SHIRLEY, JR., ANDREW v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0239-22
ANDREW SHIRLEY JR., Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS
HARRIS COUNTY
NEWELL, J., delivered the opinion of the Court in which KELLER,
P.J., HERVEY, RICHARDSON, YEARY, WALKER, SLAUGHTER and MCCLURE, JJ.,
joined. KEEL, J., filed a concurring opinion in which KELLER, P.J.,
joined.
The question before this Court is whether the trial court properly
adjudicated Appellant guilty for possession of a controlled substance and
revoked his community supervision after Appellant violated the
Shirley – 2
conditions of his deferred adjudication community supervision when he
fled from the police. To answer that question, we have to consider
whether the State established by a preponderance of the evidence that
Appellant had committed the new law violation of evading detention. To
answer that question, we must decide whether the State proved by a
preponderance of the evidence that the officer who attempted to pull
Appellant over for driving with an expired vehicle registration was
lawfully attempting to detain Appellant when Appellant refused to stop.
The answer to all these questions is yes.
In June of 2020, Appellant was serving deferred adjudication
community supervision for the offense of possession of a controlled
substance. One evening, police officers with the Houston Police
Department attempted to stop Appellant for driving a vehicle with an
expired temporary license plate. 1 Appellant briefly evaded detention
before crashing his vehicle and fleeing on foot. The State relied upon
this new offense of evading arrest and detention to move to adjudicate
Appellant’s guilt and revoke his community supervision. 2 Appellant
1
See Tex. Transp. Code Ann. §§ 502.407(a), 502.473(a).
2
Tex. Penal Code § 38.04(a) (“A person commits an offense if he intentionally flees from a
person he knows is a peace officer or federal special investigator attempting to lawfully arrest
or detain him.”).
Shirley – 3
argues the trial court should not have revoked his community
supervision because the attempted traffic stop was unlawful. According
to Appellant, the Governor had suspended registration requirements
pursuant to his authority under the Texas Disaster Act as part of the
State’s effort to combat the COVID-19 disaster at the time Appellant
committed the offense of evading detention. 3
But Appellant skips a step. Appellant was not adjudicated based
upon his commission of the traffic offenses of driving with an expired
vehicle registration or failing to display a valid vehicle registration
insignia. So, the question is not whether the Governor effectively
suspended registration requirements or whether he had the authority to
do so. Rather, the question is whether the officer had reasonable
suspicion at the time of the attempted stop to temporarily detain
Appellant for suspicion of committing a traffic offense. Based on the
record before this Court, the officer’s belief that Appellant had violated
the law was based on specific articulable facts and the attempt to stop
Appellant was justified by reasonable suspicion. The Governor’s
authority to suspend statutes pursuant to the Disaster Act did not render
the officer’s conduct unreasonable when he attempted to detain
3
See Tex. Gov’t Code § 418.016(a).
Shirley – 4
Appellant in light of the uncertainty regarding the requirements
necessary for the Governor to exercise that authority. Therefore, we
affirm the court of appeals’ holding that the trial court did not abuse its
discretion in adjudicating Appellant’s guilt and revoking his community
supervision.
Background
Back in 2019, Appellant pleaded guilty to the offense of possession
of a controlled substance enhanced by two prior convictions. Pursuant
to a plea bargain, the trial court placed Appellant on deferred
adjudication community supervision for a term of three years. 4 In July
of 2020, the State filed a motion to adjudicate Appellant’s guilt alleging
he violated the terms of his community supervision by committing the
new offense of evading arrest or detention. 5 The trial court held a
hearing on the State’s motion to adjudicate and Appellant pleaded not
true to this allegation. 6
4
Tex. Health & Safety Code Ann. § 481.115.
5
Tex. Penal Code 38.04(a).
6
The State’s Motion to Adjudicate also contained allegations Appellant violated his community
supervision by committing the offense of possession with intent to deliver and by testing
positive for illegal substances while under supervision but the State abandoned these
allegations at the hearing.
Shirley – 5
At the hearing on the motion to adjudicate, the trial court heard
from the two Houston Police Department officers primarily involved in
the traffic stop. Officer Michael Falcone, a plain-clothes officer who was
parked in a gas station conducting surveillance unrelated to Appellant,
saw Appellant driving a car with an expired temporary license plate. He
also observed Appellant turn out of the parking lot without signaling.
