Deloach, John D.

• Court: Court of Appeals of Texas
• Decided: April 3, 2015
• Docket: PD-0382-15
• Status: Published

Opinion

PD-0382-15 April 3, 2015

No. ________________

COURT OF CRIMINAL APPEALS OF TEXAS ______________________________________________________________________

JOHN DELOACH, Petitioner,

v.

STATE OF TEXAS, Respondent. _______________________________________________________________________

On Petition for Review from the Court of Appeals for the Fourth District Court of Texas San Antonio, Texas _______________________________________________________________________

PETITION FOR DISCRETIONARY REVIEW ________________________________________________________________________

Mark J. Cannan State Bar No. 03743800 CLEMENS & SPENCER 112 E. Pecan St., Suite 1300 San Antonio, Texas 78205 (210) 227-7121 - Telephone (210) 227-0732 – Facsimile Email: cannanm@clemens-spencer.com

Carleton B. Spears State Bar No. 18893800 Carleton B. Spears, P.C. 330 North Park San Antonio, Texas 78216 (210) 366-3100 – Telephone (210) 375-8588 – Telecopier Email: carleton@carletonspears.com

ATTORNEYS FOR PETITIONER, JOHN DELOACH IDENTITY OF JUDGE, PARTIES, AND COUNSEL

1. Trial Court: Hon. Robert Lipo, Judge, San Antonio Municipal Court

2. Initial Appeal: Hon. Scott Roberts, Judge, Bexar County Court at Law No. 12

3. Parties: State of Texas/City of San Antonio and John DeLoach

4. Trial and appellate counsel for the State of Texas: Samuel C.W. Adams, Assistant City Attorney State Bar No. 24003680 Savita Rai, Assistant City Attorney State Bar No. 24013368 Office of the City Attorney – San Antonio 401 S. Frio San Antonio, Texas 78207 (210) 207-7335 - Telephone (210) 207-7358 – Telecopier Email: Samuel.Adams@sanantonio.gov Savita.Rai@sanantonio.gov

Dan Pozza State Bar No. 16224800 Attorney at Law 239 E. Commerce St. San Antonio, Texas 78205 (210) 226-8888 - Telephone (210) 224-6373 - Telecopier Email: danpozza@yahoo.com

Trial and appellate counsel for John DeLoach: Mark J. Cannan State Bar No. 03743800 Clemens & Spencer 112 E. Pecan St., Suite 1300 San Antonio, Texas 78205-1531 (210) 227-7121 - Telephone (210) 227-0732 – Facsimile Email: cannanm@clemens-spencer.com

213723/0002279-24559 i Carleton B. Spears State Bar No. 18893800 Carleton B. Spears, P.C. 330 North Park San Antonio, Texas 78216 (210) 366-3100 – Telephone (210) 375-8588 – Telecopier Email: carleton@carletonspears.com

213723/0002279-24559 ii TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES AND COUNSEL ................................................... i, ii

TABLE OF CONTENTS .................................................................................................. iii

INDEX OF AUTHORITIES .......................................................................................... iv, v

STATEMENT REGARDING ORAL ARGUMENT ........................................................ 1

STATEMENT OF THE CASE .......................................................................................... 1

STATEMENT OF PROCEDURAL HISTORY ................................................................. 2

GROUNDS FOR REVIEW ................................................................................................ 3

ARGUMENT....................................................................................................................... 3

Introduction .................................................................................................................. 3

2003 Legislation - A Framework for Local Regulation ............................................... 4

San Antonio Ignores Legislature’s Requirements ........................................................ 6

To the Extent of Conflict the City Ordinance is Preempted......................................... 7

The Court of Appeals Opinion – A Flawed Analysis .................................................. 8

Conclusion .................................................................................................................. 10

PRAYER .......................................................................................................................... 10

CERTIFICATE OF SERVICE ......................................................................................... 11

APPENDIX ....................................................................................................................... 12

A Fourth Court of Appeals Opinion dated November 19, 2014.

B Fourth Court of Appeals Opinion dated March 4, 2015.

213723/0002279-24559 iii INDEX OF AUTHORITIES CASES: Pages

Bay City Federal Savings & Loan Ass’n v. Lewis, 474 S.W.2d 459 (Tex. 1971) ......................................................................................... 5

Bolton v. Sparks, 362 S.W.2d 946 (Tex. 1962) ......................................................................................... 7

French v. State, 546 S.W.2d 612 (Tex. Crim. App. 1977) .................................................................... 3

Honeycutt v. State, 627 S.W.2d 417 (Tex. Crim. App. 1981) ..................................................................... 7

Rountree v. The State of Texas, 2012 WL 3612497 (Tex. App.—Corpus Christi 2012, no pet.) ............................. 9, 10

State v.Chacon, 273 S.W.3d 375 (Tex. App.—San Antonio 2008, no pet.) ........................................... 5

STATUTES, ORDINANCES AND CONSTITUTIONAL PROVISIONS: Pages

Acts 2003, 78 Leg., Ch. 1034 (H.B. 849) ................................................................ 3, 4, 6, 9

San Antonio City Code 19-427 ........................................................................................... 6

TEX. ADMIN. CODE § 86.455 .......................................................................................... 7

TEX. CONST. Art. XI § 5 ............................................................................................... 3, 7

TEX. GOV’T CODE § 311.016(1) and (2) ......................................................................... 8

TEX. OCC. CODE § 2308.202 ................................................................................... 4, 5, 9

TEX. OCC. CODE § 2308.203 ..................................................................... 4, 5, 6, 7, 9, 10

TRANSPORTATION CODE, § 643.203 ........................................................................... 4

TRANSPORTATION CODE, § 643.204 ........................................................................... 4

213723/0002279-24559 iv OTHER: Pages

San Antonio Express-News, January 8, 2015 .................................................................... 10

Senate Committee on Bus. & Comm., Bill Analysis, HB 849 ............................................ 8

213723/0002279-24559 v No. ________________

COURT OF CRIMINAL APPEALS OF TEXAS ______________________________________________________________________

STATE OF TEXAS, Respondent. _______________________________________________________________________

On Petition for Review from the Court of Appeals for the Fourth District Court of Texas San Antonio, Texas _______________________________________________________________________

PETITION FOR DISCRETIONARY REVIEW ________________________________________________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS IN TEXAS:

Now comes Petitioner, John DeLoach, and files his Petition for Discretionary

Review.

