Anne Burnham

Texas has a unique form of local government known as home-rule that allows for broad powers of self government within that home-rule city.  The Texas Constitution was amended in 1912 to grant cities with over 5,000 citizens the power to self-govern. See 22 David B. Brooks, Texas Practice: Municipal Law & Practice § 1.17; Tex. Const. art. XI, § 5.  These cities are referred to as home-rule cities.  State v. DeLoach, 458 S.W.3d 696, 698 (Tex. App. – San Antonio 2015, pet. ref’d.)  Prior to the adoption of this constitutional amendment, a city had to specifically seek the authority to act from the legislature or the city would be powerless to act.  Ex parte Heidleberg, 51 Tex. Crim. 581, 103 S.W.395 ( 1907).  But, as the Texas Court of Criminal Appeals noted in a case decided not long after the constitutional amendment, this approach was ineffectual.   Le Gois v. State, 80 Tex. Crim. 356, 360; 190 S.W. 724 (1916).  The legislature only meets once every two years and “as new evils arose to require the different cities and towns to rush to it and ask and secure a grant of authority and power to suppress the evil,” seeking and gaining permission to act was unduly slow and burdensome.  Id.  Accordingly, the constitutional amendment granted and conferred on the cities all the power that is not prohibited by the Constitution and the general laws of the state.  Id. at 726. 

The home rule doctrine applies in all cities that have a population of over 5,000 in which its citizens have adopted a home-rule charter.  This translates to more than 352 cities in Texas with home-rule authority (https://ballotpedia.org/Cities_in_Texas).  Thus, it can be helpful to look at some of the ordinances passed within your city to determine whether a currently charged offense could or should have been charged only as a Class C misdemeanor under the home-rule doctrine.

One example of this came up recently in one of our cases in San Antonio.  Our client was charged under the penal code provision for discharging a firearm inside the corporate limits of a municipality having a population of 100,000 or more, namely the municipality of San Antonio.  Interestingly, Texas Penal Code § 42.12(d) states that “[s]ubsection (a) does not affect the authority of a municipality to enact an ordinance which prohibits the discharge of a firearm.” 

This caused us to search the San Antonio city ordinances and find that our municipality had indeed enacted an ordinance prohibiting the discharge of a firearm.¹  The elements of both provisions, Texas Penal Code 42.12 and the San Antonio City Ordinance are the same.  That is:  it is an offense to recklessly discharge a firearm inside the corporate city limits of a municipality having a population of 100,000 or more.  “[I]t is a fundamental tenet of criminal jurisprudence that, when courts must choose between two reasonable readings of a statute to determine what conduct the legislature intended to punish, courts apply the policy of lenity and adopt the less harsh meaning.”  Cuellar v. State, 70 S.W.3d 815, 821-22(Tex. Crim. App. 2002), concurrence Cochran, J.  The rule of lenity is a doctrine dating back to at least 1886 requiring that if any doubt exists on the statute to proceed under, the doubt must be resolved in favor of the accused.  Id.

As a home-rule city, San Antonio derives its powers from the Texas Constitution, not from the legislature. State v. DeLoach, 458 S.W.3d at 698.  A home-rule city has all the powers of the State as long as the powers are not inconsistent with the Texas Constitution, the general laws, or the city’s charter. Id. Further, a home-rule municipality has the power to enforce ordinances “necessary to protect health, life and property and to preserve good government, order and security of the municipality and its inhabitants.” Tex. Loc. Gov’t. Code Ann. § 54.044 (West 2018).   As such, home-rule city ordinances are given a presumption of validity. State v. DeLoach, 458 S.W.3d at 698.

“The mere fact that the legislature has enacted a law addressing a subject does not mean that the subject matter is completely preempted.”  City of Richardson v. Responsible Dog Owners of Tex., 794 S.W. 2d 17, 19 (Tex. 1990). For example, the Fourth Court of Appeals held that a home-rule city ordinance requiring licensing for operators of taxicabs was not preempted by state laws governing issuance and revocation of licenses.  Ex parte Heine, 158 Tex. Crim. 248, 250; 254 S.W.2d 790 (1952).  Likewise, the El Paso Court of Appeals found that although general state laws regulate the operation of bicycles and motorcycles, the home-rule city ordinance requiring a cyclist to wear a helmet was not preempted.  State v. Portillo, 314 S.W.3d 210, 216 (Tex. App. – El Paso 2010, no pet.).

Far from expressing an intent to limit San Antonio’s, or any other city’s, right to pass ordinances regarding discharging firearms, the legislature manifestly allowed for such local governance.  Texas Penal Code § 42.12 (d).

Because San Antonio is a home-rule city, it has broad powers to enact laws, unless the legislature clearly expresses an intent to limit that regulatory power. City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007).  “Such limits exist only when a statute speaks with ‘unmistakable clarity.'” Id. 

