Preemption: WHAT the FRACK IS PREEMPTION?

12/28/2017

Preemption: WHAT THE FRACK IS PREEMPTION?

Presentation Objectives

 When you leave here today you will be able to:  1. Define “preemption” as it relates to municipal court practice;  2. Understand the political and practical forces affecting the current state of federal, state and local government lawmaking;  3. Identify the different types of preemption; and  4. Understand how to spot and respond to preemption issues when they arise.

Preemption is a doctrine in conflicts of law: when a superior government (as of a state) has undertaken to regulate a subject its laws supersede those of an inferior government (as of a municipality).

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UNITED STATES CONSTITUTION Supremacy Clause: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

UNITED STATES CONSTITUTION 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

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John Dickinson, a Virginia delegate, wrote of this concept of state rule “The government of each stateis,andistobe,sovereigninallmattersthat relate to each state only. It is to be subordinate barely in those matters that relate to the whole, and it will be their own faults, if the several states suffer the federal sovereignty to interfere in the things of their respective jurisdictions.”

State Governing Structures:  Dillon’s Rule  Home Rule

LOCAL CONTROL vs. STATE/FEDERAL CONTROL

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Recent efforts by the State of Texas to Preempt Local Government Ordinances:  Oil and Gas Fracking Bans  Plastic Bag Bans  Ride Sharing  Property Taxes/Budget Caps  Bathroom Bill  Sanctuary Cities  Tow Companies  Wireless Handheld Devices  Tree Preservation  Knife Restrictions

The Wood Independent School District has a new superintendent. She believes strongly that each high school campus in the district should have its the power and autonomy to set rules, handle discipline and create order on their own. At the beginning of the school year she orders the principals of every campus to get together with their assistant principals and teachers and to rework everything – throwing out the school district‐wide student handbook and rules and procedures. She gives each school two weeks to report back on their creative approach to running their schools. The principals and their teams quickly go to work. Soon they start delivering their plans to the superintendent.

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SCENARIO NO. 1 Maple High School has adopted a new schedule for its campus that derives its new policy from research that shows teenagers need more sleep than the average person and perform better in the mid‐day and afternoon hours. Their school day now starts at 10:00 a.m. and ends at 6:00 p.m. The superintendent accepts Maple High School’s plan with enthusiasm, but not everyone is happy. Who might not be happy?

School bus drivers. With Maple High School’s plan, they now have a completely different schedule for one of the six high schools in the district. They are understaffed and without a lot of resources as it is. Parents. Now their kids are going to be asleep through breakfast – the only real time the parents get to spend with their kids. And, now they have to manage homework and extracurriculars two hours later each weekday than normal. No more 5:15 soccer practice or church youth group.

After a year of implementation, the dropout rate has plummeted and standardized test scores are 34% better than last year. And over half of the graduating class are headed to college instead of only 42% before the change in school schedule. The superintendent is getting calls for her to establish the high school schedule shift to all of the high schools in the district.

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SCENARIO NO. 2 Aspen Grove High School has the highest population of blind students of any of the high schools in the district. As part of their new rules, they adopt that windows and doors throughout all school buildings must be unlocked and unobstructed by furniture and items that might impede a student’s escape. The superintendent accepts Aspen Grove High School’s plan with enthusiasm, but not everyone is happy. Who might not be happy?

School resource officers. Already beleaguered with active shooter issues, drug sales and budget cuts, the security and policing of schools just became that much harder if all the doors and windows are unlocked all the time students are present. Teachers. After moving all of the obstructions out of the way of the windows and doors, more and more often teachers struggle with keeping their students’ attention as most just stare out the window at the new Cane’s restaurant across the street from the school when they’re hungry.

After a year of implementation, the blind student population falters with most transferring to Maple High School because of the better school hours. With only one blind student left, Aspen Grove abandons their doors and windows rule. The superintendent is getting calls that letting the school make rules instead of district‐wide rules is a failed initiative and she should be reprimanded.

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SCENARIO NO. 3 Pines High School takes an innovative approach and allows its teachers a shot at drafting the school rules. The teachers, all women, promote dividing the students into classes based on gender. Boys in one class and girls in another. The teachers believe separating the teenagers will help them focus and learn. The superintendent accepts Pines High School’s plan with enthusiasm, but not everybody is happy. Who might not be happy?

Boys. Every day on their Instagram the boys of Pines see their buddies at other high schools in the district taking selfies with cute girls in class and getting to push their hormonal limits to the max. They become listless and completely not focused on their studies. The girls on the other hand are excelling academically and nearing a solution to ending world hunger. Parents. Three sets of parents have already met at the school with the principal, frustrated that their son is in a crowded class and being taught by one of the school’s football coaching staff. These parents want their sons to not only make good grades but to actually learn – so they will do well on the ACT and SAT and get into great colleges. The teacher with a graduate education and 20 years of experience is teaching the all girls class.

After a year of implementation, the group of teachers who created the gender segregation of classes rule are committed, now more than ever, to keeping the policy. They point to the great successes that the girls group is achieving. The school superintendent disagrees and believes all students, no matter their gender, should receive a balanced and fair opportunity to education. The school superintendent is considering revoking Pines High School’s ability to govern itself altogether over the mess.

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PREEMPTION TYPES 1. Express preemption 2. Implied preemption (a) conflicts preemption (b) field preemption

EXPRESS PREEMPTION

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TEXAS ALCOHOLIC BEVERAGE CODE Sec. 109.57. APPLICATION OF CODE; OTHER JURISDICTIONS. (a) Except as is expressly authorized by this code, a regulation, charter, or ordinance promulgated by a governmental entity of this state may not impose stricter standards on premises or businesses required to have a license or permit under this code than are imposed on similar premises or businesses that are not required to have such a license or permit. (b) It is the intent of the legislature that this code shall exclusively govern the regulation of alcoholic beverages in this state, and that except as permitted by this code, a governmental entity of this state may not discriminate against a business holding a license or permit under this code.

