Opinion
No. 04-17-00278-CR
07-05-2018
The STATE of Texas, Appellant v. José MUSA-VALLE, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 5, Bexar County, Texas
Trial Court No. 538466
Honorable John Longoria, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice REVERSED AND REMANDED
In the underlying cause, the trial court granted José Musa-Valle's motion to set aside the information charging him with recklessly discharging a firearm. On appeal, the State presents the following issue: "Whether San Antonio Municipal Ordinance Section 21-152 prevents the State from filing criminal charges against Musa-Valle under Texas Penal Code Section 42.12." We reverse the trial court's order and remand the cause to the trial court for further proceedings.
BACKGROUND
The information in the underlying cause charged Musa-Valle with the following:
on or about the 22nd Day of January, 2017, JOSE LEON MUSA-VALLE did recklessly discharge a firearm inside the corporate limits of a municipality having
a population of One Hundred Thousand (100,000) or more, namely: the City of San Antonio, Texas, by shooting a gun in an area in which others reside and are present;Musa-Valle filed a motion to set aside the information asserting his conduct should be punishable as a Class C misdemeanor under San Antonio Municipal Ordinance § 21-152, not as a Class A misdemeanor under section 42.12 of the Texas Penal Code.
At the hearing on the motion, Musa-Valle's attorney argued the ordinance and statute were in pari materia and contained an irreconcilable conflict because of the differences in punishment. As a result, Musa-Valle's attorney argued Musa Valle had a due process right to be prosecuted under the ordinance. At the conclusion of the hearing, the trial court granted Musa-Valle's motion. The State appeals.
STANDARD OF REVIEW
"[A] statutory interpretation question is a question of law which we review de novo." Pruett v. State, 510 S.W.3d 925, 927 (Tex. Crim. App. 2017). "When interpreting statutory language, we focus on the 'collective' intent or purpose of the legislators who enacted the legislation." Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (internal quotation omitted). "To determine the collective intent of the Legislature, we begin by examining the literal text." Id. "If the [statutory] language, [when read using the established canons of construction of such text,] is unambiguous, our analysis ends because the Legislature must be understood to mean what it has expressed, and it is not for the courts to add to or subtract from such a statute." Bays v. State, 396 S.W.3d 580, 584-85 (Tex. Crim. App. 2013); see also State v. Cooper, 420 S.W.3d 829, 831 (Tex. Crim. App. 2013) (noting that meaning of statutory text should be "read using the established canons of construction of such text"); Boykin v. State, 818 S.W.2d 782, 785 n.3 (Tex. Crim. App. 1991) (noting "canons of construction are no more than rules of logic for the interpretation of texts").
DOCTRINE OF IN PARI MATERIA
The doctrine of in pari materia is a principle of statutory interpretation. Mills v. State, 722 S.W.2d 411, 413 (Tex. 1986); State v. Wiesman, 269 S.W.3d 769, 774 (Tex. App.—Austin 2008, no pet.). Under the doctrine, statutes that deal with the same general subject, have the same general purpose, or relate to the same person, thing, or class are considered to be in pari materia even if they contain no reference to each other or were passed at different times or at different sessions of the legislature. Alejos v. State, 555 S.W.2d 444, 449-50 (Tex. Crim. App. 1977) (op. on reh'g); Wiesman, 269 S.W.3d 774. Statutes that are in pari materia are construed together and, if possible, any conflicts between their provisions are harmonized. Mills, 722 S.W.2d at 413; Alejos, 555 S.W.2d at 449; Wiesman, 269 S.W.3d at 774. In the case of an irreconcilable conflict, "the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail." TEX. GOV'T CODE ANN. § 311.026 (West 2013); see also Wiesman, 269 S.W.3d at 774 (noting doctrine of in pari materia is codified in section 311.026). The doctrine of in pari materia also applies in construing ordinances and statutes. See Wehbe v. State, No. 02-07-00407-CR, 2011 WL 1743785, at *3-6 (Tex. App.—Fort Worth May 5, 2011, pet. ref'd) (not designated for publication) (applying doctrine but concluding the statute and ordinance were not in pari materia because they had different purposes).
