Opinion issued August 13, 2019

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-19-00112-CR

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EX PARTE ELENA HERRERA SALAS

On Appeal from the County Criminal Court at Law No. 15

Harris County, Texas

Trial Court Case No. 2235783

MEMORANDUM OPINION

Elena Herrera Salas appeals the denial of her pretrial application for writ of 

habeas corpus, challenging the validity of section 3.7 of Harris County’s game room 

regulations. In one point of error, Salas contends the trial court erred in denying her 

petition because the offense with which she is charged conflicts with another state 

law and is therefore preempted. We affirm.
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Background

Appellant Elena Salas was charged with a Class A misdemeanor offense under 

section 234.138 of the Texas Local Government Code by her violation of section 3.7 

of Harris County’s game room regulations. TEX. LOC. GOV’T CODE § 234.138;

HARRIS CTY. GAME ROOM REG. (2013)

https://www.harriscountyso.org/documents/Permits/Game_Room_Regulations.pdf

Harris County adopted the game room regulations under authority of 

Subchapter E of the Texas Local Government Code. HARRIS CTY. GAME ROOM REG.

§ 1.1(a)-(b). Subchapter E, which includes sections 234.131-140, gives authority to 

Texas counties to adopt and enforce regulations concerning local game rooms. 

A game room is defined as: 

[A] for-profit business located in a building or place that 

contains six or more: 

(A) amusement redemption machines; or 

(B) electronic, electromechanical, or mechanical 

contrivances that, for consideration, afford a player the 

opportunity to obtain a prize or thing of value, the award 

of which is determined solely or partially by chance, 

regardless of whether the contrivance is designed, made, 

or adopted solely for bona fide amusement purposes.

TEX. LOC. GOV’T CODE § 234.131(2).

The State alleged that Salas failed to maintain a daily register containing 

identifying information of each employee at Salas’s game room, which is required 
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to be available for inspection upon request. HARRIS CTY. GAME ROOM 

REG.§ 3.7(b)(1)-(2), (c). That record-keeping regulation provides:

(b) A Game Room shall maintain onsite, and produce to 

any Peace Officer, Fire Safety Official, and/or designated 

County Employee for inspection:

(1) a record for each employee that 

contains the name, address, date of birth, 

state identification number or social security 

number, job function, W-2 or W-4 form, a 

copy of application for work with the Game 

Room, a copy of the I-9 filed as part of 

Employment Eligibility Verification for the 

Department of Homeland Security, and a 

photograph of the employee;

(2) a daily register that contains the 

name, date of birth, state identification 

number or social security number, and job 

function of each employee present at the 

establishment that day. Every Owner, 

Operator, employee, agent, and/or any other 

individual acting for or acting on behalf of the 

Game Room is required to sign the daily 

register with the information required above

immediately upon entering the Game Room; 

and

. . . .

(c) A Game Room shall preserve the daily register 

required by Subsection (b)(2) for ninety (90) days after the 

date the register was made. The register must be 

maintained at the Game Room, it must be accessible by 

any Person on duty at the Game Room, and must be made 

available to any Peace Officer, Fire Safety Official, and/or 

designated County Employee upon request.
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Id.

Analysis

Salas asserts that Section 3.7 of the Harris County game room regulations

conflicts with Sections 501.001 and 521.052 of the Texas Business and Commerce

Code. 

Pretrial habeas corpus relief is only available in three circumstances: (1) to 

challenge the State’s power to restrain the defendant; (2) to challenge the manner of 

pretrial restraint; and (3) to raise certain issues that would bar prosecution or 

conviction. Ex parte Gonzalez, 525 S.W.3d 342, 346 (Tex. App.—Houston [14th 

Dist.] 2017, no pet.). Salas sought relief under the third circumstance, by attempting 

to show that the municipal ordinance under which she is charged is invalid.

An appellate court reviewing a trial court’s ruling on a habeas claim must 

review the record evidence in the light most favorable to the trial court’s ruling and 

must uphold that ruling absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d 

804, 819 (Tex. Crim App. 2003). If the issue does not depend on credibility of 

witnesses, an appellate court reviews the trial court’s ruling de novo. Id. 

In her sole issue, Salas asserts that Section 3.7 of the game room regulations 

is preempted by other state law—in particular, Sections 501.001 and 521.052 of the 

Business and Commercial Code. Article XI, section 5 of the Texas Constitution 

provides that home-rule cities, such as Houston, may not pass any ordinance that 
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contains a “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(a). If an 

ordinance conflicts with state legislation, it is invalid and preempted. See BCCA 

Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 18–19 (Tex. 2016). If any 

reasonable construction of the ordinance and statute can be reached that leaves both 

in effect, no preemption will be found. See id. at 7. Salas has not presented authority 

showing that county ordinances in conflict with state law are also preempted, but 

even if they may be preempted, there is no conflict shown here. 

Section 501.001 prohibits the intentional communication of a person’s social 

security number to the public. See TEX. BUS. & COM. CODE § 501.001(a). This 

statute does not apply to the collections or release of a social security number 

required by state or federal law or the use of social security numbers for 

administrative purposes. See id. § 501.001(e). Section 521.052 requires businesses 

to implement reasonable procedures “to protect from unlawful use or disclosure any 

sensitive personal information collected or maintained by the business in the regular 

course of business.” Id. § 521.052(a). 

Salas contends that these statutes conflict with Houston municipal ordinance 

3.7, which requires game room businesses to keep on site certain employmentrelated information concerning its employees, including social security numbers, 

and to keep a daily register signed by each employee who works that day, with 
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identification information such as date of birth and state identification number or 

social security number. HARRIS CTY. GAME ROOM REG.§ 3.7(b). The statutes do not 

reflect a clear intent to preempt local ordinances that do not concern identity theft or 

disclosure of identity information. Cf. BCCA Appeal Grp., 496 S.W.3d at 12-13 

(statute expressed unmistakable intent to limit municipality’s power to enact or 

enforce air pollution ordinances). The ordinance in this case does not concern

identity theft, but instead concerns the regulation of game rooms, and thus, it is not 

expressly inconsistent with the statutes’ protection of social security numbers from 

public disclosure. 

Because the ordinance does not require the unlawful disclosure of social 

security numbers, it does not conflict with Section 521.052. The ordinance does not 

require employers to disclose the social security information to the public, but only 

to show certain information to peace officers who request to see it, and therefore, it 

does not conflict with Section 501.001. See id. 3.7(b), (c). Because a reasonable 

construction of the ordinance and statutes can be reached that leaves both in effect, 

the trial court properly determined that there was no preemption. See BCCA Appeal 

Grp., Inc., 496 S.W.3d at 7. Accordingly, the trial court properly denied Salas’s 

application for writ of habeas corpus.
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Conclusion

We affirm the trial court’s order denying Salas’s petition for writ of habeas 

corpus. 

PER CURIAM

Panel consists of Chief Justice Radack and Justices Higley and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).