Officer Falcone contacted marked patrol units in the area to alert them.
Officer Christopher Pham responded and attempted to pull
Appellant over for having an expired temporary license plate and failing
to signal. 7 Appellant refused to pull over. Appellant evaded Officer Pham
until Appellant crashed his car. Appellant then fled on foot. Officer
Pham chased, and later detained Appellant after Appellant fell to the
ground.
On cross-examination, Officer Pham specified that Appellant’s
temporary tag expired on May 27, 2020, and the traffic stop occurred
on June 29, 2020. Officer Pham testified he was not sure whether the
Department of Public Safety had waived renewal requirements because
of the COVID-19 pandemic. However, he testified he was familiar with
7
The State conceded on appeal that failing to signal while exiting a private driveway is not a
valid basis for a traffic stop citing State v. Ballman, 157 S.W.3d 65, 70 (Tex. App. – Fort
Worth 2004, pet. ref’d).
Shirley – 6
an announcement that DPS would begin requiring tag renewals on April
1, 2021. There was no testimony establishing when DPS initially
suspended the renewal requirements. The following was the extent of
Officer Pham’s testimony on this topic:
Q: Okay. And this temporary tag expired May 27, 2020?
A: I believe so, yes.
Q: Okay. And this – the date of this offense was June 29,
2020, correct?
A: Correct.
Q: And all of this was taking place during the midst of the
coronavirus pandemic; is that right?
A: Correct.
Q: Now, it’s my understanding, Officer Pham, that – that
during the pandemic, the Texas – the DPS has waived
renewal of the tags because of the virus; is that right?
A: I’m not sure, sir. I’m not sure of the specifics.
Q: Okay. So would it become – would it be a surprise to you
that there have been announcements that the DPS – or the
– yes, the DPS is going to start requiring tag renewals and
everything starting April 1st? Does that sound familiar to
you?
A: Yes.
Q: So if they’re going to start requiring tag renewals on April
1st of this year, it would make sense they were not requiring
tag renewals back in June of last year, correct?
A: I’m not sure.
Shirley – 7
After Officer Pham’s testimony, the State rested.
Appellant called Officer Falcone to attempt to address the status
of Appellant’s vehicle registration. On that topic, Officer Falcone
provided the following testimony:
Q: Okay. Now, I want to ask you about this whole business
with expired tags currently with – during the whole COVID
pandemic. Is your department stopping people for expired
tags during the pandemic given that the DPS has restrictions
because of COVID?
A: Yes. We continued to stop people for expired registration.
Q: And is that something that you personally have done, is
stop people for expired registration?
A: I’m in a plainclothes capacity, but I do call out expired
registration.
Q: Okay. Do you know if your department was stopping
people for expired registrations in June of 2020?
A: Yes, sir.
Q: Do you know if your department was issuing tickets in
June of 2020 for expired . . . registrations in June of 2020?
A: I don’t know if they were issuing tickets, sir. I’m in a
plainclothes capacity, so I do not do that.
Q: Okay. Officer, did you relay any kind of traffic violation to
other officers involving [Appellant]?
A: Yes. I relayed information to marked units on our unit.
Q: And what was that information?
Shirley – 8
A: I relayed the paper tag, the vehicle number, and a
violation while exiting the parking lot onto Richmond.
With that testimony, the defense rested, and both sides closed.
Regarding the suspension of vehicle registration requirements, the
record only shows that Officer Pham agreed that it “sounded familiar”
that DPS planned to begin requiring temporary tag renewals on April 1,
2021. The record does not establish that the Governor had suspended
the temporary tag renewal requirement, how he did so, or when the
suspension would have taken effect.
Appellant argued to the trial court that the traffic stop underlying
the offense of evading arrest was not supported by probable cause
stating:
Judge, in terms of whether or not there was a violation of a
condition, I would reurge [sic] our arguments that there was
not probable cause to issue a traffic stop in the first place.