STATEMENT REGARDING ORAL ARGUMENT

The issue raised is not complex and requires no detailed appraisal of disputed

evidentiary points. As such, oral argument would not appear necessary and Petitioner

waives it.

STATEMENT OF THE CASE

Petitioner John DeLoach (“DeLoach”) was charged with violation of a San

Antonio Municipal ordinance limiting the charges for a non-consent tow of a motor

vehicle. The prosecution was before the Municipal Court of the City of San Antonio. 213723/0002279-24559 1 DeLoach filed a Motion to Quash and/or Dismiss the Complaint on the grounds that the

City ordinance was inconsistent with and therefore preempted by state statute. That

Motion was heard and denied and the case proceeded to trial before the Court. Defendant

was found guilty and assessed a fine of $500.00. Defendant’s Motion for New Trial was

denied and appeal was perfected to the County Courts of Law of Bexar County, Texas.

Sitting as an appellate court, the County Court at Law No. 12 of Bexar County,

Texas, found in favor of Defendant DeLoach on the issue of preemption and reversed the

ruling of the San Antonio Municipal Court, entering an order dismissing the case. That

order was appealed by the State to the Fourth Court of Appeals, San Antonio, Texas.

That Court issued an opinion and order reversing the County Court at Law and reinstating

the conviction in the San Antonio Municipal Court. It is from that ruling that this appeal

is prosecuted.

STATEMENT OF PROCEDURAL HISTORY

The proceedings before the Fourth Court of Appeals, San Antonio, Texas, were as

follows:

November 19, 2014 – Opinion issued and Judgment entered

December 10, 2014 – Order entered extending time to file Motion for Rehearing

December 10, 2014 – Motion for En Banc Reconsideration filed

December 17, 2014 – Order entered requesting Response to Motion for En Banc Reconsideration

March 4, 2015 – Opinion and Judgment of November 19, 2014 withdrawn

March 4, 2015 – Motion for En Banc Reconsideration denied

213723/0002279-24559 2 March 4, 2015 – Opinion issued and Judgment entered

No further motions for rehearing were filed.

GROUNDS FOR REVIEW

Inconsistency between a 2002 San Antonio City ordinance limiting charges for

vehicle tows and the mandates of the state statute regulating such tows cannot be

reconciled, rendering the City ordinance under which Mr. DeLoach was convicted

violative of Art. XI § 5 of the Texas Constitution.

ARGUMENT

Introduction

Conflict between municipal ordinances and state statutes is addressed in Article

11, § 5 of the Texas Constitution. In relevant part it requires that no ordinance “shall

contain any provision inconsistent with … the general laws enacted by the legislature

….” As observed by this Court in French v. State, 546 S.W.2d 612, 613 (Tex. Crim.

App. 1977), that mandate is to be “strictly construed in favor of the dominant power of

the legislature.”

In its 2003 session, the legislature enacted provisions relating to the regulation of

tow trucks and granting certain authority to municipalities within an overall regulatory

framework. Acts 2003, 78 Leg., Ch. 1034 (H.B. 849). Although the enactment included

a grant of authority for municipalities to regulate fees for towing, it established

213723/0002279-24559 3 mandatory provisions to ensure that the allowable fees represented fair value for towing

services.1

San Antonio has disregarded that mandate and enforced a restriction on towing

charges inconsistent with the requirements of the legislative framework. As such, the

ordinance under which Mr. DeLoach was convicted should be held unenforceable

because preempted by the state statute.

2003 Legislation - A Framework for Local Regulation

In 2003 the legislature enacted House Bill 849, described in its caption as “relating

to the regulation of tow trucks, to the authority of a political subdivision of the estate to

regulate tow trucks, and to insurance for commercial motor vehicles; providing

penalties.” Acts 2003, 78 Leg., Ch. 1034 (H.B. 849).

As indicated by that caption, the enactment covered multiple aspects of the towing

industry. It included limitations on fees to be charged by vehicle storage facilities,

procedures and fees for registration of tow trucks, requirements of insurance coverage,

and provisions relating to offenses and penalties for violations.

At issue are those provisions of HB 849 relating to fees that may be charged or

collected in connection with non-consent tows. Section 10 of the bill amended the

Transportation Code, adding § 643.203 relating to regulation of tow fees by political

subdivisions and § 643.204 regarding towing fee studies in connection with the setting of

1 Those provisions were in section 10 of the Act as amendments to the Transportation Code. Those provisions are now at Tex. Occ. Code §§ 2308.202 and 203. 213723/0002279-24559 4 those charges based on fair value for the services. Those are now at TEX. OCC. CODE

§§ 2308.202 and 2308.203. They provide as follows:

Ҥ 2308.202. Regulation by Political Subdivisions of Fees for Nonconsent Tows

The governing body of a political subdivision may regulate the fees that may be charged or collected in connection with a nonconsent tow originating in the territory of the political subdivision if the private property tow fees:

(1) are authorized by commission rule; and (2) do not exceed the maximum amount authorized by commission rule.

§ 2308.203. Towing Fee Studies

(a) The governing body of a political subdivision that regulates nonconsent 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 nonconsent 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.”

These provisions need be considered in light of the principle that when the

legislature delegates certain authority it can be exercised “only in the manner prescribed

by the legislature.” Bay City Federal Savings & Loan Association v. Lewis, 474 S.W.2d

459, 461 (Tex. 1971). When the legislature provides a broad framework of regulation, as

with the towing industry, thereafter municipalities are only authorized “to enact

ordinances within that framework.” State v. Chacon, 273 S.W. 3d 375, 379 (Tex. App.—

San Antonio 2008, no pet.).

213723/0002279-24559 5 San Antonio Ignores Legislature’s Requirements

The City of San Antonio had established a limit for vehicle tows in 2002. Section

19-427 of the ordinances of the City of San Antonio provided that vehicle tow fees could

not exceed $85.00. After the legislature’s enactment of House Bill 849, San Antonio was

requested to bring its towing ordinance into compliance with that statute’s requirements

by taking the steps to “amend the allowable fees … at amounts that represent the fair

value of the services ….” TEX. OCC. CODE § 2308.203(b). (RR 11/14, pp. 130-131,

Ex. D-5).

Eventually, in 2006 the Finance Department of the City initiated a tow fee study.

