Aguirre v. State

• Decision Date: 29 September 1999
• Docket Number: No. 0580-98,0580-98
• Citation: 22 S.W.3d 463
• Parties: (Tex.Crim.App. 1999) TERESA D. AGUIRRE, Appellant v. THE STATE OF TEXAS
• Court: Texas Court of Criminal Appeals

Page 463

22 S.W.3d 463 (Tex.Crim.App. 1999)

TERESA D. AGUIRRE, Appellant v.THE STATE OF TEXAS

No. 0580-98

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

September 29, 1999

As Modified on Denial of Rehearing December 8, 1999.

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE EIGHTH COURT OF APPEALS, EL PASO COUNTY

Before the court enbanc.

WOMACK, J., delivered the opinion of the Court, in which MCCORMICK, P.J., and KELLER, HOLLAND, and KEASLER, JJ., joined, and in Parts I and II of which PRICE, J., joined.

The issue in this case is whether a culpable mental state is required in an ordinance, which regulates adult businesses, and that is silent about whether a culpable mental state is required.We hold that it is.

I.

A 1987 ordinance of the City of El Paso made it a misdemeanor offense to "own, operate or conduct any business in an adult bookstore, adult motion picture theater or nude live entertainment club" within one thousand feet of certain kinds of property.¹

According to the stipulated evidence, two city inspectors entered Aldo's Lounge on August 25, 1988, and found that it was conducting business as a "nude live entertainment club that was located within one thousand feet of a school.-- [S]everal female employees -- were exposing all of their breasts and most of their buttocks.All known employees and persons in a managerial capacity were cited" by the inspectors.²The complaint in the municipal court alleged that the appellant:

did -- unlawfully conduct business in the establishment situated at 3802 PERSHING and known by the name of ALDOS (a nude live entertainment club) that was located within one thousand feet of: A school, to wit: ST. JOSEPH'S PAROCHIAL SCHOOL; Said defendant provided entertainment on said adult business premises by exposing a "specified anatomical area", as that term is defined in Section 20.02.764 of the El Paso City Code.[Punctuation sic.]

Conviction and a $500 fine in the municipal court were followed by appeal to the municipal court of appeals, which affirmed.³The Eighth Court of Appeals reversed and ordered the complaint dismissed because it did not allege a culpable mental state.SeeAguirre v. State, 978 S.W.2d 605(Tex. App. - El Paso1998).We granted discretionary review.

II.

Since a dissenting opinion says the petition for discretionary review should be dismissed because the state prosecuting attorney lacks "standing" to file it (seepost), we pause to clarify the authority of the state prosecuting attorney to petition for discretionary review in a case such as this.

As the first sentence of Government Code Section 42.001 states, "The court of criminal appeals shall appoint a state prosecuting attorney to represent the state in all proceedings before the court."We have emphasized the word "all," which literally gives the state prosecuting attorney authority to represent the State in every case in this Court.That authority could be limited only by some more specific law.Judge Johnson infers such a limitation by applying the maxim "expressio unius est exclusio alterius" to Section 42.005.But if Section 42.005 is correctly understood, the maxim cuts against that conclusion.

The source of Section 42.005 is a 1981 act which implemented a constitutional amendment that gave the courts of appeals jurisdiction in criminal cases.⁴The 1981 act continued the state prosecuting attorney's authority to represent the State in all proceedings before the Court of Criminal Appeals, an authority which is now codified in the first sentence of Government Code Section 42.001(a).The act gave the state prosecuting attorney authority to provide assistance to district and county attorneys in representing the State before the courts of appeals when requested to do so by the district or county attorney; that authority is now codified in Government Code Section 42.005(a).The act made it clear that the state prosecuting attorney's authority to appear in the courts of appeals is not dependent on a request from a district or county attorney: "The State Prosecuting Attorney may also represent the State in any stage of a criminal case before the Courts of Appeals when, in his judgment, the interests of the State so require."That sentence is now codified as the second sentence of Government Code Section 42.001(a).

