Ferguson v. Tex. Dep't of Pub. Safety
| Decision Date | 25 June 2021 |
| Docket Number | No. 20-0452,20-0452 |
| Citation | 629 S.W.3d 903 (Mem) |
| Parties | Todd Delane FERGUSON, Petitioner, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Respondent |
| Court | Texas Supreme Court |
Todd Delane Ferguson, Pro Se.
Valerina Walters, Austin, for Respondent
Review denied.
Today the Supreme Court of Texas denied the petition for review in the above-referenced case.
Justice Busby, joined by Justice Boyd, concurring in the denial of the petition for review.
Petitioner Todd Ferguson raises a substantial issue regarding whether the Second Amendment protects the right to carry a handgun in public. But he did not present that issue to the trial court when he challenged the suspension of his handgun license. Accordingly, the issue is not before us for review. See TEX. R. APP. P. 33.1(a)(1). In addition, under a law recently passed by our Legislature and signed by the Governor that takes effect September 1, 2021, most Texans who are at least 21 years old no longer need a license to carry a handgun in most public places. See Firearm Carry Act of 2021, 87th Leg., R.S., H.B. 1927, § 22 . Thus, it is unclear whether the suspension of Ferguson's license will prevent any carrying of a handgun that he plans to do in the future. "[C]ourts resolve cases, not just issues, and this case presents a particularly poor opportunity to resolve the issues that disturb the dissent." El-Ali v. State , 428 S.W.3d 824, 824 (Tex. 2014) (). I therefore join the Court's order denying this petition for review.
By statute, the Texas Legislature has given those who obtain a license the right to carry a handgun in certain places and under certain conditions. See TEX. GOV'T CODE § 411.177(a) (). Ferguson obtained a license but was later charged by information with a Class A misdemeanor, so the Department of Public Safety suspended his license as required by section 411.187(a)(1) of the Government Code. The Department's letter directs Ferguson to surrender the license it had issued to him under the Government Code; it does not reference—much less claim to suspend—Ferguson's Second Amendment rights.
Ferguson challenged the Department's suspension of his statutory license to carry, and a Bexar County justice of the peace affirmed the suspension. See id. § 411.180. Ferguson then appealed to the county court at law for a trial de novo, where he "raise[d] a constitutional challenge to the statutory scheme that allows for the suspension without an actual substantive witness evidentiary hearing." In particular, he argued that his constitutional right to procedural due process of law entitled him to an evidentiary hearing to challenge whether the underlying misdemeanor charge was supported by probable cause—similar to the hearing required before a driver's license is suspended. The county court at law disagreed and affirmed the suspension. The Second Amendment was not mentioned in either court.
Ferguson then appealed to the court of appeals, where he again urged his procedural due process challenge to the suspension of his statutory license. He also raised a new substantive due process challenge to Texas's licensing scheme based on the Second Amendment, arguing that the statute could not survive strict scrutiny. The court of appeals held that Ferguson had been afforded sufficient procedural due process but declined to reach his substantive due process issue regarding strict scrutiny under the Second Amendment, concluding that "Ferguson waived the arguments by failing to present them to the trial court with a timely and specific complaint, objection, or motion." Ferguson v. Tex. Dep't of Pub. Safety , No. 04-19-00384-CV, 2020 WL 1931625, at *2 (Tex. App.—San Antonio Apr. 22, 2020) (mem. op.).
In this Court, Ferguson focuses his briefing largely on his procedural due process challenge to the suspension of his statutory license, but he also renews his substantive due process challenge that the Texas licensing scheme impairs his Second Amendment rights and fails strict scrutiny. As the court of appeals correctly observed, however, this substantive due process challenge was never raised in the trial court. Although we disregard harmless procedural defects and reach the merits whenever reasonably possible, see Perry v. Cohen , 272 S.W.3d 585, 587 (Tex. 2008) (per curiam), we do not do so unless "the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling." State Dep't of Highways & Pub. Transp. v. Payne , 838 S.W.2d 235, 241 (Tex. 1992) ; see TEX. R. APP. P. 33.1. "There are ‘important prudential considerations’ behind our rules on preserving error," which "conserve[ ] judicial resources by providing trial courts the opportunity to correct errors before appeal," improve the accuracy of judicial decisionmaking, and prevent one party from surprising the other with new arguments on appeal. Mansions in the Forest, L.P. v. Montgomery County , 365 S.W.3d 314, 317 (Tex. 2012) (per curiam).