Given the evading arrest, the State must prove that the
arrest was lawful to begin with. The only testimony that we
have is that – when they initiated the stop, was that
[Appellant] had an expired tag, which during the time of
COVID, as Officer Pham testified to, the DPS is just now
starting to reenforce those provisions because they have
been suspended during COVID, which would have been at
the time that this arrest took place.
When the trial court inquired of counsel why he was referring to DPS
policy, as opposed to Houston Police Department Policy, counsel
responded:
Shirley – 9
So, judge, because of COVID restrictions, the closure of –
and I think this is general public knowledge – the closure of
public facilities such as the DPS facilities that the renewal of
license tags and licenses have been . . . postponed given
COVID and that, as Officer Pham testified to, that they have
been instructed as of April this year, people will have to have
renewed their licenses and registrations. So the inference is
that at that time back in June when this happened that a tag
– an expired tag on a car would not have been sufficient to
make the stop.
The State argued that it had established the offense of evading
arrest by a preponderance of the evidence. In response to the defense’s
argument about COVID restrictions, the State noted Officer Falcone’s
testimony that the Houston Police Department was still stopping people
for expired registrations and Appellant’s vehicle had an expired
registration, which supported the traffic stop. Based upon these facts,
the State argued that Appellant’s deferred adjudication supervision
should be revoked.
The trial court concluded the State met their burden to establish
Appellant committed the offense of evading arrest or detention. As to
the lawfulness of the attempted detention, the court concluded Officer
Pham had “at the bare minimum a right to temporarily detain
[Appellant] to investigate the issue as it relates to the violation – what
appeared to be a violation of the traffic laws as it relates to an expired
registration.” The trial court noted Officer Falcone’s testimony that the
Shirley – 10
Houston Police Department was still issuing tickets for expired
registration and found Officer Pham had a right to temporarily detain
Appellant to investigate this violation. The trial court found Appellant
had violated the terms of his community supervision by committing the
offense of evading detention and adjudicated Appellant guilty of
possession of a controlled substance before sentencing him to nine years
confinement. Appellant filed a notice of appeal.
Appeal
On appeal, Appellant argued that the trial court erred because the
State failed to prove the element of an attempted lawful detention
necessary to establish the offense of evading arrest or detention.
Appellant argued that by order of the Governor via a press release, and
pursuant to his power under the Disaster Act, vehicle registration laws
had been suspended in March of 2020. 8 According to Appellant, because
there was no offense for driving with an expired registration in June of
2020, the traffic stop was not supported by reasonable suspicion of
criminal activity. Appellant acknowledged that an objectively
reasonable mistake regarding the scope of a statute can give rise to
8
Tex. Gov’t Code § 418.016(a).
Shirley – 11
reasonable suspicion. 9 However, Appellant argued that there was
nothing ambiguous or unclear about the Governor’s press release, so a
reasonably well-informed police officer would have been aware of the
suspension of the registration requirement and ignorance of the same
would not be objectively reasonable.
The State argued that even assuming the Governor had the
authority to suspend the relevant transportation code provisions, the
Governor’s press release was not effective to suspend the provisions.
The State argued that the press release would have to be in writing and
filed with the Secretary of State to be a legally binding proclamation,
order, or regulation, under the Disaster Act. Further, the State argued
that the officer’s attempted enforcement of the vehicle registration
statute was objectively reasonable given the uncertainty regarding the
law in this area.
In reply, Appellant argued that the suspension of laws provision of
the Disaster Act has no requirement of an executive order,
proclamation, or any filing. 10 According to Appellant, only the
declaration of a state of disaster, the termination of a state of disaster,
9
See Heien v. North Carolina, 574 U.S. 54, 67-68 (2014).
10
Tex. Gov’t Code § 418.016(a).
Shirley – 12
and the establishment of an emergency management council require a
filed executive order or proclamation. 11 Appellant noted several
examples of the Governor’s use of a press release to announce various
suspensions and waivers during the pandemic arguing a reasonably
well-informed police officer would be familiar with these measures. 12
The court of appeals affirmed the trial court concluding that the
officers “reasonably believed a violation was in progress.” 13 The court
held the State established, by a preponderance of the evidence, that
Appellant committed the offense of evading arrest or detention, and the
trial court did not abuse its discretion in concluding that the traffic stop
was supported by reasonable suspicion. 14 The court outlined Officer
Pham and Officer Falcone’s testimony concluding:
11
See Tex. Gov’t Code § 418.014(a) (“The governor by executive order or proclamation may
declare a state of disaster if the governor finds a disaster has occurred or that the occurrence
or threat of disaster is imminent.”); but see Tex. Gov’t Code § 418.012 (“Under this chapter,
the governor may issue executive orders, proclamations, and regulations and amend or
rescind them. Executive orders, proclamations, and regulations have the force and effect of
law.”).
