Municipal Corner

While a municipality may enact an ordinance that involves a subject covered by state law, to the extent that the ordinance conflicts with or is inconsistent with state law, the ordinance will be held to be void. Tex. Att’y Gen. Op. No. KP-0274 (2019).

Representative Morgan Meyer of the General Investigating Committee sought an opinion by the Attorney General (“AG”) to determine whether state law preempts certain municipal ordinances regulating dangerous dogs.

Under the Constitution, a municipal ordinance shall not “contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.” TEX. CONST. art. XI, § 5(a). In other words, a hierarchy of laws exists such that state, federal, and local laws may not contravene the Constitution, and local laws may not conflict with state and federal law. If a conflict exists, a court may hold the “inferior” law within the hierarchy is void.

The bulk of the analysis in a preemption case centers on what qualifies as a conflict with a superior law within the hierarchy. If an ordinance does not conflict with a superior law, but merely covers the same topic or involves the same subject matter as a superior law, the ordinance will stand. Thus, the State’s mere entry “into a field of legislation . . . does not automatically preempt that field from city regulation; local regulation, ancillary to and in harmony with the general scope and purpose of the state enactment, is acceptable.” BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 7 (Tex. 2016) (quotations omitted); see also City of Richardson v. Responsible Dog Owners of Tex., 794 S.W.2d 17, 19 (Tex. 1990) (“[T]he mere fact that the legislature has enacted a law addressing a subject does not mean that the subject matter is completely preempted.”).

Courts look at whether the Legislature may have intended to limit local laws. Courts require that such an “intent to impose the limitation . . . appear with ‘unmistakable clarity.’” City of Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586, 593 (Tex. 2018). If a court cannot locate such an intent and the two laws “can coexist peacefully without stepping on each other’s toes, both will be given effect or the latter will be invalid only to the extent of any inconsistency.” Id.; see City of Richardson, 794 S.W.2d at 19 (“A general law and a city ordinance will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached.” (quotations omitted)).

In this case, Representative Meyer requested that the AG comment on specific ordinances regulating dangerous dogs. The AG began by analyzing the superior laws in the hierarchy with some application to this subject. Chapter 822, Subchapter D of the Texas Health and Safety Code (“Subchapter D”) governs dangerous dogs. It does not specifically preempt all local regulation of dangerous dogs, but it does contain comprehensive requirements and procedures on the subject.

Subchapter D addresses the determination that a dog is dangerous and imposes requirements and corresponding time limits on an owner of a dog determined to be dangerous. It provides for the seizure and impoundment of a dangerous dog by the animal control authority when an owner fails to comply with the applicable requirements. It provides for the appeal of a determination that a dog is dangerous or a finding that the owner has not complied with the requirements of owning a dangerous dog. And it establishes offenses for an attack by a dangerous dog or for failure to comply with the requirements for owning a dangerous dog.

Thus, any local regulation providing for a rule or procedure inconsistent with those of Subchapter D on the above topics is likely void. But despite how comprehensively Subchapter D covers the topic of dangerous dogs, some local regulation is still permissible. In fact, Subchapter D specifically provides that a “municipality may place additional requirements or restrictions on dangerous dogs if the requirements or restrictions: (1) are not specific to one breed or several breeds of dogs; and (2) are more stringent than restrictions provided by this subchapter.” Tex. Health & Safety Code § 822.047. Moreover, Subchapter D compels compliance with applicable municipal regulations, requirements, or restrictions on dangerous dogs. Id.
§ 822.042(a)(4); see also id. § 822.042(d) (authorizing municipality or county to prescribe fees and costs related to seizure, acceptance, impoundment, or destruction of a dangerous dog and requiring owner to pay the costs or fee).

Subchapter D does provide specific instances that it applies despite any local regulation. For example, one section provides that “notwithstanding any other law or local regulation, the court may not order the destruction of a dog during the pendency of an appeal.” Id. § 822.042(e). And an owner has a right to appeal a dangerous dog determination “[n]otwithstanding any other law, including a municipal ordinance.” Id. § 822.042l(b); see also id. § 822.0424(e) (providing for an appeal to a county court or a county court at law “[n]otwithstanding any other law”). Considering these provisions with the key “notwithstanding” language, the AG found that the Legislature’s intent was to allow additional local regulation of dangerous dogs while at the same time expressly prohibiting local regulation in any specified circumstances. Thus, each municipal ordinance must be analyzed on a case-by-case basis.

The first municipal ordinance about which Representative Meyer inquired may reduce the time permitted for an owner to comply with certain requirements imposed on owners of a dangerous dog. However, Subchapter D already provides a deadline for an owner to comply with these requirements—30 days after learning the dog is dangerous. Thus, this municipal ordinance’s compliance period imposes a shorter deadline than the compliance period imposed by Subchapter D. The AG concluded that a court could not harmonize such an ordinance to give both effect, so the municipal ordinance provision fails and is preempted by Subchapter D, the superior law in the hierarchy.

The second ordinance about which Representative Meyer inquired contemplates increasing the amount required of an owner for an appeal bond. Subchapter D provides, however, that a court will set the amount of bond for an appeal. Despite this provision’s coverage of the appeal process, the AG ruled that Subchapter D did not show that the Legislature intended, with unmistakable clarity, to limit other fees or costs a municipality may impose on an owner. The AG reasoned that the appeal bond is merely a condition necessary to an appeal, so the two laws may properly coexist.

Finally, Representative Meyer asked whether a municipal ordinance may authorize the director of an animal control authority to destroy a dog found at large without providing for a time period for the owner to redeem the dog or to appeal the determination. In addition to due process concerns, the AG pointed out that Subchapter D currently provides that a court may not order the destruction of a dog during the pendency of an appeal; importantly, this limitation on the court’s authority to order the destruction applies “notwithstanding any other law or local regulation.” Id. § 822.042(e). Thus, a municipal regulation providing for the destruction of a dog during this time period is clearly contrary to the statute and unenforceable.

This AG opinion is instructive to municipalities to undertake a thorough review of applicable state and federal laws before enacting an ordinance involving subject matter likely covered by such superior laws, to ensure that the proposed municipal regulation is not preempted and unenforceable.

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Municipal Corner is prepared by Jacqueline Perrin. Jacqueline is an Associate in the Firm’s Districts Practice Group. If you would like additional information or have any questions related to these or other matters, please contact Jacqueline at 512.322.5839 or jperrin@lglawfirm.com.