TEXAS TRANSPORTATION CODE Section 545.4251. USE OF PORTABLE WIRELESS COMMUNICATION DEVICE FOR ELECTRONIC MESSAGING; OFFENSE. (j) This section preempts all local ordinances, rules, or other regulations adopted by a political subdivision relating to the use of a portable wireless communication device by the operator of a motor vehicle to read, write, or send an electronic message.

SENATE BILL 15 TEXAS TRANSPORTATION CODE Sec. 542.2034. PREEMPTION OF LOCAL AUTHORITIES’ REGULATION OF USE OF WIRELESS COMMUNICATION DEVICE. (a) In this section, "wireless communication device" has the meaning assigned by Section 545.425. (b) The authority of a local authority to regulate or prohibit the use of a wireless communication device while operating a motor vehicle is preempted by this code, including Sections 545.424, 545.425, 545.4251, and 545.4252.

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TEXAS OCCUPATIONS CODE Sec. 2402.003. CONTROLLING AUTHORITY. (a) Notwithstanding any other provision of law, and except as provided by Subsections (b) and (c), the regulation of transportation network companies, drivers logged in to a digital network, and vehicles used to provide digitally prearranged rides: (1) is an exclusive power and function of this state; and (2) may not be regulated by a municipality or other local entity, including by: (A) imposing a tax; (B) requiring an additional license or permit; (C) setting rates; (D) imposing operational or entry requirements; or (E) imposing other requirements.

IMPLIED PREEMPTION

CONFLICTS PREEMPTION

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FIELD PREEMPTION

SPOTTING PREEMPTION STATUTORY LANGUAGE – “Local governments may not impose regulations that exceed…” “The state shall have sole authority to control and regulate…” “… and no more stringent than a state statute…” “For the purposes of equitable and uniform regulation and implementation….” “This act shall supersede any other statute or municipal ordinance….” “Regulation is a matter of statewide concern….” “It is the intent of the legislature to occupy the field….” “An ordinance enacted by a municipality must be consistent with this chapter and the commission's rules and orders and may not make unlawful a condition or act approved or authorized under this chapter or the commission's rules or orders.”

MOTION TO DISMISS/ MOTION TO QUASH COMPLAINT

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MISTAKE OF LAW AFFIRMATIVE DEFENSE

TEXAS PENAL CODE Sec. 8.03. MISTAKE OF LAW. (a) It is no defense to prosecution that the actor was ignorant of the provisions of any law after the law has taken effect. (b) 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: (1) an official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question; or (2) a written interpretation of the law contained in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question. (c) Although an actor's mistake of law may constitute a defense to the offense charged, he may nevertheless be convicted of a lesser included offense of which he would be guilty if the law were as he believed. Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

State of Texas vs. John Deloach

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MOTION FOR NEW TRIAL

Cass Robert Callaway Municipal Judge (Hutchins | Addison | Westworth Village | Westover Hills | Lakeside Municipal Courts) 214-808-8958 Cell/Text [email protected] https://www.facebook.com/cass.callaway

13 CAUSE NO. 8548312

THE STATE OF TEXAS § IN THE MUNICIPAL COURT

VS. § CITY OF AUSTIN

THE MONEY STORE, LP § TRAVIS COUNTY, TEXAS

ORDER OF THE COURT

The Defendant, THE MONEY STORE doing business as SPEEDY CASH, is a credit access business (CAB) that arranges a loan between a borrower and a lender. The borrower receives money from the lender.

The CAB provides _a letter of credit to the lender guaranteeing payment to the lender. The lender will receive payment of the loan plus interest. The CAB, THE MONEY STORE, receives a fee from the borrower. The fee is assessed each month the loan is not completely repaid.

The Austin City Code limits the payback period to Four (4) inst,allments. The agreement .in this case exceeds Four (4) installments. There is a question whether the installments constitute a fee. In my ,opinion that determination is a question of fact for the fact finder be it the judge or jury. The applicable state statute provisions are found in the Texas Finance Code, Title

5, Chapter 393 (Credit Sen!ices Organization) and more specifically, Section 393.602{b) and Section 393.622{c).

PREEMPTION - TMCEC Presentation Materials - Longview - Page 1 of 40 Section 393.602 (b) states that a CAB may assess fees for its services as agreed to between the, parties. A CAB may be calculated daily, biweekly, monthly, or on another periodic basis.

For, purposes of this motion only the court finds that the installments made to the MONEY STORE in this case constitute a fee within the meaning of the statute and the Austin City Code is not vague in that regard.

The question of preemption has been 'properly raised and

"considered by the court. In my opinion the Texas Finance Code

Section 393.601 and following specifically sets forth various provisions regulating the credit access business, and more specifically Section 393.602 (b) , which, allows the credit access business fee to be assessed on a monthly basis. In my opinion the state has covered this area regarding CAB and the City of Austin

preempted from limiting the number of installment payments and by implication the total amount of fee that may be charged.