In re Sanchez, 81 S.W.3d 794 (Tex. 2002), required the Texas Supreme Court to determine whether a home-rule city provision for election filing deadlines was preempted by the Texas Election Code.  Id. at 796.  The Election Code provision, §143.007(a), specifically acknowledged other code sections may provide exceptions to the state law deadline.  The Supreme Court thus found that no intent to preempt was clearly manifested by the legislature.  Id. at 797.  Indeed, the Texas Supreme Court found that the Election Code expressly allows home-rule cities to establish their own requirements in municipal elections.  Id.  Having so concluded, the Court found the city’s provision regarding election deadlines is the provision that must be applied.  Id. at 798.

We filed a motion to set aside the information (attached to this article) and the trial court granted our motion. Our motion to set aside contained the home-rule city argument as well as an in pari materia argument.  The State appealed the trial court’s decision.  The lower court ruled against us, but only addressed the in pari materia argument.  State v. Musa-Valle, 2018 WL 3264831 (Tex. App. – San Antonio 2018).  Initially, the Court of Criminal Appeals granted petition for discretionary review, but then found the petition was  improvidently granted. State v. Musa-Valle,  2019 WL 2518103 (Tex. Crim. App. 2019).  Therefore, this is still an open issue before the courts.

NO. ___________________

STATE OF TEXAS IN THE COUNTY COURT AT LAW

VS. NUMBER ____

BEXAR COUNTY, TEXAS

DEFENDANT’S MOTION TO SET ASIDE THE INFORMATION

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes, Defendant, in the above-styled and numbered cause, and, prior to announcing ready, moves that the information filed in this case be set aside by virtue of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I §§ 10 and 19 of the Texas Constitution, and Articles 1.05, 21.01, 21.02, 21.03, 21.04, and 21.11 of the Texas Code of Criminal Procedure for the following reasons:

I.

Defendant is currently charged with discharging a firearm in a municipality over 100,000 pursuant to Texas Penal Code 42.12.  The information in this case should be set aside as the conduct described within should be punishable as a Class C misdemeanor pursuant to a San Antonio Municipal Ordinance.   San Antonio Municipal Ordinance § 21-152 and Texas Penal Code § 42.12 both attempt to criminalize and punish for the offense of discharging a firearm in certain municipalities in Texas. Each of these provisions are attached to this motion.  § 42.12 of the Penal Code classifies the offense as a Class A misdemeanor, while § 21-152 classifies it is a Class C misdemeanor.  The elements of both provisions are the same.  That is: it is an offense to recklessly discharge a firearm inside the corporate city limits of a municipality having a population of 100,000 or more (§42.12) and it is unlawful to discharge a firearm within the city limits of the City of San Antonio (§ 21-152).  “[I]t is a fundamental tenet of criminal jurisprudence that, when courts must choose between two reasonable readings of a statute to determine what conduct the legislature intended to punish, courts apply the policy of lenity and adopt the less harsh meaning.”  Cuellar v. State, 70 S.W.3d 815, 821-22(Tex. Crim. App. 2002), concurrence Cochran, J.  The rule of lenity is a doctrine dating back to at least 1886 requiring that if any doubt exists on the statute to proceed under, the doubt must be resolved in favor of the accused.  Id.

II.

Moreover, in 1912, Texas adopted a constitutional amendment providing for home rule in cities with populations over 5,000. Tex. Const. art. XI § 5.  Home rule cities therefore derive their powers not from the legislature, but from the Texas Constitution. See interpretive commentary, Tex. Const. art. XI § 5.  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).  Thus, San Antonio has broad powers of self government – provided that any ordinance enacted does not conflict with the state constitution or laws enacted by the state.  Tex. Const. art XI, § 5.  This ordinance, §21-152,  is not prohibited by the legislature.  In fact, the legislature made clear in § 42.12 of the Texas Penal Code that municipalities are allowed to proscribe this conduct by city ordinances. 

“Subsection (a) does not affect the authority of a municipality to enact an ordinance which prohibits the discharge of a firearm.” 

Tex. Penal Code § 42.12 (d).  To insist on prosecution under §42.12, would be an unconstitutional restriction on San Antonio’s autonomy.

This case should be filed in municipal court because San Antonio is a home rule city and therefore San Antonio Ordinance § 21-152 is the controlling provision.   Art. 4.14 of the Texas Code of Criminal Procedure states that a municipal court shall have exclusive original jurisdiction in all criminal cases that arise under the ordinances of the municipality. Tex. Code Crim. Pro. art. 4.14 (emphasis added).

The appropriate remedy is for this Court to set aside the information, and rule that, pursuant to the rule of lenity and the autonomy of home rule cities, the proper venue for this alleged offense is in municipal court as a Class C Misdemeanor, not a Class A Misdemeanor.

WHEREFORE, premises considered, the Defendant prays that the Court set aside the Information in the above-numbered and entitled cause.

Respectfully submitted:

CERTIFICATE OF SERVICE

I hereby certify that a copy of Defendant’s Motion To Set Aside The Information has been delivered to the District Attorney’s Office,                  County, on this the            day of                   ,2020 .

