Can El Paso’s curfew law stay in place with a veto by the mayor? Questions remain as new state law says no.

by Elida S. Perez, El Paso Matters
August 22, 2023

The city’s juvenile curfew ordinance is set to end on Sept. 1 despite a last-minute move by El Paso Mayor Oscar Leeser to keep it in place.

Last week, City Council voted to end the local curfew ordinance in an effort to comply with House Bill 1819 which prevents Texas cities and counties from enforcing a curfew. HB 1819 was passed during the 88th Legislative session and signed into law by Gov. Greg Abbott. The state law takes effect Sept. 1.

Two days after the council’s unanimous vote to end the curfew, which prohibits children 17 years old and younger from being out alone or with friends in public places after 11 p.m., the mayor vetoed the council’s action.

“While I understand that state law supersedes our local authority on this front, I veto this action as a first step in what will be a concentrated effort to encourage the State Legislature to reconsider this law,” Leeser said in his veto motion, adding that he received feedback from the community and local law enforcement wanting to see the curfew remain in place. 

City officials did not provide examples of any “concentrated effort” to challenge the state’s order.

The veto leaves unanswered questions about whether the city can leave the curfew ordinance in place – a potential violation of state law. Leeser and City Attorney Karla Nieman said the city does not intend to violate state law, but the mayor is hoping to gain support from other Texas municipalities to have the legislature revisit the curfew law in upcoming legislative sessions.

“The mayor's veto filed with the City Clerk states that State law supersedes our local authority on this issue as well as his intent for exercising his veto power. As such the City will comply,” Nieman said in an emailed statement to El Paso Matters.

El Paso’s curfew ordinance has been in place since 1991 as a way to reduce juvenile crime and victimization, while promoting juvenile safety and well-being.

The law is revisited every three years and was last updated in 2020. The local law established a criminal offense, or class C misdemeanor for minors and their parents, if the minor is out without adult supervision in a public place or on the premises of any establishments within the city limits during the hours of 11 p.m. and 6 a.m. Violations had a fine of up to $500.

Abbott’s office did not respond to El Paso Matters request for comment for this story.

Nieman said that the mayor's veto is a “critical first step in a coordinated attempt to express the city's concern with efforts by the State of Texas to limit local governing authority – in this case specific to HB 1819 which prohibits the city of El Paso from imposing a curfew on our youth.”

The City Council would need three fourths of all of the representatives to vote in favor of overturning the veto in order to keep the changes they made to the ordinance that coincide with state law in place.

But Leeser may have support from city representatives to stay his veto.

“He (the governor) or Austin felt that the municipalities had too much power and they were making laws that the governor didn't agree with, so this is all part of that grand scheme to limit the powers of the municipalities,” said city Rep. Art Fierro. “I think that as a municipality, the local government knows what's best for the constituents.”

Another bill passed by the state and signed into law by Abbott, referred to as the “Death Star Law” also aims to regulate aspects of commerce and trade in local jurisdictions that differ from state-imposed directives including those that deal with agriculture, insurance, labor, natural resources and occupation codes.

“It is because of bills like these and HB 2127 that we have joined the city of Houston and San Antonio in suing the State of Texas for stripping away home-rule authority and the power of our citizens to self-govern,” Nieman said.

The curfew law removes the authority from local governments to enforce a curfew for people under the age of 18, but has an unspecified exception for the purposes of emergency management.

“I think it's a symptom of an illness where they're trying to limit all the power from home rule cities,” said city Rep. Brian Kennedy, adding the state wants to limit cities’ abilities to make their own decisions. “It's a different bill (the curfew law), but it's the same impetus.”

City Rep. Alexsandra Annello said she thinks the curfew ordinance should remain in place, but does not agree with the $500 fine.

“Curfew itself aside, $500 is a lot for families in El Paso to pay if their child is breaking curfew,” she said. “I think there's a way to look at a curfew that's not going to create serious financial harm to low income families here.”

Leeser’s veto notice said he wants to work with the City Council to reexamine the penalty.

“A $500 fine for a violation is simply too high. It is overwhelming for many El Pasoans, especially as the cost of living for just about everything continues to go up,” Leeser said in the notice.

There are 43 pending cases in the municipal courts that will be dismissed based on the new legislation, Nieman said during Tuesday’s council meeting. The new law does not apply to cases that were already prosecuted or adjudicated.

Fierro said he supports the mayor’s decision to veto the removal of the city’s curfew ordinance, but thinks there should be a penalty associated with curfew violations.

“I think there needs to be some consequences or else why would they stop (breaking curfew),” Fierro said, adding the ordinance helps protect minors and judges work with families in many cases to come to a resolution that will not create hardships for families.

The mayoral veto has officials with the El Paso County Sheriff’s Department wondering if there is a recourse for possibly keeping the county’s curfew in place.

“We are going to monitor very closely the mayor’s veto to see the legalities and the direction of where that veto and the wording of the law ends up determining the future of the city’s (ordinance),” said Sheriff Cmdr. Ryan Urrutia.

Urrutia said the purpose of the curfew is to keep minors safe and from potentially being victims of crimes as well as helping reunite them with their parents.

In the county there were several “mansion” parties taking place in Montana Vista where minors were paying a cover charge and were allowed to drink and consume drugs, he said. The various parties led to several crimes, including a death, drug offenses, aggravated assaults and driving while intoxicated charges, Urrutia said.

The county is in the process of repealing its curfew order to comply with state law, Urrutia said.

“We will follow the same guidance, but we would be in support of the mayor in that (veto) because if there's a public safety provision, then of course, we want to explore that option to make sure the order is in effect,” he said.

The City Council has regular meetings scheduled Aug. 28 and 29. A special meeting would have to be called in order to overturn, or discuss the mayor’s veto before the next scheduled council meeting.

This article first appeared on El Paso Matters and is republished here under a Creative Commons license.