Opinion
This case comes to us on appeal from the County Criminal Court of Appeals pursuant to TEX. GOV'T CODE ANN. § 30.00026 (Vernon 2004). Appellant Yvette Garza challenges the determination that she violated the section of the City of Carrollton Municipal Code prohibiting more than 3 dogs on certain property within the city. In two issues, Garza argues the ordinance is unconstitutionally vague and her actions were necessary pursuant to section 9.22 of the Texas Penal Code. We affirm.
BACKGROUND
Garza is a member of an organization that rescues dogs and cats from municipal shelters when the animals have been scheduled for destruction. Garza and her organization seek permanent homes for the animals after they have rescued them.
The ordinance at issue prohibits "keeping" more than three cats or dogs on any premises within the city unless it is a commercial kennel or an animal hospital. An animal control officer conducting a random check observed 5-6 dogs on Garza's [2] property and issued her a citation. Two of the dogs were in the fenced backyard, and the remaining dogs were visible through the window on the front door. The City subsequently filed a complaint charging Garza with a violation of the ordinance. Garza moved to quash the complaint. Following a bench trial, the trial court denied Garza's motion to quash, found Garza guilty and assessed a fine of $ 250. Garza appealed to the County Court of Criminal Appeals, and the court affirmed the judgment. This appeal followed.
DISCUSSION AND ANALYSIS
Constitutionality of Ordinance
In her first issue, Garza contends the use of the term "keep" renders the section unconstitutionally vague. 1 Garza's argument is based on a comparison of section 91.03 of the Carrollton Municipal Code, the section she was found to have violated, with section 91.02. Section 91.003 A (1) of the City of Carrollton Municipal Code provides, in pertinent part:
It shall be unlawful for any person to keep more than three dogs and three cats on any premises within the city that has backyard fencing.
(Emphasis added).
Section 91.002, the provision Garza compares with the section she violated states:
It shall be unlawful for any person to keep, own, maintain, use, or have in his possession or on his premises within the city any livestock, fowl or pet, except in compliance with the provisions of this chapter.
(Emphasis added). In essence, Garza argues because the word "keep" is among a list of verbs in section 91.002, but used alone in section 91.003, the solo use of the term in section 91.02 is vague. We disagree.
Ordinances are construed utilizing the same rules of construction as statutes. See J.B. Advertising, Inc. v. Sign Board of Appeals of City of Carrollton, 883 S.W.2d 443, 447 (Tex.App.--Eastland 1994, writ denied).We review an issue of statutory construction de novo. See State Dep't of Highways & Public Transportation v. Payne, 838 S.W.2d 235, 238-9 (Tex. 1992). An appellate court presumes the validity of a statute or ordinance attacked on constitutional grounds. See Ex Parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978); Webb v. State, 991 S.W.2d 408, 414 (Tex.App--Houston [14th Dist.] 1999, pet. ref'd). The court [4] must uphold the ordinance if a reasonable construction will render it constitutional and carry out the legislative intent. See Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979).
A reviewing court must make a two-part inquiry to determine if a criminal statute or ordinance is void for vagueness. The first inquiry is whether an individual of ordinary intelligence receives sufficient information from the statute that his conduct is proscribed by law. Meisner v. State, 907 S.W.2d 664, 667 (Tex.App.--Waco 1995, no pet.); see also, Cotton v. State, 686 S.W.2d 140, 141 (Tex. Crim. App. 1985); Ex parte Anderson, 902 S.W.2d 695, 699 (Tex.App.--Austin 1995, pet. ref'd). A statute need not be mathematically precise; it need only give fair warning in light of common understanding and practices. See Ex parte Anderson, 902 S.W.2d at 699. The second inquiry is whether the ordinance provides sufficient notice to law enforcement personnel in order to prevent arbitrary and erratic enforcement of the ordinance. Meisner, 907 S.W.2d at 667. See also, Long v. State, 931 S.W.2d 285, 287 (Tex. Crim. App. 1996). Either the lack of notice or lack of guidelines for law enforcement is an independent ground [5] for finding a statute void for vagueness. Adley v. State, 718 S.W.2d 682, 685 (Tex. Crim. App. 1985).
