State v. Chacon

• Decision Date: 17 September 2008
• Docket Number: No. 04-07-00672-CR.,No. 04-07-00669-CR.,No. 04-07-00671-CR.,No. 04-07-00670-CR.,04-07-00669-CR.,04-07-00670-CR.,04-07-00671-CR.,04-07-00672-CR.
• Citation: 273 S.W.3d 375
• Parties: The STATE of Texas, Appellant, v. Sophia D. CHACON, Grayce G. Benesch, & Charlene Piekarski, Appellees.
• Court: Texas Court of Appeals

273 S.W.3d 375

The STATE of Texas, Appellant, v. Sophia D. CHACON, Grayce G. Benesch, & Charlene Piekarski, Appellees.

No. 04-07-00669-CR.

No. 04-07-00670-CR.

No. 04-07-00671-CR.

No. 04-07-00672-CR.

Court of Appeals of Texas, San Antonio.

September 17, 2008.

Rehearing Overruled October 8, 2008.

Christopher J. Hebner, Prosecutor for The City of San Antonio, San Antonio, TX, for Appellant.

James O. Deegear, III, Law Office of James O. Deegear, III, San Antonio, TX, for Appellee.

Sitting: ALMA L. LÓPEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.

OPINION

Opinion by PHYLIS J. SPEEDLIN, Justice.

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 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 SAN ANTONIO, TEX., Ordinance 101022 § 21-300(1) (repealed April 17, 2008, and reenacted as SAN ANTONIO, TEX.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 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 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.

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 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 CODE ANN. § 243.010 (Vernon 2005). With unmistakable clarity, the Legislature defined the...