Opinion issued December 5, 2013




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-13-00694-CR
                           ———————————
                   FREDERICK H. GARRETT, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



           On Appeal from County Criminal Court At Law No. 10
                          Harris County, Texas
                        Trial Court Case No. 5600



                                 OPINION

      In Harris County municipal court, a jury found appellant Frederick H.

Garrett guilty of the Class C misdemeanor offense of violating the rule adopted by

the director of the Texas Department of Public Safety that prohibits a person from
driving a commercial motor vehicle unless he is wearing a seat belt.1 The jury

assessed punishment at a $250.00 fine. Appellant appealed to the county criminal

court at law, which affirmed the conviction. 2

       In his appeal to this Court, appellant asserts the same two arguments that he

originally raised in municipal court in his motion for new trial and then repeated in
                                      3
the county criminal court at law.         He argues that the municipal court erred in

denying his motion to quash the complaint because, based on the doctrine of in

pari materia, he should have been charged under a different, more lenient statute,

which makes it an offense to ride in a passenger vehicle without wearing a

seatbelt. 4   Appellant also contends that the trial court erred by incorrectly

instructing the jury under the wrong statute.

       We affirm.




1
       See TEX. TRANSP. CODE ANN. §§ 644.051, 644.151 (Vernon 2011); 37 TEX.
       ADMIN. CODE § 4.11 (2013); see also 49 C.F.R. § 392.16.
2
       See TEX. GOV’T CODE ANN. § 30.00014(a) (Vernon Supp. 2013) (providing for
       appeal to county court from conviction in municipal court of record); see also
       TEX. CODE CRIM. PROC. ANN. art. 45.042 (Vernon 2006).
3
       See TEX. GOV’T CODE ANN. § 30.00014(b) (stating that county criminal court at
       law determines appeal based on errors alleged in appellant’s motion for new trial);
       id. § 30.00027(b) (Vernon Supp. 2013) (providing that record and briefs on appeal
       to county criminal court at law are record and briefs on appeal to court of appeals).
4
       See TEX. TRANSP. CODE ANN. § 545.413(a)(1) (Vernon Supp. 2013).
                                             2
                                    Background

      On September 4, 2009, Houston police officer J. Whitehead was assigned

the duty of spotting commercial truck drivers who were committing seat belt

violations. The officer was parked at a gas station located at an intersection when

he saw appellant, who was driving a truck tractor hauling a load of gasoline. As

appellant slowed down for a red light, Officer Whitehead observed that, although

the truck tractor was equipped with a seat belt assembly at the driver’s seat,

appellant was not restrained. Officer Whitehead pulled appellant over and issued

him a citation for failing to wear a seatbelt while driving a commercial vehicle.

      The State’s complaint charged appellant as follows: “. . . Frederick H.

Garrett . . . on or about September 4, 2009 . . . unlawfully operate[d] a commercial

motor vehicle which had a seat belt assembly installed at the driver’s seat . . . when

not properly restrained with the seat belt assembly.” The basis for the charged

offense is Title 49, Part 392, section 392.16 of the Federal Motor Carrier Safety

Regulations (“Regulation 392.16”). The regulation prohibits a commercial motor

vehicle, equipped with a seat belt assembly at the driver’s seat, from being driven

unless the driver is restrained by the seat belt. See 49 C.F.R. § 392.16. Regulation

392.16 has been adopted as a state rule by the director of the Texas Department of

Public Safety. See TEX. TRANSP. CODE ANN. § 644.051(c) (providing that director

may adopt all or part of the federal regulations by reference) (Vernon 2011); See

                                          3
37 TEX. ADMIN. CODE § 4.11(a) (2013) (reflecting that the director has adopted

Regulation 392.16).

      Texas law makes the violation of an adopted rule a Class C misdemeanor.

See TEX. TRANSP. CODE ANN. § 644.151 (Vernon 2011). A Class C misdemeanor

is punishable by a fine not to exceed $500. See TEX. PENAL CODE ANN. § 12.23

(Vernon 2011).

      Before trial, appellant moved to quash the complaint on the basis that

Regulation 392.16, requiring drivers of commercial vehicles to wear a seat belt, is

in pari materia with Section 545.413(a)(1) of the Texas Transportation Code,

which makes it an offense for persons over the age of 15 years not to wear a seat

belt when riding in a passenger vehicle equipped with a seat belt assembly. See

TEX. TRANSP. CODE ANN. § 545.413(a)(1) (Vernon Supp. 2013). A violation of

Section 545.413(a) carries a fine of $25 to $50. See § 545.413(d). Appellant

argued that he should have been charged under Section 545.413(a)(1) because it is

more narrowly tailored than Regulation 392.16, and a violation of that provision

carries a lower penalty. The trial court denied appellant’s motion to quash the

complaint.

