaking authority did not reach the manner of sale or add eligibility requirements beyond the statute. See Attorney General Opinion JM-206 (1984). Article 4476-15d, with the other provisions, did not amount to a comprehensive scheme from which exclusive occupation could be inferred, in contrast to the Property Code provisions found to occupy the landlord-tenant field in Attorney General Opinion JM-790 (1987). The Attorney General added that the repeal of a state provision does not itself show a legislative intent to reserve the previously regulated field from local ordinances.

Finally, the Attorney General found no necessary conflict. A statute and an ordinance should not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached. Johnson v. City of Dallas, 702 S.W.2d 291 (Tex. App. - Dallas 1985, writ ref'd n.r.e.); City of Houston v. Reyes, 527 S.W.2d 489 (Tex. Civ. App. - Houston [1st Dist.] 1975, writ ref'd n.r.e.). So long as local ordinances do not prohibit or unreasonably restrict the sales of abusable glues and aerosol paints that state law permits, they can operate harmoniously with state law and department rules. The Attorney General concluded that access-restricting ordinances are not per se preempted by article 4476-15d, with the viability of any particular ordinance depending on its own provisions, which were not before the office.

Citations

Statutory authority:

• V.T.C.S. art. 4476-15d (Department of Health permits for sellers of abusable glues and aerosol paints)
• V.T.C.S. art. 4476-15, § 4.13 (Texas Controlled Substances Act; former (f)(2) self-access display offense, repealed)
• V.T.C.S. art. 4476-13a (inhalant paraphernalia offenses)
• Penal Code § 1.08 (bar on local ordinances covering Penal Code offenses)
• Penal Code § 1.03(b) (extension to conduct made an offense by other state law)

Cases:

• City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982), cert. denied, 459 U.S. 1087 (1982)
• Johnson v. City of Dallas, 702 S.W.2d 291 (Tex. App. - Dallas 1985, writ ref'd n.r.e.)
• City of Houston v. Reyes, 527 S.W.2d 489 (Tex. Civ. App. - Houston [1st Dist.] 1975, writ ref'd n.r.e.)

Related opinions:

• Attorney General Opinion JM-790 (1987)
• Attorney General Opinion JM-619 (1987)
• Attorney General Opinion JM-226 (1984)
• Attorney General Opinion JM-206 (1984)
• Attorney General Opinion H-1071 (1977)
• Attorney General Opinion MW-291 (1981)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-994
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0994.pdf

Original opinion text

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

December 16, 1988

Robert Bernstein, M.D., F.A.C.P.
Commissioner
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199

Opinion No. JM-994

Re: Preemption by Texas Department of Health of local ordinances regulating the sale of abusable glues and aerosol paints (RQ-1480)

Dear Dr. Bernstein:

You ask:

Does the Texas Department of Health's new authority to regulate the sale of abusable glues and aerosol paints under Article 4476-15d preempt local ordinances from controlling or prohibiting accessibility to abusable glues and aerosol paints by business patrons without assistance from business personnel?

Prior to its amendment by the 70th Legislature, subsection (f)(2) of section 4.13 of the Texas Controlled Substances Act, V.T.C.S., article 4476-15, made it an offense if a person knowingly or intentionally

display[ed] abusable glue or aerosol paint in a business establishment in a manner that makes the abusable glue or aerosol paint accessible to patrons of the business without assistance of personnel of the business.

House Bill 173 of the 70th Legislature deleted this provision. Acts 1987, 70th Leg., ch. 753. The same bill added inter alia, provisions to V.T.C.S. article 4476-13a regarding offenses in connection with "inhalant paraphernalia"; provisions to article 4476-15 regarding offenses in connection with delivery of abusable glue or aerosol paint to minors; requirements to article 4476-15 that businesses selling such substances display conspicuous signs stating that it is unlawful to sell or deliver such substances to a minor, to abuse such substances, or to use or to possess with intent to use inhalant paraphernalia, and stating penalties for such offenses. House Bill 173 also added article 4476-15d, providing for the issuance of permits by the Department of Health to sellers of abusable glues and aerosol paints.

Your request asks whether local ordinances which regulate accessibility to abusable glues and aerosol paints in business establishments are preempted in light of the provision by article 4476-15d "for the entry by the State into this field of legislation."

We have not been provided with the texts of any such existing or proposed ordinances. Also, you have not specified the types of municipalities which have adopted or propose to adopt such ordinances. Accordingly, we can offer only general guidelines with respect to the preemption issue you present, and we will not address, apart from the preemption issue, issues as to the scope of particular type municipalities' police power under state law.

