Home-Rule City Ordinances vs. Texas Penal Code

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 .

Footnotes

  1. Of the 352 home-rule cities in Texas, at least 40 have local ordinances like the one in San Antonio. Most city ordinances are Class C misdemeanors, or what we commonly call a ticket or citation.
TCDLA
TCDLA
Anne Burnham
Anne Burnham
Anne Burnham is a Clinical Professor of Law in the Criminal Justice Clinical program at St. Mary’s University School of Law. In 2000, she opened her own criminal defense firm where she practiced at the trial and appellate levels in both state and federal court. She is a Fellow of both the American Bar Foundation and Texas Bar Foundation. Burnham is licensed to practice law in Texas, the United States District Court for the Western District of Texas, the Fifth Circuit Court of Appeals and the United States Supreme Court. She can be reached at or 210-431-5753.
Stephanie Stevens
Stephanie Stevens
Stephanie Stevens teaches Juvenile Law, Texas Criminal Procedure and is a Clinical Professor of Law in the Criminal Justice Clinic at St. Mary’s University School of Law. In the past, Stephanie won the Distinguished Law Faculty Award. She is board certified in criminal law. Additionally, she is a past president of the San Antonio Criminal Defense Lawyers’ Association. She can be reached or 210-431-5710.

Anne Burnham is a Clinical Professor of Law in the Criminal Justice Clinical program at St. Mary’s University School of Law. In 2000, she opened her own criminal defense firm where she practiced at the trial and appellate levels in both state and federal court. She is a Fellow of both the American Bar Foundation and Texas Bar Foundation. Burnham is licensed to practice law in Texas, the United States District Court for the Western District of Texas, the Fifth Circuit Court of Appeals and the United States Supreme Court. She can be reached at or 210-431-5753.

Stephanie Stevens teaches Juvenile Law, Texas Criminal Procedure and is a Clinical Professor of Law in the Criminal Justice Clinic at St. Mary’s University School of Law. In the past, Stephanie won the Distinguished Law Faculty Award. She is board certified in criminal law. Additionally, she is a past president of the San Antonio Criminal Defense Lawyers’ Association. She can be reached or 210-431-5710.

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