ARE THE ORDINANCE AND STATUTE IN PARI MATERIA?
As previously noted, in determining whether the ordinance and the statute are in pari materia, we consider whether they have the "same general subject, have the same general purpose, or relate to the same person, thing, or class." Alejos, 555 S.W.2d at 449-50. In Alejos, the Texas Court of Criminal Appeals held the statutes being considered were not in pari materia because the statutes "are contained in different legislation, have different elements of proof, different penalties and [are] obviously designed to serve different purposes and objectives." Id. at 449. Accordingly, we focus our attention on these same considerations.
A. General Subject
Section 42.12(a) of the Texas Penal Code provides:
A person commits an offense if the person recklessly discharges a firearm inside the corporate limits of a municipality having a population of 100,000 or more.TEX. PENAL CODE ANN. § 42.12(a) (West 2016). Section 21-152(a) of the San Antonio Code of Ordinances provides:
It shall be unlawful for any person to discharge a firearm within the city limits of the City of San Antonio.SAN ANTONIO, TEX., CODE OF ORDINANCES ch. 21, art. VI, § 21-152(a) (2018). Therefore, the ordinance and statute clearly relate to the same subject matter and class of persons because both address the conduct of a person discharging a firearm within city limits.
B. Elements of Proof
"Another factor that may be considered in determining whether two statutes are in pari materia is whether they have different elements of proof." Wiesman, 269 S.W.3d at 775; see also Burke v. State, 28 S.W.3d 545, 548 (Tex. Crim. App. 2000) (noting provisions held not to be in pari materia where they had different elements of proof) (quoting Cheney v. State, 755 S.W.2d 123, 130 (Tex. Crim. App. 1988)). In this case, the State argues the two provisions have different elements of proof because section 42.12(a) requires proof of recklessness while the ordinance is a strict liability provision. Unlike the recklessness required to be shown under section 42.12(a), the State contends, "the plain text of Section 21-152 shows the San Antonio city government intended to criminalize all discharging of firearms and it does not matter how the person fired the weapon, only that they were standing inside the city limits when they pulled the trigger." Musa-Valle, however, asserts section 6.02 of the Texas Penal Code mandates the inclusion of a culpable mental state in the ordinance because the ordinance does not plainly dispense with any culpable mental state. See TEX. PENAL CODE ANN. §6.02(b) ("If the definition of an offense does not prescribe a mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element."); Honeycutt v. State, 627 S.W.2d 417, 424 (Tex. Crim. App. 1981) (holding ordinance required culpable mental state under section 6.02(b) and minimum required culpability was recklessness under section 6.02(c)). The State does not address section 6.02 of the Texas Penal Code or discuss whether the ordinance can be construed as plainly dispensing with a culpable mental state under the guidelines established by the Texas Court of Criminal Appeals in Aguirre v. State, 22 S.W.3d 463, 470-477 (Tex. Crim. App. 1999). Instead, the State appears to rely on the omission of a mental state from the language of the ordinance. As the Texas Court of Criminal Appeals has instructed, however, "The legislative history of Section 6.02(b) makes it clear that that feature of the statute — the mere omission of a mental element — cannot be construed to plainly dispense of a mental element." Id. at 471. And, "[i]f the definition of an offense is silent about whether a culpable mental state is an element of the offense, Subsection (b) presumes that one is and Subsection (c) requires that it amount at least to recklessness." Id. at 472. Therefore, if we limited our discussion to the State's argument, we would hold the ordinance and the statute do not have different elements of proof because under section 6.02 "the minimum required culpability is recklessness," which is the same culpable mental state required by the statute. See Honeycutt, 627 S.W.2d at 424. The guidelines provided by the Texas Court of Criminal Appeals in Aguirre, however, require us to look beyond the State's argument and "look for a manifest intent to dispense with the requirement of a culpable mental state" by "ask[ing] whether such an intent is manifested by other features of the [ordinance]." 22 S.W.3d at 472. We, therefore, "examin[e] other attributes of the ordinance in light of [the] non-exhaustive list of suggested factors articulated in Aguirre." Thompson v. State, 44 S.W.3d 171, 178 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
Section 6.02(c) provides, "If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility." TEX. PENAL CODE ANN. § 6.02(c).
