Opinion
No. 10-06-00154-CV
Opinion Delivered and Filed: January 10, 2007.
Appeal from the County Court Van Zandt County, Texas Trial Court No. CV04153.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
This appeal concerns a license to carry a concealed handgun under the Texas Concealed Handgun Act. See TEX. GOV'T CODE ANN. §§ 411.171-411.208 (Vernon 2005 Supp. 2006). After the Texas Department of Public Safety issued Lewis's license, he was convicted of reckless driving. See TEX. TRANSP. CODE ANN. § 545.401(a) (Vernon 1999). The Department gave notice of revocation of Lewis's license. See TEX. GOV'T CODE ANN. § 411.180(a) (Vernon 2005), § 411.186 (Vernon Supp. 2006). Lewis requested an administrative hearing before a justice court, which, denying the Department's petition, ordered the license returned. See id. § 411.180(a)-(c) (Vernon 2005). The Department petitioned to county court for appeal de novo, and the county court rendered an order suspending Lewis's license. See id. §§ 411.180(e), 411.187 (Vernon 2005). The Department appeals. We reverse.
In two issues, the Department contends that the county court erred in suspending, rather than revoking, Lewis's license. In the Department's first issue, the Department contends that the Concealed Handgun Act did not permit suspension of Lewis's license. In the Department's second issue, the Department contends that the Act required revocation of Lewis's license.
A concealed-handgun license, once issued, may be revoked
if the license holder . . . subsequently becomes ineligible for a license under [Texas Government Code] Section 411.172, unless the sole basis for the ineligibility is that the license holder is charged with the commission of a Class A or Class B misdemeanor or an offense under Section 42.01, Penal Code, or of a felony under an information or indictment.
TEX. GOV'T CODE ANN. 411.186(a)(3); see id. § 411.172 (Vernon Supp. 2006); TEX. PENAL CODE ANN. § 42.01 (Vernon Supp. 2006) (disorderly conduct). Under Section 411.172, "A person is eligible for a license to carry a concealed handgun" only:
if the person:
. . .
(4) is not charged with the commission of a Class A or Class B misdemeanor or an offense under Section 42.01, Penal Code, or of a felony under an information or indictment;
. . . [and]
(8) has not, in the five years preceding the date of application, been convicted of a Class A or Class B misdemeanor or an offense under Section 42.01, Penal Code;
. . . .
TEX. GOV'T CODE ANN. § 411.172(a). A person who does not meet all of the conditions for eligibility for a concealed-handgun license is ineligible for a license. See Tex. Dep't of Pub. Safety v. McLendon, 35 S.W.3d 632, 633 (Tex. 2000) (per curiam).
For purposes of Section 411.172, an offense under the laws of this state, another state, or the United States is:
(1) a felony if the offense, at the time of a person's application for a license to carry a concealed handgun:
(A) is designated by a law of this state as a felony;
(B) contains all the elements of an offense designated by a law of this state as a felony; or
(C) is punishable by confinement for one year or more in a penitentiary; and
(2) a Class A misdemeanor if the offense is not a felony and confinement in a jail other than a state jail felony facility is affixed as a possible punishment.
TEX. GOV'T CODE ANN. § 411.172(b). Reckless driving is defined as a misdemeanor, and is punishable by fine, by confinement in jail, or by both. TEX. TRANSP. CODE ANN. § 545.401(b) (Vernon 1999). Under Section 411.172, an applicant's conviction for reckless driving renders the applicant ineligible for a concealed-handgun license. Tex. Dep't of Pub. Safety v. Hukill, 141 S.W.3d 747, 749 (Tex.App.-El Paso 2004, pet. denied); Tex. Dep't of Pub. Safety v. Rodriguez, 126 S.W.3d 666, 667-68 (Tex.App.-Houston [14th Dist.] 2004, no pet.).
Government Code Section 411.186 "permits the DPS to revoke a concealed handgun permit because of a conviction on a Class A misdemeanor which occurs subsequent to the granting of the permit." Tex. Dep't of Pub. Safety v. LaFleur, 32 S.W.3d 911, 914-15 (Tex.App.-Texarkana 2000, no pet.); see TEX. GOV'T CODE ANN. § 411.186; LaFleur at 915-16; see generally Nate G. Hummel, Comment, Where Do I Put My Gun?: Understanding the Texas Concealed Handgun Law and the Licensed Owner's Right-to-Carry, 6 TEX. TECH. J. TEX. ADMIN. L. 139, 156 (2005).
Lewis argues, first, that reckless driving is not "directly related" to his concealed-handgun license. (Br. at 7.) Lewis cites the Texas Occupations Code, which provides, "A licensing authority may suspend or revoke a license . . . on the grounds that the person has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of the licensed occupation." TEX. OCC. CODE ANN. § 53.021(a) (Vernon 2004). That section is not applicable. A license to carry a concealed handgun under the Government Code does not constitute a license for a "licensed occupation" under the Occupations Code. Id.; see TEX. GOV'T CODE ANN. §§ 411.171-411.208.
Next, Lewis argues that his conviction for reckless driving did not constitute a conviction for a Class A misdemeanor under Government Code Section 411.172. Lewis cites Texas Department of Public Safety v. Swierski for the proposition that "the mere possibility of confinement is not enough to establish cause for revocation under the Concealed Handgun Statute." (Br. at 9 (citing Tex. Dep't of Pub. Safety v. Swierski, 49 S.W.3d 417 (Tex.App.-Fort Worth 2001[, no pet.])).) In Swierski, the court interpreted federal statutes that provide that a person convicted of a federal offense classified as a misdemeanor under federal law may consent to serve his or her sentence of confinement in a federal penitentiary. Swierski, 49 S.W.3d at 419-20 (interpreting 18 U.S.C.A § 4083 (West 2000)). The court there held that the possibility that a person would choose to serve the sentence in a federal penitentiary did not render the offense a felony for purposes of former Government Code Section 411.172, which considered an offense a felony "if confinement for one year or more in a penitentiary is affixed to the offense as a possible punishment." Act of May 8, 1997, 75th Leg., R.S., ch. 165, art. 10, § 10.01(a), sec. 411.172(b)(1), 1997 Tex. Gen. Laws 327, 399 (amended 2003) (current version at TEX. GOV'T CODE ANN. § 411.172(b)(1)(C)); see Swierski at 418-19. Lewis argues that he "chose" to be sentenced to pay a fine, instead of confinement in jail, as part of a plea-bargain agreement. ( See Br. at 10.) Swierski is distinguishable. The court that sentenced Lewis sentenced him to pay a fine; Lewis did not consent or "choose" to pay a fine in lieu of confinement.
Lastly, Lewis argues that Government Code Section 411.172 is ambiguous. Lewis argues, "[A]ny misdemeanor may qualify as a Class A misdemeanor if it is not a felony and confinement in a jail other than a state jail felony facility is a possible punishment." (Br. at 12 (citing TEX. GOV'T CODE ANN. § 411.172(b)(2)).) The gist of Lewis's argument is that the statute is unwise, not that it is ambiguous. We do not perceive that the Government Code's definition of a Class A misdemeanor is ambiguous.
Lewis was convicted of reckless driving. Lewis is ineligible for a license to carry a concealed handgun. The county court erred in not ordering Lewis's license revoked. We sustain the Department's second issue. Having sustained that issue, we need not reach the Department's first issue.
Having sustained the Department's second issue, we reverse and render judgment that Lewis's license to carry a concealed handgun is revoked.
Reversed and rendered