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DISSENTING 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
I respectfully dissent from the majority’s determination that there is an irreconcilable conflict
between Chapter 243 of the Texas Local Government Code and the City of San Antonio’s (“the
City”) Ordinance with regard to enforcement for violations of regulations governing sexually
oriented businesses, compelling a finding of preemption.
Dissenting Opinion 04-07-00669-CR, 04-07-00670-CR
04-07-00671-CR, 04-07-00672-CR
Relying upon Dallas Merchant’s & Concessionaire’s Ass’n v. City of Dallas, appellees argue
the Ordinance is void because its enforcement provision, section 21-303(1), provided for a penalty
different from that prescribed by section 243.010(b) of the Local Government Code. See 852 S.W.2d
489 (Tex. 1993); see also Abrams v. State, 563 S.W.2d 610, 615 (Tex. Crim. App. 1978) (holding,
based on language of article XI, section 5 of constitution, ordinance that conflicted with statute was
void). Their argument suggests, and the majority agrees, the Ordinance was void because the Texas
Legislature preempted regulation in this area and the City’s action in passing an ordinance in conflict
with the State’s regulation – classifying a violation of the ordinance a Class C rather than a Class A
misdemeanor – renders the Ordinance void. The State disagrees, arguing that by its very terms
Chapter 243 contains clear language establishing the State of Texas did not intend to preempt home-
rule cities from enacting ordinances that regulate sexually oriented businesses. The majority clearly
agrees with appellees, but I agree with the State.
If the State of Texas intends to preempt an area of regulation, including a subject matter
usually encompassed by the broad powers of a home-rule city, it must do so with “unmistakable
clarity.” Dallas Merchant’s, 852 S.W.2d at 491. In Dallas Merchant’s, the supreme court decided
the passage of the Texas Alcoholic Beverage Code by the Texas Legislature prevented the City of
Dallas from enacting ordinances regulating the areas where businesses would be allowed to sell
alcohol. The court noted that section 109.57(b) of the code stated as follows:
It is the intent of the legislature that this code shall exclusively govern the regulation
of alcoholic beverages in this state, and that except as permitted by this code, a
governmental entity of this state may not discriminate against a business holding a
license or permit under this code.
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Dissenting Opinion 04-07-00669-CR, 04-07-00670-CR
04-07-00671-CR, 04-07-00672-CR
Dallas Merchant’s, 852 S.W.2d at 491. Given the unmistakable clarity of the Legislature’s intent,
the court held the city ordinances to be invalid as preempted by the State. Id. at 491, 493.
Here, a plain reading of section 243.001(b) demonstrates with “unmistakable clarity” the
Legislature did not intend to preempt regulation of sexually oriented businesses. “This chapter does
not diminish the authority of a local government to regulate sexually oriented businesses with regard
to any matters.” TEX . LOC. GOV ’T CODE ANN . § 243.001(b) (Vernon 2005). Accordingly, given the
mandates of Dallas Merchant’s and its progeny, it cannot be said that the Ordinance is void because
the Legislature preempted regulation of sexually oriented businesses, precluding home-rule cities
from exercising its inherent powers.
Nor is the Ordinance void because of a conflict with state law as found in Abrams v. State,
563 S.W.2d 610 (Tex. Crim. App. 1978). In Abrams, the court of criminal appeals considered the
validity of a city ordinance that created the offense of speeding where the offense was defined as
driving at a rate of speed greater than thirty miles per hour unless otherwise posted. Id. at 613. The
court noted the Texas Legislature had enacted an offense that defined speeding as driving a vehicle
at a “speed greater that is reasonable and prudent under the circumstances then existing . . .” Id.
Because the ordinance defined an offense by way of a rigid speed limit, it conflicted with the state
law defining speeding in a different manner. Id. at 615. The court held the ordinance to be void
because of this conflict. Id. Here, Chapter 243 does not define a criminal offense but rather grants
authority to local governments to define an offense through appropriate ordinances.
