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OPINION
Nos. 04-07-00669-CR, 04-07-00670-CR,
04-07-00671-CR & 04-07-00672-CR
The STATE of Texas,
Appellant
v.
Sophia D. CHACON, Grayce G. Benesch, & Charlene Piekarski,
Appellees
From the County Court at Law No. 3, Bexar County, Texas
Trial Court Nos. 115107, 115108, 115109, & 115111
Honorable David Rodriguez, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Dissenting opinion by: Steven C. Hilbig, Justice
Sitting: Alma L. López, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: September 17, 2008
AFFIRMED
This appeal concerns the validity of a penalty provision within a San Antonio city ordinance
regulating sexually oriented businesses. The municipal court determined it did not have jurisdiction
over violations of the portions of the ordinance in question and dismissed several cases. The State
of Texas appealed the municipal court ruling to the county court, which affirmed the dismissals. The
State then perfected an appeal to this court, arguing that the county court committed an error of law
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in finding that the penalty provided within the city ordinance conflicts with Texas Local Government
Code Chapter 243. Because the penalty provision in the city ordinance does directly conflict with
section 243.010(b) of the Texas Local Government Code, we affirm the judgment of the municipal
court dismissing the cases for lack of jurisdiction.
BACKGROUND
On June 9, 2005, the City of San Antonio enacted Ordinance 101022 (“the Ordinance”),
regulating human display establishments.1 Section 21-300(1) of the Ordinance stated it was
“unlawful for an individual to intentionally or knowingly appear in a state of nudity in a public
place.” SAN ANTONIO , TEX ., Ordinance 101022 § 21-300(1) (repealed April 17, 2008, and reenacted
as SAN ANTONIO , TEX . CODE art. IX § 21-205(a) (2008)). Section 21-701(7)(a) provided it was
“unlawful for any person to intentionally or knowingly entertain or appear in a state of semi-nudity
on the premises of a human display establishment unless the person is more than three (3) feet from
any patron or customer.” Id. § 21-701(7)(a) (reenacted as id. § 21-214(g)(1)). Any violation of the
Ordinance was punishable by a fine not to exceed two thousand dollars.2 Id. § 21-303(1) (reenacted
as id. § 21-208(a)).
On March 29, 2006, appellees Sophia D. Chacon, Grayce G. Benesch, and Charlene Piekarski
were working at a gentleman’s club, XTC Cabaret, which the parties agree is a “human display
1
Ordinance 101022 was repealed and reenacted on April 17, 2008. See S AN A N TO N IO , T EX . C O D E art. IX
(2008). The provisions of Ordinance 101022 at issue in this appeal were reenacted in article IX just as they originally
appeared. Compare id. §§ 21-300(1), 21-303(1), & 21-701(7)(a) with S AN A N TO N IO , T EX ., Ordinance 101022 §§ 21-
205(a), 21-214(g)(1), & 21-208(a) (June 9, 2005). Because the alleged offenses occurred while Ordinance 101022 was
in effect, we shall refer to the sections of that Ordinance, as do the parties, in conducting our review.
2
Misdemeanors are generally referred to as Class A, B, or C misdemeanors. See T EX . P EN AL C O D E A N N .
§ 12.03 (Vernon 2003). An offense punishable by fine only is considered a Class C misdemeanor. T EX . P EN AL C O D E
A N N . § 12.41(3) (Vernon 2003).
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establishment” as defined by the Ordinance. SAN ANTONIO , TEX . CODE art. IX § 21-200 (2008). San
Antonio vice officers entered the club and observed appellees’ dress and actions. Based on those
observations, the officers believed appellees were violating section 21-300(1), the nudity provision,
and section 21-701(7)(a), the three-foot provision. The officers cited appellees for violations of both
provisions.
Because the Ordinance provided that violations of sections 21-300(1) and 21-701(7)(a) were
punishable by fine only, appellees were set to appear in municipal court. See TEX . CODE CRIM .