      The case was tried to a jury in a municipal court of record.         Officer

Whitehead testified for the State.    He stated that he saw appellant driving a




                                        4
commercial motor vehicle, equipped with a seat belt assembly at the driver’s seat,

and observed that appellant was not restrained by the seat belt.

      Appellant testified in his own defense. He stated that he was delivering a

load of gas to a station five miles away when he was stopped by Officer

Whitehead. Appellant claimed that he was wearing his seat belt at the time. He

stated that Officer Whitehead must have been mistaken regarding his belief that

appellant was not restrained by a seat belt when he saw appellant driving the truck.

      After the close of evidence, appellant objected to the proposed jury charge.

He asserted that the jury was being instructed regarding the wrong offense. He

claimed that the jury should be instructed regarding the offense of failure to wear a

seat belt while a passenger in a passenger vehicle, as defined by Transportation

Code Section 545.413(a)(1). Appellant argued that he should have been charged

under Section 545.413 because that statute more specifically defines the offense of

driving a truck tractor without wearing a seat belt in Texas.           The trial court

overruled appellant’s objection and instructed the jury regarding the offense for

which appellant was charged in the complaint; that is, violating Regulation 392.16.

Concomitantly, the trial court instructed the jury that, if it found appellant guilty, it

could assess a fine not to exceed $500, the fine associated with violating

Regulation 392.16.




                                           5
      The jury found appellant guilty as charged in the complaint. It assessed a

$250 fine against appellant.

      Appellant filed a motion for new trial, raising two issues. He reasserted his

argument that the trial court should have quashed the complaint. He maintained

that the offense of driving a commercial vehicle without wearing a seat belt

(Regulation 392.16) and the offense of failure to wear a seat belt while riding in a

passenger vehicle (Transportation Code Section 545.413(a)(1)) are in pari materia.

Appellant pointed out that a truck tractor is included in the definition of a

“passenger vehicle.” See TEX. TRANSP. CODE ANN. § 545.412(f)(2) (Vernon Supp.

2013). Appellant also argued that Regulation 392.16 and Section 545.413(a)(1)

irreconcilably conflict because they apply to the same subject but carry different

punishment ranges. Appellant argued that he should have been charged under

Section 545.413(a)(1), the more specific statute with the lower fine.

      Appellant also reasserted his claim that the trial court should have instructed

the jury regarding the offense of failure to wear a seat belt while riding in a

passenger vehicle, as defined by Transportation Code Section 545.413(a)(1).

Specifically, appellant claimed that the municipal trial court should have instructed

the jury that it could assess a fine of $25 to $50, as provided in Section 545.413(d).




                                          6
      The trial court denied appellant’s motion for new trial. Appellant appealed

to the county criminal court at law. 5 In his brief, appellant presented the same two

issues that he raised in his motion for new trial.6

      In its written opinion, the county criminal court at law affirmed the trial

court’s judgment. It held that the trial court had not erred in denying appellant’s

motion to quash the complaint because Regulation 392.16 and Transportation Code

Section 545.413 are not in pari materia. The county court also held that, because

appellant had been charged under the correct statute, the trial court did not err by

instructing the jury regarding the law under Regulation 392.16.

      Appellant now appeals to this Court. The record and briefs from the county

criminal court at law have been filed in this Court and constitute the record and

briefs in this appeal. See TEX. GOV’T CODE ANN. § 30.00027(b) (Vernon Supp.

2013). Thus, we review the same two issues raised in the briefs submitted to the

county criminal court at law. See id.

                            Motion to Quash Complaint

      Appellant first challenges the trial court’s denial of his motion to quash the

State’s complaint. In support of this issue, appellant claims that the offense of


5
      See TEX. GOV’T CODE ANN. § 30.00014(a) (providing for appeal to county court
      from conviction in municipal court of record).
6
      See id. § 30.00014(b) (providing that county criminal court at law determines
      appeal based on errors alleged in appellant’s motion for new trial).
                                           7
driving a commercial vehicle without a wearing a seat belt (Regulation 392.16),

which carries a fine up to $500, and the offense of riding in a passenger vehicle

without wearing a seat belt (Transportation Code Section 545.413(a)), which

carries a fine of $25 to $50, are in pari materia. To support this claim, appellant

asserts that the statutes cover the same general subject matter and have the same

general purpose. Appellant argues that he should have been charged under Section

545.413(a)(1) because it “more specifically defines the offense of operating a truck

without a seatbelt in Texas.” Appellant points out that a violation of Section

545.413(a)(1) carries a lower penalty. For these reasons, appellant asserts that his

motion to quash the complaint should have been granted.