The motion to Quash is GRANTED. ~D~' Ferdinand D. Clervi Judge Presiding Austin Municipal Court

March 1, 2017

PREEMPTION - TMCEC Presentation Materials - Longview - Page 2 of 40 PREEMPTION - TMCEC Presentation Materials - Longview - Page 3 of 40 PREEMPTION - TMCEC Presentation Materials - Longview - Page 4 of 40 PREEMPTION - TMCEC Presentation Materials - Longview - Page 5 of 40 PREEMPTION - TMCEC Presentation Materials - Longview - Page 6 of 40 PREEMPTION - TMCEC Presentation Materials - Longview - Page 7 of 40 PREEMPTION - TMCEC Presentation Materials - Longview - Page 8 of 40 PREEMPTION - TMCEC Presentation Materials - Longview - Page 9 of 40 PREEMPTION - TMCEC Presentation Materials - Longview - Page 10 of 40 PREEMPTION - TMCEC Presentation Materials - Longview - Page 11 of 40 PREEMPTION - TMCEC Presentation Materials - Longview - Page 12 of 40 PREEMPTION - TMCEC Presentation Materials - Longview - Page 13 of 40 10/25/2017 State v. DeLOACH, Tex: Court of Appeals, 4th Dist. 2014 - Google Scholar

The STATE of Texas, Appellant, v. John D. DeLOACH, Appellee.

No. 04-14-00324-CR.

Court of Appeals of Texas, Fourth District, San Antonio.

Delivered and Filed: November 19, 2014.

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

OPINION

SANDEE BRYAN MARION, Justice.

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, 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 State[2] 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 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. 2014). Thus, we review the same issues raised in the briefs submitted to the county court. See id.

PREEMPTION

In his brief before 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 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 Hous. v. Bates, 406 S.W.3d 539, 546 (Tex. 2013); RCI 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 looks to the Legislature not for grants of authority, but only for limitations on its powers. RCI 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 matter 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 PREEMPTION - TMCEC Presentation Materials - Longview - Page 14 of 40 https://scholar.google.com/scholar_case?case=16541401540718803803&q=State+v.+Deloach&hl=en&as_sdt=4,44 1/5 10/25/2017 State v. DeLOACH, Tex: Court of Appeals, 4th Dist. 2014 - Google Scholar that conflicts with a state statute is unenforceable to the extent of such conflict. Dall. Merchant's & Concessionaire's Ass'n v. City of Dall., 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 novo. 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.

2. Analysis

We must first determine whether the ordinance and the Act are attempting to regulate the same activity. RCI Entm't, 373 S.W.3d at 596. We begin by examining the statutory text. Bates, 406 S.W.3d at 546.

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:

(1) are authorized by commission rule; and

(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 company 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.

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 ordinance 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 PREEMPTION - TMCEC Presentation Materials - Longview - Page 15 of 40 https://scholar.google.com/scholar_case?case=16541401540718803803&q=State+v.+Deloach&hl=en&as_sdt=4,44 2/5 10/25/2017 State v. DeLOACH, Tex: Court of Appeals, 4th Dist. 2014 - Google Scholar 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 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 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. RCI 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.[4] Accordingly, we conclude the ordinance does not conflict with the Act, and is therefore, not preempted.

MISTAKE OF LAW

DeLoach also 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 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 Maynard v. 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, 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." Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 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.

2. Analysis

"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. § 8.03(b)(2) (West 2011). A defendant bears the burden of production of evidence and persuasion to prove an affirmative defense by a preponderance of the evidence. Id. § 2.04(d); Roberts v. State, 319 S.W.3d 37, 51 (Tex. App.-San Antonio 2010, pet. ref'd).

PREEMPTION - TMCEC Presentation Materials - Longview - Page 16 of 40 https://scholar.google.com/scholar_case?case=16541401540718803803&q=State+v.+Deloach&hl=en&as_sdt=4,44 3/5 10/25/2017 State v. DeLOACH, Tex: Court of Appeals, 4th Dist. 2014 - Google Scholar 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 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 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]."[5] Id. The inquiry 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 sufficiency standard set forth in Matlock, and is not entitled to an acquittal on appeal.

CONCLUSION

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 judgment.

[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).

[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.

[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.

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

PREEMPTION - TMCEC Presentation Materials - Longview - Page 17 of 40 https://scholar.google.com/scholar_case?case=16541401540718803803&q=State+v.+Deloach&hl=en&as_sdt=4,44 4/5 10/25/2017 State v. DeLOACH, Tex: Court of Appeals, 4th Dist. 2014 - Google Scholar [5] At 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.

Save trees - read court opinions online on Google Scholar.

PREEMPTION - TMCEC Presentation Materials - Longview - Page 18 of 40 https://scholar.google.com/scholar_case?case=16541401540718803803&q=State+v.+Deloach&hl=en&as_sdt=4,44 5/5 10/25/2017 State v. DeLoach, 458 SW 3d 696 - Tex: Court of Appeals, 4th Dist. 2015 - Google Scholar

458 S.W.3d 696 (2015)

The STATE of Texas, Appellant v. John D. DELOACH, Appellee

No. 04-14-00324-CR.

Court of Appeals of Texas, San Antonio.

Delivered and Filed: March 4, 2015.

697 *697 Savita Rai and Samuel C. Adams, Office of the City Attorney, San Antonio, Dan Pozza, Law Offices of Dan Pozza, San Antonio, for Appellant.

Mark J. Cannan, Clemens & Spencer, P.C., San Antonio, Carleton B. Spears, Law Office of Carleton B. Spears, San Antonio, for Appellee.

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

OPINION

Opinion by: Sandee Bryan Marion, Chief Justice

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 banc reconsideration. We withdraw our opinion and judgment of November 19, 2014 and issue this opinion and judgment in their place.