Ex parte Devereaux, 389 S.W.2d 672 (Tex. Crim. App. 1965) is more analogous to the
present case. In Devereaux, the court of criminal appeals held a city ordinance relating to speeding
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Dissenting Opinion 04-07-00669-CR, 04-07-00670-CR
04-07-00671-CR, 04-07-00672-CR
to be invalid as to its punishment provisions because the city penalty was from one to two hundred
dollars whereas the state penalty was a fine “up to two hundred dollars.” Id. at 673. Accordingly,
under Devereaux, an ordinance is invalid if both the ordinance and the statute define an offense, but
the ordinance sets a punishment different from that provided by the statute. See id. Here, unlike in
Devereaux, there is no state statute criminalizing the same conduct prohibited by the Ordinance.
Based on the logic in Devereaux, there is no conflict between the enforcement provision of the
Ordinance and section 243.010(b).
Moreover, to interpret section 243.010(b) as creating a mandate that every ordinance relating
to a sexually oriented business must be a Class A misdemeanor would render meaningless the clear
and express language of section 243.001(b), which is contrary to long-standing rules of statutory
construction. See, e.g., Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007)
(mandating that for purposes of statutory construction courts must read statute as a whole and
interpret it to give effect to every part); City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995)
(holding courts cannot read statutory language as pointless if it is susceptible to another
construction).
The majority’s interpretation ignores the expressed legislative intent documented in the
legislative history of Chapter 243. The primary rule in statutory interpretation is to give effect to
legislative intent. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000). Courts are to
construe statutes as written and, if possible, ascertain legislative intent from the language of the
statute. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). While courts must look to
the plain and common meaning of the words in the statute to determine intent, if there is an
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Dissenting Opinion 04-07-00669-CR, 04-07-00670-CR
04-07-00671-CR, 04-07-00672-CR
ambiguity, rules of construction and extrinsic aids can be used to resolve the conflict. See Fitzgerald
v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). Given the perceived
conflict between Local Government Code sections 243.001(b) and 243.010(b), we may look to the
legislative history for guidance. See Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284
(Tex. 1999) (holding legislative history cannot be used to disregard or alter express statutory terms
when their meaning is clear in context of entire code); see also TEX . GOV ’T CODE ANN . § 311.023(3)
(Vernon 2005) (stating that in construing statute, court may consider legislative history).
When Senate Bill 525, the bill containing the current version of Chapter 243 of the Texas
Local Government Code, was presented to the Senate Intergovernmental Relations Committee,
Senator Frank Tejeda, the sponsoring senator, testified the bill was being presented to give counties
the authority to regulate sexually oriented businesses. Municipal and County Authority to Regulate
Sexually Oriented Business: Hearings on Tex. S.B. 525 Before the Senate Committee on
Intergovernmental Relations, 71st Leg., R.S. (Feb. 21, 1989) (considering bill in public hearing)
(transcript available from Senate Staff Services Office). Senator Tejeda told the committee home-
rule cities already had such authority, but in response to city ordinances regulating sexually oriented
businesses, the businesses were moving beyond the city’s control and into the county. Id; Municipal
and County Authority to Regulate Sexually Oriented Business: Hearings on Tex. S.B. 525 Before
the Senate Committee on Intergovernmental Relations, 71st Leg., R.S. (March 2, 1989) (bill read
second time, amended, read third time, voted out of committee) (transcript available from Senate
Staff Services Office). Chapter 243 would give counties (and general-rule cities) the same authority
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Dissenting Opinion 04-07-00669-CR, 04-07-00670-CR
04-07-00671-CR, 04-07-00672-CR
as home-rule cities. Id. When questioned about the effect of the bill and whether it would affect the
power already held by home-rule cities, the sponsoring senator stated:
And as we have discussed . . . this bill is not intended to preempt any other, you
know, for state preemption. We do not want to preempt any of the local rules or
regulations or ordinances or orders that may already be in place. For example, the
City of Dallas, we do not want to preempt or in any way diminish what they have
already done.