A city is preempted from regulating in a field if the city's regulation is expressly prohibited, if the legislature intended state law to exclusively occupy that field, or if the city regulation conflicts with state law. Attorney General Opinions JM-790, JM-619 (1987); JM-226 (1984); H-1071 (1977).

We find no express prohibition in the Controlled Substances Act or elsewhere in state law on municipal regulation of abusable glues and aerosol paints.

Section 1.08 of the Penal Code does explicitly prohibit the enforcement of local ordinances which make "any conduct covered by [the Penal Code] an offense." That prohibition is extended to conduct made offenses by other state laws, such as the Controlled Substances Act, by Penal Code section 1.03(b). See Attorney General Opinion MW-291 (1981). The conduct of displaying abusable glues and aerosol paints is no longer covered by, or made an offense by state law, since the repeal of subsection (f)(2) of section 4.13 of the Controlled Substances Act by House Bill 173. Thus, we find no express prohibition in the Penal Code or elsewhere in state law of local ordinances regulating accessibility to abusable glues and aerosol paints.

Nor do we discern a legislative intent to exclusively occupy this field. The assertion of police power by the state in a field does not necessarily indicate a legislative intent to preclude a city from asserting by local ordinance its police power in the same field, so long as the local ordinance is not in conflict with the state provisions. See City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982); cert. denied 459 U.S. 1087 (1982) which noted:

The entry of the state into a field of legislation, however, does not automatically preempt that field from city regulation; local regulation, ancillary to and in harmony with the general scope and purpose of the state enactment, is acceptable.

See also, Attorney General Opinion MW-291 (1981).

State law currently requires that manufactured, delivered, or possessed abusable glues and aerosol paints contain additives to discourage abuse as designated by rule of the Department of Health; criminalizes the knowing, intentional, or reckless delivery of these abusable substances to minors; criminalizes the knowing or intentional abuse of such substances as well as the knowing and intentional use of "inhalant paraphernalia" to abuse such substances; and requires businesses selling such substances to post informational signs containing prescribed warnings. V.T.C.S. arts. 4476-13a and 4476-15, § 4.13.

Also, article 4476-15d, added by H.B. 173, provides for the issuance of permits by the Department of Health for the sale of abusable glues and aerosol paints. You suggest in your request that these latter provisions might have a preemptive effect vis a vis local ordinances regulating accessibility to such substances. The provisions of article 4476-15d require the department to issue permits to "eligible sellers." But the eligibility requirements are simply that the seller has obtained a valid sales tax permit and has applied for, and remitted the fee for, the permit. The department is authorized to adopt rules "as necessary to administer [the] article." The department's rule-making power does not extend to regulating the manner in which such substances are sold or to adding eligibility requirements for permits beyond those in the statute. See Attorney General Opinion JM-206 (1984). Article 4476-15d, together with the other statutory provisions cited above, does not appear to provide a comprehensive regulatory scheme such that we could infer a legislative intent that state law exclusively occupy the field of regulation of conduct in connection with abusable glues and aerosol paints. Brookside Village, supra; Attorney General Opinion MW-291 (1981). See also Attorney General Opinion JM-790 (1987) (finding a legislative intent in the provisions of the Property Code to exclusively occupy the field of landlord-tenants rights, thus preempting local ordinance-making power in that field).

We also note specifically that we find no Texas authority for the proposition that the repeal of a state statutory provision, here the provision formerly in subsection (f)(2), section 4.13 of article 4476-15, indicates that the legislature intended to reserve the field previously addressed by the repealed provision from the operation of local ordinances.

Nor do we find any necessary conflict between such local ordinances and state law. "A statute and an ordinance should not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached." Johnson v. City of Dallas, 702 S.W.2d 291 (Tex. App. - Dallas 1985, writ ref'd n.r.e.). See also City of Houston v. Reyes, 527 S.W.2d 489 (Tex. Civ. App. - Houston [1st Dist.] 1975, writ ref'd n.r.e.). So long as actual provisions of local ordinances do not have the effect of prohibiting or unreasonably restricting the sales of abusable glues and aerosol paints, which sales are clearly permitted under state law, we believe such local ordinances can operate harmoniously with the state law provisions in this field and with Department of Health rules adopted under the authority of such provisions.

Accordingly, we conclude that local ordinances restricting accessibility to abusable glues and aerosol paints by business patrons without assistance from business personnel are not per se preempted by the provisions of article 4476-15d for the entry of the state into this field. The viability of particular local ordinances would depend, of course, on the particular provisions of such ordinances which are not before us in connection with this request.

SUMMARY

Local ordinances restricting accessibility to abusable glues and aerosol paints by business patrons without assistance from business personnel are not per se preempted by the provisions of article 4476-15d for the entry of the state into this field.

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