No. ________________ 

COURT OF CRIMINAL APPEALS OF TEXAS 

__________________________________________________________________ 

JOHN DELOACH, 

Petitioner, 

v.

STATE OF TEXAS, 

 Respondent. 

__________________________________________________________________ 

On Petition for Review from the Court of Appeals for the 

Fourth District Court of Texas 

San Antonio, Texas 

__________________________________________________________________ 

PETITION FOR DISCRETIONARY REVIEW 

_________________________________________________________________ 

Mark J. Cannan 

State Bar No. 03743800 

CLEMENS & SPENCER 

112 E. Pecan St., Suite 1300 

San Antonio, Texas 78205 

(210) 227-7121 - Telephone 

(210) 227-0732 – Facsimile 

Email: cannanm@clemens-spencer.com

Carleton B. Spears 

State Bar No. 18893800 

Carleton B. Spears, P.C. 

330 North Park 

San Antonio, Texas 78216 

(210) 366-3100 – Telephone 

(210) 375-8588 – Telecopier 

Email: carleton@carletonspears.com 

ATTORNEYS FOR PETITIONER, 

JOHN DELOACH 

PD-0382-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/3/2015 3:09:46 PM

Accepted 4/3/2015 3:34:21 PM

ABEL ACOSTA

CLERK
213723/0002279-24559 i

IDENTITY OF JUDGE, PARTIES, AND COUNSEL

1. Trial Court: Hon. Robert Lipo, Judge, San Antonio Municipal Court

2. Initial Appeal: Hon. Scott Roberts, Judge, Bexar County Court 

at Law No. 12

3. Parties: State of Texas/City of San Antonio and John DeLoach

4. Trial and appellate counsel for the State of Texas:

Samuel C.W. Adams, Assistant City Attorney

State Bar No. 24003680

Savita Rai, Assistant City Attorney

State Bar No. 24013368

Office of the City Attorney – San Antonio

401 S. Frio

San Antonio, Texas 78207

(210) 207-7335 - Telephone

(210) 207-7358 – Telecopier

Email: Samuel.Adams@sanantonio.gov

 Savita.Rai@sanantonio.gov

Dan Pozza

State Bar No. 16224800

Attorney at Law

239 E. Commerce St.

San Antonio, Texas 78205

(210) 226-8888 - Telephone

(210) 224-6373 - Telecopier

Email: danpozza@yahoo.com

Trial and appellate counsel for John DeLoach:

Mark J. Cannan

State Bar No. 03743800

Clemens & Spencer

112 E. Pecan St., Suite 1300

San Antonio, Texas 78205-1531

(210) 227-7121 - Telephone

(210) 227-0732 – Facsimile

Email: cannanm@clemens-spencer.com
213723/0002279-24559 ii

Carleton B. Spears

State Bar No. 18893800

Carleton B. Spears, P.C.

330 North Park

San Antonio, Texas 78216

(210) 366-3100 – Telephone

(210) 375-8588 – Telecopier

Email: carleton@carletonspears.com
213723/0002279-24559 iii

TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES AND COUNSEL ......................................... i, ii

TABLE OF CONTENTS ........................................................................................ iii

INDEX OF AUTHORITIES.................................................................................iv, v

STATEMENT REGARDING ORAL ARGUMENT ..............................................1

STATEMENT OF THE CASE .................................................................................2

STATEMENT OF PROCEDURAL HISTORY........................................................2

GROUNDS FOR REVIEW.......................................................................................3

ARGUMENT.............................................................................................................3

 

 Introduction.........................................................................................................3

 2003 Legislation - A Framework for Local Regulation .....................................4

 San Antonio Ignores Legislature’s Requirements..............................................6

 To the Extent of Conflict the City Ordinance is Preempted...............................7

 The Court of Appeals Opinion – A Flawed Analysis.........................................9

 Conclusion ........................................................................................................11

PRAYER .................................................................................................................12

CERTIFICATE OF SERVICE ...............................................................................13

CERTIFICATE OF COMPLIANCE ......................................................................14

APPENDIX..............................................................................................................15

A Fourth Court of Appeals Opinion dated November 19, 2014.