***
We do not want to diminish or in any way preempt. We want to expand and perhaps
give them [cities] additional authority to be able to deal with these types of
businesses.
Municipal and County Authority to Regulate Sexually Oriented Business: Hearings on Tex. S.B. 525
Before the Senate Committee on Intergovernmental Relations, 71st Leg., R.S. (March 2, 1989) (bill
read second time, amended, read third time, voted out of committee) (transcript available from
Senate Staff Services Office).
Senator Hector Uribe questioned Senator Tejeda concerning the interplay of any county
ordinance enacted under the statute with an existing city regulation:
Senator Uribe: . . . as I glance at the reading indicates to me that both
the Commissioners Court and the municipality are
given identical authority and that the Commissioners
Court’s authority would extend to areas within the
municipality. Am I reading that correctly? Could a
Commissioners Court adopt an order that is more
restrictive that a municipality?
Senator Tejeda: No, not within the incorporated boundaries of
whatever city or municipality may be there. We’re
talking about unincorporated areas.
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Dissenting Opinion 04-07-00669-CR, 04-07-00670-CR
04-07-00671-CR, 04-07-00672-CR
Municipal and County Authority to Regulate Sexually Oriented Business: Hearings on Tex. S.B. 525
Before the Senate Committee on Intergovernmental Relations, 71st Leg., R.S. (Feb. 21, 1989)
(considering bill in public hearing) (transcript available from Senate Staff Services Office). This
exchange makes it very clear the Legislature intended section 241.001(b) be given its full meaning
and Chapter 243 does not diminish the existing authority of a home-rule city to regulate sexually
oriented businesses. The City had the authority to pass ordinances regulating sexually oriented
businesses, setting punishment for violations as Class C misdemeanors, before the passage of
Chapter 243 and continues to have such authority. The legislative history establishes the
Legislature’s intent not to disturb this pre-existing authority, but to enhance it by allowing the City
to punish violations of ordinances regulating sexually oriented businesses, if desired, as a Class A
misdemeanor.1
Interpreting Chapter 243, specifically section 243.010(b), as an additional grant of authority,
rather than a limitation as stated in the legislative history, harmonizes the provision with section
243.001(b), which states Chapter 243 is not to diminish the authority of a local government to
regulate sexually oriented businesses with regard to any matters, and avoids rendering section
243.010(b) meaningless. The Texas Legislature did not intend to preempt the regulation of sexually
oriented businesses. The City of San Antonio, relying on its authority as a home-rule city, was free
1
There is also a practical aspect to this punishment scheme. By allowing a home-rule city to continue to set
punishment of an ordinance as a Class C misdemeanor, a city could control the prosecution policy for such violations
because the city controls the person authorized to prosecute such violations – the city attorney. Likewise, when the
county establishes an ordinance, the violation of which is a Class A misdemeanor, the prosecution is controlled by a state
officer – either the county attorney or district attorney with authority to prosecute misdemeanor offenses. If all violations
were Class A misdemeanors, a city would lose control of the prosecution and be forced to rely upon the prosecution
policies set by the state officer. This would diminish a home-rule city’s inherent authority, which the Legislature clearly
did not intend to do.
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Dissenting Opinion 04-07-00669-CR, 04-07-00670-CR
04-07-00671-CR, 04-07-00672-CR
to pass the ordinance in question and set the penalty as a Class C misdemeanor. Given the City’s
authority, the municipal court had jurisdiction in this matter. It was error for that court to grant
appellees’ plea to the jurisdiction. Accordingly, I would sustain the State’s issue, reverse the
judgment of the county court at law, and remand this matter to the municipal court for further
proceedings.
Steven C. Hilbig, Justice
Publish
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