On August 31, 2012, the State[2] filed a complaint against John DeLoach for charging a nonconsent 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 698 asserting (1) the ordinance is preempted by sections 2308.202 and *698 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]

PREEMPTION

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); RCI 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 looks to the Legislature not for grants of authority, but only for limitations on its powers. RCI 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 matter 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 of Dall., 852 S.W.2d 489, 491 (Tex.1993). If a reasonable construction giving effect to both the state statute and the ordinance can be PREEMPTION - TMCEC Presentation Materials - Longview - Page 19 of 40 https://scholar.google.com/scholar_case?case=18038935991951811651&q=State+v.+Deloach&hl=en&as_sdt=4,44 1/5 10/25/2017 State v. DeLoach, 458 SW 3d 696 - Tex: Court of Appeals, 4th Dist. 2015 - Google Scholar 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, 428 S.W.3d 831, 837 (Tex.Crim.App.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 2308.203 of the Act. We must first determine whether the ordinance and the Act are attempting to regulate the same activity. RCI Entm't, 373 S.W.3d at 596. We begin by examining the statutory text. Bates, 406 S.W.3d at 546.

Section 2308.202 provides:

(1) are authorized by commission rule; and

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

TEX. OCC. CODE § 2308.202.

Section 2308.203 provides:

699 *699 (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.

Id. § 2308.203.

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 "s hall establish or amend the allowable fees for nonconsent 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 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).[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 *1. Rountree argued he was entitled to acquittal because Beaumont had not established procedures by which a towing company PREEMPTION - TMCEC Presentation Materials - Longview - Page 20 of 40 https://scholar.google.com/scholar_case?case=18038935991951811651&q=State+v.+Deloach&hl=en&as_sdt=4,44 2/5 10/25/2017 State v. DeLoach, 458 SW 3d 696 - Tex: Court of Appeals, 4th Dist. 2015 - Google Scholar 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 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 another." Id.

700 Although the issue in Rountree involved Beaumont's failure to conduct the fee *700 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. RCI 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.

MISTAKE OF LAW

DeLoach also 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

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, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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." Matlock v. State, 392 S.W.3d 662, 667 (Tex.Crim.App.2013).

701 *701 2. Analysis

"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 PREEMPTION - TMCEC Presentation Materials - Longview - Page 21 of 40 https://scholar.google.com/scholar_case?case=18038935991951811651&q=State+v.+Deloach&hl=en&as_sdt=4,44 3/5 10/25/2017 State v. DeLoach, 458 SW 3d 696 - Tex: Court of Appeals, 4th Dist. 2015 - Google Scholar 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 preponderance of the evidence. Id. § 2.04(d); Roberts v. State, 319 S.W.3d 37, 51 (Tex.App.-San Antonio 2010, pet. ref'd).

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).

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 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- 702 consent tow fees, but was instead designed to create *702 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.

CONCLUSION

[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).

PREEMPTION - TMCEC Presentation Materials - Longview - Page 22 of 40 https://scholar.google.com/scholar_case?case=18038935991951811651&q=State+v.+Deloach&hl=en&as_sdt=4,44 4/5 10/25/2017 State v. DeLoach, 458 SW 3d 696 - Tex: Court of Appeals, 4th Dist. 2015 - Google Scholar [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. § 30.00027(b) (West Supp. 2014). Thus, we review the same issues raised in the briefs submitted to the county court. See id.

[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.

[5] The Texas Commission of Licensing and Regulation has authorized the maximum fee of $250 for a non-consent tow. See Tex. Admin. Code, tit. 16, §§ 86.455, .458.

[6] At 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.

Save trees - read court opinions online on Google Scholar.

PREEMPTION - TMCEC Presentation Materials - Longview - Page 23 of 40 https://scholar.google.com/scholar_case?case=18038935991951811651&q=State+v.+Deloach&hl=en&as_sdt=4,44 5/5 BILL ANALYSIS

Senate Research Center S.B. 15 85S10673 JXC-F By: Huffines et al. Business & Commerce 7/21/2017 As Filed

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

The 85th Legislature, in its regular session, passed H.B. 62, which prohibits written electronic communication (including texting) while operating a motor vehicle. H.B. 62 will apply statewide starting on September 1, 2017.

Several cities across Texas have created ordinances and regulations governing the use of mobile devices (cell phones) while operating a vehicle. According to information provided by the Texas Department of Transportation, 40 cities have ordinances that go further than banning texting by prohibiting any use of a cell phone that is not "hands-free."

S.B. 15 will create a clear and consistent set of rules related to cell phone use by drivers. The bill prevents local governments from maintaining or enforcing inconsistent and confusing local ordinances by prescribing statewide rules and regulations on the use of cell phones while operating a vehicle and expressly preempting local ordinances that might govern cell phone use by a driver.

Should S.B. 15 pass and become law, four state laws would govern the use of cell phones by drivers:

 Texting while driving (H.B. 62, 85R) - Section 545.4251, Transportation Code;

 Cell phone use in a school zone (S.B. 1257, 79R) - Section 545.425, Transportation Code;

 Cell phone use on school property (H.B. 347, 83R) - Section 545.4252, Transportation Code;

 Cell phone use by a driver under age 18 (SB 1257, 79R) - Section 545.424, Transportation Code.

As proposed, S.B. 15 amends current law relating to prosecution of certain offenses involving and preemption of local regulation of the use of a wireless communication device while operating a motor vehicle.

RULEMAKING AUTHORITY

Rulemaking authority previously granted to a political subdivision is rescinded in SECTION 4 (Section 545.4252, Transportation Code) of this bill.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Subchapter B, Chapter 542, Transportation Code, by adding Section 542.2034, as follows:

Sec. 542.2034. PREEMPTION OF LOCAL AUTHORITIES' REGULATION OF USE OF WIRELESS COMMUNICATION DEVICE. (a) Defines "wireless communication device."

