Thompson v State

• Decision Date: 15 March 2001
• Docket Number: No. 14-99-00855-CR,14-99-00855-CR
• Citation: 44 S.W.3d 171
• Parties: <!--44 S.W.3d 171 (Tex.App.-Houston 2001) AMANDA SYLVIA THOMPSON, Appellant v. THE STATE OF TEXAS, Appellee Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 171

44 S.W.3d 171 (Tex.App.-Houston [14th Dist.] 2001)

AMANDA SYLVIA THOMPSON, Appellant v THE STATE OF TEXAS, Appellee

No. 14-99-00855-CR

Court of Appeals of Texas, Houston (14th Dist.)

March 15, 2001.

On Appeal from the County Criminal Court at Law Number 2 Harris County, Texas Trial Court Cause No. 99-11408

[Copyrighted Material Omitted] Panel consists of Justices Yates, Wittig, and Frost.

OPINION

Frost, Justice

Appellant, Amanda Sylvia Thompson, entered a plea of guilty to the misdemeanor offense of violating a City of Houston ordinance requiring an "entertainer" employed by sexually oriented enterprises to conspicuously display a permit upon her person. See Houston, Tex., Code § 28-256(a) (2000). The trial court accepted her plea, found her guilty, assessed punishment at two days' confinement in the Harris County Jail, and imposed a fine of $100. In eight points of error, she alleges the trial court erred in entering judgment because the county court at law lacked jurisdiction over the case and because the information was fundamentally defective. We reverse and order the information dismissed.

Background and Procedural History

The State charged appellant with violating chapter 28 of the Code of Ordinances of the City of Houston. The information stated, in relevant part:

AMANDA SYLVIA THOMPSON . . . did then and there unlawfully while an entertainer in a sexually oriented enterprise, namely, TROPHY CLUB, an adult cabaret . . ., and having a duty, pursuant to Section 28-25(a) of the Code of Ordinances of the City of Houston, while acting as an entertainer on the premises of the aforesaid sexually oriented enterprise, to conspicuously display upon his [sic] person at all times his [sic] personal card . . . pursuant to Section 28-254 of the Code of Ordinances of the City of Houston, did fail to conspicuously display upon his [sic] person at all times his [sic] personal card while acting as an entertainer on the premises of TROPHY CLUB.¹

Appellant filed a motion to quash the information, arguing the same issues she now raises on appeal: (1) only the municipal court had original jurisdiction over the case; (2) the information was fundamentally defective in failing to allege all the material elements of the offense, including (a) a culpable mental state and (b) manner of violating the ordinance; and (3) the failure to allege all elements of the offense provided inadequate notice such that appellant could not properly prepare her defense or avoid subsequent prosecution for the same offense. The trial court initially denied the motion but entertained arguments to reconsider its ruling shortly before trial. The trial court, however, did not change its ruling, and appellant subsequently entered a guilty plea to the charge.

Standard of Review

In reviewing a trial court's ruling on a motion to quash an information, we apply an abuse of discretion standard. See Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. 1981); State v. Kinkle, 902 S.W.2d 187, 189 (Tex. App.--Houston [14th Dist.] 1995, no pet.). A trial court abuses its discretion if it acts without reference to guiding rules and principles, or acts arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993); Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

Jurisdiction

In her first two points of error, appellant asserts the trial court erred in denying her motion to quash because the trial court lacked jurisdiction. Appellant contends the information "failed to allege a violation of state law or otherwise allege[] a violation of law which vested the court with jurisdiction." In support of this contention, appellant raises three arguments.

Judicial Notice of Ordinance

In her first argument, appellant contends the trial court could not determine whether it had jurisdiction over this case because the State neither asked the trial court to take judicial notice of the ordinance nor offered a copy of the ordinance into evidence. Appellant contends that proof of the ordinance is essential because the State relied upon it to establish the court's jurisdiction. Under former Rule 204 of the Texas Rules of Criminal Evidence, proof of the ordinance at issue was essential because a reviewing court could not take judicial notice of the existence or terms of a city ordinance. See Lange v. State, 639 S.W.2d 304, 306-07 (Tex. Crim. App. 1982); Pollard v. State, 687 S.W.2d 373, 374 (Tex. App.--Dallas 1985, pet. ref'd); but see DeDonato v. State, 789 S.W.2d 321, 325 (Tex. App.--Houston [1st Dist.] 1990), aff'd, 819 S.W.2d 164 (Tex. Crim. App. 1991). However, under the current Texas Rules of Evidence, a court upon its own motion may take judicial notice of a municipal ordinance. Tex. R. Evid. 204. The record indicates the trial court took judicial notice of the ordinance in this case. Although the lower court did not address the jurisdictional issue, it indicated its familiarity with the specific provisions of the ordinance when it articulated its reasons for denying appellant's motion to quash. Accordingly, we reject appellant's first argument.

