Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
May 29, 1981
MARK WHITE
Attorney General
Honorable Oscar II. Mauzy Opinion No. NW-345
Senate Committee on Jurisprudence
Texas Senate, State Capitol Re: Constitutionalityof
Austin, Texas 707ll House Bill 733
Dear Senator Mauzy:
On April 21, 1981, we issued Attorney General Opinion MW-326 (1981),
which upheld as constitutional the provisions of House Bill 733, pending
‘before the 67th Legislature. You now ask a number of further questions
regarding this legislation.
In Attorney General Opinion MW-326, we said that “House Bill 733, as
amended, has been upheld in all respects by the only federal appellate court
which has considered the matter.‘I Althoush the bii itself was of course not
before the court in Record 638 F.
2d 916 (6th Cir., 19601,each provision of the bill to which a constitutional
objection might reasonably be raised was considered and upheld by the court.
Thus, we believe it is fair to infer from the decision that each provision of
House Bill 733 has been upheld by the Court of Appeals for the Sixth Circuit.
You ask whether House Bill 733 as presented to us provides sufficient
guidelines to prevent selective discriminatory enforcement. Although the
60th in Record Revolution No. 6, Inc. v. City of Parma,
the oossibilitv of discriminatory enforcement of this kind
de&ed to hold the ordinance unconstitutionalon this ground. &8 F. 26; at
931. Rather, it held invalid the definition of “drug paraphernalia”on the
basis of the vagueness and overbreadth of the “designed for use”standard,a
standard which has been omitted from the present version of House Bill 733.
Furthermore, both the court’s decision in City of Parma, and Attorney
General Opinion MW-326 uphold only the facial constitutionality of various
provisions of the ordinance and House Bill 733, respectively. It is well
established that the constitutionality of a statute will not be measured by
some possible future application thereof. Solesbee v. Balkcom, 339 U.S. 9,11
USSO). In Joseph E. Seagram & Sons, Inc. v. Hcstetter, 384 U.S. 35 (19661,
the Supreme Court said that where a statute not yet in effect is attacked on
constitutional grounds, its facial constitutionality is the only relevant in-
quiry. 384 U.S. at 41.
p. 1140
Oscar H. Mauzy - page 2 (m-345)
You also ask whether two of the evidentiary rules contained in House Bill 733,
specifically items (9) and (10) in section 5.15,~mightpromote selective discriminatory
enforcement by suggesting to law enforcement officials that “only businesses which
seIl prohibited items in certain quantities, such as ‘head shops,’should be prosecuted.”
The court in City of Parma rejected the contention that any of the evidentiary rules
[there called ‘logically relevant factors”] present in House Bill 733 are facially
unconstitutional. 638 F. 2d at 934. Rather, the court recognized that the list of
evidentiary rules does not supersede state rules of evidence and that state law
naturally incorporates principles of due process. In our opinion, a court would similarly
construe the evidentiary rules of House Bill 733 to conform to state evidentiary rules
and to principles of due process.
You also question item (1) of section 5.15 of the evidentiary rules. In City of
Parma, the court affirmed that “guilt must be based on personal action, statements, or
knowledge, not on association with other persons suspected of criminal conduct.” 638
F. 2d at 933. As we have previously noted, however, the evidentiary rules in
themselves incorporate state rules of evidence and principles of due process. For this
reason, the court declined to declare any of the rules similar to those present in House
BiIl 733 to. be facially unconstitutional. We believe that a court would construe the
evldentiary rules of House Bill 733 in a similar manner, and thus, uphold their facial
constitutionality. Also, 8s we have indicated, the question of unconstitutional
enforcement is not a proper inquiry here.
You ask whether the “should reasonably know” standard in item (5) of the
evidentiary rules renders this factor unconstitutional. The court in Cit of Parma
rejected the “reason to know” standard as vague and overbroad in *+ de unng the
prohibited conduct. 638 F. 2d, at 935-36. The court did not reject the standardas part
of the evidentiary rules, because, as we have noted, it presumed that state rules of
evidence and principles of due process would temper the construction of the
evidentiary rules. Id. at 933-34.
Finally, you ask us to consider House Bill 733 in light of David Clark v. City of
B, presently pending in the United States District Court, Northern District of
Texas, and three cases, pending in federal district court in Oklahoma, which challenge
the validity of recently enacted drug paraphernalia legislation in that state. We
understand that plaintiffs have taken a voluntary nonsuit in the City of Irving case,
and as of this date, none of the courts in the Oklahoma cases have rendered a decision
on the merits. In any event, the Oklahoma statute at issue differs substantially in
several respects from House Bill 733.
House Bill 733 as presented to us is not unconstitutionalas against the objections
you have suggested.
SUMMARY
House Bill 733 is not unconstitutionalwith respect to objections raised.
p. 1141
Oscar H. Mauzy - page 3 (MU-345)
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER,JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick GiIpin
Assistant Attorney General
APPROVED:
OPINIONCOMMITTRE
SusanL. Garrison, Chairman
Ride Gilpin
Jim Moellinger
Bruce Youngblood
p. 1142