ATTORNEY GENERAL

Opinions

Opinion No. KP-0274

The Honorable Morgan Meyer

Chair, General Investigating Committee

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether provisions of the Dallas City Code regarding dangerous dogs conflict with chapter 822 of the Health and Safety Code (RQ-0287-KP)

S U M M A R Y

Subchapter D, chapter 822 of the Health and Safety Code governs dangerous dogs and incorporates local regulation. Under the home-rule amendment of the Texas Constitution, however, a municipality cannot adopt an ordinance that conflicts with or is inconsistent with state law.

Section 822.042 allows thirty days for an owner to comply with the applicable requirements for owning a dangerous dog. A municipal ordinance imposing a shorter compliance deadline cannot be harmonized with the statute and therefore the municipal ordinance provision would fall.

Subsection 822.0423(c-1) provides for an appeal bond in an amount established by the court. A municipal ordinance seeking to change the amount of an appeal bond is unenforceable. The section does not, however, purport to limit other fees or costs that a municipality may impose on an owner.

Though a municipal ordinance providing for the destruction of a dog running at large could be a valid exercise of a municipality's police power, the government's impoundment or destruction of personal property invokes the constitutional protection of due process of law. A municipal ordinance affording an owner no process to redeem the dog or to appeal certain determinations whatsoever would likely fail a procedural due process challenge. Moreover, section 822.0424 provides a right to appeal certain determinations made with respect to a dangerous dog and its owner. And subsection 822.042(e) expressly protects a dangerous dog from destruction during the pendency of such an appeal. A municipal ordinance providing for the destruction of a dangerous dog during the appeal is contrary to the statute and is unenforceable.

A municipality may exercise its powers only within its corporate limits unless its power is extended by law to apply to areas outside those limits. Nothing in subchapter D authorizes a city to extend its dangerous dog ordinance outside of its city limits.

Opinion No. KP-0275

The Honorable William James Dixon

Navarro County Criminal District Attorney

Navarro County Courthouse

300 West 3rd, Suite 301

Corsicana, Texas 75110

Re: Whether probable cause affidavits that may identify child victims may be released to the public upon a request made to a justice of the peace (RQ-0288-KP)

S U M M A R Y

Article 15.26 of the Code of Criminal Procedure makes probable cause affidavits public information, but a court could conclude that subarticle 57.02(h) prohibits the disclosure of identifying information regarding a child sex offense victim from the affidavits in this case by a justice of the peace without a court order. Whether a justice of the peace could issue such an order depends on the nature of the underlying offense. A court could conclude that the two statutes may be reconciled through redaction of the identifying information.

Opinion No. KP-0276

The Honorable Bill Moore

Johnson County Attorney

Guinn Justice Center

204 South Buffalo Avenue, Suite 410

Cleburne, Texas 76033-5404

Re: Whether section 43.106 of the Local Government Code, requiring municipal annexation of county roads adjacent to annexed property, applies to voluntary annexations initiated pursuant to former section 43.028 of the Local Government Code (RQ-0289-KP)

S U M M A R Y

Section 43.106 of the Local Government Code requires a municipality that annexed any portion of a county road or an area abutting a county road by granting a petition under former section 43.028 to also annex the full width of the road and adjacent right-of-way.

Depending on the relief sought, a county could challenge a municipality's annexation under section 43.106 of the Local Government Code in an action in quo warranto, declaratory judgment, or both.

For further information, please access the website at www.texasattorneygeneral.gov or call the Opinion Committee at (512) 463-2110.

TRD-201903847

Ryan L. Bangert

Deputy Attorney General for Legal Counsel

Office of the Attorney General

Filed: October 22, 2019