Opinion issued August 13, 2019




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-19-00112-CR
                             ———————————
                    EX PARTE ELENA HERRERA SALAS



          On Appeal from the County Criminal Court at Law No. 15
                           Harris County, Texas
                       Trial Court Case No. 2235783


                           MEMORANDUM OPINION

      Elena Herrera Salas appeals the denial of her pretrial application for writ of

habeas corpus, challenging the validity of section 3.7 of Harris County’s game room

regulations. In one point of error, Salas contends the trial court erred in denying her

petition because the offense with which she is charged conflicts with another state

law and is therefore preempted. We affirm.
                                   Background

      Appellant Elena Salas was charged with a Class A misdemeanor offense under

section 234.138 of the Texas Local Government Code by her violation of section 3.7

of Harris County’s game room regulations. TEX. LOC. GOV’T CODE § 234.138;

HARRIS          CTY.           GAME           ROOM            REG.          (2013)

https://www.harriscountyso.org/documents/Permits/Game_Room_Regulations.pdf

      Harris County adopted the game room regulations under authority of

Subchapter E of the Texas Local Government Code. HARRIS CTY. GAME ROOM REG.

§ 1.1(a)-(b). Subchapter E, which includes sections 234.131-140, gives authority to

Texas counties to adopt and enforce regulations concerning local game rooms.

      A game room is defined as:

            [A] for-profit business located in a building or place that
            contains six or more:

            (A) amusement redemption machines; or

            (B) electronic, electromechanical, or mechanical
            contrivances that, for consideration, afford a player the
            opportunity to obtain a prize or thing of value, the award
            of which is determined solely or partially by chance,
            regardless of whether the contrivance is designed, made,
            or adopted solely for bona fide amusement purposes.

TEX. LOC. GOV’T CODE § 234.131(2).

      The State alleged that Salas failed to maintain a daily register containing

identifying information of each employee at Salas’s game room, which is required


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to be available for inspection upon request. HARRIS CTY. GAME ROOM

REG.§ 3.7(b)(1)-(2), (c). That record-keeping regulation provides:

            (b) A Game Room shall maintain onsite, and produce to
            any Peace Officer, Fire Safety Official, and/or designated
            County Employee for inspection:

                          (1) a record for each employee that
                   contains the name, address, date of birth,
                   state identification number or social security
                   number, job function, W-2 or W-4 form, a
                   copy of application for work with the Game
                   Room, a copy of the I-9 filed as part of
                   Employment Eligibility Verification for the
                   Department of Homeland Security, and a
                   photograph of the employee;

                          (2) a daily register that contains the
                   name, date of birth, state identification
                   number or social security number, and job
                   function of each employee present at the
                   establishment that day. Every Owner,
                   Operator, employee, agent, and/or any other
                   individual acting for or acting on behalf of the
                   Game Room is required to sign the daily
                   register with the information required above
                   immediately upon entering the Game Room;
                   and

                   ....

            (c) A Game Room shall preserve the daily register
            required by Subsection (b)(2) for ninety (90) days after the
            date the register was made. The register must be
            maintained at the Game Room, it must be accessible by
            any Person on duty at the Game Room, and must be made
            available to any Peace Officer, Fire Safety Official, and/or
            designated County Employee upon request.


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Id.

                                       Analysis

        Salas asserts that Section 3.7 of the Harris County game room regulations

conflicts with Sections 501.001 and 521.052 of the Texas Business and Commerce

Code.

        Pretrial habeas corpus relief is only available in three circumstances: (1) to

challenge the State’s power to restrain the defendant; (2) to challenge the manner of

pretrial restraint; and (3) to raise certain issues that would bar prosecution or

conviction. Ex parte Gonzalez, 525 S.W.3d 342, 346 (Tex. App.—Houston [14th

Dist.] 2017, no pet.). Salas sought relief under the third circumstance, by attempting

to show that the municipal ordinance under which she is charged is invalid.

        An appellate court reviewing a trial court’s ruling on a habeas claim must

review the record evidence in the light most favorable to the trial court’s ruling and

must uphold that ruling absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d

804, 819 (Tex. Crim App. 2003). If the issue does not depend on credibility of

witnesses, an appellate court reviews the trial court’s ruling de novo. Id.

        In her sole issue, Salas asserts that Section 3.7 of the game room regulations

is preempted by other state law—in particular, Sections 501.001 and 521.052 of the

Business and Commercial Code. Article XI, section 5 of the Texas Constitution

provides that home-rule cities, such as Houston, may not pass any ordinance that


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contains a “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(a). If an

ordinance conflicts with state legislation, it is invalid and preempted. See BCCA

Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 18–19 (Tex. 2016). If any

reasonable construction of the ordinance and statute can be reached that leaves both

in effect, no preemption will be found. See id. at 7. Salas has not presented authority

showing that county ordinances in conflict with state law are also preempted, but

even if they may be preempted, there is no conflict shown here.

      Section 501.001 prohibits the intentional communication of a person’s social

security number to the public. See TEX. BUS. & COM. CODE § 501.001(a). This

statute does not apply to the collections or release of a social security number

required by state or federal law or the use of social security numbers for

administrative purposes. See id. § 501.001(e). Section 521.052 requires businesses

to implement reasonable procedures “to protect from unlawful use or disclosure any

sensitive personal information collected or maintained by the business in the regular

course of business.” Id. § 521.052(a).

      Salas contends that these statutes conflict with Houston municipal ordinance

3.7, which requires game room businesses to keep on site certain employment-

related information concerning its employees, including social security numbers,

and to keep a daily register signed by each employee who works that day, with


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identification information such as date of birth and state identification number or

social security number. HARRIS CTY. GAME ROOM REG.§ 3.7(b). The statutes do not

reflect a clear intent to preempt local ordinances that do not concern identity theft or

disclosure of identity information. Cf. BCCA Appeal Grp., 496 S.W.3d at 12-13

(statute expressed unmistakable intent to limit municipality’s power to enact or

enforce air pollution ordinances). The ordinance in this case does not concern

identity theft, but instead concerns the regulation of game rooms, and thus, it is not

expressly inconsistent with the statutes’ protection of social security numbers from

public disclosure.

      Because the ordinance does not require the unlawful disclosure of social

security numbers, it does not conflict with Section 521.052. The ordinance does not

require employers to disclose the social security information to the public, but only

to show certain information to peace officers who request to see it, and therefore, it

does not conflict with Section 501.001. See id. 3.7(b), (c). Because a reasonable

construction of the ordinance and statutes can be reached that leaves both in effect,

the trial court properly determined that there was no preemption. See BCCA Appeal

Grp., Inc., 496 S.W.3d at 7. Accordingly, the trial court properly denied Salas’s

application for writ of habeas corpus.




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                                   Conclusion

      We affirm the trial court’s order denying Salas’s petition for writ of habeas

corpus.

                                 PER CURIAM

Panel consists of Chief Justice Radack and Justices Higley and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




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