                              Fourth Court of Appeals
                                     San Antonio, Texas
                                            OPINION
                                        No. 04-14-00324-CR

                                       The STATE of Texas,
                                            Appellant

                                                 v.
                                               John D
                                        John D. DELOACH,
                                              Appellee

                     From the County Court at Law No. 12, Bexar County, Texas
                                      Trial Court No. 130556
                              Honorable Scott Roberts, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: March 4, 2015

REVERSED AND RENDERED

           In an opinion dated November 19, 2014, this court reversed the county court’s judgment

and rendered judgment reinstating the municipal court’s judgment in favor of appellant. Appellee

filed a motion for en banc reconsideration. We withdraw our opinion and judgment of November

19, 2014 and issue this opinion and judgment in their place.

           In 2002, the City of San Antonio adopted a municipal ordinance that set the maximum fee

a towing company could charge for the non-consent tow of an automobile at $85. SAN ANTONIO,
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TEX., CODE OF ORDINANCES § 19-427 (2012). 1 A violation of the ordinance was punishable by a

fine of not less than $200 nor more than $500. Id. § 19-413. In 2003, the Legislature enacted

House Bill 849, currently incorporated in the Texas Towing and Boot Act (“the Act”), which

regulates towing companies and the fees they may charge for non-consent tows. See Acts 2003,

78th Leg., ch. 1034, § 10, eff. Sept. 1, 2003 (currently codified in TEX. OCC. CODE ANN.

§§ 2308.202, .203 (West 2012)).

         On August 31, 2012, the State 2 filed a complaint against John DeLoach for charging a non-

consent tow fee of $250, in excess of the $85 fee authorized by the ordinance. DeLoach was

convicted in municipal court, and appealed to the county court at law asserting (1) the ordinance

is preempted by sections 2308.202 and 2308.203 of the Act, and (2) he established the affirmative

defense of mistake of law. The county court reversed the municipal court and rendered judgment

in favor of DeLoach, finding that the ordinance was preempted and unenforceable. The county

court rejected DeLoach’s mistake of law defense. The City appealed to this court. 3

                                                PREEMPTION

         The City of San Antonio is a home-rule city that derives its powers from the Texas

Constitution. See TEX. CONST. art. XI, § 5; City of Hous. v. Bates, 406 S.W.3d 539, 546 (Tex.

2013); RCI Entm’t, Inc. v. City of San Antonio, 373 S.W.3d 589, 595 (Tex. App.—San Antonio

2012, no pet.). A home-rule city has the full power of self-government and looks to the Legislature



1
 The non-consent towing fee has since been amended to $177 for vehicles 10,000 pounds or less. SAN ANTONIO,
TEX., CODE OF ORDINANCES § 19-402 (2013).
2
 The complaint was filed by the State of Texas. However, attorneys for the City of San Antonio prosecuted the case
against DeLoach, and the City of San Antonio filed the notice of appeal with this court. Therefore, although the style
of this appeal mirrors the trial court’s style and shows the State of Texas as appellant, we will refer to appellant
hereinafter as the City.
3
 The record and the briefs from the county court have been filed and constitute the record and briefs in this appeal.
See TEX. GOV’T CODE ANN. § 30.00027(b) (West Supp. 2014). Thus, we review the same issues raised in the briefs
submitted to the county court. See id.

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not for grants of authority, but only for limitations on its powers. RCI Entm’t, 373 S.W.3d at 595.

A home-rule city ordinance is presumed to be valid. State v. Chacon, 273 S.W.3d 375, 378 (Tex.

App.—San Antonio 2008, no pet.). The Legislature may limit a home-rule city’s broad powers

only when it expresses its intent to do so with “unmistakable clarity.” Bates, 406 S.W.3d at 546.