12
In support of his arguments on appeal, Appellant cited to an OAG opinion letter, numerous
press releases on unrelated topics, press coverage concerning the press releases, and
information from the Texas Department of Motor Vehicles website. None of these factual
assertions were contained in the record on appeal. See Whitehead v. State, 130 S.W.3d 866,
872 (Tex. Crim. App. 2004) (“An appellate court may not consider factual assertions that are
outside the record, and a party cannot circumvent this prohibition by submitting an affidavit
for the first time on appeal.”).
13
Shirley v. State, No. 09-21-00119-CR, 2022 WL 1096425, at *5 (Tex. App. – Beaumont
April 13, 2022) (mem. op., not designated for publication).
14
Id.Shirley – 13
The testimony of Officers Pham and Falcone constitutes
evidence “that some activity out of the ordinary ha[d]
occurred, some suggestion to connect the detainee to the
unusual activity, and some indication that the unusual
activity [was] related to [a] crime.” The officers’ testimony
reflects that they “reasonably believed a violation was in
progress.” Viewing the evidence in the light most favorable
to the trial court’s judgment, we conclude that the trial court
did not abuse its discretion in concluding that there was
reasonable suspicion for the traffic stop. Additionally, the
defendant did not challenge at trial that he failed to stop and
that he evaded arrest. We conclude that the State proved by
a preponderance of the evidence that [Appellant] committed
the offense of evading arrest or detention. The trial court did
not abuse its discretion in adjudicating [Appellant’s] guilt. 15
The court of appeals also noted that Appellant did not argue to the
trial court that the Governor’s press release suspended or changed the
law. 16 Rather, before the trial court, Appellant only argued that DPS
had suspended the enforcement of expired tags. Because Appellant’s
argument on appeal did not comport with his argument to the trial court,
the court of appeals restricted its analysis to whether the traffic stop
15
Id. (internal citations omitted).
16
Id. at *3, n. 6 (“Here, the appellate record does not reflect that [Appellant] argued to the
trial court that the Governor’s press release resulted in a suspension or change in the law.
Rather, [he] only argued to the trial court that DPS has suspended enforcement of expired
tags. The trial court overruled that objection and found that the traffic stop was a lawful
detention. An Appellant’s argument to the trial court must comport with his argument on
appeal. We restrict our analysis to whether the traffic stop was supported by reasonable
suspicion.”) (internal citations omitted).
Shirley – 14
was supported by reasonable suspicion. 17 The court of appeals affirmed
the trial court’s judgment. 18
Petition for Discretionary Review
Appellant filed a petition for discretionary review raising the following
issues:
1. Can police lawfully detain someone for violating a law that is
suspended by the governor under the Texas Disaster Act?
2. Is the governor required to issue an executive order and file
it with the secretary of state in order to invoke the suspension-of-
laws provision of the Texas Disaster Act?
We granted Appellant’s petition. To ensure that our analysis would
not be unduly limited by Appellant’s framing of the issue, we also
granted the following issue on our own motion:
Did the Texas Disaster Act, Texas Government Code § 418.016(a),
authorize the Governor to suspend Texas Transportation Code §§
502.407 & 502.473?
Ultimately, however, we need only answer the first issue. 19 We
need not address the remaining issues because we hold that Officer
Pham could lawfully attempt to stop Appellant for either driving with an
17
Id.
18
Id. at *5.
19
See, e.g., Abbott v. Harris County, ___S.W.3d___, 2023 WL 4278763, at *11 (Tex. June
30, 2023) (declining to consider the meaning or constitutionality of Section 418.016(a)’s
suspension-of-statutes authority because of the significant constitutional issues raised by the
provision and instead resting its decision on other grounds).