B Fourth Court of Appeals Opinion dated March 4, 2015.
213723/0002279-24559 iv

INDEX OF AUTHORITIES

CASES: Pages

Bay City Federal Savings & Loan Ass’n v. Lewis,

474 S.W.2d 459 (Tex. 1971) ...............................................................................6

Bolton v. Sparks, 

362 S.W.2d 946 (Tex. 1962) ...............................................................................8

French v. State,

546 S.W.2d 612 (Tex. Crim. App. 1977) .......................................................3, 4

Honeycutt v. State, 

627 S.W.2d 417 (Tex. Crim. App. 1981) ............................................................8

Rountree v. The State of Texas, 

2012 WL 3612497 (Tex. App.—Corpus Christi 2012, no pet.)..................10, 11

State v.Chacon, 

273 S.W.3d 375 (Tex. App.—San Antonio 2008, no pet.) .................................6

STATUTES, ORDINANCES AND CONSTITUTIONAL Pages

PROVISIONS:

Acts 2003, 78 Leg., Ch. 1034 (H.B. 849)....................................................4, 5, 6, 10

San Antonio City Code 19-427..................................................................................6

TEX. ADMIN. CODE § 86.455 ................................................................................7

TEX. CONST. Art. XI § 5 .....................................................................................3, 8

TEX. GOV’T CODE § 311.016(1) and (2) ...............................................................8

TEX. OCC. CODE § 2308.202........................................................................4, 5, 10

TEX. OCC. CODE § 2308.203......................................................4, 5, 6, 7, 8, 10, 11
213723/0002279-24559 v

TRANSPORTATION CODE, § 643.203..................................................................5

TRANSPORTATION CODE, § 643.204..................................................................5

OTHER: Pages

San Antonio Express-News, January 8, 2015...........................................................11

Senate Committee on Bus. & Comm., Bill Analysis, HB 849 ..................................9
213723/0002279-24559 1

No. ________________

COURT OF CRIMINAL APPEALS OF TEXAS

__________________________________________________________________

JOHN DELOACH,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

__________________________________________________________________

On Petition for Review from the Court of Appeals for the 

Fourth District Court of Texas

San Antonio, Texas

__________________________________________________________________

PETITION FOR DISCRETIONARY REVIEW

__________________________________________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS IN TEXAS:

Now comes Petitioner, John DeLoach, and files his Petition for 

Discretionary Review.

STATEMENT REGARDING ORAL ARGUMENT

The issue raised is not complex and requires no detailed appraisal of 

disputed evidentiary points. As such, oral argument would not appear necessary

and Petitioner waives it.
213723/0002279-24559 2

STATEMENT OF THE CASE

Petitioner John DeLoach (“DeLoach”) was charged with violation of a San 

Antonio Municipal ordinance limiting the charges for a non-consent tow of a 

motor vehicle. The prosecution was before the Municipal Court of the City of San 

Antonio. DeLoach filed a Motion to Quash and/or Dismiss the Complaint on the 

grounds that the City ordinance was inconsistent with and therefore preempted by 

state statute. That Motion was heard and denied and the case proceeded to trial 

before the Court. Defendant was found guilty and assessed a fine of $500.00. 

Defendant’s Motion for New Trial was denied and appeal was perfected to the 

County Courts of Law of Bexar County, Texas.

Sitting as an appellate court, the County Court at Law No. 12 of Bexar 

County, Texas, found in favor of Defendant DeLoach on the issue of preemption 

and reversed the ruling of the San Antonio Municipal Court, entering an order 

dismissing the case. That order was appealed by the State to the Fourth Court of 

Appeals, San Antonio, Texas. That Court issued an opinion and order reversing 

the County Court at Law and reinstating the conviction in the San Antonio 

Municipal Court. It is from that ruling that this appeal is prosecuted.

STATEMENT OF PROCEDURAL HISTORY

The proceedings before the Fourth Court of Appeals, San Antonio, Texas, 

were as follows:
213723/0002279-24559 3

November 19, 2014 – Opinion issued and Judgment entered

December 10, 2014 – Order entered extending time to file Motion for 

Rehearing

December 10, 2014 – Motion for En Banc Reconsideration filed

December 17, 2014 – Order entered requesting Response to Motion for En 

Banc Reconsideration

March 4, 2015 – Opinion and Judgment of November 19, 2014 withdrawn

March 4, 2015 – Motion for En Banc Reconsideration denied

March 4, 2015 – Opinion issued and Judgment entered

No further motions for rehearing were filed.