The TCDLA Law School Committee has begun several projects aimed at forging stronger bonds between the association and law students interested in criminal law. These students are the future of TCDLA, therefore it is imperative that we foster their career development and introduce them early to everything the association has to offer them, both now as students, and in the future. The pinnacle of support for a law student interested in criminal defense comes with TCDLA’s student membership: For $20, the student gets access to the listserve, the members’ website, with the all-new student tab that will feature clerkship and job opportunities, postings about upcoming trials the students can view and help with, copies of the Voice, free attendance at CLEs, and use of the TCDLA app. But to involve the students in this level of support, we must first meet them.

Therefore, the first goal of the committee, started last year and completed this year, was to recruit at least one criminal law faculty member from each Texas law school. This internal faculty member will serve as a liaison between TCDLA and the law school and help promote TCDLA events for students and student membership in TCDLA. Committee members split up the Texas law schools and have committed to work with the law school internal liaisons by providing information about TCDLA events. These events include scheduled seminars where law students are invited, such as the annual Innocence/Forensics seminar scheduled for October 6-8, 2021, in Fort Worth, and encourage speaker lunches or virtual presentations at the law school. We are always interested in expanding our connections within the law schools. If any of our members have connections within any of the Texas law schools, or have suggestions as to how we can better connect with students at a law school, please reach out to the respective TCDLA liaison to that law school. The TCDLA liaisons and their contact information is as follows:

The second goal of this year’s committee is to develop a student portal within the TCDLA website. With the goal of marketing what TCDLA has to offer students. It will be open to all law students, regardless of whether they are student members in TCDLA. There will be TCDLA member testimonials on key subjects that impact law students and their career development. Law students will be able to submit questions, and there will be a “frequently asked questions” section with TCDLA member answers to questions submitted by law students. TCDLA merchandise will be available for students to purchase through the website. There will be teasers to other material that is available only for TCDLA student members, with the goal of encouraging joining TCDLA. There will be job, intern and upcoming trial notices posted on the student member section. There will be resources such as trial skill simulations by TCDLA members, and practical articles on skills every new defense lawyer needs to know.

The third objective this year is to create a webinar, open to all law students, entitled Career Pathways to Criminal Defense Practice. Working with 3L law students in a criminal defense clinical program, we often hear students lament that there are so few job opportunities in criminal defense, that most defense attorneys are lone wolves and do not hire, that it is hard to get court appointments right out of law school, and if they do get court appointments, there’s no way they can survive on the fees. While there are kernels of truth in these statements, they are exaggerated and overstep the viable pathways many defense attorneys have taken to get to where they are. Our goal is to shine light on these.

The event will consist of a panel presentation of TCDLA lawyers with a moderated chat for law student questions, an hour of ethics and wellness, and conclude with virtual networking break-out rooms which will be organized by geographical practice location and practice focus areas.

The panel presentation will cover different pathways that criminal defense lawyers have taken. These include:

• Working for a district attorney’s office, with a focus on advantages and disadvantages;
• Working for a public defender’s office, a Texas Rural Legal Aid office working in criminal defense, or RDPO, with a focus on how to find these positions, advantages and disadvantages;
• Starting out as a criminal defense solo practitioner with a focus on what kind of income they can expect, sources of income, how they got business and different options to consider in terms of supplementing income;
• Building a practice seeking court appointments, with a focus on how they navigated the wheel, multiple county practice to maximize appointments, income that can be expected from appointments and tips on how they supplemented income from court appointments;
• Working in an established criminal defense firm in an urban area, with a focus on how they obtained the position, what advice they would give to law students about making the connections to obtain such a position;
• Working for a rural law firm that takes all cases, including criminal defense, with a focus on how they found this employment arrangement, whether they were seeking the position in order to primarily practice criminal defense or did they start practicing criminal defense as part of the firm’s case load;
• Working for a general law firm that also handles criminal defense, with a focus on how they found the position, whether they signed on primarily for the criminal defense opportunities, or did they start practicing in criminal defense as part of the firm’s case load; and
• Serving as a briefing or staff attorney at the Court of Criminal Appeals, an intermediate court of appeals or federal court.

Speakers will also address ethical questions and issues soon-to-be criminal defense lawyers should give thought to, and be aware of: The question of whether criminal defense work is right for you; with a focus on feelings or beliefs about representing clients in all types of cases; personal baggage that can interfere with zealously representing the client; work/life balance issues; professional stressors and triggers; worries about being subjected to vicarious trauma; resources such as TLAP and membership in supportive professional associations such as TCDLA and its affiliates; as well as ethical ways to market and set fees; and introduction to IOLTA accounts and a primer on how the grievance process works.

The event will conclude with break-out rooms where law students can meet criminal defense lawyers from the counties where they hope to practice, or who practice in specific areas of criminal defense the student is interested in, such as: indigent defense, juvenile law, appellate, post-conviction/innocence, capital murder, DWI, domestic violence and sexual assault.

To make the event successful and meaningful for the law student participants, we are seeking your help in volunteering for either the panel or break-out sessions. If you have an idea for another pathway to criminal defense work and/or wish to participate in this event, please contact us via either Melissa Schank at or Law School Committee Chair Anne Burnham at .