A.    Standard of Review

      An issue raised by an indictment, or as in this case a complaint, may present

a question of law. See Bearnth v. State, 361 S.W.3d 135, 141 (Tex. App.—

Houston [1st Dist.] 2011, pet. ref’d) (citing Hollin v. State, 227 S.W.3d 117, 120

(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)). The question is subject to de

novo review when its resolution does not require an evaluation of the credibility

and demeanor of a witness. Id. Here, the issue of whether Regulation 392.16 and

Section 545.413(a)(1) are in pari materia is a question of law we review de novo.

See id.




                                         8
B.    The Doctrine of In Pari Materia

      “The doctrine of in pari materia is a rule of statutory construction that seeks

to carry out the Legislature’s intent.” Jones v. State, 396 S.W.3d 558, 561 (Tex.

Crim. App. 2013) (citing Mills v. State, 722 S.W.2d 411, 413 (Tex. Crim. App.

1986)).   Statutes are in pari materia when they “deal with the same general

subject, have the same general purpose, or relate to the same person or thing or

class of persons and things.” Id. (quoting Azeez v. State, 248 S.W. 3d 182, 191

(Tex. Crim. App. 2008)). The Court of Criminal Appeals has made clear that the

statutes’ purposes are the most significant factor. Id.

      The doctrine arises “where one statute deals with a subject in comprehensive

terms and another [statute] deals with a portion of the same subject in a more

definite way.” Id. (quoting Azeez, 248 S.W. 3d at 192). The Court of Criminal

Appeals has determined statutes to be in pari materia “where one provision has

broadly defined an offense, and a second has more narrowly hewn another offense,

complete within itself, to proscribe conduct that would otherwise meet every

element of, and hence be punishable under, the broader provision.” Azeez, 248

S.W. 3d at 192. The Court of Criminal Appeals has also made clear, however, that

“[t]he adventitious occurrence of like or similar phrases, or even of similar subject

matter, in laws enacted for wholly different ends will not justify applying the rule.”




                                          9
Jones, 396 S.W.3d at 561 (quoting Alejos v. State, 555 S.W.2d 444, 450 (Tex.

Crim. App. 1977)).

      When two statutes are in pari materia, the doctrine requires that the statutes

be “taken, read, and construed together, each enactment in reference to the other,

as though they were parts of one and the same law.” Id. (quoting Azeez, 248 S.W.

3d at 192). “Any conflict between their provisions will be harmonized, if possible,

and effect will be given to all the provisions of each act if they can be made to

stand together and have concurrent efficacy.” Azeez, 248 S.W. 3d at 192. When

statutes irreconcilably conflict, “the more detailed enactment . . . will prevail,

regardless of whether it was passed prior to or subsequently to the general statute,

unless it appears that the legislature intended to make the general act controlling.”

Jones, 396 S.W.3d at 562 (quoting Azeez, 248 S.W. 3d at 192). “[S]uch conflict

implicates due process rights that require the State to prosecute the defendant

under the special statute where two statutes are in pari materia.” Id. (citing Ex

parte Smith, 185 S.W.3d 887, 892–93 (Tex. Crim. App. 2006)).

C.    The Statutory Provisions

      Section 644.051 of the Transportation Code, found in Chapter 644,

“Commercial Motor Vehicle Safety Standards,” provides, in part, as follows:

      (a) The director [of the Department of Public Safety] shall, after
      notice and a public hearing, adopt rules regulating:


                                         10
            (1) the safe transportation of hazardous materials; and

            (2) the safe operation of commercial motor vehicles.

      (b) A rule adopted under this chapter must be consistent with
      federal regulations, including federal safety regulations.

      (c) The director may adopt all or part of the federal safety
      regulations by reference.

      (d) Rules adopted under this chapter must ensure that:

            (1) a commercial motor vehicle is safely maintained, equipped,
            loaded, and operated;

            (2) the responsibilities imposed on a commercial motor
            vehicle’s operator do not impair the operator’s ability to operate
            the vehicle safely; and

            (3) the physical condition of a commercial motor vehicle’s
            operator enables the operator to operate the vehicle safely.

See TEX. TRANSP. CODE ANN. § 644.051.