“[T]he mere fact that the [L]egislature has enacted a law addressing a subject does not mean that

the subject matter is completely preempted.” City of Richardson v. Responsible Dog Owners of

Tex., 794 S.W.2d 17, 19 (Tex. 1990). A home-rule city ordinance that conflicts with a state statute

is unenforceable to the extent of such conflict. Dall. Merchant’s & Concessionaire’s Ass’n v. City

of Dall., 852 S.W.2d 489, 491 (Tex. 1993). If a reasonable construction giving effect to both the

state statute and the ordinance can be reached, the ordinance will not be held to have been

preempted by the statute. Bates, 406 S.W.3d at 546; Dall. Merchant’s, 852 S.W.2d at 491.

       Statutory construction is a question of law we review de novo. Yazdchi v. State, 428

S.W.3d 831, 837 (Tex. 2014) (internal citations and quotations omitted). In construing a statute,

we must seek to effectuate the collective intent or purpose of the legislators who enacted the

legislation. Id. In interpreting statutes, we presume the Legislature intended for the entire statutory

scheme to be effective. Id. We look first to the statute’s literal text, and we read words and phrases

in context and construe them according to the rules of grammar and usage. Id.

1.     Regulate Same Activity?

       DeLoach asserts the City’s ordinance setting the allowable fees for non-consent tows was

preempted by sections 2308.202 and 2308.203 of the Act. We must first determine whether the

ordinance and the Act are attempting to regulate the same activity. RCI Entm’t, 373 S.W.3d at

596. We begin by examining the statutory text. Bates, 406 S.W.3d at 546.




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       Section 2308.202 provides:

       The governing body of a political subdivision may regulate the fees that may be
       charged or collected in connection with a non-consent tow originating in the
       territory of the political subdivision if the private property tow fees:

       (1) are authorized by commission rule; and

       (2) do not exceed the maximum amount authorized by commission rule.

TEX. OCC. CODE § 2308.202.

       Section 2308.203 provides:

       (a) The governing body of a political subdivision that regulates non-consent tow
           fees shall establish procedures by which a towing company may request that a
           towing fee study shall be performed.

       (b) The governing body of the political subdivision shall establish or amend the
           allowable fees for non-consent tows at amounts that represent the fair value of
           the services of a towing company and are reasonably related to any financial or
           accounting information provided to the governing body.

Id. § 2308.203.

       The sections of the Act at issue regulate the allowable fee a towing company may charge

for the non-consent tow of an automobile. Similarly, the ordinance also regulates the allowable

fee a towing company may charge for the non-consent tow of an automobile. The plain language

of the Act and the ordinance establish that they are both attempting to regulate the same activity.

Therefore, we next decide whether the ordinance is inconsistent with or conflicts with the Act.

RCI Entm’t, 373 S.W.3d at 596.

2.     Conflict?

       DeLoach asserts the ordinance conflicts with the Act because section 2308.203 requires a

towing fee study be performed if a city chooses to regulate non-consent tow fees. He contends the

language of the Act demonstrates the legislative intent “to require a fair value for all non-consent

tows [be] based on a tow fee study,” the city “shall establish or amend the allowable fees for non-


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consent tows in amounts that represent the fair market value of the services,” and the city has

“ignored . . . disregarded . . . and failed to comply with th[is] mandatory requirement.” Therefore,

he argues that because the City has “failed to comply with mandatory requirements, the ordinance

is unenforceable.”

        The Corpus Christi Court of Appeals considered a similar argument in Rountree v. State,

No. 13-12-00063-CR, 2012 WL 3612497 (Tex. App.—Corpus Christi Aug. 23, 2012, no pet.)

(mem. op., not designated for publication). 4 There, Rountree was convicted of violating the City

of Beaumont’s ordinance that set the maximum fee for a non-consent tow at $85. Id. at *1.