In its brief, the State relies on Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2012) and Alejos v. State, 555 S.W.2d 444 (Tex. Crim. App. 1977) (op. on reh'g), to assert the State had prosecutorial discretion to decide whether to prosecute under the ordinance or statute. Avery did not, however, address the doctrine of in pari materia but discussed the effect of overlapping subsections in a single statutory provision. 359 S.W.3d at 235-37. And, in Alejos, the Texas Court of Criminal Appeals held the statutes being considered were " not in pari materia." 555 S.W.2d at 451 (emphasis added). Accordingly, neither of those decisions supports the State's assertion that it had prosecutorial discretion absent an analysis of whether the statute and the ordinance are in pari materia.
(1) Language of the Statute
If any section of the ordinance prescribes a mental state, we presume the omission in section 21-151 was necessarily intended to dispense with a mental state. See Aguirre, 22 S.W.3d at 472; Rivera v. State, 363 S.W.3d 550, 668 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Thompson, 44 S.W.3d at 178. In this case, section 21-154, which is also contained in article VI of Chapter 21 of the San Antonio Code of Ordinances, makes it unlawful "for any person seventeen (17) years of age or older to intentionally, knowingly, recklessly, or with criminal negligence facilitate, suffer, or permit" either the discharge of a firearm or the physical possession of a firearm "by any person under the age of seventeen (17) by allowing that person to obtain unsupervised access to the firearm." SAN ANTONIO, TEX., CODE OF ORDINANCES ch. 21, art. VI, § 21-154 (2018). Because section 21-154 prescribes a mental state, we presume the omission of a mental state in section 21-151 was intentional. Accordingly, this factor weighs against requiring a culpable mental state.
(2) Nature of the Offense: Malum Prohibitum or Malum in Se
Malum in se offenses include acts that are inherently immoral, such as murder, arson, or rape, while malum prohibitum offenses are acts that are crimes merely because the act is prohibited by statute even though the act itself is not necessarily immoral. State v. Walker, 195 S.W.3d 293, 298 (Tex. App.—Tyler 2006, no pet.); Thompson, 44 S.W.3d at 178. "Examples of malum prohibitum offenses include speeding, illegal dumping of trash, and possession of a firearm while under a domestic restraining order." Thompson, 44 S.W.3d at 178. "The implication is that a strict liability offense must be malum prohibitum." Aguirre, 22 S.W.3d at 473. Because a violation of section 21-152 is not inherently immoral, it is a malum prohibitum offense; therefore, this factor also weighs against requiring a culpable mental state.
(3) Subject of the Ordinance
"The most important factor in the more recent cases [discussing strict liability offenses] is the subject of the statute" or ordinance. Id. "Strict liability is traditionally associated with protection of public health, safety, or welfare." Id. Quoting the United States Supreme Court's decision in Morissette v. United States, 342 U.S. 246, 252-54 (1952), the court further explained in Aguirre:
Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. ... The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.Aguirre, 22 S.W.3d at 474 (quoting Morissette, 342 U.S. 252-54); see also Rivera, 363 S.W.3d at 668-69 ("The class of public safety statutes that appellate courts have found to impose strict liability comprises statutes that punish dangerous activities that may result in serious physical injury or death to members of the public."); Thompson, 44 S.W.3d at 179 (noting strict liability offenses "represent society's attempts to regulate nuisances that might affect or be detrimental to the general health, safety, and welfare of the citizenry") (internal quotation omitted). In this case, making it unlawful to discharge a firearm within city limits relates to public safety and punishes a dangerous activity that has the potential to cause serious physical injury or death to members of the public. Accordingly, this factor weighs against requiring a culpable mental state.
