Opinion
No. 05-10-01004-CR
08-24-2012
JAY SANDON COOPER, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM;
On Appeal from the County Court at Law No. 5
Collin County, Texas
Trial Court Cause No. 005-87752-09
MEMORANDUM OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Murphy
Jay Sandon Cooper appeals his $10 fine for failure to maintain an enclosure around his swimming pool as required by a City of Plano ordinance. See Plano, Tex., Code § 6-187 (2011). Cooper complains in four issues about elements of the offense alleged in the complaint, irregularities in the reporter's record, and alleged perjury. In an additional issue, he claims the city ordinance is preempted by sections 28.03 (criminal mischief) and 30.05 (criminal trespass) of the Texas Penal Code and article 4.03 of the Texas Code of Criminal Procedure (presumption of innocence). See Tex. Penal Code Ann. §§ 28.03, 30.05 (West 2011); Tex. Code Crim. Proc. Ann.art. 38.03 (West Supp. 2011). The only issue we have jurisdiction to address involves Cooper's claims of preemption. We conclude the Plano ordinance is not preempted and affirm the trial court's judgment. BACKGROUND
Available at http://library.municode.com/index.aspx?clientId=10327&stateId=43&stateName=Texas.
The City of Plano, Texas requires that every swimming pool be "continuously protected by an enclosure surrounding the pool . . . in such a manner as to make such pool . . . reasonably inaccessible to small children or animals." See Plano, Tex., Code § 6-187. The enclosure must be at least four feet in height. Id. Cooper's completion of his new fence that would have enclosed his swimming pool was delayed due in part to a property border dispute with his neighbor. As a temporary measure, he attached orange, plastic netting to fence posts.
Compliance officers visited Cooper's residence multiple times regarding the temporary fence. They notified Cooper on January 14, 2009 that the fence height was below four feet, and he made the repairs. Officers again visited the house on February 16 and found the fence in compliance with the ordinance. Three days later, on February 19, two compliance officers visited Cooper's house and documented that the netting was approximately "1.5" feet high at the east edge of the backyard. The officers issued a citation and mailed it to Cooper's house. Cooper alleges he was not notified that his fence "had been pushed over sometime between February 16 and 19."
Cooper was convicted in municipal court of the Class C misdemeanor offense of failing to maintain an adequate enclosure around his swimming pool. He appealed the conviction to the county court and again was convicted and ordered to pay a $10 fine and court costs. Cooper appeals that conviction.
DISCUSSION
Challenges to the Complaint
Cooper complains in his first three issues that the State did not prove the elements of the offense as alleged in the complaint, the complaint did not contain the essential elements of the offense, and he was convicted on a lesser culpability element than the one stated in the complaint. The complaint charged Cooper with "knowingly fail[ing] to maintain enclosure of a fence, wall, or building." Yet at trial the State claimed that the swimming pool enclosure ordinance was a strict liability offense. The record is not entirely clear whether the trial court agreed with the State, but we need not resolve this question for purposes of our analysis.
In all criminal cases that have been appealed from an inferior court to the county court where the fine imposed by the county court does not exceed $100 exclusive of costs, the courts of appeals lack jurisdiction unless the sole issue is the constitutionality of the ordinance on which the conviction is based. See Tex.Code Crim. Proc. Ann. art. 4.03 (West 2005); Boyd v. State, 11 S.W.3d 324, 325 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Cooper's fine was $10, and his first three issues focus on the complaint-not the constitutionality of the ordinance on which his conviction was based. Accordingly, we have no jurisdiction over these issues. Tex.Code Crim. Proc. Ann. art. 4.03; see also Montpas v. State, 997 S.W.2d 650, 651 (Tex. App.-Dallas 1999, no pet.).
Challenges to the Record
We also conclude we have no jurisdiction to address Cooper's fifth issue, in which he asserts he should be granted a new trial based on irregularities in the reporter's record and alleged perjury by one of the State's witnesses. These claims are also not based on the constitutionality of the ordinance under which Cooper was convicted. See Tex. Code Crim. Proc. Ann. art. 4.03. Challenges to the Constitutionality of the Ordinance
Cooper asserts in his fourth issue that Plano's swimming pool enclosure ordinance is preempted by specific sections of the Texas Penal Code and Texas Code of Criminal Procedure. He argues regarding the penal code that Plano's ordinance is "unconstitutionally inconsistent" with the criminal mischief and criminal trespass sections of that code. A person commits a criminal mischief offense if he intentionally or knowingly damages or destroys the tangible property of another without the consent of the owner. See Tex. Penal Code Ann. § 28.03. A person commits a criminal trespass offense if he enters onto the property of another without consent and has notice that the entry is forbidden or receives notice to depart but fails to do so. Id. § 30.05.
