City of El Paso v. Alvarez

• Decision Date: 19 September 1996
• Docket Number: No. 08-96-00237-CV,No. T,T,08-96-00237-CV
• Citation: 931 S.W.2d 370
• Parties: The CITY OF EL PASO, Relator, v. The Honorable Javier ALVAREZ, Judge of the County Court at Lawhree of El Paso County, Texas, Respondent.
• Court: Texas Court of Appeals

Page 370

931 S.W.2d 370

The CITY OF EL PASO, Relator, v. The Honorable Javier ALVAREZ, Judge of the County Court at Law No. Three of El Paso County, Texas, Respondent.

No. 08-96-00237-CV.

Court of Appeals of Texas El Paso.

Sept. 19, 1996.

Rehearing Overruled Oct. 16, 1996.

Laura P. Gordon, John Gates, Assistant City Attorneys, El Paso, for Relator.

Charles Louis Roberts, Michael R. Gibson, El Paso, TX, for Respondent.

Javier Alvarez, Judge of the County Court at Law No. 3, El Paso, TX, pro se.

Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.

OPINION

McCLURE, Justice.

This is an original proceeding in which Relator, the City of El Paso ("the City"), seeks a writ of mandamus to compel Respondent, the Honorable Javier Alvarez, Judge of County Court at Law No. Three of El Paso County, Texas ("Respondent"), to withdraw his orders issuing two writs of habeas corpus and staying the prosecutions in the municipal courts, and to further deny the applications for writ of habeas corpus filed by Phyllis Woodall and Jeannie Coutta, the real parties in interest. We conditionally grant the City's petition for writ of mandamus.

PROCEDURAL HISTORY

The City has filed complaints in the El Paso Municipal Courts against Phyllis Woodall and Jeannie Coutta for violation of the City of El Paso's Adult Entertainment Ordinance. Those complaints are currently pending in the municipal courts. On April 11, 1996, Woodall and Coutta each filed an application for writ of habeas corpus in the County Court at Law No. Three in which they raise several challenges to the constitutionality of the ordinance and further allege constitutional violations occurring as a result of their prosecutions.

The petitions first allege that the ordinance, both facially and as applied, violates the provisions of Article I, §§ 3, 8, 16, 17, 19, 26, 28, and 29 of the Texas Constitution. As a factual basis for their "as applied" claims, Woodall and Coutta allege that every adult entertainment business in El Paso would be required to move in order to comply with the ordinance, and that there is an insufficient number of locations for all of these businesses to have a reasonable opportunity to open and operate, and to disseminate material protected by Article I, § 8. ¹ They further allege that the City of El Paso, its mayor, elected representatives, and counsel, have unlawfully, in violation of TEX.PENAL CODE ANN. § 36.02 (Vernon 1994) (bribery), entered into an agreement with other operators of adult entertainment businesses to refrain from prosecuting those particular operators. They argue that: (1) because they are not among the operators selected for non-prosecution, their right to equal protection under the Texas Constitution has been violated (Article I, § 3); (2) since their businesses were in existence and operating prior to the passage of this ordinance, it constitutes a bill of attainder and an ex post facto or retroactive law (Article I, § 16); (3) since their property has no other utility, the function of the ordinance in prohibiting their operation at the present location constitutes a taking of property for public use without just compensation (Article I, § 17); and (4) the City's conduct in permitting certain operators to continue at their present locations in exchange for a monetary reward to the City is an unconstitutional suspension of the ordinance (Article I, § 28), constitutes an unlawful and irrevocable grant of special privileges or immunities (Article I, § 17), and impermissibly grants a monopoly to certain operators (Article I, § 26). Finally, Woodall and Coutta generally allege that the City's conduct violates other unspecified provisions of the Bill of Rights.

Also on April 11, Respondent entered an order granting Woodall's and Coutta's applications for writ of habeas corpus, set both habeas proceedings for an evidentiary hearing to be held on June 7, and by the entry of separate orders stayed any proceedings in the underlying municipal prosecutions. On June 3, Woodall and Coutta obtained a subpoena duces tecum directed at several city officials and employees ² which required them to bring records, memoranda, notes and any other documents pertaining to a lawsuit styled El Paso Entertainment, Inc. v. The City of El Paso, TX. which is apparently pending in federal district court, as well as orders or instructions relating to enforcement of the Adult Entertainment Ordinance.

The City filed a motion for leave to file and petition for writ of mandamus and prohibition in this Court on June 5. We granted leave to file petition for writ of mandamus and stayed the habeas corpus proceedings.