      Under the authority of Section 644.051, the public safety director adopted a

number of the Federal Motor Carrier Safety Administration’s regulations in

Section 4.11 of Title 37 of the Texas Administrative Code. See 37 TEX. ADMIN.

CODE § 4.11(a). Section 4.11 provides, in part, as follows:

      (a) . . . The director of the Texas Department of Public Safety
      incorporates, by reference, the Federal Motor Carrier Safety


                                        11
      Regulations, Title 49, Code of Federal Regulations, Parts . . . 390–
      393. . . . The rules adopted herein are to ensure that:

             (1) a commercial motor vehicle is safely maintained, equipped,
             loaded, and operated;

             (2) the responsibilities imposed on a commercial motor
             vehicle’s operator do not impair the operator’s ability to operate
             the vehicle safely;

             (3) the physical condition of a commercial motor vehicle’s
             operator enables the operator to operate the vehicle safely;

             (4) commercial motor vehicle operators are qualified, by reason
             of training and experience, to operate the vehicle safely; and

             (5) the minimum levels of financial responsibility for motor
             carriers of property or passengers operating commercial motor
             vehicles in interstate, foreign, or intrastate commerce is
             maintained as required.

Id.

      In adopting Part 392 of the Federal Motor Carrier Safety Regulations, the

public safety director adopted Regulation 392.16.            See id.; see also 49

C.F.R. § 392.16. Regulation 392.16 provides, “A commercial motor vehicle which

has a seat belt assembly installed at the driver’s seat shall not be driven unless the

driver has properly restrained himself/herself with the seat belt assembly.” 49

C.F.R. § 392.16.

      Regulation 392.16 was promulgated pursuant to Subchapter III, “Safety

Regulations,” of the Federal Motor Carrier Safety Act. See 49 U.S.C.S. §§ 31131–

31151 (LexisNexis 2004 & Supp. 2013). As defined by Congress, the purposes of
                                         12
Subchapter III are (1) “to promote the safe operation of commercial motor

vehicles”; (2) “to minimize dangers to the health of operators of commercial motor

vehicles and other employees whose employment directly affects motor carrier

safety”; and (3) “to ensure increased compliance with traffic laws and with the

commercial motor vehicle safety and health regulations and standards prescribed”

by the chapter.” 49 U.S.C.S. § 31131.

      Here, the State’s complaint against appellant tracked the language of

Regulation 392.16. The complaint alleged that appellant “unlawfully operate[d] a

commercial motor vehicle, which had a seat belt assembly installed at the driver’s

seat . . . when not properly restrained by the seat belt assembly.” The Texas

Legislature has made the violation of a federal regulation adopted by the state

public safety director, such as Regulation 392.16, a Class C misdemeanor,

punishable by a fine not to exceed $500. See TEX. TRANSP. CODE ANN. § 644.151;

see also TEX. PENAL CODE ANN. § 12.23.

      Appellant asserts that he should have been charged with the offense defined

in Transportation Code Section 545.413(a)(1), failing to wear a seat belt while a

passenger in a passenger vehicle.    Section 545.413 is found in Subchapter I,

“Miscellaneous Rules,” of Chapter 545, “Operation and Movement of Vehicles.”

See TEX. TRANSP. CODE ANN. § 545.413.

      Under Section 545.413(a)(1), a person commits an offense if he (1) is at

                                        13
least 15 years of age; (2) is riding in a passenger vehicle while the vehicle is being

operated; (3) is occupying a seat that is equipped with a safety belt; (4) and is not

secured by a safety belt.     See TEX. TRANSP. CODE ANN. § 545.413(a)(1).           A

violation of Section 545.413(a) is punishable by a fine of between $25 and $50.

See id. § 545.413(d).

B.    Analysis

      We begin our analysis of whether Regulation 392.16 and Section

545.413(a)(1) are in paria materia by considering the plain language of each

provision and its contextual placement. When each provision is viewed in the

framework of its respective statutory scheme, it becomes clear that, while the two

provisions have similar subject matter, they were not written with the same

purpose in mind or to achieve the same objective.

      Regulation 392.16 is part of the regulatory scheme designed to minimize the

threat to the public’s safety posed by the operator of a commercial motor vehicle.

