Todd Delane Ferguson v. Texas Department of Public Safety

• Court: Texas Supreme Court
• Decided: June 25, 2021
• Docket: 20-0452
• Status: Published

Opinion

IN THE SUPREME COURT OF TEXAS ══════════ No. 20-0452 ══════════

TODD DELANE FERGUSON, PETITIONER,

V.

TEXAS DEPARTMENT OF PUBLIC SAFETY, RESPONDENT

══════════════════════════════════════════ ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS ══════════════════════════════════════════

JUSTICE BUSBY, joined by JUSTICE BOYD, concurring in the denial of the petition for review.

Petitioner Todd Ferguson raises a substantial issue regarding whether the Second

Amendment protects the right to carry a handgun in public. But he did not present that issue to

the trial court when he challenged the suspension of his handgun license. Accordingly, the issue

is not before us for review. See TEX. R. APP. P. 33.1(a)(1). In addition, under a law recently passed

by our Legislature and signed by the Governor that takes effect September 1, 2021, most Texans

who are at least 21 years old no longer need a license to carry a handgun in most public places.

See Firearm Carry Act of 2021, 87th Leg., R.S., H.B. 1927, § 22 (to be codified as an amendment

to TEX. PENAL CODE § 46.02). Thus, it is unclear whether the suspension of Ferguson’s license

will prevent any carrying of a handgun that he plans to do in the future. “[C]ourts resolve cases,

not just issues, and this case presents a particularly poor opportunity to resolve the issues that disturb the dissent.” El-Ali v. State, 428 S.W.3d 824, 824 (Tex. 2014) (Boyd, J., concurring in the

denial of the petition for review). I therefore join the Court’s order denying this petition for review.

By statute, the Texas Legislature has given those who obtain a license the right to carry a

handgun in certain places and under certain conditions. See TEX. GOV’T CODE § 411.177(a) (“The

department shall issue a license to carry a handgun to an applicant if the applicant meets all the

eligibility requirements and submits all the application materials.”). Ferguson obtained a license

but was later charged by information with a Class A misdemeanor, so the Department of Public

Safety suspended his license as required by section 411.187(a)(1) of the Government Code. The

Department’s letter directs Ferguson to surrender the license it had issued to him under the

Government Code; it does not reference—much less claim to suspend—Ferguson’s Second

Amendment rights.

Ferguson challenged the Department’s suspension of his statutory license to carry, and a

Bexar County justice of the peace affirmed the suspension. See id. § 411.180. Ferguson then

appealed to the county court at law for a trial de novo, where he “raise[d] a constitutional challenge

to the statutory scheme that allows for the suspension without an actual substantive witness

evidentiary hearing.” In particular, he argued that his constitutional right to procedural due process

of law entitled him to an evidentiary hearing to challenge whether the underlying misdemeanor

charge was supported by probable cause—similar to the hearing required before a driver’s license

is suspended. The county court at law disagreed and affirmed the suspension. The Second

Amendment was not mentioned in either court.

Ferguson then appealed to the court of appeals, where he again urged his procedural due

process challenge to the suspension of his statutory license. He also raised a new substantive due

2 process challenge to Texas’s licensing scheme based on the Second Amendment, arguing that the

statute could not survive strict scrutiny. The court of appeals held that Ferguson had been afforded

sufficient procedural due process but declined to reach his substantive due process issue regarding

strict scrutiny under the Second Amendment, concluding that “Ferguson waived the arguments by

failing to present them to the trial court with a timely and specific complaint, objection, or motion.”

Ferguson v. Tex. Dep’t of Pub. Safety, No. 04-19-00384-CV, 2020 WL 1931625, at *2 (Tex.

App.—San Antonio Apr. 22, 2020) (mem. op.).

In this Court, Ferguson focuses his briefing largely on his procedural due process challenge

to the suspension of his statutory license, but he also renews his substantive due process challenge

that the Texas licensing scheme impairs his Second Amendment rights and fails strict scrutiny. As

the court of appeals correctly observed, however, this substantive due process challenge was never

raised in the trial court. Although we disregard harmless procedural defects and reach the merits

whenever reasonably possible, see Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam),

we do not do so unless “the party made the trial court aware of the complaint, timely and plainly,

and obtained a ruling.” State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241

(Tex. 1992); see TEX. R. APP. P. 33.1. “There are ‘important prudential considerations’ behind our

rules on preserving error,” which “conserve[] judicial resources by providing trial courts the

opportunity to correct errors before appeal,” improve the accuracy of judicial decisionmaking, and

prevent one party from surprising the other with new arguments on appeal. Mansions in the Forest,

L.P. v. Montgomery County, 365 S.W.3d 314, 317 (Tex. 2012) (per curiam).

With regard to Ferguson’s Second Amendment-based substantive due process challenge,

there can be no dispute that Ferguson did not “let the trial judge know what he wants, why he

3 thinks himself entitled to it, and . . . do so clearly enough for the judge to understand him at a time

when the trial court is in a proper position to do something about it.” Lankston v. State, 827 S.W.2d

907, 909 (Tex. Crim. App. 1992). No reasonable trial judge would have divined from Ferguson’s

procedural complaint that Ferguson also wanted the court to strictly scrutinize the statute to decide

whether it was narrowly tailored to advance a compelling governmental interest.

Our dissenting colleagues do not contend otherwise. Instead, the dissent views the Second

Amendment as possibly creating a constitutional liberty interest in carrying a handgun in public

that cannot be restricted without procedural due process of law. Post at __. But Ferguson likewise

did not inform the trial court that he was relying on the Second Amendment as the basis for a claim

of procedural due process. Moreover, it is unclear whether the dissent’s view is necessary to

advance the analysis, as Ferguson argues—and the court of appeals assumed—that he also has a

statutory right to his license to carry a handgun that cannot be restricted without procedural due

process. 1 Thus, there may be no need to address the unpreserved Second Amendment question

before reaching the only issue decided by the court of appeals: whether Ferguson received all the

procedural due process that was constitutionally required in connection with his license

suspension.

Finally, Ferguson’s challenge to the process followed in suspending his license to carry a

handgun has been overtaken by legislative events that reduce the importance of deciding this case.

Beginning September 1, 2021, Texans who are at least 21 and have not been convicted of certain

crimes may carry a handgun in public without a license. See Firearm Carry Act of 2021, § 22.

There are certain specified locations (such as hospitals and government meetings) where carrying

1 The Department disputes the existence of such a right, and I express no view on the merits of that dispute. 4 a handgun without a license is apparently still prohibited, see id. §§ 23, 25, but whether those

prohibitions will affect any carrying of a handgun that Ferguson plans to do in the future is not an

issue that an appellate court is well suited to determine. I therefore concur in the denial of

Ferguson’s petition for review.

J. Brett Busby Justice

Opinion delivered: June 25, 2021