PROC. ANN . art. 4.14 (Vernon 2005) (restricting municipal court jurisdiction to criminal cases in
which offense is punishable by fine only). Appellees filed a plea to the jurisdiction in each case
asserting the municipal court lacked jurisdiction. The municipal court agreed, finding that section
21-303(a), the punishment provision of the Ordinance, which provided for punishment of a violation
as a Class C misdemeanor, was void because it conflicts with section 243.010(b) of the Texas Local
Government Code, which declares that violations of municipal ordinances regulating sexually
oriented businesses are Class A misdemeanors.3 Compare SAN ANTONIO , TEX ., Ordinance 101022
§ 21-303(1) (repealed April 17, 2008, and reenacted as SAN ANTONIO , TEX . CODE art. IX § 21-208(a)
(2008)) with TEX . LOC . GOV ’T CODE ANN . § 243.010(b) (Vernon 2005). Because a Class A
misdemeanor is beyond the jurisdiction of the municipal court, and because the pending charges
against the defendants for violating Ordinance 101022 could only be properly punished as a Class
A misdemeanor, the municipal court granted the appellees’ pleas to the jurisdiction. The State
appealed to the county court, which, after reviewing the briefs submitted by the parties and hearing
3
Class A misdemeanors are punishable by a fine of up to $4,000.00, jail time of up to one year, or both. T EX .
P EN AL C O D E A N N . § 12.21 (Vernon 2003).
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argument, sustained the ruling of the municipal court. The State then perfected its appeal to this
Court.
APPLICABLE LAW
In 1912, Texas adopted a constitutional amendment providing for home rule in cities with
populations over 5,000. TEX . CONST . art. XI, § 5 interp. commentary. This amendment, known as
the “Home Rule Amendment,” essentially fashioned such cities into “mini-legislatures,” giving them
“full authority to do anything the legislature could theretofore have authorized them to do.”
Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282, 286 (1948); City of San Antonio v. City
of Boerne, 111 S.W.3d 22, 26 n.5 (Tex. 2003). Home rule cities therefore derive their powers not
from the Legislature, but from the Texas Constitution. TEX . CONST . art. XI, § 5; see TEX . LOC .
GOV ’T CODE ANN . §§ 51.071-.072 (Vernon 2008) (providing that home rule municipality has full
power of local self government); see also City of Galveston v. State, 217 S.W.3d 466, 469 (Tex.
2007). These cities possess “the full power of self government and look to the Legislature not for
grants of power, but only for limitations on their power.” In re Sanchez, 81 S.W.3d 794, 796 (Tex.
2002) (quoting Dallas Merchant’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489,
490-91 (Tex. 1993)). Home rule cities have “all the powers of the state not inconsistent with the
Constitution, the general laws, or the city’s charter.” City of Galveston, 217 S.W.3d at 469 (quoting
Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998)). These “broad powers” may be limited by
the Legislature only when its intent to do so “appears with unmistakable clarity.” Proctor, 972
S.W.2d at 733.
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Home rule city ordinances are presumed valid. Sanchez, 81 S.W.3d at 796. A state law
preempts a home rule city ordinance only to the extent the state law is irreconcilably inconsistent.
Id. That the Legislature has enacted a law addressing the subject matter in question does not mean
the subject matter is completely preempted. City of Richardson v. Responsible Dog Owners of
Texas, 794 S.W.2d 17, 19 (Tex. 1990). The state law and city ordinance will not be held “repugnant
to each other” if the court can reach a reasonable construction that leaves both in effect. Sanchez,
81 S.W.3d at 796. And, if there is no conflict, the ordinance is not void. Responsible Dog Owners,
794 S.W.2d at 19.
The City of San Antonio is a home rule city. Tex. River Barges v. City of San Antonio, 21
S.W.3d 347, 352 (Tex. App.–San Antonio 2000, pet. denied). “San Antonio is not required to look
to the legislature for a grant of power to act, but only to ascertain if the legislature has placed any
limitations on the city’s constitutional power.” Burch v. City of San Antonio, 518 S.W.2d 540, 543
(Tex. 1975). The courts should restrict San Antonio’s autonomy only if the Legislature clearly and
unmistakably intended to withdraw a particular subject from the City’s domain. See Lower
Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641, 645 (Tex. 1975).