(4) Legislative History
"We are not provided with a legislative history of the ordinance," and we could not locate any. Aguirre, 22 S.W.3d at 476.
(5) Seriousness of Harm to the Public
The more serious the consequences to the public, the more likely liability was intended to be imposed without regard to fault. Aguirre, 22 S.W.3d at 476; Walker, 195 S.W.3d at 299. Most strict liability statutes protect "unwitting and unwilling members of the public from the noxious and harmful behavior of others, in situations in which it would be difficult for members of the public to protect themselves." Thompson, 44 S.W.3d at 180. Such statutes involve serious risk to the public, including serious physical injury or death. Rivera, 363 S.W.3d at 669; Walker, 195 S.W.3d at 299. Because the discharge of a firearm involves serious risk to the public, this factor weighs against requiring a culpable mental state.
(6) Defendant's Opportunity to Ascertain the True Facts
"When ordinary citizens are not in a position to know about a statute or conduct constituting a violation of the statute, it is unlikely that the legislature intended to forego a culpable mental state." Rivera, 363 S.W.3d at 670. "This factor should be viewed in the context of who, as between one in a business or an ordinary citizen, would have greater knowledge of the accepted standards of conducting the activity out of which the offense arose." Walker, 195 S.W.3d at 299. In evaluating this factor, ordinary citizens are considered to be less likely to be in a position to know a law governing their conduct exists. See id. Because discharging a firearm is inherently dangerous, however, ordinary citizens are more likely to be aware that laws would exist to govern the discharge as opposed to the existence of laws governing less obviously dangerous activities. Because the application of this factor is unclear, we consider this factor to be neutral.
(7) Difficulty in Proving Mental State
The greater the difficulty prosecutors would have in proving a mental state for the particular offense, the more likely legislators intended to create a strict liability offense so that the law could be more effectively enforced. Aguirre, 22 S.W.3d at 476; Walker, 199 S.W.3d at 299. A defendant's intentions or culpable mental state can be inferred from circumstantial evidence, such as her words, actions, and conduct. Rivera, 363 S.W.3d at 670; Walker, 195 S.W.3d at 300. Because intent may be inferred from a defendant's words, actions, and conduct, proving a mental state required to violate the ordinance is no more difficult than proving a mental state in another offense. Rivera, 363 S.W.3d at 670; Walker, 195 S.W.3d at 300. Accordingly, this factor weighs in favor of a conclusion that the ordinance requires a culpable mental state. See Rivera, 363 S.W.3d at 670; Walker, 195 S.W.3d at 300.
(8) Number of Prosecutions Expected
"The fewer the expected prosecutions, the more likely the legislature meant to require the prosecuting officials to go into the issue of fault; the greater the number of prosecutions, the more likely the legislature meant to impose liability without regard to fault." Aguirre, 22 S.W.3d at 476. Because we lack information regarding this factor, this factor is neutral. See Rivera, 363 S.W.3d at 670; Thompson, 44 S.W.3d at 182.
(9) Severity of the Punishment
"[T]he greater the possible punishment, the more likely some fault is required; and, conversely, the lighter the possible punishment, the more likely the legislature meant to impose liability without fault." Aguirre, 22 S.W.3d at 476. "Strict liability is generally associated with civil violations that are punishable by fine only." Walker, 195 S.W.3d at 300.
A violation of the ordinance is a Class C misdemeanor. "Conviction of a Class C misdemeanor does not impose any legal disability of disadvantage." TEX. PENAL CODE ANN. § 12.03(c). "An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500." Id. at § 12.23. Therefore, this factor weighs against requiring a culpable mental state.
