                                                                                                  ACCEPTED
                                                                                             04-14-00324-CR
                                                                                  FOURTH COURT OF APPEALS
                                                                                       SAN ANTONIO, TEXAS
                                                                                        1/13/2015 1:39:10 PM
                                                                                               KEITH HOTTLE
                                                                                                      CLERK

                               CASE NO. 04-14-00324-CR

                         IN THE COURT OF APPEALS           FILED IN
                     FOURTH COURT OF APPEALS DISTRICT4th COURT OF APPEALS
                                                      SAN ANTONIO, TEXAS
                            SAN ANTONIO, TEXAS
                                                                    1/13/2015 1:39:10 PM
                                                                      KEITH E. HOTTLE
                                                                            Clerk
                                 THE STATE OF TEXAS.
                                             Appellant,

                                              v.

                                   JOHN D. DELOACH,
                                              Appellee.


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


APPELLEE’S MOTION TO STRIKE, OR, IN THE ALTERNATIVE, RESPONSE
        TO APPELLANT’S REQUEST FOR JUDICIAL NOTICE


TO THE HONORABLE FOURTH COURT OF APPEALS:

       NOW COMES Appellee, John D. DeLoach, and files this his Motion to Strike, or,

in the Alternative, Response to Appellant’s Request for Judicial Notice as follows:

       On December 8, 2014, Appellant filed its Response to the Appellee’s Motion for

En Banc Reconsideration. Included within that filing were two items, Attachment 1 and

2, neither of which are part of the record in the matter.

A.     Attachments 1 and 2 Were Not Part of the Record and Should Be Stricken

       It is basic to appellate procedure that “review is confined to the evidence in the

appellate record.” Carlton v. Trinity Universal Ins. Co., 32 S.W.3d 454, 458 (Tex.

App.—Houston [14th Dist.] 2000, pet. denied). As noted by the court in Carlton, it is
simply “improper for parties to rely on matters outside the record in making arguments to

the court.” This court expressed the same principle in Castano v. San Felipe Agricultural

Manufacturing, & Irrigation Co., 147 S.W.3d 444, 453 (Tex. Civ. App.—San Antonio

2004, no pet). “We cannot consider documents attached to an appellate brief that do not

appear in the record.” The extraneous and improper attachments should be stricken.

B.       Attachments 1 and 2 Cannot Be Properly Considered by Way of Judicial
         Notice

         Although the language of Appellant’s Response includes no request that

Attachments 1 and 2 be the subject of judicial notice, to the extent one may be implied it

should be denied. Under TEX. R. EVID. 201 for a fact to be judicially noticed it must

either be generally known within the territorial jurisdiction of the trial court or capable of

accurate and ready determination by resort to sources whose accuracy cannot reasonably

be questioned. Neither of the attachments qualifies.1

         Attachment 1 is a multi-page document entitled “Study of Private Property

Towing Fees” prepared by Morningside Research and Consulting, Inc., an otherwise

unidentified entity. The certification that precedes the document merely establishes that

it was “with, and maintained by, the Texas Department of Licensing and Regulation.”

(TDLR).

         The content of the report itself, a survey of towing practices throughout the state,

is clearly not a fact generally known within the territorial jurisdiction of the court. Nor is

the fact or facts presented readily determined to be accurate. In the first instance nothing

1
  Also, this Court has been “reluctant to take judicial notice … when the trial court was not afforded the opportunity
….” Duderstadt Surveyors Supply v. Alamo Express, 686 S.W.2d 351, 354 (Tex. App.—San Antonio 1985, writ
ref’d n.r.e.).

213331/0002279-24459                                      2
identifies Morningside Research such that any determination of trustworthiness is

possible. Further, beyond the hearsay nature of the document itself, it contains abundant

hearsay within hearsay since it is based on information submitted by multiple sources,

further undermining any ability to determine its trustworthiness. Finally, there is an

inconsistency between the certification by the custodian of records of the TDLR and the

document itself. The certification specifically references an attached 63 pages, of which

only 54 are presented.

         Attachment 2 is described in the Appellant’s Response as a TDLR letter

containing a “official opinion” of that agency and concludes that judicial notice may be

taken because it is “under seal and signature.” Although the document shows a signature,

both of the other characterizations are either misleading or wrong. As shown by the

reference line and the letterhead, the document relates to a presentation by the

Enforcement Division of the TDLR in a pending adversary proceeding. It has no seal and

is directed to the General Counsel’s office as an exercise in advocacy within an

enforcement proceeding, not an opinion letter of the agency. It clearly does not meet the

Rule 201 criteria for judicial notice.