SRC-DMM S.B. 15 85(1) Page 1 of 2

PREEMPTION - TMCEC Presentation Materials - Longview - Page 24 of 40 (b) Provides that the authority of a local authority to regulate or prohibit the use of a wireless communication device while operating a motor vehicle is preempted by this code, including Sections 545.424 (Operation of Vehicle by Person Under 18 Years of Age), 545.425, 545.4251, and 545.4252 (Use of Wireless Communication Device on School Property; Offense).

(c) Provides that this section does not affect the authority of a local authority's peace officers to enforce the laws of this state relating to the use of a wireless communication device while operating a motor vehicle.

SECTION 2. Amends the heading to Section 545.425, Transportation Code, as effective September 1, 2017, to read as follows:

Sec. 545.425. USE OF WIRELESS COMMUNICATION DEVICE IN A SCHOOL CROSSING ZONE OR WHILE OPERATING A SCHOOL BUS WITH A MINOR PASSENGER; OFFENSE.

SECTION 3. Amends Section 545.425(b-1), Transportation Code, as follows:

(b-1) Requires a local authority whose peace officers enforce this section, rather than requires a municipality, county, or other political subdivision that enforces this section, except as provided by Subsection (b-2), to post a sign that complies with the standards described by this subsection at the entrance to each school crossing zone in the territory of the local authority, rather than in the municipality, county, or other political subdivision.

SECTION 4. Repealers: Sections 545.425(b-3) (relating to requiring that a certain sign be readable to an operator traveling at the applicable speed limit), (b-4) (relating to requiring the political subdivision to pay the costs associated with the posting of certain signs), (d-1) (relating to providing that a certain affirmative defense is not available for a certain offense committed in a school crossing zone), and (f) (relating to Section 545.425 preempting all local ordinances, rules, or regulations that are inconsistent with certain provisions) and 545.4252(e) (relating to Section 545.4252 preempting all local ordinances, rules, or regulations that are inconsistent with certain provisions), Transportation Code.

Repealers: Sections 545.425(b-2) and 545.4251(g) and (j), Transportation Code, as effective September 1, 2017.

SECTION 5. Makes application of this Act prospective.

SECTION 6. Effective date: September 1, 2017, or on the 91st day after the last day of the legislative session.

SRC-DMM S.B. 15 85(1) Page 2 of 2

PREEMPTION - TMCEC Presentation Materials - Longview - Page 25 of 40 By:AAHuffines, et al. S.B.ANo.A15

A BILL TO BE ENTITLED

1 AN ACT

2 relating to prosecution of certain offenses involving and

3 preemption of local regulation of the use of a wireless

4 communication device while operating a motor vehicle.

5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

6 SECTIONA1.AASubchapter B, Chapter 542, Transportation Code,

7 is amended by adding Section 542.2034 to read as follows:

8 Sec.A542.2034.AAPREEMPTION OF LOCAL AUTHORITIES ’ REGULATION

9 OF USE OF WIRELESS COMMUNICATION DEVICE. (a)AAIn this section,

10 "wireless communication device" has the meaning assigned by Section

11 545.425.

12 (b)AAThe authority of a local authority to regulate or

13 prohibit the use of a wireless communication device while operating

14 a motor vehicle is preempted by this code, including Sections

15 545.424, 545.425, 545.4251, and 545.4252.

16 (c)AAThis section does not affect the authority of a local

17 authority ’s peace officers to enforce the laws of this state

18 relating to the use of a wireless communication device while

19 operating a motor vehicle.

20 SECTIONA2.AAThe heading to Section 545.425, Transportation

21 Code, as effective September 1, 2017, is amended to read as follows:

22 Sec.A545.425.AAUSE OF WIRELESS COMMUNICATION DEVICE IN A

23 SCHOOL CROSSING ZONE OR WHILE OPERATING A SCHOOL BUS WITH A MINOR

24 PASSENGER; [POLITICAL SUBDIVISION SIGN REQUIREMENTS;] OFFENSE.

PREEMPTION - TMCEC Presentation Materials - Longview - Page 26 of 40 S.B.ANo.A15

1 SECTIONA3.AASection 545.425(b-1), Transportation Code, is

2 amended to read as follows:

3 (b-1)AAA local authority whose peace officers enforce

4 [Except as provided by Subsection (b-2), a municipality, county, or

5 other political subdivision that enforces] this section shall post

6 a sign that complies with the standards described by this

7 subsection at the entrance to each school crossing zone in the

8 territory of the local authority [municipality, county, or other

9 political subdivision]. The department shall adopt standards that:

10 (1)AAallow for a sign required to be posted under this

11 subsection to be attached to an existing sign at a minimal cost; and

12 (2)AArequire that a sign required to be posted under

13 this subsection inform an operator that:

14 (A)AAthe use of a wireless communication device is

15 prohibited in the school crossing zone; and

16 (B)AAthe operator is subject to a fine if the

17 operator uses a wireless communication device in the school

18 crossing zone.

19 SECTIONA4.AA(a) Sections 545.425(b-3), (b-4), (d-1), and

20 (f) and 545.4252(e), Transportation Code, are repealed.

21 (b)AASections 545.425(b-2) and 545.4251(g) and (j),

22 Transportation Code, as effective September 1, 2017, are repealed.

23 SECTIONA5.AAThe change in law made by this Act applies only

24 to an offense committed on or after the effective date of this Act.

25 An offense committed before the effective date of this Act is

26 governed by the law in effect on the date the offense was committed,

27 and the former law is continued in effect for that purpose. For

PREEMPTION - TMCEC Presentation Materials - Longview - Page 27 of 40 S.B.ANo.A15

1 purposes of this section, an offense was committed before the

2 effective date of this Act if any element of the offense occurred

3 before that date.

4 SECTIONA6.AAThis Act takes effect September 1, 2017, if it

5 receives a vote of two-thirds of all the members elected to each

6 house, as provided by Section 39, Article III, Texas Constitution.