The study was conducted by Morris Harris, a rate analyst for that department (RR 11/14,

pp. 24-28). After receiving financial and accounting information from the towing

industry (RR 11/14, p. 31), Mr. Harris completed that report in early 2007. (RR 11/14,

pp. 34-38). That report concluded that the fair value fee for automobile tows in 2007 was

$134.00. (RR 11/14, Ex. D-1 at p. 4). Mr. Harris testified that figure reflected “a

reasonable and fair rate adjustment.” (RR 11/14, p. 42).

Although Mr. Harris submitted his report, no further action was taken. The City

ordinance limiting tow charges to $85.00 remained in place, and the Deputy City

Manager with authority over the matter could offer no explanation for that inaction. (RR

11/15, pp. 10-13).

Thus, notwithstanding the determination of its own tow fee study that the City

limit on towing fees was significantly less than the fair value of the services, the City

took no action to amend the allowable fee pursuant to TEX. OCC. CODE § 2308.203(b). 213723/0002279-24559 6 On July 31, 2012, John DeLoach was cited for charging a towing fee in excess of the

$85.00 limit allowed by the 2002 ordinance. He had charged a fee of $250.00 for the tow

in question, a charge consistent with that otherwise allowed by the state under TEX.

ADMIN. CODE § 86.455.

To the Extent of Conflict the City Ordinance is Preempted

The Constitution mandates that no city ordinance “shall contain any provision

inconsistent with … the general laws enacted by the legislature of this state.” TEX.

CONST. Art. 11 § 5. As explained in Bolton v. Sparks, 362 S.W.2d 946, 950 (Tex.

1962), “(m)unicipal ordinances must conform to the limitations imposed by the superior

statutes, and only where the ordinance is consistent with them, and each of them, will it

be enforced.” This Court acknowledged that principle in Honeycutt v. State, 627 S.W.2d

417, 422 (Tex. Cr. App. 1981), directing that “a municipal ordinance must not conflict

with a state statute.”

The 2003 statute provided a framework with certain limitations for the municipal

regulation of towing which the City of San Antonio has ignored and disregarded. The

result is a city ordinance with provisions inconsistent with the state statute. The key

requirement is in TEX. OCC. CODE § 2308.203(b).

 A city “shall establish or amend the allowable fees for non-consent tows in amounts that represent the fair value of the services … and are reasonably related to any financial or accounting information provided to the governing body.”

Certainly, the mandatory nature of the requirement for establishing a fair value is

clear. Under statutory rules of construction, “shall’ imposes a duty,” as opposed to the

213723/0002279-24559 7 “discretionary authority” allowed by “may.” TEX. GOV’T CODE § 311.016(1) and (2).

The legislative history confirms the intent to have mandatory requirements imposed upon

municipalities. The Senate Committee Report reflects that the statute “requires”

amendment of the allowable fees for non-consent tows in order to represent the fair value

of the services of a towing company. Senate Committee on Bus. & Comm., Bill

Analysis, HB 849.

It is this provision that the City of San Antonio has ignored. As described above,

in 2007 the City completed a tow fee study showing that the fees allowed by the 2002

City ordinance were substantially below the fair value for the services. Yet no action was

taken to comply with the state requirement that a city “shall … amend the allowable fees”

to reflect fair value. The City of San Antonio’s continued enforcement of a tow fee

acknowledged to be less than fair value for the services is a failure to conform to the

limitations imposed by the statute. That conflict and inconsistency renders the ordinance

preempted and unenforceable.

The Court of Appeals Opinion - A Flawed Analysis

The basic flaw in the approach of the Court of Appeals can be seen in its statement

that “nowhere in the Act did the legislature include a provision that contains an explicit

expression of the legislature’s intent that the Act exclusively govern the regulation of

non-consent tow fees.” (Opinion dated March 6, 2015, at p. 6). Of course not, that is not

the test. The Constitutional issue arises when a municipal ordinance contains “any

provision inconsistent with … the general law as enacted by the legislature ….” By

looking for exclusivity the lower court ignored the “any provision inconsistent” standard. 213723/0002279-24559 8 HB 849 was neither an attempt by the state to assert exclusive authority to regulate

the tow industry nor was it a grant of exclusive authority to municipalities. Rather, it

provided a framework within which municipalities were permitted to exercise certain

regulatory authority. San Antonio seemed to acknowledge that framework by completing

a tow fee study. The failure to implement the results of that study was inconsistent with

the requirement of the statute that municipalities “shall … amend the allowable fees” to

represent fair value as determined by such a study.

The lower court relies upon Rountree v. State, 2012 WL 3612497 (Tex. App.—

Corpus Christi 2012, no pet.). It observes that the Rountree court considered “a similar

argument” and agrees “with the reasoning in Rountree.” (Opinion dated March 6, 2015,

at 5-6).

Assuming the correctness of the Rountree opinion, the case is nonetheless not in

point. In Rountree the municipality failed to conduct a tow fee study and continued to

enforce its towing ordinance, making no further attempt to determine fair value. As such,

the reasoning in Rountree focused on the relationship between TEX. OCC. §§ 2308.202

and 2308.203(a). The former allowed municipal regulation of tows and the latter, as

relevant to that case, required procedures for tow fee studies. The Rountree court found

those to be independent of each other, and thus a tow fee study was not required.

The San Antonio situation is distinctly different. San Antonio completed a tow fee

study that determined its current ordinance was not providing fair value for services.

What is at issue is the relationship between § 2308.203(a) and (b), provisions of the same

section which are clearly not independent of one another. Part (a) sets out the process for 213723/0002279-24559 9 a tow fee study and part (b) follows with the requirement that the results of that process

be utilized to “establish or amend” the allowable fees to represent fair value for the

services. The reasoning in Rountree is simply not applicable since San Antonio set in

motion the procedures of § 2308.203 but stopped half way. Having implemented

procedures for a tow fee study and then completed it, San Antonio triggered and then

ignored requirements not at issue in Rountree.

Conclusion

The authority of municipalities to regulate economic activity must be carried out

within the limitations imposed by the Constitution. Allowing cities to ignore state

imposed limitations is to risk having “a patchwork quilt of bans and rules and regulations

….” San Antonio Express-News, January 8, 2015 (quoting then Governor-elect Abbott).