C.       If Considered, the Attachments Offer No Support for the Appellant’s Position

          Appellant offers its Attachments in support of its argument that the Court give

deference to a regulatory agency’s interpretation of a statute.2 Under TEX. GOV’T

CODE § 311.023, administrative construction is but one of several factors that may be

2
  Appellant also references its Attachment 3, a portion of the trial court testimony in this regard. That testimony
makes reference to a settlement between the TDLR and Roadside Recovery. The reference is meaningless. A
settlement document must be considered in its entirety to determine the context of any particular terms or provisions
before attributing meaning or effect. See Castano, 147 S.W.3d at 448; Residencial Santa Rita, Inc. v. Colonia Santa
Rita, Inc., 2007 Tex. App. LEXIS 7426, *4 (Tex. Civ. App.—San Antonio 2007, no pet.).

213331/0002279-24459                                     3
considered in construing a statute. However, as noted in the cases cited by the Appellant,

consideration is given to “certain construction” that has been followed “over a long

period of time.” Wagner v. City of San Angelo, 546 S.W.2d 378, 379 (Tex. App.—

Austin 1977, no writ). Indeed, in the other case cited by Appellant, Stanford v. Butler,

181 S.W.2d 269, 273 (Tex. 1944), the court looked at 40 years of administrative practice.

No such long period of administrative interpretation is offered or present here.

         Indeed, viewed in context, Appellant’s Attachment 1, the Morningside study of

towing fees fits Appellee’s analysis. As described in the “Overview” on page 1, the

study was commissioned after the TDLR was required to establish certain maximum fees

for private property tows.       See TEX. OCC. CODE § 2308.0575 (DeLoach Brief,

Appendix F). After that study in May of 2010, the agency established a maximum of

$250.00 for light duty tows such as those at issue here. 16 TEX. ADMIN. CODE §

86.455. (See DeLoach Brief, Appendix G). The fee limit so established by the state is the

ceiling for municipalities which have not taken the steps to establish or amend the

allowable fees to provide a fair value. See TEX. OCC. CODE §§ 2308.203(b) and

2308.2065.

         Appellant’s argument that the mandatory “shall” of § 2308.203(b) essentially be

disregarded ignores the “fair value” requirement of the legislation. There is simply no

ambiguity in the statute providing that the City “shall … amend the allowable fees for

non-consent tows at amounts that represent the fair value ….” Indeed, when looking at

the statute construction aides listed in TEX. GOV’T CODE § 311.023, the “object sought

to be obtained”, i.e., fair value for services, is listed first. Also, listed is “consequences of


213331/0002279-24459                           4
a particular construction.” Here, the Appellant’s construction allows the municipality to

complete a tow fee study, and actually determine a fair value, but nevertheless have carte

blanche to impose a lower limit bearing no economic relationship to the findings of its

own tow fee study. Such a construction is simply not reasonable since it defeats the

entire notion of providing for tow fees consistent with a fair value for the services

provided.

         WHEREFORE, PREMISES CONSIDERED, Appellee John D. DeLoach, prays

that Attachments 1 and 2 to Appellant’s Response to Appellee’s Motion for En Banc

Reconsideration be stricken and that this Court set aside the Opinion and Judgment of

November 19, 2014, reconsider the matter, and upon reconsideration, affirm the

Judgment of the County Court at Law.

                                         Respectfully submitted,

                                         CLEMENS & SPENCER
                                         112 E. Pecan St., Suite 1300
                                         San Antonio, Texas 78205-1531
                                         Telephone: (210) 227-7121
                                         Facsimile: (210) 227-0732


                                      By:       /s/Mark J. Cannan
                                                MARK J. CANNAN
                                                State Bar No. 03743800

                                         ATTORNEYS FOR APPELLEE,
                                         JOHN D. DELOACH




213331/0002279-24459                        5
                           CERTIFICATE OF SERVICE

       The undersigned counsel hereby certifies that a true and correct copy of the
foregoing was delivered via Email on this 13th day of January, 2015, to:

Mr. Samuel Adams                                Mr. Dan Pozza
Assistant City Attorney                         Law Office of Dan Pozza
Office of the City Attorney–San Antonio         239 E. Commerce St.
401 S. Frio                                     San Antonio, TX 78205
San Antonio, TX 78207                           via Email: danpozza@yahoo.com
via Email: samuel.adams@sanantonio.gov




                                              /s/Mark J. Cannan
                                          MARK J. CANNAN




213331/0002279-24459                        6
