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Date: 08-15-2019

Case Style:

Ex parte Elena Herrera Salas

Case Number: 01-19-00112-CR

Judge: PER CURIAM Panel consists of Chief Justice Radack and Justices Higley and Hightower.

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: The Honorable Kim K Ogg
Clinton A. Morgan

Defendant's Attorney: Jayson Booth

Description:


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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. 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.

4

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
5

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 employment
related information concerning its employees, including social security numbers,
and to keep a daily register signed by each employee who works that day, with
6

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.

Outcome: We affirm the trial court’s order denying Salas’s petition for writ of habeas
corpus.

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