Rountree argued he was entitled to acquittal because Beaumont had not established procedures by

which a towing company could request a towing fee study be performed and argued that Beaumont

“was not in compliance with section 2308.203 of the occupations code.”                        Id.    The State

acknowledged Beaumont did not establish the required procedure set forth in section 2308.203 at

the time the ordinance was enforced against Rountree; however, the State asserted that Beaumont’s

non-compliance with the statute “did not make the ordinance invalid, nor did it preclude the

enforcement of the ordinance.” Id. at *2. The court of appeals agreed with the State, noting that

“nothing in the language of sections 2308.202 or 2308.203(a) bars a municipality’s authority to

regulate non-consent towing fees due to a municipality’s non-compliance with setting up a

procedure for a towing company to request a fee study.” Id. The court concluded that its

interpretation did not lead to an absurd result because it appeared that the Legislature intended

section 2308.202 and section 2308.203 to be “independent, rather than dependent, from one

another.” Id.




4
  Rountree was decided by the Corpus Christi Court of Appeals pursuant to a Supreme Court of Texas transfer order
from the Beaumont Court of Appeals.

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        Although the issue in Rountree involved Beaumont’s failure to conduct the fee study, and

the issue here is DeLoach’s complaint that the City failed to amend its ordinance to reflect fair

market value, we agree with the reasoning in Rountree. Nowhere in the Act did the Legislature

include a provision that contains an explicit expression of the Legislature’s intent that the Act

exclusively govern the regulation of non-consent tow fees. Cf. RCI Entm’t, 373 S.W.3d at 596 n.3

(quoting Dall. Merchant’s, 852 S.W.2d at 491) (“The Legislature’s intent is clearly expressed in

section 109.57(b) of the TABC—the regulation of alcoholic beverages is exclusively governed by

the provisions of the TABC unless otherwise provided . . . . Section 109.57 clearly preempts an

ordinance of a home-rule city that regulates where alcoholic beverages are sold under most

circumstances.”). To the contrary, the Act expressly allows a city to “regulate the fees that may

be charged or collected in connection with a non-consent tow,” provided the fees “are authorized

by commission rule” and “do not exceed the maximum amount authorized by commission rule.”

TEX. OCC. CODE § 2308.202. 5 Accordingly, we conclude the ordinance does not conflict with the

Act, and is therefore, not preempted.

                                         MISTAKE OF LAW

        DeLoach also asserts he established the affirmative defense of mistake of law because he

reasonably relied on an opinion from the Attorney General.

1.      Standard of Review

        The parties’ briefs before the county court are the same briefs we must consider on appeal.

See TEX. GOV’T CODE § 30.00027(b). In those briefs, neither the City nor DeLoach cite to an

appropriate standard of review. However, in DeLoach’s prayer for relief, he requested only that



5
  The Texas Commission of Licensing and Regulation has authorized the maximum fee of $250 for a non-consent
tow. See TEX. ADMIN. CODE, tit. 16, §§ 86.455, .458.


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the county court reverse the municipal court’s judgment and render a judgment of not guilty.

Therefore, we review the evidence only under a legal sufficiency standard. See Maynard v. Booth,

421 S.W.3d 182, 183 (Tex. App.—San Antonio 2013, pet. denied).

       We review the sufficiency of the evidence establishing the elements of a criminal offense

for which the State has the burden of proof in the light most favorable to the verdict and determine

whether any rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d

893, 895 (Tex. Crim. App. 2010). However, the Jackson and Brooks standard of review “does not

apply to elements of an affirmative defense that the defendant must prove by a preponderance of

the evidence.” Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).

       When an appellant asserts that there is no evidence to support an adverse finding
       on which []he had the burden of proof, we construe the issue as an assertion that
       the contrary was established as a matter of law. We first search the record for
       evidence favorable to the finding, disregarding all contrary evidence unless a
       reasonable factfinder could not. If we find no evidence supporting the finding, we
       then determine whether the contrary was established as a matter of law.

Id. at 669 (emphasis in original). A defendant is entitled to an acquittal on appeal despite the trial

court’s adverse finding on his affirmative defense “only if the evidence conclusively establishes

his affirmative defense.” Id. at 670.

