Lange v. State

• Decision Date: 09 June 1982
• Docket Number: No. 2,No. 61998,61998,2
• Citation: 639 S.W.2d 304
• Parties: Andrew L. LANGE aka Andrew J. Lange, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 304

639 S.W.2d 304

Andrew L. LANGE aka Andrew J. Lange, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 61998.

Court of Criminal Appeals of Texas,

Panel No. 2.

June 9, 1982.

Rehearing denied Oct. 13, 1982.

Kerry P. Fitzgerald, Dallas, for appellant.

Henry Wade, Dist. Atty., Ronald D. Hinds and Don McNees, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P.J., and ROBERTS and McCORMICK, JJ.

OPINION

ROBERTS, Judge.

The appellant was convicted in the Municipal Court of the City of Dallas of the offense of driving under the influence of drugs. He was assessed a fine of $25.00. He appealed this conviction to the County Criminal Court of Appeals of Dallas County. Upon a trial de novo, the appellant was again found guilty by the trial court and assessed a fine of $125.00.

In three grounds of error, the appellant challenges the constitutionality of the municipal ordinance under which he was convicted, contends that the trial court erred in overruling his motion to quash the complaint, and challenges the sufficiency of the evidence. Although the appellant does not challenge the jurisdiction of the trial court, we find that the record before us does not show that the Municipal Court of the City of Dallas had jurisdiction to try this case.

The complaint in this case alleged that the appellant did:

"commit an offense, to-wit: Drive Under the Influence of Drugs, in the following particulars, to-wit: said actor while under the influence of drugs to a degree which rendered him incapable of safely driving a vehicle, did drive and operate a motor vehicle upon a public street within the corporate limits of the City of Dallas, Dallas County, Texas."

This complaint charges the commission of conduct similar to that prohibited by V.A.C.S., Article 6701d, Section 50(a). That statute provided: ¹

"It is unlawful ... for any person who is an habitual user of or under the influence of any narcotic drug or who is under the influence of any other drug to a degree which renders him incapable of safely driving a vehicle to drive a vehicle within this State...."

However, Section 50(b) of that statute provided: ²

"Every person who is convicted of a violation of Subsection (a) of this section shall be punished by imprisonment for not less than ten (10) days nor more than two (2) years, or by a fine of not less than One Hundred Dollars ($100) nor more than One Thousand Dollars ($1000), or by both such fine and imprisonment. On a second or subsequent conviction under this section he shall be punished by imprisonment for not less than ninety (90) days nor more than two (2) years, and, in the discretion of the court, a fine of not more than One Thousand Dollars ($1000)."

The subject-matter jurisdiction of a municipal court in this state is limited to "criminal cases arising under the ordinances" of the incorporated city, town, or village which has established the municipal court, and to criminal cases "arising under the criminal laws of this State, in which punishment is by fine only, and where the maximum of such fine may not exceed two hundred dollars, and arising within [the] territorial limits" of the incorporated city, town, or village. V.A.C.S., Article 1195. Since V.A.C.S., Article 6701d, Section 50, provides for a possible punishment of imprisonment, and a possible fine in excess of $200, the municipal courts of this state have no jurisdiction to try an offense charged under its terms.

If the Municipal Court of the City of Dallas had subject-matter jurisdiction of the "offense" charges in the complaint, such jurisdiction could lie only under the terms of an ordinance of the City of Dallas. The record before us contains no proof of the existence or terms of such an ordinance.

In Texas, the state courts do not take judicial notice of the existence of city ordinances or their terms, and where they are relied upon, proof of them is essential. Green v. State, 594 S.W.2d 72 (Tex.Cr.App. 1980); Jones v. State, 172 Tex.Cr.R. 100, 354 S.W.2d 160 (1962); Spoon v. State, 148 Tex.Cr.R. 44, 184 S.W.2d 627 (1945); White v. State, 82 Tex.Cr.R. 274, 198 S.W. 964 (1917); Wilson v. State, 16 Tex.App. 497 (1884); Lawrence v. State, 2 Tex.App. 479 (1877). In Karchmer v. State, 61 Tex.Cr.R. 221, 221, 134 S.W. 700, 700 (1911), this court stated the reasons for such a rule:

"This case aptly illustrates the necessity for the introduction of the ordinance in evidence. Appellant contends that the ordinance under which he is prosecuted is unconstitutional. How are we to pass on its constitutionality without reading it? How is it to reach us, if not made part of the record? Every time the constitutionality of an ordinance is raised, shall we adjourn court, and go to the city, and ask the city secretary to show it to us; and, if not, how are we to obtain it? In Wilson v. State, 16 Tex.App. 501, Judge Hurt, in passing on this question, says: 'It (the charge) assumes the existence of a city ordinance requiring all penal offenses to be published 10 days before their enforcement. In this the court erred. Courts do not take judicial cognizance of special acts or laws.' Chief Justice Gaines, in the case of City of Austin v. Walton, 68 Tex. 509, 5 S.W. 71, holds: 'The courts do not take judicial knowledge of the ordinances of municipal corporations. They stand upon the same footing as private and special statutes, and the laws of other states and of foreign countries, and must be averred and proved like other facts'--citing Green v. Indianapolis, 22 Ind. 192; People v. Mayor, 7 How.Prac. (N.Y.) 81; Harker v. Mayor...