Michael Jangl v. the State of Texas

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

MICHAEL JANGL, § No. 08-19-00253-CR Appellant, § Appeal from the v. § County Court at Law Number Two THE STATE OF TEXAS, § of Hays County, Texas Appellee. § (TC# 19-1183CR) §

OPINION

Appellant Michael Jangl was cited for blocking the spillway of the Rio Vista Dam on the

San Marcos River in violation of an ordinance prohibiting stopping, standing, or interfering with

others passing through the spillway. San Marcos, Tex., San Marcos City Code subpt. A, § 58.071

(2021). Following a bench trial in Municipal Court, Jangl was found guilty of a Class C

misdemeanor and fined $400 plus $71 in court costs. After having been found to have abandoned

his appeal to the County Court at Law, Jangl now appeals to this Court. 1 We will affirm the

judgment of conviction.

1 Jangl’s appeal, filed in the Texas Third Court of Appeals, was transferred under the Texas Supreme Court’s Docket Equalization Program to the Texas Eighth Court of Appeals. We follow Third Court of Appeals precedent to the extent it conflicts with our own. See TEX.R.APP.P. 41.3. BACKGROUND

Mr. Jangl is a devotee of “bodyboarding” on the spillway at Rio Vista Falls on the San

Marcos River. He testified at trial that “it is by no means a stretch to proclaim that the exercise of

bodyboarding at Rio Vista Falls was and is absolutely the most essential component of” the self-

prescribed lifestyle he deems necessary for the treatment of his gastrointestinal state. In just the

year leading up to the citation at issue here, Jangl bodyboarded the falls from five to seven days a

week, sometimes twice a day, year-round, despite warnings from park rangers that it was a

violation of law to do so. On June 23, 2018, park rangers finally moved beyond warnings and cited

Jangl for violating the law. Jangl continued bodyboarding, even after the citation, up until the time

of trial and possibly beyond.

Unfortunately for Jangl, the Rio Vista spillway where he chooses to bodyboard is also the

sole passage for the countless people pursuing the pastime of “tubing” the San Marcos river. The

park ranger testified that Jangl’s bodyboarding on the spillway blocks these tubers and presents a

risk of injury. The park ranger testified that it is a frequent problem when people block the

spillway, as it is a dangerous spot, and there have been many instances where people have bumped

their heads or otherwise gotten injured, with some even having to be transported by emergency

medical services. Jangl admitted at trial that he has occasionally collided with tubers and in his

appellate brief describes the “self-evident, clear, and present” danger at Rio Vista Falls. In fact,

Jangl testified he wears a helmet when he bodyboards because “I can smash my head, which I

have. I’ve broken my nose halfway on the rocks, other surrounding rocks. And if I was to hit my

head, I could kill myself.”

DISCUSSION

2 Jangl does not deny violating the ordinance, and in fact admits to continuing the conduct

for which he was cited despite warnings before and even beyond the date he was cited for blocking

the spillway. Nor does he seem to challenge the notion that the spillway presents a dangerous

condition worthy of rules governing its safety. Instead, he seems to challenge the municipal

ordinance on an unspecific multitude of fronts.

Jangle represents himself on appeal, and his fifty-five-page brief ranges from a recounting

of what he describes as the “self-evident, clear, and present danger” at Rio Vista Falls to a

discussion of navigational rules on US Waters to an analysis of the importance of the water

recreation economy. He argues, but does not provide evidence in the record, that his bodyboard is

a vessel under US Coast Guard rules and that the San Marcos River is a navigable waterway,

alluding to arguments about federal preemption and whether the city has the authority to regulate

navigation under various sections of the US Code. According to Jangl, “[t]his legal cause may

indeed serve as a case study for the entirety of the United States of America in regard to the

economic, cultural, and legal security of the country’s future in relation to the national mounting

legal issue of intergovernmental regulation of navigable operations, both public and private, upon

the navigable waterways of the USA.” Missing from Jangl’s filings, however, is a clear or concise

statement of the legal basis for his challenge to the citation issued by the municipal court, or the

ordinance under which he was cited, and facts to support such a challenge.

Although we are sympathetic to the difficulties faced by pro se litigants, we must hold

them to the same standards as those represented by counsel. See Mansfield State Bank v. Cohn,

573 S.W.2d 181, 184–85 (Tex. 1978); see also Stewart v. Texas Health & Human Servs. Comm’n,

No. 03–09–00226–CV, 2010 WL 5019285, at *1 n.1, *2 (Tex.App.—Austin Dec. 9, 2010, no

3 pet.)(mem. op.). That said, we are also instructed to liberally construe briefs and strive to reach the

merits of a case whenever possible, First United Pentecostal Church of Beaumont v. Parker, 514

S.W.3d 214, 221–22 (Tex. 2017). Accordingly, we will address Jangl’s issues as best we can, to

the extent we are able to divine his arguments. See Forbes v. Forbes, Nos. 03–15–00130–CV, 03-

15-00337-CV, 2016 WL 612175, at *4 (Tex.App.—Austin Feb. 12, 2016, no pet.)(mem.

op.)(citing Stewart, 2010 WL 5019285, at *1 n.1)(addressing pro se issues “as best we can” in the

interest of justice). 2

Making sense of Jangl’s briefing as best we can, his appeal appears to boil down to a

challenge to the validity of the municipal ordinance 3 under which he was cited, either because the

ordinance is preempted by federal and state laws regarding vessels traveling navigable waterways

or because the City somehow lacks authority to enforce the regulation at issue. Jangl has not

established in the record the facts to support an argument challenging the ordinance based on

federal law regarding vessels traveling navigable waterways. Nevertheless, we decide his appeal

assuming without deciding that Jangl’s bodyboard constitutes a “vessel” and that the San Marcos

2 Jangl’s briefing also seems to seek injunctive and declaratory relief directing this Court or the State and/or the City of San Marcos to issue warnings to the public and make physical modifications consistent with Jangl’s many opinions regarding the dangers at Rio Vista Falls. Any such requests are inappropriately lodged in this appeal, lack merit, and are denied.

