                           NUMBER 13-12-00063-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

LANDRY ROUNTREE,                                                            Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


              On appeal from the County Court at Law No. 3
                      of Jefferson County, Texas.


                       MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Perkes
               Memorandum Opinion by Justice Benavides
      Appellant Landry Rountree appeals his conviction for violating a City of Beaumont

municipal ordinance involving non-consent vehicle towing fees.      See Beaumont, Tex.

Ordinance 98-64 (Oct. 6, 1998).   By one issue, Rountree asserts that he is entitled to an

acquittal because the city ordinance under which he was convicted did not comply with

section 2308.203 of the occupations code.    See TEX. OCC. CODE ANN. § 2308.203 (West
Supp. 2011). We affirm.1

                                       I.      BACKGROUND2

        The City of Beaumont set the maximum fee that a towing company could charge

for non-consent towing3 at $85.00 plus $25.00 for use of a dolly or roll-back tow.                     See

Beaumont, Tex. Ordinance 98-64 (Oct. 6, 1998).4 In July 2009, the State alleged that

Rountree, who opened and operated a towing company, charged an excessive wrecker

fee of $250.00 plus a $65.00 flatbed fee in violation of the maximum charges permitted

under the ordinance. Rountree was tried and convicted in Beaumont municipal court.

Rountree then appealed his conviction for a trial de novo to the Jefferson County

Court-at-Law No. 3. See TEX. CODE CRIM. PROC. ANN. art. 44.17 (West 2006).

        Prior to trial, Rountree filed a motion to dismiss asserting that the ordinance under

which he was charged did not comply with section 2308.203 of the occupations code.

See TEX. OCC. CODE ANN. § 2308.203. The trial court declined to rule on the motion,

and the prosecution moved forward.              A Jefferson County jury subsequently convicted

Rountree of charging excessive towing fees, a misdemeanor.                       See Beaumont, Tex.

Ordinance 98-64 (Oct. 6, 1998); TEX. OCC. CODE ANN. § 2308.505 (West Supp. 2011).

As punishment, the trial court assessed a fine of $400.                See id; TEX. LOC. GOV’T CODE

        1
          This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).
        2
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
        3
          By ordinance, “non-consent towing” means any tow conducted without permission of, or not at the
direction of, the towed vehicles legal or registered owner, or such owners authorized representative.
Beaumont, Tex. Ordinance 98-64 (Oct. 6, 1998).
        4
         The City of Beaumont’s non-consent towing fees have since been amended to $165 for vehicles
10,000 pounds or less. See Beaumont, Tex. Ordinance 09-072.


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ANN. § 54.001(b) (West 2008). This appeal followed.

                      II.     ENFORCEABILITY OF THE ORDINANCE

        By his sole issue, Rountree asserts that he is entitled to an acquittal because

ordinance 98-64 was not in compliance with section 2308.203 of the occupations code.5

A.      Applicable Law

        A municipal ordinance is presumed valid, and the party attacking it has the burden

to show that it is invalid.     See John v. State, 577 S.W.2d 483, 485 (Tex. Crim. App.

[Panel Op.] 1979); Utter v. State, 571 S.W.2d 934, 937 (Tex. Crim. App. [Panel Op.]

1978); State v. Portillo, 314 S.W.3d 210, 215 (Tex. App.—El Paso 2010, no pet.).

Moreover, a municipal ordinance shall not be inconsistent with the Texas Constitution or

the general laws enacted by the Texas Legislature.             See TEX. CONST. art. 11 § 5; City of

Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982).                      A statute and an

ordinance are repugnant to each other only if no reasonable construction upholding both

can be reached.       See Gordon v. State, 757 S.W.2d 496, 502 (Tex. App.—Houston [1st

Dist.] 1988, writ ref’d); City of Beaumont v. Jones, 560 S.W.2d 710, 711 (Tex. Civ.

App.—Beaumont 1977, writ ref’d n.r.e.).

B.      Discussion

        Rountree argues that the ordinance at issue does not include the required

procedure to be used by towing companies to request that a towing study be performed

to evaluate the need to increase the allowable fee for performing non-consent tows as




        5
         The State argues that Rountree failed to preserve his complaint for appellate review. See TEX.
R. APP. P. 33.1. We disagree. Rountree filed a pre-trial motion to dismiss arguing the same points on
appeal, presented the motion to the trial court, and the trial court implicitly overruled his motion. We
conclude that this was sufficient preservation of error and will address Rountree’s sole point on appeal.

                                                   3
required by section 2308.203.               See TEX. OCC. CODE ANN. § 2308.203.6               The State

admits that the City of Beaumont did not have the required procedure mandated by

section 2308.203 in place at the time that it enforced ordinance 98-64 against Rountree.

However, the State argues that the City of Beaumont’s non-compliance with section

2308.203 did not make the ordinance invalid, nor did it preclude the enforcement of

ordinance 98-64 under occupations code section 2308.202.                    See TEX. OCC. CODE ANN.

§ 2308.202 (West Supp. 2011). We agree.

       Texas Occupations Code Section 2308.202 states the following:

       [A municipality] may regulate the fees that may be charged or collected in
       connection with a non[-]consent tow originating in the [municipality] if the
       private property tow fees:

       (1) are authorized by commission rule; and

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

Id.

       Our review finds no conflict between Ordinance 98-64, which derives its authority

from section 2308.202 to regulate non-consent towing fees, and section 2308.203, which

requires the City of Beaumont to set up procedures for a towing company to request a

fee study, to render Ordinance 98-64 invalid and unenforceable. See Gordon, 757


       6
           The pertinent statute states, in full, that:

             (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 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.

TEX. OCC. CODE ANN. § 2308.203 (West Supp. 2011).


                                                          4
S.W.3d at 502–03 (holding that an ordinance was not in conflict with state law); Portillo,

314 S.W.3d at 215.          When we interpret statutes, we are to construe the statute

according to its plain language, unless the language is ambiguous or the interpretation

would lead to absurd results that the legislature could not have intended.         Tapps v.

State, 294 S.W.3d 175, 177 (Tex. Crim. App. 2009). Where a statute is clear and

unambiguous, the Legislature must be understood to mean what it expressed, and it is

not for the courts to add or subtract from such a statute. Id.   In this case, 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. See TEX. OCC. CODE ANN. §§

2308.202–.203.     Our interpretation of these two provisions does not lead to an absurd

result that the legislature could not have intended, because it appears that the legislature

made them independent, rather than dependent, from one another. See Tapps, 294

S.W.3d at 177. Therefore, we overrule Rountree’s sole issue.

                                    III.   CONCLUSION

       We affirm the trial court’s judgment.



                                                        __________________________
                                                        GINA M. BENAVIDES,
                                                        Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
23rd day of August, 2012.



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