The legislature established a regulatory framework for the towing industry to

avoid such patchwork. If San Antonio is allowed to avoid the state framework by

ignoring its own tow fee study, municipalities will be given carte blanche to set tow fees

irrespective of not only fair value but also irrespective of economic reality.

PRAYER

Petitioner John DeLoach prays that the Petition for Discretionary Review be

granted and that, upon review, the judgment of the Court of Appeals be reversed.

Respectfully submitted,

CARLETON B. SPEARS State Bar No. 18893800 CARLETON B. SPEARS, P.C. 330 North Park San Antonio, TX 78216 213723/0002279-24559 10 (210) 366-3100 Telephone (210) 375-8588 Telecopier

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

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

ATTORNEYS FOR PETITIONER, JOHN DeLOACH

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing was delivered via Email on this the 3rd day of April, 2015, to:

Mr. Samuel Adams Assistant City Attorney Office of the City Attorney – San Antonio 401 S. Frio San Antonio, TX 78207 via Email: samuel.adams@sanantonio.gov

Mr. Dan Pozza Law Office of Dan Pozza 239 E. Commerce St. San Antonio, TX 78205 via Email: danpozza@yahoo.com

/s/Mark J. Cannan MARK J. CANNAN

213723/0002279-24559 11 No. ________________

COURT OF CRIMINAL APPEALS OF TEXAS ______________________________________________________________________

STATE OF TEXAS, Respondent. _______________________________________________________________________

On Petition for Review from the Court of Appeals for the Fourth District Court of Texas San Antonio, Texas

APPENDIX

213723/0002279-24559 12 APPENDIX A jfourtb QCourt of %lppeaLs �an %lntonio, W:exa%

OPINION

No. 04-14-00324-CR

The STATE of Texas, Appellant

John D. DELOACH, Appellee

From the County Court at Law No. 1 2 , Bexar County, Texas Trial Court No. 130556 Honorable Scott Roberts, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice Marialy.n Barnard, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: November 19, 2014

REVERSED AND RENDERED

In 2002, the City of San Antonio adopted a municipal ordinance that set the maximum fee·

a towing company could charge for the non-consent tow of an automobile at $85. SAN ANTONlO,

TEX., CODE OF ORDINANCES § 19-427 ( 2012).1 A violation of the ordinance was punishable by a

fine of not less than $ 200 nor more than $500. Id. § 19-413. In 2003, the Legislature enacted

House Bill 849, currently incorporated in the Texas Towing and Boot Act ("the Act"), which

1 The non-consent towing fee has since been amended to $177 for vehicles 10,000 pounds or less. SAN ANTONIO, TEX., CODE OF ORDINANCES§ 19-402 (2013). 04-14-00324-CR

regulates towing companies and the fees they may charge for non-consent tows. See Acts 2003,

78th Leg., ch. 10 3 4, § 10, eff. Sept. 1, 2003 (currently codified in TEX. Occ. CODE ANN.

§§ 2 308.202, .20 3 (West 20 12)).

On August 3 1, 2012, the State2 filed a complaint against John DeLoach for charging a non-

consent tow fee of $250, in excess of the $85 fee authorized by the ordinance. DeLoach was

convicted in municipal court, and appealed to the county court at law asserting (1) the ordinance

is preempted by sections 2 308.202 and 2308.203 of the Act, and (2) he established the affirmative

defense of mista'ke of law. The county court reversed the municipal court and rendered judgment

in favor of DeLoach, finding that the ordinance was preempted and unenforceable. The county

court rejected DeLoach's mistake of law defense.

The City now appeals to this court. The record and the briefs from the county court have

been filed and constitute the record and briefs in this appeal. See TEX. Gov'T CODE ANN.

§ 30.00027(b) (West Supp. 20 14). Thus, we review the same issues raised in the briefs submitted

to the county court. See id.

PREEMPTION

In his briefbefore the county court , DeLoach asserted the ordinance conflicts with the Act.

According to DeLoach , the Act requires a towing fee study be performed before a city may regulate

the maximum fee a towing company may charge for a non-consent tow. Because the City failed

to conduct a towing fee study, DeLoach contends the ordinance is void and unenforceable. In its

responsive brief before the county court, the City raised a variety of arguments, including that the

Act does not contain a "death-penalty " clause for not conducting a towing fee study. Because we

2 The complaint was filed by the State of Texas. However, attorneys for the City of San Antonio prosecuted the case against DeLoach, and the City of San Antonio filed the notice of appeal with this court. Therefore; although the style of this appeal mirrors the trial court's style and shows the State of Texas as appellant, we will refer to appellant hereinafter as the City.

-2- 04-14-00324-CR

conclude the Act does not preempt the ordinance, we do not address all of the City's arguments.

See TEX. R. APP.P. 47.1.

1. Applicable Law and Standard of Review

The City of San Antonio is a home-rule city that derives its powers from the Texas

Constitution. See TEX. CONST. art. XI, § 5; City of Haus. v. Bates, 406 S.W.3d 539, 546 (Tex.

2013); RC! Entm't, Inc. v. City of San Antonio, 373 S.W.3d 589, 595 (Tex. App. -San Antonio

2012, no pet.). A home-rule city has the full power of self-government and look� to the Legislature

not for grants of authority, but only for limitations on its powers. RC!Entm't, 373 S.W.3d at 595.

A home-rule city ordinance is presumed to be valid. State v. Chacon, 273 S.W.3d 375, 378 (Tex.

App.-San Antonio 2008, no pet.). The Legislature may limit a home-rule city's broad powers

only when it expresses its intent to do so with "unmistakable clarity. " Bates, 406 S.W.3d at 546.

"[T]he mere fact that the [L]egislature has enacted a law addressing a subject does not mean that

the subject mattet is completely preempted. " City of Richardson v. Responsible Dog Owners of

Tex., 794 S.W. 2d 17, 19 (Tex. 1990). A home-rule city ordinance that conflicts with a state statute

is unenforceable to the extent of such conflict. Dall. Merchant's & Concessionaire 's Ass 'n v. City

ofDall., 85 2 S.W.2d 489, 491 (Tex. 1993). If a reasonable construction giving effect to both the

state statute and the ordinance can be reached, the ordinance will not be held to have been

preempted by the.statute. Bates, 406 S.W.3d at 546; Dall. Merchant's, 852 S.W.2d at 491.