GROUNDS FOR REVIEW

Inconsistency between a 2002 San Antonio City ordinance limiting charges 

for vehicle tows and the mandates of the state statute regulating such tows cannot 

be reconciled, rendering the City ordinance under which Mr. DeLoach was 

convicted violative of Art. XI § 5 of the Texas Constitution.

ARGUMENT

Introduction

Conflict between municipal ordinances and state statutes is addressed in 

Article 11, § 5 of the Texas Constitution. In relevant part it requires that no 

ordinance “shall contain any provision inconsistent with ... the general laws 

enacted by the legislature ....” As observed by this Court in French v. State, 546 
213723/0002279-24559 4

S.W.2d 612, 613 (Tex. Crim. App. 1977), that mandate is to be “strictly construed 

in favor of the dominant power of the legislature.”

In its 2003 session, the legislature enacted provisions relating to the 

regulation of tow trucks and granting certain authority to municipalities within an 

overall regulatory framework. Acts 2003, 78 Leg., Ch. 1034 (H.B. 849). Although 

the enactment included a grant of authority for municipalities to regulate fees for 

towing, it established mandatory provisions to ensure that the allowable fees 

represented fair value for towing services.1

San Antonio has disregarded that mandate and enforced a restriction on 

towing charges inconsistent with the requirements of the legislative framework. 

As such, the ordinance under which Mr. DeLoach was convicted should be held 

unenforceable because preempted by the state statute.

2003 Legislation - A Framework for Local Regulation

In 2003 the legislature enacted House Bill 849, described in its caption as 

“relating to the regulation of tow trucks, to the authority of a political subdivision 

of the estate to regulate tow trucks, and to insurance for commercial motor 

vehicles; providing penalties.” Acts 2003, 78 Leg., Ch. 1034 (H.B. 849). 

 

1

Those provisions were in section 10 of the Act as amendments to the Transportation Code. 

Those provisions are now at Tex. Occ. Code §§ 2308.202 and 203. 
213723/0002279-24559 5

As indicated by that caption, the enactment covered multiple aspects of the 

towing industry. It included limitations on fees to be charged by vehicle storage 

facilities, procedures and fees for registration of tow trucks, requirements of 

insurance coverage, and provisions relating to offenses and penalties for violations. 

At issue are those provisions of HB 849 relating to fees that may be charged 

or collected in connection with non-consent tows. Section 10 of the bill amended 

the Transportation Code, adding § 643.203 relating to regulation of tow fees by 

political subdivisions and § 643.204 regarding towing fee studies in connection 

with the setting of those charges based on fair value for the services. Those are 

now at TEX. OCC. CODE §§ 2308.202 and 2308.203. They provide as follows:

“§ 2308.202. Regulation by Political Subdivisions of Fees for Nonconsent 

 Tows

The governing body of a political subdivision may regulate the 

fees that may be charged or collected in connection with a nonconsent 

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.

§ 2308.203. Towing Fee Studies

(a) The governing body of a political subdivision that regulates 

nonconsent tow fees shall establish procedures by which a towing 

company may request that a towing fee study be performed.
213723/0002279-24559 6

(b) The governing body of the political subdivision shall establish 

or amend the allowable fees for nonconsent 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.”

These provisions need be considered in light of the principle that when the 

legislature delegates certain authority it can be exercised “only in the manner 

prescribed by the legislature.” Bay City Federal Savings & Loan Association v. 

Lewis, 474 S.W.2d 459, 461 (Tex. 1971). When the legislature provides a broad 

framework of regulation, as with the towing industry, thereafter municipalities are 

only authorized “to enact ordinances within that framework.” State v. Chacon, 273 

S.W. 3d 375, 379 (Tex. App.—San Antonio 2008, no pet.).

San Antonio Ignores Legislature’s Requirements

The City of San Antonio had established a limit for vehicle tows in 2002. 

Section 19-427 of the ordinances of the City of San Antonio provided that vehicle 

tow fees could not exceed $85.00. After the legislature’s enactment of House Bill 

849, San Antonio was requested to bring its towing ordinance into compliance with 

that statute’s requirements by taking the steps to “amend the allowable fees ... at 

amounts that represent the fair value of the services ....” TEX. OCC. CODE § 

2308.203(b). (RR 11/14, pp. 130-131, Ex. D-5).

