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                                              OPINION

                               Nos. 04-07-00669-CR, 04-07-00670-CR,
                                04-07-00671-CR & 04-07-00672-CR

                                         The STATE of Texas,
                                              Appellant

                                                   v.

                   Sophia D. CHACON, Grayce G. Benesch, & Charlene Piekarski,
                                         Appellees

                      From the County Court at Law No. 3, Bexar County, Texas
                         Trial Court Nos. 115107, 115108, 115109, & 115111
                             Honorable David Rodriguez, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice
Dissenting opinion by: Steven C. Hilbig, Justice

Sitting:          Alma L. López, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: September 17, 2008

AFFIRMED

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 SAN ANTONIO , TEX ., Ordinance 101022 § 21-300(1) (repealed April 17, 2008, and reenacted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



         1
            Ordinance 101022 was repealed and reenacted on April 17, 2008. See S AN A N TO N IO , T EX . C O D E art. IX
(2008). The provisions of Ordinance 101022 at issue in this appeal were reenacted in article IX just as they originally
appeared. Compare id. §§ 21-300(1), 21-303(1), & 21-701(7)(a) with S AN A N TO N IO , T EX ., Ordinance 101022 §§ 21-
205(a), 21-214(g)(1), & 21-208(a) (June 9, 2005). Because the alleged offenses occurred while Ordinance 101022 was
in effect, we shall refer to the sections of that Ordinance, as do the parties, in conducting our review.

         2
             Misdemeanors are generally referred to as Class A, B, or C misdemeanors. See T EX . P EN AL C O D E A N N .
§ 12.03 (Vernon 2003). An offense punishable by fine only is considered a Class C misdemeanor. T EX . P EN AL C O D E
A N N . § 12.41(3) (Vernon 2003).

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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


         3
            Class A misdemeanors are punishable by a fine of up to $4,000.00, jail time of up to one year, or both. T EX .
P EN AL C O D E A N N . § 12.21 (Vernon 2003).

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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.




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        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



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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



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

and set the punishment as a Class A misdemeanor:

        A person commits an offense if the person violates a municipal or county regulation
        adopted under this chapter. An offense under this subsection is a Class A
        misdemeanor.

TEX . LOC. GOV ’T CODE ANN . § 243.010(b) (emphasis added); see also Thompson v. State, 44 S.W.3d

171, 175 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Flores v. State, 33 S.W.3d 907, 915 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d.); State v. Xoticas-Laredo, Inc., No. 04-03-00584-CR,

2004 WL 33054, at *1 (Tex. App.—San Antonio, Jan. 7, 2004, no pet.) (mem. op.) (not designated

for publication).

        Accordingly, the issue before us today is whether a city can enact an ordinance under the

authority of Chapter 243, but impose a lesser fine or penalty than a Class A misdemeanor for

violations of the ordinance.4 The State concedes that the Ordinance at issue was enacted by the City

in part under the authority of Chapter 243 of the Texas Local Government Code, but argues that it was

also enacted “under” the city’s inherent authority as a home rule city. In essence, the State contends

that section 243.010(b) is an “additional grant of power” to the City to enhance a violation from a

Class C misdemeanor to a Class A misdemeanor for only the “specified violations” enumerated in

Chapter 243 — particularly, location limits and owner permit requirements. See TEX . LOC. GOV ’T

CODE ANN . §§ 243.006, 243.007. Otherwise, the State contends the City retains its inherent power



         4
           The enforcement provision at issue in the Ordinance reads, “[t]he violation of any provision of this article,
including the doing of anything which is herein prohibited or declared to be unlawful or the failure to do anything or
perform any duty which is required herein, shall be punishable as a class C misdemeanor with a fine not to exceed two
thousand dollars ($2,000.00), as provided by Section 54.001 of the Local Government Code.” See Ordinance 101022,
§ 21-303.

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as a home rule city to impose a lesser fine or penalty for the violation of an ordinance that governs

public health and sanitation. See TEX . LOC. GOV ’T CODE ANN . § 54.001(b) (Vernon 2008) (fine or

penalty for violation of ordinance governing public health not to exceed $2,000). In other words, the

State argues that punishment for violations of the city ordinance are “fact specific,” depending on the

“respective enabling statutes.” The State concedes that if the offenses committed by appellees had

been location or owner permit violations then they would “clearly be Class A misdemeanor offenses.”

However, because Chapter 243 does not regulate the conduct of employees of sexually oriented

businesses, the City could set punishment at a Class C misdemeanor for violations of the nudity and

the three-foot rule as allowed under its inherent authority. See id. We respectfully disagree with the

State’s underlying premise that the enforcement provision of section 243.010(b) applies only to

“specified violations” enumerated within Chapter 243.

       Although the State asserts the enforcement provision of Chapter 243 applies only to sections

243.006(a) (municipality may restrict location of sexually oriented businesses) and 243.007(a)

(municipality may require owner or operator of sexually oriented business to obtain license or permit),

the State cites no legal authority for this proposition, nor does any provision within Chapter 243

support the State’s argument. When enacting Chapter 243, the Legislature expressly found that “the

unrestricted operation of certain sexually oriented businesses may be detrimental to the public health,

safety, and welfare by contributing to the decline of residential and business neighborhoods and the

growth of criminal activity.”     Id. § 243.001(a).     Accordingly, the Legislature granted local

governments broad authority to “adopt regulations regarding sexually oriented businesses as the

municipality . . . considers necessary to promote the public health, safety, or welfare.” Id.



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§ 243.003(a). Neither the stated purpose nor the broad grant of authority contained within section

243.003 limits the type of municipal regulations contemplated under the Chapter, as suggested by the

State. Therefore, we disagree that section 243.010(b) applies only to location or owner permit

violations. Further, we do not agree with the State that Chapter 243 does not contemplate regulating

the conduct of employees of sexually oriented businesses. See Ex Parte Smalley, 156 S.W.3d 608,

610-611 (Tex. App.—Dallas 2004, pet. dism’d); Thompson, 44 S.W.3d at 176; Flores, 33 S.W.3d

at 916; Haddad, 9 S.W.3d at 458.

        As a home rule municipality, the City of San Antonio has broad powers of self government —

provided that no ordinance “shall contain any 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. In this

case, the applicable enforcement provision in the Ordinance sets punishment as a Class C

misdemeanor, which directly conflicts with section 243.010(b) establishing punishment for a violation

of a municipal regulation as a Class A misdemeanor. TEX . LOC . GOV ’T CODE ANN . § 243.010(b).

Had the Legislature intended a broad range of punishment for an offense under Chapter 243, it could

have easily provided that an offense was punishable “up to a Class A misdemeanor” — reserving

the municipality’s authority to punish a violation as either a Class A, Class B, or Class C

misdemeanor. However, the Legislature did not say that; instead, it plainly provided that an offense

“is a Class A misdemeanor.” Id.

        Here, as conceded by the State, the City’s Ordinance was enacted under the broad grant of

authority provided by Chapter 243 in an effort to regulate sexually oriented businesses. Because the

Ordinance contains an enforcement provision (Class C misdemeanor) that directly conflicts with and



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is, therefore, inconsistent with the enforcement provision of a state statute (Class A misdemeanor),

we hold that the City’s enforcement provision is preempted, and thus unenforceable. See Dallas

Merchant’s, 852 S.W.2d at 491. Accordingly, we affirm the judgment of the municipal court

dismissing the cases for lack of jurisdiction.

                                                        Phylis J. Speedlin, Justice

PUBLISH




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