Texas Stamp


PD-1047-18 01/09/2019

1. “Did the court of appeals err by failing to recognize municipalities’ authority, granted pursuant to the doctrine of home-rule cities and by Texas Penal Code § 42.12(d), to ban the discharge of firearms?”

2. “Did the lower court err by holding the San Antonio Ordinance should be construed as a strict liability crime?”

3. “Did the court of appeals misconstrue the doctrine of in pari materia by requiring that all elements in the provisions of law being compared must be

Musa-Valle allegedly discharged a firearm in San Antonio. He was charged under Tex. Penal Code § 42.12(a) (“Discharge of Firearm in Certain Municipalities”), a Class A misdemeanor. He filed a motion to set aside the information because San Antonio is a “home rule” city with a Class C ordinance that is in pari materia with section 42.12. The trial court agreed.

The State argued on appeal that the statutes are not in pari materia primarily because the ordinance is a strict liability offense while section 42.12 requires recklessness. The court of appeals reviewed nine factors, including that neighboring ordinances have mental states, and concluded that the omission of a mental state in the ordinance was deliberate. As a result, the elements of proof of the ordinance differed from section 42.12. Combined with its conclusion that the two laws have different purposes or objects, the court concluded that they are not in pari materia and so the State could proceed under section 42.12.

Musa-Valle makes three arguments. First, he argues that the court of appeals did not address his “home rule” argument. Even if the two laws are not in pari materia, the Texas Constitution permits cities like San Antonio to enact laws that may be curtailed by the Legislature only when the latter expresses its intent to do so. Section 42.12(d) expressly says it has no such intent. Second, he challenges the court’s conclusion that the ordinance is a strict liability offense. Although some neighboring ordinances have mental states and the one at issue does not, other ordinances in the same chapter plainly dispense with them as required under Tex. Penal Code § 6.02(b). The rule of lenity also supports the requirement of a mental state. Third, even if the ordinance is a strict liability offense, the absence of elemental identity is insufficient to hold the two laws are not in pari materia.

Contact Us

Mailing Address

P. O. Box 13046
Austin, Texas 78711-3046

Physical Address

209 W. 14th Street
Austin, Texas 78701


(512) 463-1660


(512) 463-5724