Eventually, in 2006 the Finance Department of the City initiated a tow fee 

study. The study was conducted by Morris Harris, a rate analyst for that 
213723/0002279-24559 7

department (RR 11/14, pp. 24-28). After receiving financial and accounting 

information from the towing industry (RR 11/14, p. 31), Mr. Harris completed that 

report in early 2007. (RR 11/14, pp. 34-38). That report concluded that the fair 

value fee for automobile tows in 2007 was $134.00. (RR 11/14, Ex. D-1 at p. 4). 

Mr. Harris testified that figure reflected “a reasonable and fair rate adjustment.” 

(RR 11/14, p. 42). 

Although Mr. Harris submitted his report, no further action was taken. The 

City ordinance limiting tow charges to $85.00 remained in place, and the Deputy 

City Manager with authority over the matter could offer no explanation for that 

inaction. (RR 11/15, pp. 10-13). 

Thus, notwithstanding the determination of its own tow fee study that the 

City limit on towing fees was significantly less than the fair value of the services, 

the City took no action to amend the allowable fee pursuant to TEX. OCC. CODE 

§ 2308.203(b). On July 31, 2012, John DeLoach was cited for charging a towing 

fee in excess of the $85.00 limit allowed by the 2002 ordinance. He had charged a 

fee of $250.00 for the tow in question, a charge consistent with that otherwise 

allowed by the state under TEX. ADMIN. CODE § 86.455.

To the Extent of Conflict the City Ordinance is Preempted

The Constitution mandates that no city ordinance “shall contain any 

provision inconsistent with ... the general laws enacted by the legislature of this 
213723/0002279-24559 8

state.” TEX. CONST. Art. 11 § 5. As explained in Bolton v. Sparks, 362 S.W.2d 

946, 950 (Tex. 1962), “(m)unicipal ordinances must conform to the limitations 

imposed by the superior statutes, and only where the ordinance is consistent with 

them, and each of them, will it be enforced.” This Court acknowledged that 

principle in Honeycutt v. State, 627 S.W.2d 417, 422 (Tex. Cr. App. 1981), 

directing that “a municipal ordinance must not conflict with a state statute.” 

The 2003 statute provided a framework with certain limitations for the 

municipal regulation of towing which the City of San Antonio has ignored and 

disregarded. The result is a city ordinance with provisions inconsistent with the 

state statute. The key requirement is in TEX. OCC. CODE § 2308.203(b).

 A city “shall establish or amend the allowable fees for non-consent 

tows in amounts that represent the fair value of the services ... and 

are reasonably related to any financial or accounting information 

provided to the governing body.”

Certainly, the mandatory nature of the requirement for establishing a fair 

value is clear. Under statutory rules of construction, “shall’ imposes a duty,” as 

opposed to the “discretionary authority” allowed by “may.” TEX. GOV’T CODE 

§ 311.016(1) and (2). The legislative history confirms the intent to have 

mandatory requirements imposed upon municipalities. The Senate Committee 

Report reflects that the statute “requires” amendment of the allowable fees for non-
213723/0002279-24559 9

consent tows in order to represent the fair value of the services of a towing 

company. Senate Committee on Bus. & Comm., Bill Analysis, HB 849.

It is this provision that the City of San Antonio has ignored. As described 

above, in 2007 the City completed a tow fee study showing that the fees allowed 

by the 2002 City ordinance were substantially below the fair value for the services. 

Yet no action was taken to comply with the state requirement that a city “shall ... 

amend the allowable fees” to reflect fair value. The City of San Antonio’s 

continued enforcement of a tow fee acknowledged to be less than fair value for the 

services is a failure to conform to the limitations imposed by the statute. That 

conflict and inconsistency renders the ordinance preempted and unenforceable.

The Court of Appeals Opinion - A Flawed Analysis

The basic flaw in the approach of the Court of Appeals can be seen in its 

statement that “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.” (Opinion dated March 6, 2015, at 

p. 6). Of course not, that is not the test. The Constitutional issue arises when a 

municipal ordinance contains “any provision inconsistent with ... the general law 

as enacted by the legislature ....” By looking for exclusivity the lower court 

ignored the “any provision inconsistent” standard. 
213723/0002279-24559 10

HB 849 was neither an attempt by the state to assert exclusive authority to 

regulate the tow industry nor was it a grant of exclusive authority to municipalities. 