The 1981 act also said, "District and county attorneys may provide assistance to the state prosecuting attorney in representing the State before the Court of Criminal Appeals."That sentence is now codified in Government Code Section 42.005(b).Since the act gives district and county attorneys, but not city attorneys, authority to assist the state prosecuting attorney in representing the State before this Court, the maxim "expressio unius est exclusio alterius" would suggest that city attorneys are not authorized even to assist the state prosecuting attorney in this Court, much less to usurp the state prosecuting attorney's general authority to represent the State in all cases in this Court.

There is a specific statute which must be considered: the El Paso Courts Act,⁵ which is now codified as Chapter 30, Subchapter D of the Government Code.The Act created municipal courts of record and a municipal court of appeals in the City of El Paso.The purpose of the Act was to change the method of appeal from conviction in the municipal court.The normal appeal to the county court for trial de novo⁶ was replaced by an appeal on the record to a municipal court of appeal.Section 30.00145 of the Act says that "all appeals from convictions in the municipal court of record must be prosecuted in the appellate court, the court of appeals, or the court of criminal appeals by the city attorney or an assistant city attorney."The dissent would hold that this section deprives the state prosecuting attorney of authority to represent the State in the courts of appeals and in this Court.We think the proper construction of this section requires an appreciation of the history of the municipal court's jurisdiction.In the historical context, Section 30.00145 is another in a series of statutes which divide the prosecutorial authority of the State between the municipal attorney and the county attorney or district attorney.

The Texas Constitution of 1876 required that cities and towns having a population of ten thousand or less could be chartered only by general law.⁷By implication, cities with larger populations could be, and were, chartered by special acts of the legislature.The legislative charters provided for courts(or recorders or mayors who acted as judges).Each city's court had jurisdiction of offenses against city ordinances.Some charters also gave the city courts jurisdiction of certain offenses against state law, concurrently with the justice courts or even with the county court.⁸Some charters also gave city courts exclusive jurisdiction of certain offenses against state law.⁹These provisions created "vexed questions" of constitutional law.¹⁰Could the legislature create such courts- Could the courts have concurrent jurisdiction of offenses against state laws- Exclusive jurisdiction- In whose name would the prosecution be brought- Who would prosecute the cases- These issues persisted all through the last decade of the nineteenth century.They were resolved only after the constitution was amended, statutes were enacted, and a decision of this Court was overruled to eliminate a conflict between the state's highest courts.¹¹

The statute that we are considering addresses one of the questions that was involved in the nineteenth-century dispute: who should prosecute in the city court-- In 1897 the confusion in the law was such that the Tarrant County attorney and the Forth Worth city attorney were both appearing in the corporation court, vying for the right to prosecute offenses against state law.¹²In Houston the city attorney appeared, but the county refused to pay him for prosecuting such cases when statutes required payments of fees for like services in justice courts.¹³In the ensuing litigation, the highest courts of the state reached opposite conclusions about the jurisdiction of city courts.¹⁴

The next legislature addressed the problem.A statute was enacted to create, in each city, town, and village, a corporation court.In addition to jurisdiction of criminal cases arising under ordinances, the corporation courts were given jurisdiction, concurrent with the justice of the peace, of criminal cases arising under state law.¹⁵Section 8 of the act provided:

That all prosecutions in said court, whether under an ordinance or under the provisions of the Penal Code -- shall be conducted by the city attorney of such city, town or village, or by his deputy; but the county attorney of the county in which said city, town or village is situated may, if he so desires, also represent the State of Texas in such prosecutions, but in all such cases the said county attorney shall not be entitled to receive any fees or other compensation whatever, for said services, and in no case shall the said county attorney have the power to dismiss any prosecution pending in said court, unless for reasons filed and approved by the recorder of said court.

The substance of this provision, like that of many other provisions of the 1899 act, is still in effect.¹⁶

When this statute is read together with the statute that gives the county attorney the duty to represent the State in all criminal cases in courts below the grade of district court,¹⁷ the responsibility and authority for municipal court prosecutions is clear: In the municipal court the city attorney has the right and duty to prosecute, and the county attorney has the right, but not a duty, to prosecute.In the county court, the county attorney has the right and duty to prosecute, and this duty includes the duty to prosecute appeals from the municipal court.¹⁸

Section 30.00145 of the Government Code, which was enacted when the Municipal...