DISCUSSION
The issue in this appeal is not whether the City of San Antonio can regulate sexually oriented
businesses. Instead, the narrow question presented is whether the trial court correctly determined that
the enforcement provision within the Ordinance directly conflicts with the enforcement provision
contained within Chapter 243 of the Texas Local Government Code, and is therefore preempted. The
State argues both statutes can be harmonized to operate together because Chapter 243 applies in only
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specified areas and does not limit the power of the City to regulate sexually oriented businesses in
other areas.
We begin our analysis by examining the state statute at issue. Generally, we construe statutes
as written and, when possible, ascertain the legislative intent from language used within the statute.
See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 706 (Tex. 2002). We also construe the
statute as a whole and will not give one provision a meaning which is out of harmony or inconsistent
with other provisions. Id. Applying those principles to Chapter 243 of the Texas Local Government
Code, it is apparent that the Legislature intended to provide a broad framework for regulation of
certain “sexually oriented businesses” while authorizing municipalities and counties to enact
ordinances within that framework. See, e.g., TEX . LOC. GOV ’T CODE ANN . § 243.001(a) (Vernon
2005) (“unrestricted operation of certain sexually oriented businesses may be detrimental to the public
health, safety, and welfare”); § 243.001(b) (“chapter does not diminish the authority of a local
government to regulate sexually oriented businesses with regard to any matters”); § 243.003(a)
(“municipality . . . may adopt regulations . . . to promote the public health, safety, or welfare”);
§ 243.006(a)(1) (“sexually oriented businesses may be [ ] restricted to particular areas”); § 243.007(a)
(municipality may require owner or operator of sexually oriented business to obtain a license or other
permit); § 243.008 (municipality may inspect a sexually oriented business); § 243.009 (municipality
may impose fees). “Chapter 243 is the enabling legislation that permits municipalities to regulate
sexually oriented businesses.” Haddad v. State, 9 S.W.3d 454, 459 (Tex. App.—Houston [1st Dist.]
1999, no pet.). In addition to the provisions authorizing municipalities and counties to regulate
sexually oriented businesses, the Legislature crafted an enforcement provision. TEX . LOC. GOV ’T
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CODE ANN . § 243.010 (Vernon 2005). With unmistakable clarity, the Legislature defined the offense
and set the punishment as a Class A misdemeanor:
A person commits an offense if the person violates a municipal or county regulation
adopted under this chapter. An offense under this subsection is a Class A
misdemeanor.
TEX . LOC. GOV ’T CODE ANN . § 243.010(b) (emphasis added); see also Thompson v. State, 44 S.W.3d
171, 175 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Flores v. State, 33 S.W.3d 907, 915 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref’d.); State v. Xoticas-Laredo, Inc., No. 04-03-00584-CR,
2004 WL 33054, at *1 (Tex. App.—San Antonio, Jan. 7, 2004, no pet.) (mem. op.) (not designated
for publication).
Accordingly, the issue before us today is whether a city can enact an ordinance under the
authority of Chapter 243, but impose a lesser fine or penalty than a Class A misdemeanor for
violations of the ordinance.4 The State concedes that the Ordinance at issue was enacted by the City
in part under the authority of Chapter 243 of the Texas Local Government Code, but argues that it was
also enacted “under” the city’s inherent authority as a home rule city. In essence, the State contends
that section 243.010(b) is an “additional grant of power” to the City to enhance a violation from a
Class C misdemeanor to a Class A misdemeanor for only the “specified violations” enumerated in
Chapter 243 — particularly, location limits and owner permit requirements. See TEX . LOC. GOV ’T
CODE ANN . §§ 243.006, 243.007. Otherwise, the State contends the City retains its inherent power
4
The enforcement provision at issue in the Ordinance reads, “[t]he violation of any provision of this article,
including the doing of anything which is herein prohibited or declared to be unlawful or the failure to do anything or
perform any duty which is required herein, shall be punishable as a class C misdemeanor with a fine not to exceed two
thousand dollars ($2,000.00), as provided by Section 54.001 of the Local Government Code.” See Ordinance 101022,
§ 21-303.
