Case Information
The Attorney General of Texas April 23, 1986 JIM MATTOX
Attorney General
Supreme Court Building P. 0. BOX 12549 Austl”. TX. 79711. 2549 [51214752501] Telex 8101874.1387 Telecopier 51214750266 Tsxas Department c~f' Labor and Hr. Allen Parker, Sr. Austin, Texas 71iill P. 0. Box 12157 Cimmiseimer Standards Be: Conatltutionality of article Opinion No. .JM-483 questions 6687-9a. V.T.C.S., and related Dear Mr. Parker: 714 Jackson. Suite 700 Dallas. TX. 752024508 214l742.9944
You ask seve::al questions about the Vehicle Storage Facility Act,
article 6687-98, V.T.C.S., which was anacted by the Sixty-ninth Legislature. The act authorizes the Texas Department of Labor and 4824 Alberta Ave.. Suite 180 Standards to "isme licenses to operate vehicle storage facilities" El Paso, TX. 79905.2793 915633.3494 and to "adopt rules establishing requirements for the licensing cf
persons to operate vehicle storage facilities to ensure that licensed storage facilities maintain adequate standards for the care of stored 1001 Texas, Suite 700 vehicles." V.T.C.S. art. 6687-9a;§4. Hou~)ton. TX. 770023111 7t3n23-59S9 Your first question concerus the "local option" provision of the act. ~Section 13(a) of the act provides: 606 Broadway, Suite 312 Lubbock, TX. 79401.3479 The governing body of a city by ordinance may W&747-5239 provide that this article and rules adopted under
this article do not apply inside the limits of the 4209 N. Tenth, Suite B city. McAlleri, TX. 78501-1685 Slau92-4547 Iu regard to that provision you ask whether
2M) Main Plaza, Suite 400 the ordinance adopted by a city pursuant to San Antonio, TX. 702052797 article, 6687-9a(13) must be as stringent as that 512l2254181 article. or rules and regulations adopted by the
Texas I'epartment of Labor and Standards.
An Equal Opportunity! Your question assmes that the act requires a city to adopt an Affirmatlve Action Employer
ordinance regulating vehicle storage facilities if it chooses to sxsmpt itself front regulation under article 6687-9a. The act does not require cities to do so. It simply authorizes a city to adopt an ordinance snakes article 6687-9a inapplicable inside the citp limits of that c:.ty.
Mr. Allen Parksr, Sr. - Page 2 (JM-483)
You also ask about 1:he constitutionality of section 13(a). Although the question Is ,a difficult one, we conclude chat section 13(a) is unconstitutional under article I, section 28. of the Texas Constitution, which providc,s:
No power of mapending laws in this State shall be exercised except by the Legislature.
In 1915 the Supreme hurt held that a statute authorizing voters to decide whether the operation of a pool hall would be a criminal offense in a particular county violated article I, section 28. Rx parte Mitchell, 177 S.W. 9,53 (Tex. 1915). The court held that the statute wculd permit the voters ic a county to suspecd a general law allowed the licensing of pool halls. @cord, I.yle v. State, 193 S.W. 680 (Tex. Grim. App. 1917). See also Brown Cracker & Candy Co.
v. City of Dallas, 137 S.W. 342 (Tex. 19' m (citv ordinance oermittina _ houses of prostitution tunconstitutionally suspended - state 1s;
prohibiting them).
'since FXtcbell. hoverer, the courts have upheld a nuwhcr of statutes allowiaa political subdivisions to choose whether to accent the provisions of-a geusral law. See City of Fort Worth v. Fire Department of City of Fort , 2rS.W.2d 347 (Tex. Civ. App. - Fort Worth 1948). aff'd w, rev'd in part on other grounds, 217 S.W.2d 664 (Tex. lm(uri;eld statute that allows voters of citv to ' accept the provisions of a :general law pemitting cities to provibe a police and firemen's civil service system); Reynolds v. Dallas County, 203, S.W.2d 320 (Tex. Civ. App. - Amarillo 1947, no writ) (upheld statute that authorizes county comissioners courts to adopt provisions of voting machine law); Rosebud Independent School District v. Richardson, 2 S.W.2d 5'13 (Tex. Civ. App. - Austin 1928, no vrit) (upheld statute that allowr, county school trustees to chaoge the lines of legislatively crsated s&o01 districts); Sullivan v. Roach-Mani= Paving Co. of Texas, 220 S.W. 444 (Tcx. Civ. App. - San Antonio 1920, Wit dism'd) (upheld ststum: that authorizes city to accept urovisious of street improvement stilrute); see also Attorney Gene&l Opinion MW-11 (1979) (statute is constitutional that exempts automobiles from ad valorem taxation except where local taxing jurisdictions choose to impose a tax on automobiler~).