7 If this Act does not receive the vote necessary for effect on that

8 date, this Act takes effect on the 91st day after the last day of the

9 legislative session.

PREEMPTION - TMCEC Presentation Materials - Longview - Page 28 of 40 WITNESS LIST

SB 15 Senate Committee Report Business & Commerce July 22, 2017 - 9:00 AM AGAINST: Barger, Michael Sgt. (City of Austin), Austin, TX Houston, Scott General Counsel (Texas municipal league), Austin, TX Johnson, Scott (Self) , Austin, TX Jones, James Sgt. (San Antonio Police Department), San Antonio, TX Myers, Sierra (Self) , Austin, TX Sokolic, Kathy (Self) , Austin, TX Stallings, Robin Executive Director (Self; BikeTexas), Austin, TX Registering, but not testifying: FOR: Ayala, Salvador Budget & Policy Analyst (Self; Texans for Fiscal Responsibility), Austin, TX Cahn, Adam (Cahnman's Musings), Austin, TX Iyer, Vishwanath (Self) , Austin, TX Long, Matt (Self) , Fredericksburg, TX Matocha, Dustin Executive Director (Self; Empower Texans), Austin, TX Parsons, Brad Research Analyst (Self) , Austin, TX Person, Maria (Self) , Austin, TX Sedillo, Heather (Self) , Austin, TX Smith, Angela (Self; Fredericksburg Tea Party), Fredericksburg, TX Stokes, Jeff Director, Legislative & Regulatory Affairs (Texas Nursery & Landscape Association), Austin, TX Winborn, Jason (AT&T), Austin, TX AGAINST: Acevedo, Julie (The City of Round Rock), Austin, TX Albert, David Dr. (Self) , Austin, TX Alvarez, Gerald (Self) , Austin, TX Aly, Sharmeen (Self) , Austin, TX Andree, Bethany (Self) , Austin, TX Bearden, Chase Director of Advocacy (Self; Coalition of Texans with Disabilities), Austin, TX Bennett, Amanda (Self) , Austin, TX Bogard, Allen City manager (Self; City of sugar land), Sugar land, TX Bohigian, Alexandra (Self) , Austin, TX Bonner, Charlie (Self) , Austin, TX Burleson, John Mr (Self; Travis County Resistance), Austin, TX Busby, Heather Executive Director (Self; NARAL Pro-Choice Texas), Austin, TX Cole, Jackie Dr (Self; Galveston Island Tree Conservancy), Galveston, TX Collins, Karen (Self) , Austin, TX

PREEMPTION - TMCEC Presentation Materials - Longview - Page 29 of 40 WITNESS LIST

SB 15 Senate Committee Report Business & Commerce Cuellar, Guadalupe Legislative Attorney (City of El Paso), El Paso, TX Davis, Susan (Self) , Austin, TX De Leon, Suzanne Mayor, City of Balcones Heights (Self; City of Balcones Heights, TML), Balcones Heights, TX Doyel, Elizabeth (Self) , Austin, TX Drummond, Marie (Self) , Del Valle, TX Elman, Anna (Self) , Austin, TX Fortune, Andrew (City of Grand Prairie City Council), Grand Prairie, TX Guy, Linda RN,PNP (Self) , Austin, TX Harding, Vincent (Self; Chair of Travis County Democratic Party), Austin, TX Harris, David City Administrator (Self; City of Balcones Heights), Balcones Heights, TX Harte, Katherine (Self) , Austin, TX Heckler, Jeff (City of Conroe), Austin, TX Hernandez, Ana (Self) , Austin, TX Hernandez, Pamela (Self) , Austin, TX Howell, Raymond (Self) , Austin, TX Howell, Sula (Self) , Austin, TX Howell, Sula (Self) , Austin, TX Koli, Anuradha (Self) , Austin, TX Lee, Randy (Self; City of Conroe), Austin, TX Maldonado, Bianca (Self) , San Antonio, TX Martin, Stephanie (Self) , Round Rock, TX May, Jennifer Assistant City Manager (Self; City of Sugar Land), Sugar Land, TX McKim, Mark (Self) , Austin, TX McLeland, Susan (Self) , Austin, TX Melomo, Theresa (Self) , Austin, TX Montgomery, Elizabeth (Self) , San Antonio, TX Morales, Kathy (Self) , Austin, TX Morris, Ronnie Asst. Chief of Police (City of Grand Prairie), Grand Prairie, TX Niswander, Trish (Self) , Austin, TX O'Leary, Shane (Self) , Austin, TX OConnor, Ehlane (Self) , Austin, TX Paszalek, Chrissy (Self) , Austin, TX Paszalek, John (Self) , Round Rock, TX Peek, George (Self) , Austin, TX Pierce, Greg (Self) , Austin, TX Plunkett, Brian City council member (Self; City of West Lake Hills), West Lake Hills, TX Pruett, Kay (Self) , Austin, TX Ramirez, Rick Intergovernmental Relations Mngr (Self; City of Sugar Land), Sugar Land, TX 2

PREEMPTION - TMCEC Presentation Materials - Longview - Page 30 of 40 WITNESS LIST