Statutory construction is a question of law we review de novo. Yazdchi v. State, 4 28

S.W.3d 831, 8371(Tex. 2014) (internal citations and quotations omitted). In construing a statute,

we must seek to 'effectuate the collective intent or purpose of the legislators who enacted the

legislation. Id. In interpreting statutes, we presume the Legislature intended for the entire statutory .

scheme to be effective. Id. We look first to the statute's literal text, and we read words and phrases

in context and construe them according to the rules of grammar and usage. Id.

-3 - 04-14-00324-CR

2. Analysis

We must first determine whether the ordinance and the Act are. attempting to regulate the

same activity. RC! Entm't, 373 S.W.3d at 5 96. We begin by examining the statutory text. Bates,

406 S.W.3d at 546.

Section 2 3 0 8.202 provides:

The governing body·of a political subdivision may regulate the fees that may be charged or collected in connection with a non-consent tow originating in the territory of the political subdivision if the private property tow fees;

(1) are authorized by commission rule; and

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

TEX. Occ. CODE§ 2 30 8.202.

Section 2 30 8.203 provides;

(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 shall be performed.

(b) The governing body of the political subdivision shall establish or amend the allowiible 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 accom;iting information provided to .the governing body. !

Id. § 2 30 8.203.

The sections of the Act at issue regulate the allowable fee a towing company may charge

for the non-consent tow of an automobile. Similarly, the ordinance also regulates the allowable

fee a towing company may charge for the non-consent tow of an automobile. The plain language

of the Act and the ordinance establish that they are both attempting to regulate the same activity.

Therefore, we next decide whether the ordinance is inconsistent with or conflicts with the Act.

RC! Entm 't, 37 3 S.W.3d at 5 96.

- 4- 04-14-00324-CR

DeLoach asserts the ordinance conflicts with the Act because section 2308.203 requires a

towing fee study be performed if a city chooses to regulate non-consent tow fees. He contends the

language of the Act demonstrates the legislative intent "to require a fair value for all non-consent

tows [be] based on a tow fee study, " and the city has "ignored ... disregarded ...and failed to

comply with th[is] mandatory requirement. " Therefore , he argues that because the City has "failed

to comply with mandatory requirements, the ordinance is unenforceable."

The Corpus Christi Court of Appeals considered a similar argument in Rountree v. State,

No. 13-12-00063-CR, 2012 WL 3612497 (Tex. App.-Corpus Christi Aug. 23, 2012, no pet.)

(mem.op., not designated for publication). 3 There, Rountree was convicted of violating the City

of Beaumont's o\:dinance that set the maximum fee for a non-consent tow at $85. Id. at *1.

Rountree argued he was entitled to acquittal because Beaumont had not established procedures by

which a towing company could request a towing fee study be performed and argued that Beaumont

"was not in compliance with section 2308 .203 of the occupations code." Id. The State

acknowledged Beaumont did not establish the required procedure set forth in section 2308.203 at

the time the ordinance was enforced against Rountree; however, the State asserted that Beaumont's

non-compliance with the statute "did not make the ordinance invalid, nor did it preclude the

enforcement of the ordinance." Id. at *2. The court of appeals agreed with the State, noting that

"nothing in the ldnguage 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 compariy to request a fee study." Id. The court concluded that its

interpretation did not lead to an absurd result because it appeared that the Legislature intended

3 Rountree was decided by the Corpus Christi Court of Appeals pursuant to 'a Supreme Court of Texas transfer order from the Beaumont Court of Appeals.

-5- 04-14-00324-CR

section 2 308.202 and section 2308.20 3 to be "independent, rather than dependent, from one

another." Id.

We agree with the reasoning in Rountree. Nowhere in the Act did the Legislature include

a provision that contains an explicit expression of the Legislature's intent that the Act exclusively

govern the regulation of non-consent tow fees. Cf RC! Entm't, 37 3 S.W.3d at 5 96 n.3 (quoting

Dall. Merchant's; 852 S.W.2d at 491) ("The Legislature's intent is clearly expressed in section

I 0 9.57(b) of the TABC-the regulation of alcoholic beverages is exclusively governed by the

provisions of the' TABC unless otherwise provided . . . . Section 10 9.57 clearly preempts an

ordinance of a home-rule city that regulates where alcoholic beverages are sold under most

circumstances."). To the contrary, the Act expressly allows a city to "regulate the fees that may

be charged or collected in COl)llection with a non-consent tow," provided the fees "are authorized

· by commission rule" and "do not exceed the maximum amount authorized by commission rule."

TEX.Occ. CODE § 2 308.202.4 Accordingly, we conclude the ordinance does not conflict with the

Act, and is therefore, not �reempted.

MISTAKE OF LAW

DeLoach �!so asserts he established the affirmative defense of mistake of law because he

reasonably relied on an opinion from the Attorney General.

1. Standard of Review

The parties' briefs before the county court are the same briefs we must consider on appeal.

See TEX. Gov'T CoDE § 30.00027(b). In those briefs, neither the City nor DeLoach cite to an

appropriate standard of review. However, in DeLoach's prayer for relief, he requested only that

4 The Texas Commission of Licensing and Regulation has authorized the maximum fee of $250 for a non-consent tow. See TEX. ADM�. CODE, tit. 16, §§ 86.455, .458:

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the county court reverse the municipal court's judgment and render a judgment of not guilty.

Therefore, we review the evidence only under a legal sufficiency standard. See Maynardv. Booth,

421 S.W.3d 182, .183 (Tex. App. - San Antonio 2013, pet.denied).

We review the sufficiency of the evidence establishing the elements of a criminal offense

for which the State has the burden of proof in the light most favorable to the verdict and determine

whether any rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 3 19 (197 9); Brooks v. State, 32 3 S.W.3d

893, 895 (Tex. Crim. App. 2010). However, the Jackson and Brooks standard of review "does not

apply to elements. of an affirmative defense that the defendant must prove by a preponderance of

the evidence. " Matlockv. State, 3 92 S.W.3d 662, 667 (Tex. Crim. App.20 13).

When an appellant asserts that there is no evidence to support an adverse finding on which f]he had the burden of proof, we construe the issue as an assertion that the contniry was established as a matter of law. We first search the record for evidence favorable to the finding, disregarding all contrary evidence unless a reasonable factfinder could not. If we find no evidence supporting the finding, we then determine whether the contrary was established as a matter of law.

