NO. 07-05-0317-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
DECEMBER 20, 2007
______________________________
JESSE R. GARCIA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-400059; HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ORDER RECALLING MANDATE
On September 28, 2007, this Court issued its opinion and judgment in this appeal, affirming the judgment of the trial court, and on December 18, 2007, we issued our mandate. The Court of Criminal Appeals, however, on November 28, 2007, granted appellant an extension of time to file a petition for discretionary review, through December 28, 2007. This Court’s mandate was issued prematurely. Tex. R. App. P. 18.1.
Accordingly, on its own motion, the Court recalls its mandate dated December 18, 2007, and directs that it be given no effect. Tex. R. App. P. 18.7, 19.3. If the trial court has issued a capias for appellant’s arrest pursuant to Rule of Appellate Procedure 51.2, the trial court shall direct that it be returned to the trial court unexecuted. Tex. R. App. P. 51.2.
It is so ordered.
Per Curiam
Do not publish.
EM>Nichols v. Lincoln Trust Company, 8 S.W.3d 346, 349 (Tex.App.--Amarillo 1999, no pet.). The first rule of statutory construction is to determine the intent of the enacting body and then give effect to that intent. Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex. 1994).
In essence, the State claims that a "manager" is a "person who conducts any business in an enterprise with respect to any activity conducted on the premises of the enterprise." The State then concludes that because the Ordinance provides, inter alia, that a person who operates a cash register "shall be deemed to be conducting business in an enterprise," appellant falls within the definition of "manager." However, if this concept is correct, and anyone who operates a cash register or provides any service for a customer is a "manager," there would be no need for the Ordinance to contain a definition of an "employee," which is separately defined. Simply put, under the State's theory, every person who operates a cash register or provides any service for a customer is a "manager."
Black's Law Dictionary, Sixth Edition (1990), provides that "[t]he designation of 'manager' implies general power and permits reasonable inferences that the employee so designated is invested with the general conduct and control of his employer's business." Id. at 960. Specifically, the Ordinance provides that a "manager" is "[a]ny person who supervises, directs or manages any employee of an enterprise or any other person who conducts any business in an enterprise . . ." (emphasis added). Considering the common meaning of "manager" as well as the definition used in the Ordinance, the reasonable construction of the term refers to a person "who supervises, directs, or manages" any employee of the enterprise, or any other person who conducts any business or activity on the premises of the enterprise. This construction gives effect to the entire context of the relevant provisions of the Ordinance.
We also find support for our construction of the Ordinance's definition of "manager" in the reasoning applied in Pedraza. In that case, the court held that employee Pedraza was not an operator. Pedraza, 34 S.W.3d at 700. In the Ordinance, "operator" is defined as the "manager or other natural person principally in charge of an enterprise." Thus, if a person fit within the Ordinance's definition of "manager," he would also, by definition, be an "operator." It is noteworthy that en route to its conclusion, the Pedraza court reasoned that, "[r]eading the definition of operator within the context of all the relevant provisions, it is clear that the City intended 'operator' to mean more than a clerk or an employee who simply 'minds the store.'" Id. at 699-700.
For the reasons we have expressed in some detail, we remain convinced that our original disposition of this appeal was correct and overrule the State's motion for rehearing.
John T. Boyd
Chief Justice
Do not publish.
1. The Code Construction Act is contained within sections 311.001 et seq. of the
Texas Government Code (Vernon 1998).