2.     Analysis

       “It is an affirmative defense to prosecution that the actor reasonably believed the conduct

charged did not constitute a crime and that he acted in reasonable reliance upon a written

interpretation of the law . . . made by a public official charged by law with responsibility for

interpreting the law in question.” TEX. PENAL CODE ANN. § 8.03(b)(2) (West 2011). A defendant

bears the burden of production of evidence and persuasion to prove an affirmative defense by a




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preponderance of the evidence. Id. § 2.04(d); Roberts v. State, 319 S.W.3d 37, 51 (Tex. App.—

San Antonio 2010, pet. ref’d).

        DeLoach testified he was aware of the ordinance regulating non-consent tow fees.

However, he contends the evidence at trial was sufficient to prove his affirmative defense of

mistake of law because he reasonably relied on an Attorney General’s opinion. See Tex. Att’y

Gen. Op. No. GA-0315 (2005). DeLoach argues the Attorney General’s opinion stands for the

proposition that the ordinance is preempted by the Act. In support of this argument, he cites to the

Attorney General’s reference to the general rule that city ordinances must comply with state law.

See TEX. CONST. art. XI, § 5(a).

        The Attorney General’s opinion that DeLoach contends he relied on was issued in response

to an inquiry regarding an ordinance established by the City of Victoria pertaining to police-

initiated non-consent tows. Tex. Att’y Gen. Op. No. GA-0315, at *1. Victoria’s ordinance stated:

        (a) All tow truck permit holders operating permitted tow trucks on the public streets
            shall charge no more than the storage rates prescribed by the Texas Department
            of Transportation for performing non-consent tows. A charge for any storage
            service exceeding the rates prescribed or in addition to the storage related
            services prescribed shall constitute a violation of this article.

        (b) The city manager may establish further rate limits in the city’s contracts with
            rotation list privilege holders. These rate limits shall not be considered rate
            regulations, but shall instead be considered contractual obligations pursuant to
            the city’s provision of referrals to contractees. Failure to comply with any such
            contractual rate limits shall not be punishable as a violation of this ordinance,
            but shall instead merely give the city the right to declare a breach of contract
            and potentially terminate said contract.

Id. at *1–*2.

        The issue addressed by the Attorney General was “whether a municipality that limits fees

for police-initiated non-consent tows must comply with [section 2308.203].” 6 Id. The inquiry


6
 At the time the Attorney General’s opinion was issued, section 2308.203 was codified under Texas Transportation
Code section 643.204. The language is identical in both versions.

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stated that the Texas Towing and Storage Association considered Victoria’s ordinance to be a

regulation of non-consent tow fees and complained that Victoria had not established the procedures

by which a towing company could request a towing fee study be performed. Id. at *2. The inquiry

specifically asked “whether a city can bypass the clear intent of [section 2308.203] by refusing to

set procedures even though it has set fees for non-consent tows.” Id. Relying on Cardinal Towing,

the Attorney General concluded Victoria’s ordinance did not appear to regulate non-consent tow

fees, but was instead designed to create efficiencies for Victoria and controlled only a portion of

the non-consent tow market. Id. at *5; see also Cardinal Towing & Auto Repair, Inc. v. City of

Bedford, Tex., 180 F.3d 686, 694–95 (5th Cir. 1999) (concluding ordinance was not a regulation

because city merely created efficiencies for police-initiated non-consent tow market). Therefore,

the Attorney General concluded that Victoria was not impermissibly ignoring the towing fee study

requirement. Id.

       The Attorney General’s opinion states only that it does not consider Victoria’s ordinance a

regulation of non-consent tow fees. It does not stand for the proposition that the ordinance is

preempted by the Act. Accordingly, we conclude DeLoach did not conclusively establish his

affirmative defense under the legal sufficiency standard set forth in Matlock, and is not entitled to

an acquittal on appeal.

                                         CONCLUSION

       We conclude the ordinance is not preempted, and we agree with the county court that

DeLoach did not conclusively establish the affirmative defense of mistake of law. Therefore, we

reverse the county court’s judgment and render judgment reinstating the municipal court’s

judgment.

                                                  Sandee Bryan Marion, Chief Justice

Publish
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