Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

GERALD C. MANN ATTORNEY GENZICAL

Jocorable Bert Ford, Administrator Texas Liquor Control Board Justin, Texas

Dear Sir:

Opinion No. 0-1881 Yes: Can a city duly incorporated under the laws of this State pass a valid ordinance making it no-offense to drive an automobile within the corporate limits of the city while under the influence of intoxicating beverages providing penalty therefor, and placing jurisdiction of the trial of such cases in corporation court?

Your request for an opinion upon the above stated question has been received and carefully considered by this Department.

Article 82, Code of Criminal Procedure of Texas, reads as follows:

"The corporation court is each incorporated city, town of village of this State shall have jurisdiction within the corporate limits in all criminal cases arising under the ordinances of such city, town or village, and shall have concurrent jurisdiction with any justice of the peace in any имеют in which said city, town or village is situated in all criminal cases arising under the criminal laws of this State, in which punishment is by the only, and where the maximum of such fine may not exceed two hundred dollars, and arising within such corporate limits."

Article 802, Penal Code of Texas, reads as follows:

"Any person who drives or operates an automobile or any other motor vehicle upon any street or alley, or any other place within the limits of any incorporated city, town, or village, or upon any public road or highway in this State while such person is intoxicated, or in any

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1. Bert Ford, Page 2 "degree under the influence of intoxicating liquor, shall upon conviction be confined in the penitentiary for 20 t more than two (2) years, or be confined in the county jail for not less than five (5) days nor more than ninety (90) days and fined not less than fifty Dollars ( 550 ) nor more than five hundred Dollars ( 5500 )."

Article 11, Section 4, Texas Constitution, provides, 2004 other things, that cities and towns having a population of five thousand or less may be chartered alone by general law.

Article 1145, Revised Civil Statutes of Texas, applicable to cities incorporated under the General laws of Texas, reads as follows: "The mayor shall be the president of the board of alderman and shall, with three of the eldermen, constitute a quorum for the transaction of business; and the quorum shall have power to enact such by-laws and ordinances not inconsistent with the laws and constitution of this State as shall be deemed proper for the government of the corporation."

Section 5, Article 1146, Revised Civil Statutes of Texas, applicable to cities incorporated under the General laws of Texas, prescribing the powers of aldermen, reads as follows: "Have power to prescribe the fine to be imposed by the mayor for the violation of any by-laws or ordinance, which shall in no case exceed one hundred dollars; but no fine shall be imposed except upon the verdict of a jury, should the defendant demand a trial by jury."

Article 11, Section 5, Texas Constitution, provides among other things that cities having more than five thousand inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or avoid their charters, subject to such limitations as may be prescribed by the Legislature, and provides that no charter of any ordinance passed under said charter shall contain any provision inconstistent with the Constitution of the State, or of the general laws enacted by the Legislature of the State.

*3 Jrtiolo 1165, Revised Civil Statutos of Taxas, applicable to Eone Rule cities, provides among other things, that no charter or any ordinances passed under said charter shall costain any provibion Inconsistent with the Constitution or General Laws of this State.

Texas Jurisprudence, Vol. 30, Huncipal Corporations, 0167, Pagas 301-2, reads, in part, as follows: "Ordinanoes whioh are in confliot with the Constitution or the state law are rold. This is true of ordinanoes enacted by muncipalities which operate under tho general law or which have speoial charters, - and also of ordinances enacted by hoss rulo cities, the expreas provieion of the Constitution and the atstute being that no ordinance passed under a home rule charter shall contain any provision Inconsistent with the Constitution or general lave of the State. . . ."

Texas Jurisprudence, Vol. 30, Hunioipal Corporations, Section 163, Pagas 304-5, reads, in part, as follows: "An ordinance may make an act an ofrense against the muncipality thoug it is also an offense against the state law, and an ordinance denouncing the same offense may be ad:issiblo in a prosention for violating a state law. But, if the state denounces an offense and fixed a punishment for it, an ordinance denouncing the same offense must be the same as the state law both as to doflnition and puniahment. "As a rule, an ordinance is rold which makes that an offense which is pernissiblo under the state law, or which permits that which is rade an ofrense by the Penal code; and the same is true of an ordinance which regulates the same thing and defines substantially the same offense as a state statute, but presoribes a greater or less or different penalty than that prescribed by the statute. . ."

In the case of city of Hink vs. Criffith Amusement Company, 100 S. W. (2d) 695 (Supreme Court of Texas), a city ordinance of the city of Hink providing a fine of $\$100$ . for operation of prize drawing by lot of monay or other thing of ralus at place of amusement and making each day's violation a separate offonse was held rold for confliet with statutory penalty of fine of $\$100$ . to $\$1000$ . for conduct of "lottery."

The city may not deolare an ofrense and fix a penalty where the state has already denounced the same thing as an offense and fixed a higher penalty therefor then the city can

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Impose. Xydias Amusement Company v. City of Houston (Civ. App.) 185 S. W. 415, error refused. Also see the case of Ex Parte Farley, 144 S. W. 530, and Ex Parte Jonischkies, 244 S. W. 997.

An ordinance regulating operation of vehicles at intersections, and providing different penalty from that prescribed in statute was held invalid. See El Paso Electric Company Va. Collins, 23 S. W. (2d) 295 (Com. App.) 25 S. W. (2d) 807. (Com. App.)

You are respectfully advised that it is the opinion of this Department that your question should be answered in the negative and it is so answered.

Very truly yours,

ATTORNEY GENERAL OF TEXAS By

M. J. Fanning

Assistant

REC: 1124

APPROVEDFEB 19, 1940

Yenced

ATTORNEY GENERAL OF TEXAS