Cooper's argument that the Plano ordinance is preempted by the criminal mischief statute rests on the assumption that somebody intentionally or knowingly knocked over his fence and thus violated the penal code. He asserts that because the standard applied in this case was strict liability, "the ordinance unconstitutionally does not require that any defendant ever be aware that they have been the victim of a criminal mischief offense necessitating repairs." According to Cooper, by passing the criminal mischief section of the penal code, the legislature assigned criminal responsibility to another person for damage done to his property.
Likewise, Cooper argues the purpose of the criminal trespass statute is to protect him from the criminal acts of others and that any person exposed to his pool must commit an act of criminal trespass. Cooper claims that Plano's ordinance "[t]urn[s] the statutes on their heads" and requires courts to consider his protection of others "against their own intentional or knowing acts inconsistent with and prohibited by statutes."
Cooper also asserts that the strict liability standard of Plano's ordinance "unconstitutionally deprived [him] of the presumption of his innocence, thus the ordinance is preempted by" article 38.03 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann.art. 38.03 (West Supp. 2011) ("All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.").
When facing a challenge to a city ordinance, we start with the presumption the ordinance is valid. See Eddins Enters., Inc. v. Town of Addison, 280 S.W.3d 544, 547 (Tex. App.-Dallas 2009, no pet.). Cooper, as the party challenging the ordinance, bears the extraordinary burden to establish invalidity. Id. We determine as a matter of law whether a relevant statute or constitutional provision renders the ordinance invalid. Id.
Plano is a home-rule city. State v. Kurtz, 152 S.W.3d 72, 73 (Tex. Crim App. 2004), superseded by Tex. Code Crim. Proc. Ann. art. 14.03(g)(2). Under article XI, section 5 of the Texas Constitution, home-rule cities have broad discretionary powers. City of Richardson v. Responsible Dog Owners of Tex., 794 S.W.2d 17, 19 (Tex. 1990). No ordinance, however, "shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State." Tex. Const. art. XI, § 5. 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. Dallas Merch.'s & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993). The legislature's enactment of a law addressing a subject does not mean that the subject matter is completely preempted. Responsible Dog Owners of Tex., 794 S.W.2d at 19. If the legislature chooses to preempt a subject matter usually encompassed by the broad powers of a home-rule city, it must do so with unmistakable clarity. Dallas Merch.'s & Concessionaire's Ass'n, 852 S.W.2d at 491. We will not hold a general law and a city ordinance to be repugnant to each other if we can reach any other reasonable construction that leaves both in effect. Id. If there is no conflict between a state law and the ordinance, the ordinance is not void. Responsible Dog Owners of Tex., 794 S.W.2d at 19.
In deciding whether the legislature intended to preempt a city ordinance, we first must determine whether the City is attempting to regulate the same conduct as the State. RCI Entm't, Inc. v. City of San Antonio, No. 04-11-00045-CV, 2012 WL 392930, at *3 (Tex. App.-San Antonio Feb. 8, 2012, no pet.). If the ordinance is an attempt to regulate the same conduct governed by the penal code, we next must decide whether the ordinance conflicts with the applicable penal code sections. Id. Ordinances that supplement or address a different subject matter than a state statute are not inconsistent with the statute unless the state has explicitly provided that localities cannot further regulate a given area. Id. at *4.
We conclude Plano's enclosure ordinance does not conflict with the criminal mischief and criminal trespass laws because the ordinance and the penal code statutes do not regulate the same conduct. The Plano ordinance creates a duty to maintain an adequate enclosure around swimming pools; the penal code provisions create a duty not to trespass on or destroy another's property. The laws create different duties for different actors that can be violated independently. There also is no repugnancy between the ordinance and the penal code provisions-nothing in those sections of the penal code that make it an offense to damage or invade the property of another person prevents a home-rule city from requiring that property owners maintain enclosures surrounding swimming pools.
Nor does article 38.03 of the code of criminal procedure prohibit strict liability crimes. Cooper argues that the strict liability nature of the offense deprived him of the presumption of his innocence and is therefore preempted by article 38.03. But the Texas Court of Criminal Appeals has considered strict liability offenses before and has affirmed that a municipal ordinance may provide for strict criminal liability. See Dubuisson v. State, 572 S.W.2d 694, 699 (Tex. Crim. App. [Panel Op.] 1978). We conclude that Plano's ordinance is not preempted by the penal code or the code of criminal procedure, and we overrule Cooper's fourth issue.
Having overruled Cooper's fourth issue and determined we have no jurisdiction to address his remaining issues, we affirm the trial court's judgment.
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101004F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JAY SANDON COOPER, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01004-CR
Appeal from the County Court at Law No. 5 of Collin County, Texas. (Tr.Ct.No. 005- 87752-09).
Opinion delivered by Justice Murphy, Justices FitzGerald and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 24, 2012.
MARY MURPHY
JUSTICE