SB 15 Senate Committee Report Business & Commerce Rosshirt, Ryan (Self) , Austin, TX Sears, Michael (Self) , Austin, TX Shapiro, Rachel (Self) , Austin, TX Shelley, Adrian Director (Self; Public Citizen), Austin, TX Sikes, Linda (Self) , Tx, TX Solis, Eddie (City of Arlington), Austin, TX Suits, Stacy Travis County Constable (Self; Travis County Constable Pct 3), Austin, TX Tagliabue, Tom Director, Intergovernmental Relations (City of Corpus Christi), Corpus Christi, TX Tucker, Jason (Self) , Austin, TX Turner, Ginger (Self) , Austin, TX Vunderink, Gregg (Self) , TX, TX Walker, Kwame Lobbyist (The City of Dallas), Austin, TX Walker, Scheleen (Self) , Austin, TX Zimmerman, Joe Mayor of Sugar Land (Self; City of Sugar Land), Sugar land, TX Zwiener, Erin (Self) , Driftwood, TX ON: Oliver, Matt (Self) , Austin, TX Providing written testimony: AGAINST: Anthony, Linda Mayor of West Lake Hills (CIty of West Lake Hills), West Lake Hills, TX

PREEMPTION - TMCEC Presentation Materials - Longview - Page 31 of 40 10/26/2017 Taking Stock of Preemption Laws Against Cities - CityLab www.citylab.com

Thank you for printing content from www.citylab.com. If you enjoy this piece, then please check back soon for our latest in urban-centric journalism.

Face oﬀ: Abayomi Goodall waves a fan during a march at the Alabama State Capitol and Statehouse in Montgomery. // Brynn Anderson/AP City vs. State: The Story So Far

RICHARD FLORIDA JUN 13, 2017

PREEMPTION - TMCEC Presentation Materials - Longview - Page 32 of 40 https://www.citylab.com/equity/2017/06/city-vs-state-the-story-so-far/530049/ 1/13 10/26/2017 Taking Stock of Preemption Laws Against Cities - CityLab As cities flex their muscles in opposition to President Trump’s policies on everything from climate change to immigration and economic development, they face a serious obstacle: sweeping state efforts to preempt their authority. These efforts date back well before Trump’s populist rise to power and span a whole host of critical issues—from states’ aempts to block local minimum wage increases to non-discrimination protections for LGBTQ people to blanket bans on ordinances restricting fracking and guns.

Readers of CityLab will recognize plenty of examples of this anti-urban phenomenon. A new article in the Journal of Federalism by Lori Riverstone-Newell of Illinois State University offers a thorough overview of the rise of state preemption laws, drawing on recent examples of ongoing fights to assert city sovereignty. Here’s a summary of those key fights by policy area.

PREEMPTION - TMCEC Presentation Materials - Longview - Page 33 of 40 https://www.citylab.com/equity/2017/06/city-vs-state-the-story-so-far/530049/ 2/13 10/26/2017 Taking Stock of Preemption Laws Against Cities - CityLab Minimum wage

The “Fight For 15” movement is really about cities. By November 2016, Riverstone- Newell writes that nearly forty cities and counties had agreed to local increases in the minimum wage ranging from $8.50 to $15.75 an hour in states such as Arizona, California, Florida, Illinois, New Mexico, Maryland, Washington, and Maine (plus Washington, D.C.). Right now, 29 states set a higher minimum wage than the federal government and Arizona, Colorado, Maine, and Washington passed statewide raises in 2016.

But states such as Ohio, Alabama, and Missouri have taken actions to preempt local minimum wage increases. This tactic is a relatively recent phenomenon: 12 out of the 23 states with minimum wage preemption statutes adopted the laws after 2013.

In Ohio, Governor John Kasich signed a preemption bill in December 2016, preventing local minimum wage hikes from exceeding the state rate of $8.10 per hour in response to Cleveland’s special election on a wage hike that would have happened this May. In Alabama, a 2016 preemption law undid Birmingham’s eﬀort to raise the minimum wage to $10.10 per hour. Just today, Atlanta Mayor Kasim Reed, the Southern Poverty Law Center, and the NAACP Legal Defense Fund have ﬁled an amici brief for urging the Eleventh Circuit to hear the appeal that Alabama’s blocking of the law violates the Voting Rights Act and the Equal Protection Clause.

In Missouri, then Democratic governor Jay Nixon vetoed a minimum wage preemption law but was then overruled by a Republican legislature for HB 722 in 2015. In that instance, the city of St. Louis raced to pass a law before the preemption law would come into eﬀect and beat the clock in February 2017. The Missouri Supreme Court upheld the ordinance raising minimum wage to $11 per hour by 2018, but lawmakers just passed a bill to reverse the wage increase last month to be signed by Republican Governor Eric Greitens.

PREEMPTION - TMCEC Presentation Materials - Longview - Page 34 of 40 https://www.citylab.com/equity/2017/06/city-vs-state-the-story-so-far/530049/ 3/13 10/26/2017 Taking Stock of Preemption Laws Against Cities - CityLab LGBTQ non-discrimination protections

Over 225 localities have some sort of local non-discrimination protections for the rights of LGBTQ people. Preemption of these laws date back to 1992, when Colorado approved a constitutional amendment after various municipalities passed laws banning discrimination based on sexual orientation. But that law was challenged and overturned by the Supreme Court in Romer v. Evans in 1996. More recently, laws preempting local non-discrimination ordinances have passed in Tennessee in 2011 and Arkansas in 2015.

At what point will states undermine the broad capacities of cities and their residents to govern themselves?

The most famous example is North Carolina’s HB2 that passed in March 2016. That law preempted Charloe’s so-called “bathroom bill,” which would have provided non-discrimination protection for transgender people using public bathrooms, as well as other protections. By the end of the year, the city agreed to repeal the law and by March 2017, the state passed a law, presented as “compromise bill,” that still prevents cities from passing LGBTQ protections until 2020. Fighting these laws at the local level so far has not had much recent success in court either—for example, Arkansas’s Supreme Court struck down Fayeeville’s non-discrimination ordinance in February 2017, even after a circuit judge ruled in favor of the city.