Rather, it provided a framework within which municipalities were permitted to 

exercise certain regulatory authority. San Antonio seemed to acknowledge that 

framework by completing a tow fee study. The failure to implement the results of 

that study was inconsistent with the requirement of the statute that municipalities 

“shall ... amend the allowable fees” to represent fair value as determined by such a 

study.

The lower court relies upon Rountree v. State, 2012 WL 3612497 (Tex. 

App.—Corpus Christi 2012, no pet.). It observes that the Rountree court 

considered “a similar argument” and agrees “with the reasoning in Rountree.” 

(Opinion dated March 6, 2015, at 5-6).

Assuming the correctness of the Rountree opinion, the case is nonetheless 

not in point. In Rountree the municipality failed to conduct a tow fee study and 

continued to enforce its towing ordinance, making no further attempt to determine 

fair value. As such, the reasoning in Rountree focused on the relationship between 

TEX. OCC. §§ 2308.202 and 2308.203(a). The former allowed municipal 

regulation of tows and the latter, as relevant to that case, required procedures for 

tow fee studies. The Rountree court found those to be independent of each other, 

and thus a tow fee study was not required. 
213723/0002279-24559 11

The San Antonio situation is distinctly different. San Antonio completed a 

tow fee study that determined its current ordinance was not providing fair value for 

services. What is at issue is the relationship between § 2308.203(a) and (b), 

provisions of the same section which are clearly not independent of one another. 

Part (a) sets out the process for a tow fee study and part (b) follows with the

requirement that the results of that process be utilized to “establish or amend” the 

allowable fees to represent fair value for the services. The reasoning in Rountree is 

simply not applicable since San Antonio set in motion the procedures of § 

2308.203 but stopped half way. Having implemented procedures for a tow fee 

study and then completed it, San Antonio triggered and then ignored requirements 

not at issue in Rountree. 

Conclusion

The authority of municipalities to regulate economic activity must be carried 

out within the limitations imposed by the Constitution. Allowing cities to ignore 

state imposed limitations is to risk having “a patchwork quilt of bans and rules and 

regulations ....” San Antonio Express-News, January 8, 2015 (quoting then 

Governor-elect Abbott).

The legislature established a regulatory framework for the towing industry to 

avoid such patchwork. If San Antonio is allowed to avoid the state framework by 

ignoring its own tow fee study, municipalities will be given carte blanche to set 
213723/0002279-24559 12

tow fees irrespective of not only fair value but also irrespective of economic 

reality.

PRAYER

Petitioner John DeLoach prays that the Petition for Discretionary Review be 

granted and that, upon review, the judgment of the Court of Appeals be reversed.

Respectfully submitted,

CARLETON B. SPEARS

State Bar No. 18893800

CARLETON B. SPEARS, P.C.

330 North Park

San Antonio, TX 78216

(210) 366-3100 Telephone

(210) 375-8588 Telecopier

CLEMENS & SPENCER

112 E. Pecan St., Suite 1300

San Antonio, Texas 78205-1531

(210) 227-7121

(210) 227-0732 Telecopier

By: /s/Mark J. Cannan

MARK J. CANNAN

State Bar No. 03743800

ATTORNEYS FOR PETITIONER,

JOHN DeLOACH
213723/0002279-24559 13

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing was 

delivered via Email on this the 3rd day of April, 2015, to:

Mr. Samuel Adams 

Assistant City Attorney

Office of the City Attorney – San Antonio

401 S. Frio

San Antonio, TX 78207

via Email: samuel.adams@sanantonio.gov

Mr. Dan Pozza

Law Office of Dan Pozza

239 E. Commerce St.

San Antonio, TX 78205

via Email: danpozza@yahoo.com

/s/Mark J. Cannan

MARK J. CANNAN
213723/0002279-24559 14

CERTIFICATE OF COMPLIANCE

At the request of the Court, I certify that this submitted email attachment complies 

with the following requests of the Court:

1. This filing is labeled with or accompanied by the following information:

a. Case Style:

John DeLoach v. State of Texas

b. Case Number:

Unknown – new filing

c. The Type of Brief:

Petition for Discretionary Review

d. The Word Processing Software and Version Used to prepare the filing:

MS Word 2010

2. The electronic filing is free of viruses or any other files that would be disruptive 

to the Court's computer system. The following software, if any, was used to ensure 

the filing is virus-free: Trend Micro.

3. Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this Petition for 

Discretionary Review contains 2,338 words. This is a computer-generated 

document created in Microsoft Word, using 14-point typeface for all text, except 

for footnotes which are in 12-point typeface. In making this certificate of 

compliance, I am relying on the word count provided by the software used to 

prepare the document.

CLEMENS & SPENCER

112 E. Pecan St., Suite 1300

San Antonio, Texas 78205-1531

(210) 227-7121

(210) 227-0732 Telecopier

Date: April 3, 2015 By: /s/Mark J. Cannan

MARK J. CANNAN

State Bar No. 03743800

ATTORNEYS FOR PETITIONER,

JOHN DeLOACH
213723/0002279-24559 15

No. ________________

COURT OF CRIMINAL APPEALS OF TEXAS

__________________________________________________________________

JOHN DELOACH,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

__________________________________________________________________

On Petition for Review from the Court of Appeals for the 

Fourth District Court of Texas

San Antonio, Texas

APPENDIX

A Fourth Court of Appeals Opinion dated November 19, 2014.

B Fourth Court of Appeals Opinion dated March 4, 2015.
APPENDIX A 
jf ourtb QCourt of %lppeaLs 

�an %lntonio, W:exa% 

OPINION 

No. 04-14-00324-CR 

The STATE of Texas, 

Appellant 

v. 

John D. DELOACH, 

Appellee 

From the County Court at Law No. 12, Bexar County, Texas 

Trial Court No. 130556 

Honorable Scott Roberts, Judge Presiding 

Opinion by: Sandee Bryan Marion, Justice 

Sitting: Sandee Bryan Marion, Justice 

Marialy.n Barnard, Justice 

Luz Elena D. Chapa, Justice 

Delivered and Filed: November 19, 2014 

REVERSED AND RENDERED 

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 ANTONlO, 

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 

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). 
04-14-00324-CR 

regulates towing companies and the fees they may charge for non-consent tows. See Acts 2003, 

78th Leg., ch. 10 34, § 10, eff. Sept. 1, 2003 (currently codified in TEX. Occ. CODE ANN. 

§§ 2 308.202, .203 (West 2012)). 

On August 3 1, 2012, the State2 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 asserting (1) the ordinance 

is preempted by sections 2308.202 and 2308.203 of the Act, and (2) he established the affirmative 

defense of mista'ke 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 briefbefore 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 

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. 

- 2 -
04-14-00324-CR 

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 Haus. v. Bates, 406 S.W.3d 539, 546 (Tex. 

2013); RC! 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 look� to the Legislature 

not for grants of authority, but only for limitations on its powers. RC!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 mattet 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 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, 8371(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. 

- 3 -
04-14-00324-CR 

2. Analysis 

We must first determine whether the ordinance and the Act are. attempting to regulate the 

same activity. RC! Entm 't, 373 S.W.3d at 5 96. 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 § 230 8.202. 

Section 2 30 8.203 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 

allowiible 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 

accom;iting information provided to the governing body. 

Id. § 23 08 .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. 

RC! Entm 't, 373 S.W.3d at 5 96. 

- 4-
04-14-00324-CR 

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 o\:dinance 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 23 08 .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 ldnguage 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 compariy 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 

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. 

- 5 -
04-14-00324-CR 

section 2 308.202 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 RC! Entm't, 37 3 S.W.3d at 5 96 n.3 (quoting 

Dall. Merchant's; 852 S.W.2d at 491) ("The Legislature's intent is clearly expressed in section 

I 0 9.57(b) of the TABC-the regulation of alcoholic beverages is exclusively governed by the 

provisions of the T ABC unless otherwise provided . . . . Section 10 9 .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 COl)llection 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 �reempted. 

MISTAKE OF LAW 

DeLoach �!so 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 De Loach' s prayer for relief, he requested only that 

4 The Texas Commission of Licensing and Regulation has authorized the maximum fee of $250 for a non-consent 

tow. See TEX. ADM�. CODE, tit. 16, §§ 86.455, .458: 

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04-14-003 24-CR 

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, 3 19 (197 9); Brooks v. State, 32 3 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. " Matlockv. State, 3 92 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 f]he had the burden of proof, we construe the issue as an assertion that 

the contniry 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 66 9 (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 

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04-14-003 24-CR 

preponderance of the evidence. Id.§ 2.04(d); Roberts v. State, 319 S.W.3d 37, 51 (Tex. App.-

San Antonio 2010, pet. refd). 

