Section 1.08 limits what cities, counties, and other local entities can criminalize. It is the basis for challenging a municipal ordinance that duplicates the Penal Code.
What the Statute Says
No governmental subdivision or agency may enact or enforce a law that makes any conduct covered by this code an offense subject to a criminal penalty. This section shall apply only as long as the law governing the conduct proscribed by this code is legally enforceable.
The section is generally understood to leave intact local regulation where another state statute authorizes it, or where the conduct is not covered by the Penal Code at all.
What Cities Can and Cannot Do
Cannot. Enact an ordinance criminalizing conduct the Penal Code already covers — a city "assault" ordinance, a municipal theft provision, or a local version of an offense the Legislature has defined.
Can. Regulate a wide range of conduct that the Penal Code does not address, or that other state law expressly permits municipalities to regulate: traffic and parking, noise, nuisance, health and sanitation, animal control, building and fire codes, park rules, and licensing. Note that Section 42.12 expressly preserves municipal authority to prohibit the discharge of a firearm, which illustrates how the Legislature carves out local authority when it intends to.
Raising Preemption
Preemption is a pretrial issue. Where a client is charged under a municipal ordinance, the analysis is:
- What conduct does the ordinance criminalize?
- Is that conduct covered by the Penal Code?
- Does another state statute authorize the local regulation?
If the answer is that the Penal Code covers it and no statute authorizes the ordinance, the ordinance cannot be enforced and the charge should be dismissed — by motion to quash or motion to dismiss in the municipal court, with the ruling preserved for appeal.
Because most ordinance prosecutions are fine-only Class C matters handled without counsel, these challenges are rarely made. That is a reason to make them: a dismissal on preemption grounds is expungeable, while paying the fine is a conviction.
Related
- Objectives of the code (1.02) · Effect of code (1.03)
- Discharge of a firearm in certain municipalities (42.12)
- Clearing your record: expunction
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.