Id. at 66 9 (emphasis in original). A defendant is entitled to an acquittal on appeal despite the trial

court's adverse finding on his affirmative defense "only if the evidence conclusively establishes

his affirmative defense. " Id. at 670.

"It is .an affirmative defense to prosecution that the actor reasonably believed . the conduct '

charged did not constitute a crime and that he acted in reasonable reliance upon a written

interpretation of the law . . . made by a public official charged by law with responsibility for

interpreting the law in question." TEX.PENAL CODE ANN.§ 8.0 3(b)(2) (West 20 11). A defendant

bears the burden of production of evidence and persuasion to prove an affirmative defense by a

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preponderance of the evidence. Id. § 2.04(d); Roberts v. State, 319 S.W.3d 37, 51 (Tex. App.-

San Antonio 2010, pet. refd).

DeLoach testified he was aware of the ordinance regulating non-consent tow fees.

However, he contends the evidence at trial was sufficient to prove his affirmative defense of

mistake of law because he reasonably relied on an Attorney General's opinion. See Tex. Att'y

Gen. Op. No. GA-0315 ( 2005). DeLoach argues the Attorney General's opinion stands for the

proposition that the ordinance is preempted by the Act. In support of this argument, he cites to the

Attorney General1's reference to the general rule that city ordinances must comply with state law.

See TEX. CON ST. art. XI, § 5(a).

The Attorney General's opinion that DeLoach contends he relied on was issued in response

to an inquiry regarding an ordinance established by the City of Victoria pertaining to police-

initiated non-consent tows. Tex. Att'y Gen. Op. No. GA-0315, at* 1. Victoria's ordinance stated:

(a) All tow truck permit holders operating permitted tow trucks on the public streets shall e;harge no more than the storage rates prescribed by the Texas Department of Transportation for performing non-consent tows. A charge for any storage service exceeding the rates prescribed or in addition to the storage related services prescribed shall constitute a violation of this article. '

(b) The city manager may establish further rate limits in the city's contracts with rotation list privilege holders. These rate limits shall not be considered rate regulations, but shall instead be considered contractual obligations pursuant to the city's provision of referrals to contractees. Failure to comply with any such contractual rate limits shall not be punishable as a violation of this ordinance, but shall instead merely give" the city the right to declare a breach of contract and potentially terminate said contract.

Id. at * 1-* 2.

The issue addressed by the Attorney General was "whether a municipality that limits fees

for police-initiated non-consent tows must comply with [section 2308.2033""5 Id. The inquiry

5 At the time the Attorney General's opinion was issued, section 2308.203 was codified uoder Texas Transportation Code section 643 204. The language is identical in both versions"

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stated that the Texas Towing and Storage Association considered Victoria's ordinance to be a

regulation of non�consent tow fees and complained that Victoria had not established the procedures

by which a towing company could request a towing fee study be performed. Id. at *2. The inquiry

specifically asked "whether a city can bypass the clear intent of [section 2 30 8.203] by refusing to

set procedures even though it has setfees for non-consent tows." Id. Relying on Cardinal Towing,

the Attorney General concluded Victoria's ordinance did not appear to regulate non-consent tow

fees, but was instead designed to create efficiencies for Victoria and controlled only a portion of

the non-consent tow market. Id. at *5; see also Cardinal Towing & Auto Repair, Inc. v. City of

Bedford, Tex., 1 80 F.3d 6 86, 6 94- 95 (5th Cir. 19 9 9) (concluding ordinance was not a regulation

because city merely created efficiencies for police-initiated non-consent tow market). Therefore,

the Attorney General concluded that Victoria was not impermissibly ignoring the towing fee study

requirement. Id. ·

The Attorney General's opinion states only that it does not consider Victoria's ordinance a

regulation of non-consent tow .fees. It does not stand for the proposition that the ordinance is

preempted by the Act. Accordingly, we conclude DeLoach did not conclusively establish his

affirmative defen$e under the legal sufficiency standard set forth in Matlock, and is not entitled to

an acquittal on appeal.

We conclude the ordinance is not preempted, and we agree with the county court that

DeLoach did not conclusively establish the affirmative defense of mistake oflaw. Therefore, we

reverse the comity court's judgment and render judgment reinstating the municipal court's

judgment.

Sandee Bryan Marion, Justice

Publish .

-9- APPENDIXB jfourtb QCourt of )tlppeal% $?an �ntonio, l!rexas

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

Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: March 4, 2015

In an opinion dated November 19, 2014, this court reversed the county court's judgment

and rendered judgment reinstating the municipal court's judgment in favor of appellant. Appellee

filed a motion for en bane reconsideration. We withdraw our opinion and judgment of November

19, 2014 and issue this opinion and judgment in their place.

In 2002, the City of San Antonio adopted a municipal ordinance that set the maximum fee

a towing company could charge for the non-consent tow of an automobile at $85. SAN ANTONIO, 04-14-00324-CR

TEX., CODE OF ORDINANCES§ 19-427 (2012).1 A violation of the ordinance was punishable by a

fine of not less than $200 nor more than $500. Id. § 19-413. In 2003, the Legislature enacted

House Bill 849, currently incorporated in the Texas Towing and Boot Act ("the Act"), which

regulates towing companies and the fees they may charge for non-consent tows. See Acts 2003,

78th Leg., ch. 1034, § 10, eff. Sept. 1, 2003 (currently codified in TEX. Occ. CODE ANN.

§§ 2308.202, .203 (West 2012)).

On August 31, 2012, the State2 filed a complaint against John DeLoach for charging a non-

consent tow fee of $250, in excess of the $85 fee authorized by the ordinance. DeLoach was

convicted in municipal court, and appealed to the county court at law asserting (1) the ordinance

is preempted by sections 2308.202 and 2308.203 of the Act, and (2) he established the affirmative

defense of mistake of law. The county court reversed the municipal court and rendered judgment

in favor of DeLoach, finding that the ordinance was preempted and unenforceable. The county

court rejected DeLoach's mistake of law defense. The City appealed to this court.3

The City of San Antonio is a home-rule city that derives its powers from the Texas

Constitution. See TEX. CONST. art. XI, § 5; City of Hous. v. Bates, 406 S.W.3d 539, 546 (Tex.