Shirley – 15
expired vehicle registration or failing to display a valid vehicle
registration insignia under the facts presented in this case. At the time
of the stop, Appellant’s conduct established a violation of a criminal
statute. Further, the law regarding the steps necessary for the Governor
to exercise his authority to suspend statutes pursuant to the Disaster
Act was not clear at the time of the stop. Given that lack of clarity, the
officer’s decision to stop was reasonable even assuming the Disaster Act
authorized the Governor to suspend the statutes at issue in this case.
Standard of Review
A trial court’s decision to adjudicate guilt is reviewed under an
abuse of discretion standard. 20 A finding of a single violation of
community supervision is sufficient to support revocation. 21 An order
revoking probation must be supported by a preponderance of the
evidence meaning the greater weight of the credible evidence creates a
reasonable belief that the defendant has violated a condition of his
community supervision. 22
20
Tex. Code Crim. Proc. Ann. art. 42A.108(b) (“The determination to proceed with an
adjudication of guilt on the original charge is reviewable in the same manner as a revocation
hearing . . . in a case in which the adjudication of guilt was not deferred); Rickels v. State,
202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (“Appellate review of an order revoking
probation is limited to abuse of the trial court’s discretion.”).
21
Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012).
22
Rickels, 202 S.W.3d at 763-64 (citing Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Cr.
App. 1974)).
Shirley – 16
In reviewing the sufficiency of the evidence to sustain a revocation,
we view the evidence in the light most favorable to the trial court’s
ruling. 23 The trial judge is the sole trier of facts, arbiter of the credibility
of witnesses, and the weight to be given to the evidence presented. 24
We are required to uphold the trial court’s judgment on any applicable
theory of law raised by the evidence. 25
As mentioned above, we must consider whether the State proved
by a preponderance of the evidence that Appellant committed the
offense of evading detention. To answer that question, we must
consider whether Officer Pham had reasonable suspicion to detain
Appellant for the perceived offenses of operation of vehicle with an
expired plate and failure to display a valid vehicle registration insignia.
Based on the record in this case, we believe the officer did have
reasonable suspicion to lawfully detain Appellant at the time Appellant
fled.
Reasonable Suspicion and Evading Detention
23
Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979); Garrett v. State, 619 S.W.2d
172, 174 (Tex. Crim. App. 1981).
24
Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980).
25
Martell v. State, 663 S.W.3d 667, 672 (Tex. Crim. App. 2022) (noting appellate court must
apply the “right ruling, wrong reason” doctrine to uphold a trial court’s ruling adjudicating
guilt on any legal theory applicable to the case).
Shirley – 17
A person commits the offense of evading arrest or detention “if he
intentionally flees from a person he knows is a peace officer . . .
attempting lawfully to arrest or detain him.” 26 Finding Appellant
committed this offense, “requires proof that an attempted arrest or
detention is lawful at the time the person flees.” 27 The validity of the
attempted detention, at the moment of flight, is an element of the
offense. 28 To establish whether an attempted detention is lawful, the
State must prove that the attempted detention was based upon
reasonable suspicion. 29
The standard for determining whether reasonable suspicion exists
for a temporary investigative detention is quite low. It is lower than the
probable cause standard and applies only to those brief detentions which
fall short of being full scale searches and seizures. 30 A police officer has
26
Tex. Penal Code § 38.04(a).
27
Day v. State, 614 S.W.3d 121, 127 (Tex. Crim. App. 2020) (holding that exclusionary rule
principles do not apply to the offense of evading arrest or detention, instead finding the issue
should be litigated as an element of the State’s case).
28
Id. at 129-30.
29
Day, 614 S.W.3d at 127 (“The text of the [evading] statute is plain: it requires proof that
an attempted arrest or detention is lawful at the time the person flees."); Derichsweiler v.
State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011) (a police officer may lawfully detain the
driver of a vehicle for a brief investigatory traffic stop so long as the officer has reasonable
suspicion to do so.).
30
Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997).