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 General1'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 De Loach contends he relied on was issued in response 

to an inquiry regarding an ordinance established by the City of Victoria pertaining to policeinitiated 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 e;harge 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 2308.2033""5 Id. The inquiry 

5 At the time the Attorney General's opinion was issued, section 2308.203 was codified uoder Texas Transportation 

Code section 643 204. The language is identical in both versions" 

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04-14-00324-CR 

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 2 30 8.203] 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 6 86, 6 94-95 (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 defen$e 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 oflaw. Therefore, we 

reverse the comity court's judgment and render judgment reinstating the municipal court's 

judgment. 

Sandee Bryan Marion, Justice 

Publish . 

-9-
APPENDIXB 
jf ourtb QCourt of )tlppeal% 

$?an �ntonio, l!rexas 

OPINION 

No. 04-14-00324-CR 

The STATE of Texas, 

Appellant 

v. 

John D. DELOACH, 

Appellee 

From the County Court at Law No. 12, Bexar County, Texas 

Trial Court No. 130556 

Honorable Scott Roberts, Judge Presiding 

Opinion by: Sandee Bryan Marion, Chief Justice 

Sitting: Sandee Bryan Marion, Chief Justice 

Marialyn Barnard, Justice 

Luz Elena D. Chapa, Justice 

Delivered and Filed: March 4, 2015 

REVERSED AND RENDERED 

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 bane reconsideration. We withdraw our opinion and judgment of November 

19, 2014 and issue this opinion and judgment in their place. 

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, 
04-14-00324-CR 

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 State2 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 asserting (1) the ordinance 

is preempted by sections 2308.202 and 2308.203 of the Act, and (2) he established the afative 

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); RC! Entm 't, Inc. v. City of San Antonio, 373 S,WJd 589, 595 (Tex. App.-San Antonio 

2012, no pet.). A home-rule city has the full power of self-govermnent and looks to the Legislature 

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§ 19-4 02 (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 ofappeal 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 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). Tuns, we review the same issues raised in the briefs 

submitted to the county court. See id. 

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04-14-003 24-CR 

not for grants of authority, but only for limitations on its powers. RC! 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 inatter 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 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 nova. 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 gram

ar 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 230S.203 of the Act. We must first determine whether the 

ordinance and the Act are attempting to regulate the same activity. RC! Entm 't, 373 S.W.3d at 

596. We begin by examining the statutory text. Bates, 406 S.W.3d at 546. 

- 3-
04-14- 0 0324-CR 

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 comp�y 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, 3 73 S. W .3d at 596. 

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 "shall establish or amend the allowable fees for non-

- 4 -
04-14-00324-CR 

consent 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 argumeμtin 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 *l. 

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 statute "did not make the ordinance invalid, .nor did it preclude the 

enforcement of the ordinance." Id. at *2. The court 0f 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. 

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-
04-14-0 0324-CR 

Although the issue in Rountree involved Beaumont's failure to conduct the fee 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 RC! 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 T ABC-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 

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 

5 The Texas Commission of Licensing and Regulatiqn has authorized the maximum fee of $250 for a non-consent 

·tow. See TEX. ADMIN. CODE, tit. 16, §§ 86.455, .458. 

-6 -
04-14-0 0324-CR 

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 mostfavorable 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." Matlockv. State, 392 S.W.3d 662, 667·(Tex. Crim. ARP· 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 c)larged 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 

- 7 -
04-14-003 24-CR 

preponderance of the evidence. Id.§ 2.04(d); Roberts v. State, 319 S.W.3d 37, 51 (Tex. App.-

San Antonio 2010, pet. refd). 

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 De Loach contends he relied on was issued in response 

to an inquiry regarding an ordinance established by the City of Victoria pertaining to policeinitiated non-consent tows. Tex. Att'y Gen. Op. No. GA-0315, at *l. 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]."6 Id. The inquiry 

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. 

-8-
04-14-00324-CR 

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 sufficfoncy 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. 

Sandee Bryan Marion, Chief Justice 

Publish 

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