As part of this regulatory system, Regulation 392.16’s apparent purpose is to

ensure the safe operation of commercial motor vehicles by requiring operators of

these vehicles to wear a seat belt. This reading is confirmed (1) by the purposes

stated in section 31131 of the Federal Motor Carrier Act, under which Regulation

392.16 was promulgated, (2) by the requisites of Transportation Code Section

644.051, the enabling statute authorizing Regulation 392.16’s adoption, and (3) by

                                         14
the reasons stated in Administrative Code section 4.11 for adopting Regulation

392.16. See 49 U.S.C.S. § 31131; TEX. TRANSP. CODE ANN. § 644.051; 37 TEX.

ADMIN. CODE § 4.11(a).

      The reading is also confirmed by the plain language of Regulation 392.16,

which prohibits the driving of a commercial motor vehicle, equipped with a seat

belt assembly, unless the driver is restrained by a seat belt.                See 49

C.F.R. § 392.16. The focus of the regulation is the operation of commercial motor

vehicles, which as seen in this case, are typically large trucks carrying heavy and

potentially hazardous loads.      To achieve the stated legislative goal of safe

operation of these vehicles, the regulation, by its terms, prescribes the

circumstances under which a commercial motor vehicle may be operated. The

legislative objective of safe operation of such vehicles is further confirmed by the

fact that the regulation applies to a narrow class of persons: only those who are

driving a commercial motor vehicle.

      In contrast, Section 545.413(a)(1) targets a different class of people. It

applies broadly to anyone over the age of 15 years riding in a passenger vehicle

equipped with a safety belt. See TEX. TRANSP. CODE ANN. § 545.413(a)(1). The

focal point of the statute is passenger seat belt restraint. The apparent purpose, or

the objective, then, of Section 545.413(a)(1) is to ensure the welfare or safety of

those riding in the vehicle and not to ensure the safe operation of the vehicle.

                                          15
      We further note that punishing the driver of a commercial motor vehicle for

the failure to wear a seat belt more severely than a passenger riding in a vehicle for

similar conduct also shows that Regulation 392.16 and Section 545.413(a)(1) serve

different purposes. The imposition of a higher fine for violating Regulation 392.16

indicates that the gravamen of that offense is of greater significance than that of

violating Section 545.413(a)(1). It underscores that Regulation 392.16 is designed

to avoid the unsafe operation of a commercial vehicle, which the higher fine is

intended to deter.

      In contrast, the lower fine imposed on a passenger who fails to wear a seat

belt indicates that the gravamen of that offense is the potential injury to the

passenger.   The lower fine supports the reading that the purpose of Section

545.413(a)(1) is to protect the passenger from injury resulting from his own

conduct; it is not to ensure the safe operation of the vehicle in which he is riding.

      Given that Regulation 392.16 and Section 545.413(a)(1) have different

legislative purposes and target different groups of people, it is clear that the two

provisions are not in pari materia.7 We conclude that appellant was properly


7
      Appellant also points to Transportation Code Section 644.002(a), which provides,
      “A rule adopted by the [public safety] director under this chapter prevails over a
      conflicting provision of a federal motor carrier safety regulation applicable to a
      commercial vehicle operated in intrastate commerce.” TEX. TRANSP. CODE ANN.
      § 644.002(a) (Vernon 2011). He asserts that the evidence at trial showed that his
      vehicle was being operated intrastate, not interstate, at the time he received the
      citation. He appears to claim that Regulation 392.16 is a conflicting federal
                                          16
charged under the complaint. The county criminal court at law correctly held that

the trial did not err when it denied appellant’s request to quash the complaint.

      We overrule appellant’s first issue.

                                    Charge Error

      In his second issue, appellant claims that “the trial court erred in charging

the jury on the fine range of $0–$500 under the federal regulation instead of the

$25–$50 [range] pursuant to the Texas Transportation Code.”                Appellant’s

assertion is predicated on his argument in his first issue that he was incorrectly

charged with the offense of violating Regulation 392.16, which carries a fine not to

exceed $500. As discussed above, appellant was properly charged with the Class

C misdemeanor offense of violating an adopted federal regulation, more

specifically he was properly charged with violating Regulation 392.16. See TEX.

TRANSP. CODE ANN. § 644.151. Thus, the county criminal court at law correctly

held that the trial court properly instructed the jury on the correct punishment

range. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007) (providing that

trial court is required to instruct jury on law applicable to case.).




      provision that does not apply in this case because of the intrastate nature of his
      delivery; rather, he asserts that Transportation Code Section 545.413 applies.
      However, appellant’s argument fails to acknowledge that the public safety director
      has adopted Regulation 392.16. See 37 TEX. ADMIN. CODE § 4.11(a).
                                           17
                                    Conclusion

      We affirm the judgment of the county criminal court at law.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).




                                        18