Shirley – 18
reasonable suspicion to detain if he has specific, articulable facts that,
combined with rational inferences from those facts, would lead him
reasonably to conclude that the person detained is, has been, or soon
will be engaged in criminal activity. 31 The relevant inquiry is not
whether particular conduct is innocent or criminal, but the degree of
suspicion that attaches to particular non-criminal acts. 32
Indeed, reasonable suspicion does not depend on the “most likely
explanation” for a suspect’s conduct reasonable suspicion can exist even
if the conduct is “as consistent with innocent activity as with criminal
activity.” 33 The State does not have to establish with certainty that a
crime occurred; it just must show, under a totality of the circumstances,
that the seizure was reasonable. 34 The question is whether the facts
available to the officer at the moment of the seizure warrant a man of
reasonable caution in the belief that the action taken was appropriate. 35
31
Derichsweiler, 348 S.W.3d at 914.
32
Id.33
York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011); Woods, 956 S.W.2d at 38.
34
Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013).
35
Davis v. State, 947 S.W.2d 240, 242-43 (Tex. Crim. App. 1997) (citing Terry v. Ohio, 392,
U.S. 1, 21-22 (1968) (“the police officer must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonable warrant that
intrusion.”)).
Shirley – 19
As the court of appeals explained below, there must be articulable
facts showing that some activity out of the ordinary has occurred, some
suggestion to connect the detainee to the unusual activity, and some
indication that the activity is related to crime. 36 The State is not
required to show an actual violation, but only that the officer reasonably
believed a violation was in progress. 37 Additionally, an officer’s
detention may still be considered “reasonable” even if he is mistaken
about the scope of a legal prohibition so long as that mistake is
objectively reasonable. 38 This standard only requires law enforcement
to have a reasonable knowledge of what the law prohibits, not to
anticipate how a reviewing court might interpret that law in the future. 39
A mistake about a statute’s application can be objectively
reasonable when the statute’s application is unclear and the statute has
not previously been definitively construed by a court. 40 In Heien v.
North Carolina, the United States Supreme Court upheld a detention in
36
Shirley, 2022 WL 1096425, at *4 (citing Derichsweiler 348 S.W.3d at 916).
37
Shirley, 2022 WL 1096425, at *4.
38
Heien, 574 U.S. at 60.
39
Id. 67-68 (traffic stop was reasonable, as was any mistake of law by the officer, even
though reviewing court later concluded the traffic statute at issue did not cover the
defendant’s conduct).
40
Id. at 67-68.
Shirley – 20
which law enforcement stopped a vehicle with only one working brake
light, apparently in violation of North Carolina law. 41 The Supreme Court
affirmed the denial of the motion to suppress, concluding that it was
objectively reasonable for the officer to suspect that the conduct was
illegal, and that no Fourth Amendment violation had taken place
because the statute at issue was unclear and had not previously been
construed by a court. 42 The Court reasoned that there was reasonable
suspicion justifying the stop because the officer’s mistake concerning
his understanding of the law was reasonable. 43
Analysis
Appellant has never disputed that he was driving with an expired
temporary license plate. A person commits a traffic offense by operating
a vehicle on a public highway with an expired license plate. 44 He also
commits an offense for operating a vehicle on a public highway without
a valid vehicle registration insignia. 45 As the court of appeals explained
below, Officer Pham and Officer Falcone testified to facts that some
41
Id. at 57-59.
42
Id. at 66-68.
43
Id.
44
Tex. Transp. Code Ann. § 502.473.
45
Tex. Transp. Code Ann. § 502.473.
Shirley – 21
activity out of the ordinary occurred; that suggested a connection
between Appellant and unusual activity; and that the unusual activity
was related to a crime. 46 Officer Pham testified that he attempted to
stop Appellant in part because Appellant’s vehicle’s temporary license
tag had expired. 47 Officer Falcone testified that the Houston Police
Department was still stopping motorists for expired registration at the
time of the stop even though Officer Pham was unsure about whether
DPS had suspended enforcement of the registration renewal
requirement. 48 On this record, we find it easy to agree with the court
of appeals’ conclusion that the officers reasonably believed a violation
of a presumptively valid statute was in progress and the trial court did
not abuse its discretion. 49
While Appellant couches his argument in terms of the Governor’s
authority under the Disaster Act, the record in this case does not
46
Shirley, 2022 WL 1096425, at *5.