(10) Conclusion
A majority of the factors weigh against requiring a culpable mental state, and only one factor weighs in favor of requiring a culpable mental state. The remaining factors are neutral. Therefore, we hold the ordinance does not require a culpable mental state. As a result, the statute and the ordinance have different elements of proof, and this weighs against the statute and the ordinance being in pari materia.
C. Purpose or Object
"Similarity of purpose or object is the most important factor in determining whether two provisions are in pari materia." Burke, 28 S.W.3d at 547; see also Alejos, 555 S.W.2d at 450 ("As between characterization of the subject matter with which a statute deals and characterization of its object or purpose, the latter appears to be the more important factor.") (internal quotation omitted). "The two provisions must have been enacted with the same purpose in mind in order for the doctrine to apply." Burke, 28 S.W.3d at 547. Because the ordinance provides for a strict liability offense, while the statute requires a culpable mental state, we believe they have a different purpose or object. The statute targets people who recklessly discharge a firearm and, therefore, have engaged in culpable criminal conduct. The ordinance imposes strict liability on people who discharge a firearm within the city limit because the conduct is inherently dangerous to members of the public.
D. Conclusion
Although the ordinance and the statute deal with the same subject matter and the same conduct may sometimes violate both, they are enacted by two separate legislative bodies, "have different elements of proof, different penalties and [are] designed to serve different purposes or objectives." See Alejos, 555 S.W.2d at 449. Accordingly, we hold the statute and the ordinance are not in pari materia, and the State "properly exercised its option" to prosecute Musa-Valle under the statute. See id. at 451. Therefore, the trial court erred in granting Musa-Valle's motion to set aside the information.
We note that if the ordinance and the statute were in pari materia, we would reject the State's argument that "[h]aving different punishment ranges does not create a conflict between the two laws." See Mills, 722 S.W.2d at 414 (holding where "special statute provides for a lesser range of punishment than the general, obviously an 'irreconcilable conflict' exists"); see also Azeez v. State, 248 S.W.3d 182, 193 (Tex. Crim. App. 2008) ("Moreover, because violation of Section 543.009(b) of the Transportation Code carries a lesser range of punishment than the broader Section 38.10(a) of the Penal Code, the statutes are in irreconcilable conflict."). The State also cites a statement from this court's opinion in State v. DeLoach, 458 S.W.3d 696, 698 (Tex. App.—San Antonio 2015, pet. ref'd), as support for its position that if the ordinance and the statute conflicted, the ordinance is unenforceable. In making the referenced statement, however, this court was discussing the doctrine of preemption, not the doctrine of in pari materia. Our discussion focused on when an ordinance is preempted by a statute, noting, "The Legislature may limit a home-rule city's broad powers only when it expresses its intent to do so with 'unmistakable clarity.'" DeLoach, 458 S.W.3d at 698. And, we then cited Dall. Merchant's & Concessionaire's Ass'n v. City of Dall., 852 S.W.2d 489, 491 (Tex. 1993), to note the effect of a conflict between a statute and an ordinance in the context of preemption. DeLoach, 458 S.W.3d at 698. As the Texas Supreme Court stated in Dall. Merchant's & Concessionaire's Ass'n, "An ordinance of a home-rule city that attempts to regulate a subject matter preempted by a state statute is unenforceable to the extent it conflicts with the state statute." 852 S.W.2d at 491. In this case, the doctrine of preemption is not applicable because the Legislature has expressly stated it did not intend for section 42.12 to preempt a municipality from enacting an ordinance prohibiting the discharge of a firearm. See TEX. PENAL CODE ANN. § 42.12(d) (noting statute "does not affect the authority of a municipality to enact an ordinance which prohibits the discharge of a firearm").
CONCLUSION
The trial court's order is reversed, and the cause is remanded to the trial court for further proceedings.
Rebeca C. Martinez, Justice DO NOT PUBLISH