2013); RC! Entm't, Inc. v. City ofSan Antonio, 373 S,WJd 589, 595 (Tex. App.-San Antonio

2012, no pet.). A home-rule city has the full power of self-govermnent and looks to the Legislature

1 The non-consent towing fee has since been amended to $177 for vehicles 10,000 pounds or less . SAN ANTONIO, TEX., CO DE OF ORDINANCES§ 19-4 0 2 (2013).

2 The complaint was filed by the State of Texas. However, attorneys for the City of San Antonio prosecuted the case

against DeLoach, and the City of San Antonio°filed the notice ofappeal with this court. Therefore, although the style of this appeal mirrors the trial court's style and shows the State of Texas as appellant, we will refer to appellant hereinafter as the City.

3 The record and the briefs from the county court have been filed and constitute the record and briefs in this appeal. See TEX. GoV'T CODE ANN. § 30. 0 0 0 27(b) (West Supp. 2014). Tuns, we review the same issues raised in the briefs submitted to the county court. See id.

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not for grants of authority, but only for limitations on its powers. RC! Entm 't, 373 S.W.3d at 595.

A home-rule city ordinance is presumed to be valid. State v. Chacon, 273 S.W.3d 375, 378 (Tex.

App.-San Antonio 2008, no pet.). The Legislature may limit a home-rule city's broad powers

only when it expresses its intent to do so with "unmistakable clarity." Bates, 406 S.W.3d at 546.

"[T]he mere fact that the [L]egislature has enacted a law addressing a subject does not mean that

the subject inatter is completely preempted." City ofRichardson v. Responsible Dog Owners of

Tex., 794 S.W.2d 17, 19 (Tex. 1990). A home-rule city ordinance that conflicts with a state statute

is unenforceable to the extent of such conflict. Dall. Merchant's & Concessionaire's Ass'n v. City

ofDall., 852 S.W.2d 489, 491 (Tex. 1993). If a reasonable construction giving effect to both the

state statute and the ordinance can be reached, the ordinance will not be held to have been

preempted by the statute. Bates, 406 S.W.3d at 546; Dall. Merchant's, 852 S.W.2d at 491.

Statutory construction is a question of law we review de nova. Yazdchi v. State, 428

S.W.3d 831, 837 (Tex. 2014) (internal citations and quotations omitted). In construing a statute,

we .must seek to effectuate the collective intent or purpose of the legislators who enacted the

legislation. Id. In interpreting statutes, we presume the Legislature intended for the entire statutory

scheme to be effective. Id. We look first to the statute's literal text, and we read words and phrases

in context and construe them according to the rules of grammar and usage. Id.

1. Regulate Same Activity?

DeLoach asserts the City's ordinance setting the allowable fees for non-consent tows was

preempted by sections 2308.202 and 230S.203 of the Act. We must first determine whether the

ordinance and the Act are attempting to regulate the same activity. RC! Entm 't, 373 S.W.3d at

596. We begin by examining the statutory text. Bates, 406 S.W.3d at 546.

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Section 2308.202 provides:

The governing body of a political subdivision may regulate the fees that may be charged or collected in connection with a non-consent tow originating in the territory of the political subdivision if the private property tow fees:

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

TEX. Occ. CODE§ 2308.202.

Section 2308.203 provides:

(a) The governing body of a political subdivision that regulates non-consent tow fees shall establish procedures by which a towing comp�y may request that a towing fee study shall 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.

Id. § 2308.203.

The sections of the Act at issue regulate the allowable fee a towing company may charge

for the non-consent tow of an automobile. Similarly, the ordinance also regulates the allowable

fee a towing company may charge for the non-consent tow of an automobile. The plain language

of the Act and the ordinance establish that they are both attempting to regulate the same activity..

Therefore, we next decide whether the ordinance is inconsistent with or conflicts with the Act.

RCI Entm 't, 373 S. W .3d at 596.

2. Conflict?

DeLoach .asserts the ordinance conflicts with the Act because section 2308.203 requires a

towing fee study be performed if a city chooses to regulate non-consent tow fees. He contends the

language of the Act demonstrates the legislative intent "to require a fair value for all non-consent

tows [be] based on a tow fee study," the city "shall establish or amend the allowable fees for non-

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consent tows in amounts that represent the fair market value of the services," and the city has

"ignored ...disregarded . .. and failed to comply with th[is] mandatory requirement." Therefore,

he argues that because the City has "failed to comply with mandatory requirements, the ordinance

is unenforceable. "

The Corpus Christi Court of Appeals considered a similar argumeµtin Rountree v. State,

No. 13-12-00063-CR, 2012 WL 3612497 (Tex. App.--Corpus Christi Aug. 23, 2012, no pet.)

(mem. op., not designated for publication).4 There, Rountree was convicted of violating the City

of Beaumont's ordinance that set the maximum fee for a non-consent tow at $85. Id. at *l.

Rountree argued he was entitled to acquittal because Beaumont had not established procedures by

which a towing company could request a towing fee study be performed and argued that Beaumont

"was not in compliance with section 2308.203 of the occupations code." Id. The State

acknowledged Beaumont did not establish the required procedure set forth in section 2308.203 at

the time the ordinance was enforced against Rountree; however, the State asserted that Beaumont's

non-compliance with the statute "did not make the ordinance invalid, .nor did it preclude the

enforcement of the ordinance." Id. at *2. The court 0f appeals agreed with the State, noting that

"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. ". Id. The court concluded that its

interpretation did not lead to an absurd result because it appeared that the Legislature intended

· section 2308.202 and section 2308.203 to be "independent, rather than dependent, from one

4 Rountree was decided by the Corpus Christi Court of Appeals pursuant to a Supreme Court of Texas transfer order from the Beaumont Court of Appeals.

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Although the issue in Rountree involved Beaumont's failure to conduct the fee study, and

the issue here is DeLoach' s complaint that the City failed to amend its ordinance to reflect fair

market value, we agree with the reasoning in Rountree. Nowhere in the Act did the Legislature

include a provision that contains an explicit expression of the Legislature's intent that the Act

exclusively govern the regulation of non-consent tow fees. Cf RC! Entm 't, 373 S.W.3d at 596 n.3

(quoting Dall. Merchant's, 852 S.W.2d at 491) ("The Legislature's intent is clearly expressed in

· section 109 .57(b)·of the TABC-the regulation of alcoholic beverages is exclusively governed by

the provisions of the TABC unless otherwise provided ....Section 109.57 clearly preempts an

ordinance of a home-rule city that regulates where alcoholic beverages are sold under most

circumstances."). To the contrary, the Act expressly allows a city to "regulate the fees that may

be charged or collected in connection with a non-consent tow," provided the fees "are authorized

by commission rule " and "do not exceed the maximum amount authorized by commission rule."