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as a home rule city to impose a lesser fine or penalty for the violation of an ordinance that governs
public health and sanitation. See TEX . LOC. GOV ’T CODE ANN . § 54.001(b) (Vernon 2008) (fine or
penalty for violation of ordinance governing public health not to exceed $2,000). In other words, the
State argues that punishment for violations of the city ordinance are “fact specific,” depending on the
“respective enabling statutes.” The State concedes that if the offenses committed by appellees had
been location or owner permit violations then they would “clearly be Class A misdemeanor offenses.”
However, because Chapter 243 does not regulate the conduct of employees of sexually oriented
businesses, the City could set punishment at a Class C misdemeanor for violations of the nudity and
the three-foot rule as allowed under its inherent authority. See id. We respectfully disagree with the
State’s underlying premise that the enforcement provision of section 243.010(b) applies only to
“specified violations” enumerated within Chapter 243.
Although the State asserts the enforcement provision of Chapter 243 applies only to sections
243.006(a) (municipality may restrict location of sexually oriented businesses) and 243.007(a)
(municipality may require owner or operator of sexually oriented business to obtain license or permit),
the State cites no legal authority for this proposition, nor does any provision within Chapter 243
support the State’s argument. When enacting Chapter 243, the Legislature expressly found that “the
unrestricted operation of certain sexually oriented businesses may be detrimental to the public health,
safety, and welfare by contributing to the decline of residential and business neighborhoods and the
growth of criminal activity.” Id. § 243.001(a). Accordingly, the Legislature granted local
governments broad authority to “adopt regulations regarding sexually oriented businesses as the
municipality . . . considers necessary to promote the public health, safety, or welfare.” Id.
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§ 243.003(a). Neither the stated purpose nor the broad grant of authority contained within section
243.003 limits the type of municipal regulations contemplated under the Chapter, as suggested by the
State. Therefore, we disagree that section 243.010(b) applies only to location or owner permit
violations. Further, we do not agree with the State that Chapter 243 does not contemplate regulating
the conduct of employees of sexually oriented businesses. See Ex Parte Smalley, 156 S.W.3d 608,
610-611 (Tex. App.—Dallas 2004, pet. dism’d); Thompson, 44 S.W.3d at 176; Flores, 33 S.W.3d
at 916; Haddad, 9 S.W.3d at 458.
As a home rule municipality, the City of San Antonio has broad powers of self government —
provided that no ordinance “shall 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. In this
case, the applicable enforcement provision in the Ordinance sets punishment as a Class C
misdemeanor, which directly conflicts with section 243.010(b) establishing punishment for a violation
of a municipal regulation as a Class A misdemeanor. TEX . LOC . GOV ’T CODE ANN . § 243.010(b).
Had the Legislature intended a broad range of punishment for an offense under Chapter 243, it could
have easily provided that an offense was punishable “up to a Class A misdemeanor” — reserving
the municipality’s authority to punish a violation as either a Class A, Class B, or Class C
misdemeanor. However, the Legislature did not say that; instead, it plainly provided that an offense
“is a Class A misdemeanor.” Id.
Here, as conceded by the State, the City’s Ordinance was enacted under the broad grant of
authority provided by Chapter 243 in an effort to regulate sexually oriented businesses. Because the
Ordinance contains an enforcement provision (Class C misdemeanor) that directly conflicts with and
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is, therefore, inconsistent with the enforcement provision of a state statute (Class A misdemeanor),
we hold that the City’s enforcement provision is preempted, and thus unenforceable. See Dallas
Merchant’s, 852 S.W.2d at 491. Accordingly, we affirm the judgment of the municipal court
dismissing the cases for lack of jurisdiction.
Phylis J. Speedlin, Justice
PUBLISH
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