We first examine whether the ordinance requires persons of ordinary intelligence to guess at its meaning. The ordinance Garza was found to have violated does not define "keep." But a law is not unconstitutionally vague merely because the words or terms used are not defined. See State v. Edmond, 933 S.W.2d 120, 126 (Tex. Crim. App. 1996). When words are not defined, they are ordinarily given their plain meaning unless the statute clearly shows that they were used in some other sense. See Ex parte Anderson, 902 S.W.2d at 699. Statutory words are to be read in context and construed according to the rules of grammar and common usage. See TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 1998). Words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not vague and indefinite. See Floyd v. State, 575 S.W.2d 21, 23 (Tex. Crim. App.1978); Ex parte Anderson, 902 S.W.2d at 700.
We are required to presume the City Council's enactment of the Code was not arbitrary or unreasonable. See Sullivan v. State, 986 S.W.2d 708, 710 (Tex.App.--Dallas 1999, no pet.). [6] The code evidences an intent to restrict the number of cats and dogs on any one property, and makes no provision for extenuating circumstances. There was some discussion at trial about other municipalities that provide exceptions to pet ordinances. Carrollton is not such a place. We are not unsympathetic to appellant's purpose and commend her efforts on behalf of a worthwhile cause. But we are bound by the mandate of the Carrollton City Council as clearly expressed in the code.
As the county court of criminal appeals observed, the dictionary definition of "keep" is to preserve, maintain, take care of, or support. A person of ordinary intelligence would be on notice that the word has a common sense, plain, ordinary meaning. The word "three" is similarly clear. The failure to include the additional verbiage from the other section of the code does not affect the clarity of the prohibition against keeping more than 3 dogs on the property. Therefore, Garza's challenge fails under the first prong of the analysis.
Next, we examine whether the ordinance provides determinate guidelines for law enforcement. Although the animal control officer appeared to be confused about the common sense application [7] of the term "keep," we cannot conclude the ordinance itself is so inherently confusing as to permit selective enforcement. 2 Thus, the challenge cannot be sustained under the second prong of the analysis, and the ordinance is not void for vagueness. Garza's first issue is overruled.
The Necessity Defense
Garza also argues the code violation was necessary and justified under TEX. PEN. CODE ANN. § 9.22 (Vernon 2003). Necessity is a statutory defense that exonerates a person's otherwise illegal conduct. See Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999). The rationale for the defense is that even though the defendant has committed the crime, his conduct which violates the literal language of the criminal law is justified because he has avoided a harm of greater magnitude. Dotson v. State, 146 S.W.3d 285, 292 (Tex.App.--Fort Worth 2004, pet. ref'd). To establish the necessity defense, one must prove: (1) the actor reasonably believes the [8] conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. Id; see also, Ford v. State, 112 S.W.3d 788, 793 (Tex.App.--Houston [14th Dist.] 2003, no pet.). The court below rejected the defense, stating "if the defense applied . . . then the Appellant as well as every other citizen would have carte blanche to 'keep' as many animals on their premises as they choose . . . ." The potentially widespread and impractical application of the defense in other cases does not constitute a sound legal basis for wholesale rejection of the defense. Our analysis turns on whether the requisite elements of the offense were met.
Garza admitted the number of dogs on the property exceeded the number allowed under the code. She did not specify when the dogs arrived or how long they remained on the premises. Although Garza testified she had rescued the dogs from a shelter because they were going to be euthanized, [9] she gave no indication as to when this had been scheduled to occur. This evidence does not rise to the level of exigency the statute requires. "Imminent harm" contemplates a reaction to circumstances that result from a split-second decision made without time to contemplate the law. See Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.--Austin 2002, pet. denied). The harm must be "pending, not impending." Washington v. State, 152 S.W.3d 209, 211 (Tex.App.--Amarillo 2004, no pet.). As a result, Garza failed to establish the requisite elements of a necessity defense. We resolve appellant's second issue against her. The judgment of the trial court is affirmed.
MARTIN RICHTER
JUSTICE
Do Not Publish
TEX. R. APP. P. 47