47
Id.48
Id.; see Whren v. United States, 517 U.S. 806, 815 (1996) (noting that police enforcement
practices may vary from place to place but that search and seizure protections do not turn on
such trivialities).
49
Shirley, 2022 WL 1096425, at *5; see Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)
(accepting the unconstitutionality of an ordinance but upholding the validity of an arrest
pursuant to the ordinance noting “there was no controlling precedent that this ordinance was
or was not constitutional, and hence the conduct observed violated a presumptively valid
ordinance.”).
Shirley – 22
sufficiently establish if or when the Governor officially suspended the
relevant Transportation Code provisions. On appeal, he relies upon a
March 16, 2020 press release. In that press release, the Governor
announced, pursuant to his previous Disaster Declaration, 50 that he was
suspending certain vehicle registration and title requirements, including
Transportation Code Section 502.407, which makes it an offense to
operate a vehicle with an expired license plate and Section 502.473,
which makes it an offense to operate a vehicle on a public highway
without proper registration. 51 There was nothing in the record before
the trial court concerning the Governor’s press release or his prior
Disaster Declaration. 52
Further, there is uncertainty regarding the requirements necessary
for the Governor to exercise his authority under the Disaster Act.
Section 418.016 of the Texas Disaster Act provides, in part, that “[t]he
governor may suspend the provisions of any regulatory statute
50
The Governor of the State of Tex., Proclamation No. 41-3720, 45 Tex. Reg. 2087, 2095
(2020); see Tex. Gov’t Code Ann. § 418.014 (“The governor by executive order or
proclamation may declare a state of disaster if the governor finds a disaster has occurred or
that the occurrence or threat of disaster is imminent.”).
51
See Governor Abbot Waives Certain Vehicle Registration, Titling, and Parking Placard
Regulations in Texas, Office of the Texas Governor (March 16, 2020)
(“https://gov.tex.gov/news/post/governor-titling-and-parking-placard-regulations-in-
texas”).
52
Shirley, 2022 WL 1096425, at *3, n. 6.
Shirley – 23
prescribing the procedures for conduct of state business or the orders
or rules of a state agency if strict compliance with the provisions, orders,
or rules would in any way prevent, hinder, or delay necessary action in
coping with a disaster.” 53 The State notes that the statute granting the
authority (even assuming that authority would authorize the statutory
and rule suspensions in this case) is silent regarding how that authority
is to be exercised. According to Appellant, the lack of a specific statutory
requirement that the Governor issue an executive order means a mere
press release is sufficient.
But the State counters that looking at the Disaster Act as a whole,
a formal proclamation filed with the Secretary of the State is required
because Section 418.012 of the Disaster Act contains a provision
authorizing the Governor to issue executive orders and proclamations
to carry out his authority granted under the Act. 54 Further, according
to the State, a formal proclamation filed with the Secretary of State is
necessary to allow the proclamation to occupy a position comparable to
laws regularly passed by the Legislature. 55 Even if we were to assume
53
Tex. Gov’t Code § 418.016(a).
54
Tex. Gov’t Code § 418.012.
55
See Williams v. State, 146 Tex. Crim. 430, 441 (1943); see also Tex. Const. art. IV, § 21
(“There shall be a Secretary of State . . . He shall authenticate the publication of the laws,
and keep a fair register of all official acts and proceedings of the Governor, and shall, when
required, lay the same and all papers, minutes and vouchers relative thereto, before the
Shirley – 24
that Officers Pham and Falcone should have been aware of but were
mistaken regarding the suspension of the vehicle registration
requirements, such a mistake was objectively reasonable given the lack
of clarity surrounding the statutes at issue. 56
Conclusion
The trial court did not abuse its discretion by concluding that
Appellant committed the offense of evading arrest or detention thereby
violating the conditions of his community supervision. The attempt to
detain Appellant was lawful because reasonable suspicion justified the
attempted traffic stop. Likewise, any possible mistake about whether
operating a vehicle with an expired license plate constituted an offense
in June of 2020 was objectively reasonable. The judgment of the court
of appeals is affirmed.
Delivered: August 23, 2023
Do Not Publish
Legislature, or other House thereof, and shall perform such other duties as may be required
of him by law.”).
56
Heien, 574 U.S. at 60.