3 The ordinance in relevant part provides as follows:

Municipal Ordinance Sec.58.071. Activities on Dams.

(a) It is unlawful for a person to stop or stand in the spillway at Rio Vista Falls or interfere with another person passing through any spillway;

. . .

(c) An offense under this section is punishable by a fine not to exceed $500.00 as provided in section 1.015(b) of the San Marcos City Code.

San Marcos, Tex., San Marcos City Code subpt. A, § 58.071 (2021). 4 River is a navigable waterway.

Preemption

To the extent Jangl challenges the San Marcos ordinance as being preempted by federal

and/or state law governing navigable waters, his argument fails. Regarding federal preemption, it

is well established that states may exert their police power over navigable waters within their

boundaries. Grand Canyon Dories, Inc. v. Idaho Outfitters & Guides Bd., 709 F.2d 1250, 1254

(9th Cir. 1983); Chicago R.I. & G. Ry. Co. v. Tarrant County Water Control & Improvement Dist.,

No. 1, 123 Tex. 432, 452, 73 S.W.2d 55, 66-67 (1934). More specifically, federal courts have held

that the regulation of white-water rafting activities is not an area that inherently requires national

uniformity. See Grand Canyon Dories, Inc., 709 F.2d at 1254; see also Ray v. Atlantic Richfield

Co., 435 U.S. 151, 179 (1978); Kelly v. State of Washington ex rel Fass Co., 302 U.S. 1, 14-15

(1937). None of the federal statutes referenced in Jangl’s briefing directly conflict with the

ordinance at issue here, nor do they evince a clear and manifest congressional intent to preempt

the state’s ability to regulate safety on its waterways. As such, the San Marcos ordinance is not

preempted by federal law.

To the extent Jangl asserts that the San Marcos ordinance is preempted or trumped by state

law, he fares no better. San Marcos is a home rule city. As such, it derives its powers not from the

legislature, but from the Texas Constitution. See TEX.CONST. art. XI, § 5; Proctor v. Andrews, 972

S.W.2d 729, 733 (Tex. 1998). Home-rule cities “possess the full power of self government and

look to the Legislature not for grants of power, but only for limitations on their power.” Dallas

Merch.’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993). If the

legislature chooses to preempt a subject usually encompassed within the broad powers of a home-

5 rule city, its intent to do so must appear with “unmistakable clarity.” Proctor, 972 S.W.2d at 733.

The state has not done so here. In fact, Texas state law likewise prohibits the blocking of highways

and waterways - a regulation consistent with the ordinance at issue here. See TEX.PENAL CODE

ANN. § 42.03 - Obstructing Highway or Other Passageway, Acts 1973, 63rd Leg., p. 883, ch. 399,

§ 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. As

such, the challenged ordinance is not preempted by state law.

Challenge to City’s authority for ordinance

To the extent Jangl argues more generally that the City does not have the authority to enact

or enforce the ordinance, this case is instructed by a case from our sister court in San Antonio,

Texas River Barges v. City of San Antonio, 21 S.W.3d 347 (Tex.App.—San Antonio 2000, pet.

denied). The San Antonio court expressly upheld a city’s authority to regulate activities on the

river within its jurisdiction. Acknowledging that the San Antonio River is a navigable stream

which may be used and enjoyed by the public, the court nevertheless held that the City has

authority under its police powers to regulate navigation on the river to “prevent endangering the

public and jeopardizing the River’s distinctive and sedate character.” Id. at 350.

The San Marcos ordinance at issue here, less restrictive than the ordinances at issue in

Texas River Barges, is likewise a valid exercise of the City’s police power. The City of San

Marcos’ ordinance is clearly a safety measure, specifically regarding the situation at Rio Vista

Falls. An ordinance is a valid exercise of a city’s police power if the regulation was adopted to

accomplish a legitimate goal, that is, it has a “substantial relationship” to the protection of the

public’s general health, safety, or welfare. City of Brookside Village v. Comeau, 633 S.W.2d 790,

793 (Tex. 1982). While there are cases where city ordinances have been argued to stretch the police

6 power beyond these legitimate goals, the ordinance at issue here is not such a case, as it clearly

seeks to promote public safety by protecting users of the San Marcos River from a danger at Rio

Vista Falls.

As a home-rule city, San Marcos has the inherent authority to enact reasonable regulations

that promote the public welfare so long as they are not contrary to the constitution or laws of the

United States or the State of Texas. The Ordinance here challenged bears a substantial relationship

to the public health, safety, and general welfare, and it is not contrary to federal or state law. As

such it is a reasonable exercise of the City’s authority.

Conclusion

Having overruled Appellant’s challenges to the ordinance under which he was cited, we

affirm the judgment of the trial court.

June 14, 2021 Jeff Rose, Former Chief Justice, Third Court of Appeals

Before Palafox, J., Alley, J., and Rose, Former Chief Justice Rose, Former Chief Justice (Sitting by Assignment)

(Do Not Publish)