







COURT OF APPEALS








COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
 
TEXAS DEPARTMENT OF PUBLIC                  )
SAFETY,                                                              )              
No.  08-02-00542-CV
                                                                              )
Appellant,                          )                    Appeal from the
                                                                              )
v.                                                                           )            
County Court at Law #2
                                                                              )
JIMMY JOE HUKILL,                                         )            
of Ector County, Texas
                                                                              )
Appellee.                           )                     (TC# 16,814)
                                                                              )
 
 
O
P I N I O N
 
In this concealed
handgun license case, the Texas Department of Public Safety (ADPS@)
appeals the trial court=s
order in favor of Mr. Hukill, and by two issues, argues that the trial court
erred in reversing DPS=s
denial of Mr. Hukill=s
application for a license to carry a concealed handgun.  We reverse and render.




On June 8, 1999, Mr.
Hukill pled not guilty to driving while intoxicated, but pled guilty to the
misdemeanor offense of reckless driving in the County Court of Law, Ector
County, cause number 98-3567.  The court
assessed punishment at a fine of $200 and thirty days in the county jail.  The court, however, suspended imposition of
the sentence and placed Mr. Hukill on probation for a six-month term.  In a nunc pro tunc order, the court
characterized the offense of reckless driving as a Class C misdemeanor.[1]  Based on this conviction, DPS revoked
Mr. Hukill=s handgun
license.  It appears that Mr. Hukill did
not challenge the revocation.
Mr. Hukill later
re-applied for a concealed handgun license. 
By letter dated May 20, 2002, DPS informed Mr. Hukill that it was
denying his application because he was ineligible under Tex.Gov=t Code Ann. '
411.172(a)(8).  Mr. Hukill appealed, and
on July 3, 2002, the justice court affirmed the DPS=s
denial of his application, finding that the denial was supported by a
preponderance of the evidence.  Mr.
Hukill appealed the justice court=s
order for a trial de novo in the County Court at Law No. 2, Ector
County.  See Tex.Gov=t Code Ann. '
411.180(e) (Vernon Supp. 2004).  The
county court reversed DPS=s
denial of Mr. Hukill=s
application on November 27, 2002.




In the county
court=s
findings of fact and conclusions of law it found that:  (1) prior to June 8, 1999, Mr. Hukill held a
license to carry a concealed handgun; (2) that on or about June 8, 1999, the
court entered an order in a cause in which Mr. Hukill was charged with driving
while intoxicated; (3) the court=s
order found Mr. Hukill not guilty of driving while intoxicated, as charged, but
guilty of reckless driving, a Class C misdemeanor; and (4) DPS denied Mr.
Hukill=s
application to reissue a concealed handgun license upon deciding that the
conviction was a Class B misdemeanor that made Mr. Hukill ineligible for
the license.  Based on these facts, the
court concluded that the conviction was for a Class C misdemeanor, as
specifically stated in the order, and that DPS A[did]
not have the power or authority to arbitrarily change the Order of the County
Court at Law of Ector County, Texas as to the classification of a violation of
the laws of the State of Texas.@  The court further concluded that Mr. Hukill
was entitled to issuance of a concealed handgun license.
Eligibility
under the Concealed Handgun License Statute
In Issue Two, DPS
argues that the trial court erred in concluding that Mr. Hukill=s reckless driving offense conviction
was not a conviction which rendered Mr. Hukill ineligible for a concealed
handgun license.  DPS asserts that regardless
of the convicting court=s
characterization of the offense, for the purposes of the concealed handgun
statute, the legislature has defined reckless driving as a Class A misdemeanor
under Section 411.172(b)(2) of the Texas Government Code because it is
punishable by confinement.  See Tex.
Dep=t of
Public Safety v. Rodriguez, 126 S.W.3d 666, 668 (Tex.App.--Houston [14th
Dist.] 2004, no pet.)(trial court=s
classification of reckless driving offense as a Class C misdemeanor does not
override further classification for other purposes under applicable law).
We review matters
of statutory construction de novo. 
City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.
2003).  We look first to the Aplain and common meaning of the statute=s words.@  Id., quoting State v.
Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). 
If a statute=s meaning
is unambiguous, we generally interpret the statute according to its plain
meaning.  Id. 




Under Section
411.172(a)(8) of the concealed handgun license statute, an applicant is not
eligible for a license if the person has, in the five years preceding the date
of application, been convicted of a Class A or Class B misdemeanor or an
offense under Section 42.01 of the Penal Code.[2]  See Tex.Gov=t Code Ann. '
411.172(a)(8).  For the purposes of the
statute, an offense is a Class A misdemeanor if it is not a felony and
confinement in a jail other than a state jail felony facility is affixed to the
offense as a possible punishment.  See
Tex.Gov=t
Code Ann. '
411.172(b)(2).  Therefore, in determining
eligibility for a concealed handgun license, all misdemeanor offenses
punishable by confinement are classified as Class A misdemeanors.  The offense of reckless driving is punishable
by a fine not to exceed $200, confinement in a county jail for not more than
thirty days, or both the fine and confinement. 
See Tex.Transp.Code Ann.
' 545.401 (Vernon 1999).
In Mr. Hukill=s case, he was convicted of reckless
driving and sentenced to pay a fine and to be confined in the county jail for
thirty days, probated.  Mr. Hukill=s conviction occurred on June 8, 1999,
and for purposes of the statute constitutes a Class A misdemeanor.  DPS did not improperly deny Mr. Hukill=s 2002 application because five years
had not passed from the date of the conviction. 
See Tex.Gov=t Code Ann. '
411.172(a)(8).  Therefore, we conclude
the trial court erred in reversing DPS=s
denial of Mr. Hukill=s
application for a concealed handgun license. 
Issue Two is sustained.[3]




We reverse the
order of the County Court at Law No. 2 and render judgment reinstating the
Justice of the Peace Court=s,
Precinct 1, Ector County, order that affirmed DPS=s
denial of Mr. Hukill=s
application to carry a concealed handgun.
 
 
July
8, 2004
DAVID WELLINGTON
CHEW, Justice
 
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
 




[1]
On July 31, 2002, Mr. Hukill filed a motion to reform the judgment and sentence
in the cause 98-3567.  In the motion, Mr.
Hukill stated that the plea bargain was to a Class C misdemeanor and requested
that the court=s order
be reformed to comply with the plea to a Class C misdemeanor.


[2]
The term Aconvicted@ is defined in Section 411.171(4) to
mean an adjudication of guilt or an order of deferred adjudication, whether or
not the imposition of the sentence is subsequently probated and the person is
discharged from community supervision.  Tex.Gov=t Code Ann. '
411.171(4)(Vernon Supp. 2004).


[3]
It is unnecessary to address DPS=s
contentions raised in Issue One regarding the legal sufficiency of the trial
court=s
findings of fact, because there is some evidence in the record to support the
findings, but it is clear that the parties did not dispute the convicting court=s classification of the reckless
driving offense, but rather the legal conclusion that was drawn from that
classification.