TEX. Occ. CODE§ 2308.202.5 Accordingly, we conclude the ordinance does not conflict with the

Act, and is therefore, not preempted.

DeLoach also asserts he established the affirmative defense of mistake of law because he

The parties' briefs before the county court are the same briefs we must consider on appeal.

See TEX. Gov'T CODE§ 30.00027(b). In those briefs, neither the City nor DeLoach cite to an

appropriate standard of review. However, in DeLoach's prayer for relief, he requested only that

5 The Texas Commission of Licensing and Regulatiqn has authorized the maximum fee of $250 for a non-consent

·tow. See TEX. ADMIN. CODE, tit. 16, §§ 86.455, .458.

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the county court reverse the municipal court's judgment and render a judgment of not guilty.

Therefore, we review the evidence only under a legal sufficiency standard. See Maynardv. Booth,

421 S.W.3d 182, 183 (Tex. App.- San Antonio 2013, pet. denied).

We review the sufficiency of the evidence establishing the elements of a criminal offense

for which the State has the burden of proof in the light mostfavorable to the verdict and determine

whether any rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (1979); Brooks v. State, 323 S.W.3d

893, 895 (Tex. Crim. App. 2010). However, the Jackson and Brooks standard of review "does not

apply to elements of an affirmative defense that the defendant must prove by a preponderance of

the evidence." Matlockv. State, 392 S.W.3d 662, 667·(Tex. Crim. ARP· 2013).

When an appellant asserts that there is no evidence to support an adverse finding on which []he had the burden of proof, we construe the issue as an assertion that the contrary was established as a matter of law. We first search the record for evidence favorable to the finding, disregarding all contrary evidence unless a reasonable factfinder could not. If we find no evidence supporting the finding, we then determine whether the contrary was established as a matter of law.

Id. at 669 (emphasis in original). A defendant is entitled to an acquittal on appeal despite the trial

court's adverse finding on his affirmative defense "only if the evidence conclusively establishes

his affirmative defense." Id. at 670.

"It is an affirmative defense to prosecution that the actor reasonably believed the conduct

charged did not constitute a crime and that he acted in reasonable reliance upon a written

interpretation of the law . . . made by a public official c)larged by law with responsibility for

interpreting the law in question." TEX. PENAL CODE ANN. § 8.03(b )(2) (West 2011) A defendant .

bears the burden of production of evidence and persuasion to prove an affirmative defense by a

-7- 04-14-00324-CR

preponderance of the evidence. Id.§ 2.04(d); Roberts v. State, 319 S.W.3d 37, 51 (Tex. App.-

DeLoach testified he was aware of the ordinance regulating non-consent tow fees.

However, he contends the evidence at trial was sufficient to prove his affirmative defense of

mistake of law because he reasonably relied on an Attorney General's opinion. See Tex. Att'y

Gen. Op. No. GA-0315 (2005). DeLoach argues the Attorney General's opinion stands for the

proposition that the ordinance is preempted by the Act. In support of this argument, he cites to the

Attorney General's reference to the general rule that city ordinances must comply with state law.

See TEX. CONST. art. XI, § 5(a).

· The Attorney General's opinion that De Loach contends he relied on was issued in response

to an inquiry regarding an ordinance established by the City of Victoria pertaining to police-

initiated non-consent tows. Tex. Att'y Gen. Op. No. GA-0315, at * l . Victoria's ordinance stated:

(a) All tow truck permit holders operating permitted tow trucks on the public streets shall charge no more than the storage rates prescribed by the Texas Department of Transportation for performing non-consent tows. A charge for any storage service exceeding the rates prescribed or in addition to the storage related services prescribed shall constitute a violation of this article.

(b) The city manager may establish further rate limits in the city's contracts with rotation list privilege holders. These rate limits shall not be considered rate regulations, but shall instead be considered contractual obligations pursuant to the city's provision of referrals to contractees. Failure to comply with any such contractual rate limits shall not be punishable as a violation of this ordinance, but shall instead merely give the city the right to declare a breach of contract ·

and potentially terminate said contract.

Id. at *1-*2.

The issue addressed by the Attorney General was "whether a municipality that limits fees

for police-initiated non-consent tows must comply with [section 2308.203]."6 Id. The inquiry

6At the time the Attorney General's opinion was issued, section 2308.203 was codified under Texas Transportation Code section 643.204. The language is identical in both versions.

stated that the Texas Towing and Storage Association considered Victoria's ordinance to be a

regulation of non-consent tow fees and complained that Victoria had not established the procedures

by which a towing company could request a towing fee study be performed. Id. at *2. The inquiry

specifically asked "whether a city can bypass the clear intent of [section 2308.203] by refusing to

set procedures even though it has set fees for non-consent tows." Id. Relying on Cardinal Towing,

the Attorney General concluded Victoria's ordinance did not appear to regulate non-consent tow

fees, but was instead designed to create efficiencies for Victoria and controlled only a portion of

the non-consent tow market. Id. at *5; see also Cardinal Towing & Auto Repair, Inc. v. City of

Bedford, Tex. , 180 F 3d 686, 694-95 (5th Cir. 1999) (concluding ordinance was not a regulation .

because city merely created efficiencies for police-initiated non-consent tow market). Therefore,

the Attorney General concluded that Victoria was not impermissibly ignoring the towing fee study

requirement. Id.

The Attorney General's opinion states only that it does not consider Victoria's ordinance a

regulation of non-consent tow fees. It does not stand for the proposition that the ordinance is

preempted by the Act. Accordingly, we conclude DeLoach did not conclusively establish his

affirmative defense under the legal sufficfoncy standard set forth in Matlock, and is not entitled to

. We conclude the ordinance is not preempted, and we agree with the county court that

DeLoach did not conclusively establish the affirmative defense of mistake of law. Therefore, we

reverse the county court's judgment and render judgment reinstating the municipal court's

Sandee Bryan Marion, Chief Justice

Publish

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