With regard to Ferguson's Second Amendment-based substantive due process challenge, there can be no dispute that Ferguson did not "let the trial judge know what he wants, why he thinks himself entitled to it, and ... do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Lankston v. State , 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). No reasonable trial judge would have divined from Ferguson's procedural complaint that Ferguson also wanted the court to strictly scrutinize the statute to decide whether it was narrowly tailored to advance a compelling governmental interest.
Our dissenting colleagues do not contend otherwise. Instead, the dissent views the Second Amendment as possibly creating a constitutional liberty interest in carrying a handgun in public that cannot be restricted without procedural due process of law. Post at 905. But Ferguson likewise did not inform the trial court that he was relying on the Second Amendment as the basis for a claim of procedural due process. Moreover, it is unclear whether the dissent's view is necessary to advance the analysis, as Ferguson argues—and the court of appeals assumed—that he also has a statutory right to his license to carry a handgun that cannot be restricted without procedural due process.1 Thus, there may be no need to address the unpreserved Second Amendment question before reaching the only issue decided by the court of appeals: whether Ferguson received all the procedural due process that was constitutionally required in connection with his license suspension.
Finally, Ferguson's challenge to the process followed in suspending his license to carry a handgun has been overtaken by legislative events that reduce the importance of deciding this case. Beginning September 1, 2021, Texans who are at least 21 and have not been convicted of certain crimes may carry a handgun in public without a license. See Firearm Carry Act of 2021, § 22. There are certain specified locations (such as hospitals and government meetings) where carrying a handgun without a license is apparently still prohibited, see id. §§ 23, 25, but whether those prohibitions will affect any carrying of a handgun that Ferguson plans to do in the future is not an issue that an appellate court is well suited to determine. I therefore concur in the denial of Ferguson's petition for review.
Justice Blacklock, joined by Justice Devine, dissenting from the denial of the petition for review.
This petition for review asks whether the State can suspend Ferguson's right to carry a handgun solely because he was charged by information with a misdemeanor. Before answering that question, the Court would also need to address the Ferguson's contention that the Second Amendment protects the right to carry a handgun in public. I would grant the petition and answer these questions.
Section 411.187(a)(1) of the Government Code provides that the Department of Public Safety "shall suspend [a license to carry a handgun] if the license holder ... is charged with ... a Class A or Class B misdemeanor." Ferguson was charged by information with trespass while openly carrying a handgun, a Class A misdemeanor. See TEX. PENAL CODE § 30.07(a)(1), (d). In compliance with the statutory command, the Department suspended Ferguson's license to carry.
Ferguson argues that he has a Second Amendment right to carry a handgun, which cannot be deprived without due process of law. See U.S. CONST. amend. XIV, § 1. He does not contest that the State can suspend his right to carry if he is convicted of this Class A misdemeanor. He also does not contest that the State can suspend his right to carry while the charges are pending, provided he is given a meaningful hearing at which to challenge whether probable cause supports the charges. His complaint is that Texas's license-to-carry statute requires the Department to indefinitely suspend his license solely because a prosecutor filed an information1 charging him with a Class A misdemeanor. See TEX. GOV'T CODE § 411.187(a)(1). The statute entitles him to a hearing, but the only issue allowed at the hearing is whether charges have actually been filed against him. See id. § 411.180(c). If they have, then his right to carry must be suspended whether or not probable cause supports the charges. He asks only for a probable-cause hearing to determine whether the evidence against him satisfies a preliminary standard of proof. Because the statute does not provide for such a hearing or its equivalent, he contends he has been deprived of liberty without due process of law. He may have a point.2
The Second Amendment's protections fall within the scope of the Due Process Clause's reference to "liberty."...
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