For several rsasons, we do not think that the cases cited above control the issue before us. Those cases are based on a rule that is considered an exception tc' the general language of limitation in the See Reynol53, 203 S.W.2d at 324; see also Attorney constitution. General Opinions-11 ('1979). That avolics when the exception leglslatur; has given a municipality the- autboriti to determine whether a general LtLt2r:e shall becone effective within the jurisdiction of the munic:lpality in situations in which it would be impossible for 1egisLzture to determine whether the benefits of *3 Mr. Allen Parker, Sr. - Page 2’ (J&483)
the general statute are aeedfrti in that municipality. Reynolds, 203 S.W.Zd at 324. That axcepritm does not apply here. Article 6687-Ya provides for the licensing of operators of vehicle storage facilities.
The purpose underlying arti~zle 6687-Ya Is to ensure that storage facilities maintain adequate standards for the care of stored vehicles. V.T.C.S. art. 66:37-Ya, 54. We see no reason why the standards or the need for standards should vary from city to city.
Therefore, the rationale of Reynolds and similar cases does not apply in this instance. Where t:hs exception set out in Reynolds Is inapplicable, we think the general rule of unconstitutionality in Hitchell must apply.
Also, Reynolds and the other cases cited above uphalti statutes creating a situation in which the voters or the governing body of a political subdivision could choose whether or not the pcliticsl subdivision itself wculd exercise certain powers provided for by general law. Article 6687-98, in contrast, presents a situation in which the governing body of ,a city may decide that an administrative agency may not exercise powers: provided for by general law within the city limits of the city. We do not think that the authority of a city to limit the power of a stat,e administrative agency can be justified on the basis of cases that a:ll.ow political subdivision to limit their own power, particularly eln~ those cases are an exception to the general rule of unconstitutionality. Consequently, it is our opinion that section 13(a) of article 6687-9s is unconstitutional.
We also hold that the, unconstitutional provision of article 6687-Ya is severable from the rest of the statute. An unconstitu- tional provision does not runder an entire enactment void unless it appears that the legislature would not have enacted the statute without the unconstitutlonsl provision or unless the statute is unworkable without the unconstitutional provision. Harris County .Water Control & Improvement Jistrict No. 39 v. Albright, 263 S.W.2d 944, 947 (Tex. 1954). The Local options provision of article 66S7-Ya is not centerpiece of thlc statute, so it does not appear that the legislature would not have truacted article 6687-9a without the local option provision. Also, the regulatory scheme provided for by article 6687-Ya can certainly be executed without the provision that allows cities to exempt themselves from the regulatory scheme. Therefore, the rest of article 6687-Ya :Ls valid.
Tour second question is whether the Texas Department of Labor and Standards may adopt a fee schedule governing the amount vehicle storage facilities may charge for storage. Rules promulgated by an administrative agency must 1~ within the granted power and "may cot ie?pose additional burdens, cxditions, or restrictfoos in excess of or lcccasisttrtt with statutory ;:rovisic~b.” Eexar County Fail Eond Board ---- v. Ceckard, 604 S.W.2d 214, 216 (Tex. Civ.-App. - San Antonio IYEC, no writ). Article 6687-?a g:ives the department authority to issue *4 Mr. Allen Parker, Sr. - Page 4 (JM-483)
licenses to persons who opcratl? stcragc facilities and to make various rules regarding licensing. 11: gives the department no authority to regulate the fees charged by storage facilities. Therefox;. the department may not adopt a fee schedule governing the amount storage facilities may charge.
SlJ M M A R Y Article 6687-Ya, mction 13(a), V.T.C.S., which allows cities to exempt themselves from application of the provisions of article 6687-96, is unconstitutional, The Texas Department of Labor and Standards may net adopt a fee schedule governing the ~IDOCGL vrhicir storage facilities my charge for storage. Very ruly your s bJt+
A
JIM RATTOX Attorney General of Texas JACK HIGRTOWXR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney Galera
ROBXRT GRAY
Special Assistant Attorney Genrral
RICK GILPIN
Chairman. Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General