Case Information
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The Attorney General of Texas August 25, 1980
MARK WHITE
Attorney General
Honorable John T. Montford Opinion No. 14~1-228 Criminal District Attorney Re: Whether a home rule city can
Ltibock County Courthouse provide for issuance of Lubbock, Texas 79401 administrative search warrants Dear Mr. Montford:
You ask whether a home rule city can enact sn ordinance providing for administrative search warrants, and whether a municipal court judge, acting as a magistrate, can issue such administrative search warrants. For the reasons to be hereinafter stated, we believe that both questions should be answered in the affirmative.
The law is well settled that a home rule city derives its powers from article Xl, section 5 of the Texas Constitution. Lower Colorado River Authority v. City of San Marcos, 523 S.W. 2d 641 (Tex. 1975). A home rule city is not required to look to the legislature for a grant of power to act, but only to ascertain whether the legislature hes acted to limit the city’s constitutional power. Burch v. City of San Antonio, 518 S.W. 2d 540 (Tex. 1975). Therefore, all powers enumerated in its charter which ere not denied it by the constitution or general laws of the State of Texes, may be lawfully exercised by a home rule city.
We find no constitutional or statutory provision prohibiting a home rule city from providb for the issllance of administrative to ensure compliance with the city codes enacted to protect the health, safety and welfare of its inhabitants.
City of Lubbock Ordinance No. 7859 provides for the issllance by municipal court j-es of “code enforcement search warrants” to city inspectors charged with enforcement of city codes dealing with, but not limited to, zoning and environmental control, and housing and building inspection. Such administrative search warrants may’be issued only lpon sworn affidavits supported by probable muse and may authorize inspection of the presence of any code violations. No authority to effect any arrest or seizure of any property is granted by these issued to city inspectors, none of whom are commissioned peace officers tmder article 2.12 the Code of Criminal Procedure.
. . (MW-228)
Honorable John T. Montford - Page Two We believe Lubbock City Ordinance No. 7859 to be in stistantial compliance with article 18.05 of the Code of Criminal Procedure, which specifically authorizes issuance of administrative to city health officers and fire marshals. Article 18.05 was enacted by the legislature in response to decisions by the Supreme Court of the United States, which established the need fcr compliance with the warrant requirements of the Fourth Amendment in administrative searches of both residential and commercial premises. Camera v. Municipal Court, 387 U.S. 523 (1967); See v. City of Seattle, 367 U.S. 541 (1967). See also Michigan v. Tyler, 436 U.S. 499 11978); Marshall v. Barlow’s, Inc., 436 U.S. 307(197
We believe the issuance of such administrative search warrants by a home rule city to be a reasonable exercise of its general police powers enumerated in article 1175, V.T.C.S., which extend to the reasonable omtection of the wblic health. safetv end welfare.. Texas Power and Light Company v. City of Garland, 431 S.W. ‘2d 5lliTex. 1968); John v. State, 577 S.W. 2d 483 (Tex. Crim. App. 1979).
It is therefore our opinion that a home rule city may enact an ordinance providirg for the issuance of administrative in compliance with the provisions of article 18.05 of the Code of Criminal Procedure.
Article 18.01(c) of the Code of Criminal Procedure prohibits a municipal court judge from issuing an evident&y search warrant under article 18.02(10), which provides for the seizure of evidence in a criminal case. However, as recognized by the United States Supnsme Court in Camara and See, M, there is a distinction between an search warrant and a m%inal search warrant, and each requires a different standard of probable cause for its issuance.
A criminal search warrant may be issued only upon a finding of probable cause supported by sn afficbvit that a criminal offense hss been committed and that certain specified property is therefore stiject to seizure. Code Crim. Proc. arts. 18.01, 18.02. Additionally, a criminal search warrant may order the arrest of the suspected offender. Code Crim. Proc. art. 18.03.
An adminstrative search warrant under article 18.05 of the Code of Criminal Procedure may cnly be issued for the purpose of allowing en inspection of specific the presence of hazardous conditions prohibited by law. In determining probable cause for the issuance of an administrative search warrant under article 18.05 the magistrate is not limited to evidence of specific knowledge, but may consider any of the following:
(1) the ege and general condition of premises; (2) previous violations a hazards found present in the premises;
(3) the type premises;
(4) the purposes for which the premises are used; and (5) the presence of hazards or violations in and the general conditions of premises near the premises sought to be inspected. *3 (NW-2281
Honorable John T. Montfad - Page Three Probable cause to believe that a criminal offense has been committed is not a prerequisite to the Issllance of en administrative search warrant under article 18.05, nor may en administrative search warrant order arrest of any person or the seizure of any property.
Accordingly, we believe that a municipal court judge sitting as a megistrate pursuant to article 2.09 of the Code of Criminal Procedure would not be prohibited by the language of article 18.01(c) of the Code of Criminal Procedure from Issuing an search warrant as authorized by article 18.05 and City of Lubbock Ordinance No. 7859.
SUMMARY A home rule city can enact en ordinance providing for administrative search warrants to be issued by a municipal court judge.
MARK WHITE Attorney General of Texas JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Gerald C. Carruth
Assistant Attorney General
APPROVED:
OPINION COMMTTTEE
C. Robert Heath, Chairman
Jon Bible
Gerald C. Carruth
Susan Garrison
Rick Gilpin