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Across the United States, over 300 cities, counties, and townships have some form of sanctuary city policy. Meanwhile, according to the National Conference of State Legislatures, at least 36 states and the District of Columbia are considering legislation regarding sanctuary jurisdictions or noncompliance with immigration detainers— with 33 prohibiting and 15 states and D.C. supporting, with 12 states total featuring legislation on both sides of the issue.

Recommended If Cities The United Thwart Ruled the Cities of Cities i World America the Tru RICHARD RICHARD FLORIDA FLORIDA Era KRISTON C APR 26, 2017 APR 25, 2017 MAR 30, 20

The fight over sanctuary cities has pied federal, state, and city officials against each other and is about to come to a head this year as federal funding is in jeopardy. The most prominent example of preemption might be Texas, where Governor Greg Abbo has already blocked $1.8 million in grant funding to Travis County over its sanctuary policy and signed a “super preemption” law last month aimed at punishing local officials who do not cooperate with immigration authorities. It is set to go into effect in September. A Florida bill would impose a $5,000 per day fine on sanctuary cities (and Miami-Dade County has already voted to end its status as a sanctuary city) and North Carolina has a bill pending to strip cities of a variety of revenue sources if they operate as a sanctuary city. Other states that enacted restrictions this year include Mississippi, Georgia, and Indiana.

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A number of states have passed bans on local gun control ordinances, most notably Florida, Pennsylvania, Tennessee, Wyoming, North Carolina, and Nevada. Cities have aempted to fight these measures. One well-known case: Tallahassee Mayor Andrew Gillum’s fight in court over Florida’s law restricting local gun ordinances, where no particular statue defines a policy but any local ordinance restricting guns is outlawed.

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As of April 2017, nearly 550 localities had passed restrictions on the practice of hydraulic fracking for natural gas production in 26 states. Of those states, only four have their own statewide bans. Many of the laws are symbolic bans, as there are no shale plays for fracking. But Inside Climate News identiﬁes thirteen states where fracking bans run against substantial industry interests.

Though Pisburgh was the ﬁrst municipality to pass a fracking ban in 2010, the major test case for preemption is Denton, Texas. The city passed a ballot initiative in 2014 and sparked similar legislation across the country. Denton provides a particular distinct example of a city seing an environmental policy in a state so driven by oil. But in 2015, the state passed a law to preempt local regulation of oil and gas, limiting regulations to above-ground issues like traﬃc, noise, lights or “reasonable setback requirements,” undoing the Denton ban.

Oklahoma and North Carolina passed similar fracking-related preemption laws in 2015 and bills have also been introduced in Florida and Indiana. Meanwhile, Colorado and Louisiana have had preemption laws aﬃrmed by the courts to stop local regulations on fracking, but courts have also struck down such fracking preemption laws in Pennsylvania and New York. However, Florida is also considering a statewide ban on fracking after 76 local bans have been enacted in the state.

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Other states have moved to a tactic what is called “blanket” or “super” preemption, where the legislature authorizes the executive to determine whether local law violates a state law without particular deﬁnition. Arizona passed a law in 2016 that is often referred to as the “mother of all local preemption bills,” which withholds funds from localities that pass regulations or ordinances that contradict state law and leaves making that distinction to the state aorney general. Similarly broad preemption bills have been introduced in Arizona, Iowa, Texas, and Michigan. Other blanket preemption bills have been introduced but not enacted, though Riverstone-Newell notes they are often pared down as “compromise” bills to stop speciﬁc laws, as with North Carolina’s HB2.

The consequences of such blanket preemption are chilling. At what point will states undermine the broad capacities of cities and their residents to govern themselves?

***

Cities are up against more than Trump. The GOP controls 33 governorships and both chambers in 32 state legislatures. State preemption laws seek to strip cities of their abilities not just to oppose the White House agenda but to forge policies that reﬂect the desires, beliefs and concerns of their own residents. State legislatures in the U.S. have long had an anti-urban bias—in 2013, a study I wrote about in CityLab found that bills sponsored by legislators from small or medium-sized cities were overall twice as likely to pass as those that originated in big cities like Chicago or New York.

Another hurdle for cities is the constitutional challenge that they are legally considered “creatures of the state.” Republicans narrowly advocate for states’ rights in the face of federal power, arguing that cities don’t have the right to challenge the state. But this misremembers the origin of rights—they belong to people. Here’s how an Ohio Republican state senator summed up his opposition to Cleveland’s minimum wage hike: “[W]hen we talk about local control, we mean state control.” PREEMPTION - TMCEC Presentation Materials - Longview - Page 39 of 40 https://www.citylab.com/equity/2017/06/city-vs-state-the-story-so-far/530049/ 8/13 10/26/2017 Taking Stock of Preemption Laws Against Cities - CityLab The time has come to reconsider the very nature of federalism. As I have wrien here before, we really are two diﬀerent countries, red and blue, with division within states. It is time to adopt a federalism that recognizes the rights of cities to determine their own policies for the sake of their citizens.

As Riverstone-Newell’s survey of state preemption shows, this conﬂict isn’t a new phenomenon: It’s been decades in the making. But Trump may have inadvertently galvanized the local control movement, most recently with his actions on climate change. Witness the recent broad bipartisan coalition of nearly 250 mayors who have pledged to work towards the goals of the Paris climate accord. We may very well be seeing the birth of one possible model for such a power shift.

About the Author Richard Florida @RICHARD_FLORIDA / FEED Richard Florida is a co-founder and editor at large of CityLab and a senior editor at The Atlantic. He is a University Professor and Director of Cities at the University of Toronto’s Martin Prosperity Institute, and a Distinguished Fellow at New York University’s Schack Institute of Real Estate.

CityLab is commied to telling the story of the world’s cities: how they work, the challenges they face, and the solutions they need.

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