STANDING

Before reaching the merits of this proceeding, we must address Respondent's challenge to the City's standing to seek mandamus relief. To seek mandamus relief, a relator must demonstrate that he has a justiciable interest in the underlying controversy. Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex.1991); Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984); Mitchell v. Dixon, 140 Tex. 520, 168 S.W.2d 654, 656 (1943). Respondent argues that the City lacks standing because it is not a party to the underlying municipal court prosecutions and habeas corpus proceedings. He further argues that only the 34th Judicial District Attorney may lawfully represent the State in those proceedings. The City responds that it has a justiciable interest because the habeas proceedings below concern the validity of a city ordinance and the City's ability to enforce its ordinance. We agree with the City.

The Prosecutions in Municipal Court

We consider first the arguments that the City is not a party to the municipal prosecutions of Woodall and Coutta and that it is the District Attorney who must represent the State in those cases. In making this argument, Respondent attaches particular significance to the style of the complaints filed against Woodall and Coutta: "The State of Texas v. Phyllis Woodall" and "The State of Texas v. Jeannie Coutta." We do not find it unusual that the complaints are styled in this manner inasmuch as Section 30.043(a) of the Government Code provides that proceedings in El Paso municipal courts of record must be brought in the name of the State of Texas. TEX.GOV'T CODE ANN. § 30.043(a) (Vernon 1988) (proceedings in municipal courts of record must be commenced by a complaint that begins: "In the name and by authority of the State of Texas" and concludes: "Against the peace and dignity of the State of Texas"); see TEX.CODE CRIM.PROC.ANN. art. 45.01 (Vernon Supp.1996) (proceedings in a municipal court shall be commenced by complaint, which shall begin: "In the name and by authority of the State of Texas;" and shall conclude: "Against the peace and dignity of the State;" and if the offense is only covered by an ordinance, it may also conclude: "Contrary to the said ordinance"). Although the cases are styled in this manner, the State is only a nominal party, and it is the City that is the real party in interest. ³ See OP.TEX.ATT'Y GEN. MW-52 (1979); OP.TEX.ATT'Y GEN. V-1147 (1951), citing Howth v. Greer, 40 Tex.Civ.App. 552, 90 S.W. 211 (1905, writ ref'd). Therefore, the City is a party to these prosecutions.

Respondent cites no authority for his assertion that the District Attorney rather than the City Attorney is required to prosecute these cases. The City Attorney of El Paso is required generally by the Code of Criminal Procedure and specifically by a provision contained in the El Paso Courts Act to conduct all prosecutions in the municipal courts of El Paso. TEX.CODE CRIM.PROC.ANN. art. 45.03 (all prosecutions in a municipal court shall be conducted by the city attorney of such city, town, or village, or by his deputy); TEX.GOV'T CODE ANN. § 30.042 (the city attorney or his assistant shall conduct all prosecutions in the municipal courts of record). While Section 45.03 of the Code of Criminal Procedure permits a county attorney to represent the State in municipal prosecutions, if he so desires, his participation is not required. TEX.CODE CRIM.PROC.ANN. art. 45.03; see TEX.CODE CRIM.PROC.ANN. art. 2.02 (Vernon Supp.1996). Further, a county attorney has no duty to prosecute in municipal court where, as here, the offense charged is a violation of a city ordinance only and does not involve a state penal statute. OP.TEX.ATT'Y GEN. No. V-1147 (1951). ⁴ Accordingly, we conclude that the City Attorney is not only authorized but is required to conduct these municipal court prosecutions.

Participation in the Habeas Proceedings

Citing Gibson v. State, 921 S.W.2d 747 (Tex.App.--El Paso 1996, pet. filed) and Article 2.01 of the Code of Criminal Procedure, Respondent next argues that the District Attorney's Office is the "only entity which can lawfully represent the State of Texas ..." in the habeas proceedings. This argument fails for several reasons.

Article 2.01 provides, in pertinent part, that:

When any criminal proceeding is had ... before a judge upon habeas corpus, and [the district attorney] is notified of the same, and is at the time within his district, he shall represent the State therein, unless prevented by other official duties. [Emphasis added].

TEX.CODE CRIM.PROC.ANN. art. 2.01 (Vernon Supp.1996).

Thus, in order for this duty to exist, the district attorney must first be notified of the habeas corpus proceeding. There is no evidence in the record before us that Respondent or the real parties in interest notified the District Attorney's Office of the habeas proceedings below by service of a copy of each petition for writ of habeas corpus. Under these circumstances, Article 2.01 does not compel the District Attorney's participation in the habeas proceedings below.

Likewise, our recent decision in Gibson ⁵ does not support Respondent's argument that only the District Attorney may represent the interests of the State in the habeas proceedings. In Gibson, the applicant brought a writ of habeas corpus in the district court pursuant...