Jurisdiction of County Criminal Court

In her second argument, appellant contends that because the information alleges an offense under a municipal ordinance, and not a state law, jurisdiction vests in the municipal court and not in the county criminal court at law. We find this argument is without merit.

"Jurisdiction vests only upon the filing of a valid indictment in the appropriate court." Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995). Generally, a municipal court has exclusive original jurisdiction over all criminal matters arising under municipal ordinances. Tex. Code Crim. Proc. Ann. art. 4.14(a)(1) (Vernon Supp. 2000). A municipal court's jurisdiction in criminal cases, however, is restricted to offenses punishable by money fine alone. Id. art. 4.14(a)-(c). A municipal court does not have exclusive original jurisdiction over violation of an ordinance punishable by confinement in jail or imprisonment. Id. at 4.14(c). It is the county court at law that has exclusive original jurisdiction of misdemeanors other than misdemeanors involving official misconduct and offenses punishable by a fine of $500 or less. Tex. Gov't Code Ann. § 26.045(a) (Vernon Supp. 2000).

A violation of a municipal ordinance regulating sexually oriented businesses is a Class A misdemeanor. See Tex. Loc. Gov't. Code Ann. § 243.010(b) (Vernon 1999). Punishment for a Class A misdemeanor includes a fine and/or confinement in jail for a term not to exceed one year. Tex. Pen. Code Ann. § 12.21 (Vernon 1994). Because a violation of a municipal ordinance regulating sexually oriented businesses is a Class A misdemeanor punishable by fine or confinement, jurisdiction vests with the county criminal court at law and not the municipal court. See State v. Coleman, 757 S.W.2d 127, 127 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd). Thus, the county criminal court at law was the appropriate court in which to prosecute appellant for the charged offense.

Scope of Chapter 243 of Local Government Code

In her third argument, appellant contends the county criminal court at law lacks jurisdiction over the case because the ordinance falls outside the provisions of Chapter 243 of the Texas Local Government Code. Chapter 243 is the enabling legislation that permits municipalities to regulate sexually oriented businesses. Tex. Loc. Gov't. Code Ann. § 243.001 (Vernon 1999). Appellant maintains that Chapter 243 limits the scope of a municipality's authority to regulate a sexually oriented business to its location and to the licensing of the business owner or operator, and thus concludes that Chapter 243 grants no authority to require an entertainer to obtain a license or permit. We disagree.

In enacting Chapter 243, the Texas legislature granted to municipalities broad powers to regulate sexually oriented businesses within the municipality. Id. § 243.001(b). The legislature expressly found that "the unrestricted operation of certain sexually oriented businesses may be detrimental to the public health, safety, and welfare by contributing to the decline of residential and business neighborhoods and the growth of criminal activity." Id. § 243.001(a). In an effort to remedy this problem, the legislature authorized municipalities to adopt, by ordinance, regulations for sexually oriented businesses considered necessary to promote the public health, safety, or welfare of the community. Id. § 243.003(a). The legislature further expressed its intent that no provision of Chapter 243 "diminish the authority of a local government to regulate sexually oriented businesses with regard to any matters." Id. § 243.001(b). While sections 243.006 and 243.007 of this chapter authorize a municipality to restrict or prohibit the location of a sexually oriented business and to require an owner or operator to obtain a license or permit to operate the business, they in no way restrict the municipality from regulating the conduct of employees of sexually oriented businesses. See Haddad v. State, 9 S.W.3d 454, 458 (Tex. App.--Houston [1st Dist.] 1999, no pet.). Regulation of conduct may include the requirement that an employee acting as an entertainer in a sexually oriented enterprise hold a permit issued by the municipality. See Jackson v. State, 880 S.W.2d 432, 435 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd).

Because the information in this case was valid, filed in the appropriate court, and because the ordinance was properly enabled under Chapter 243 of the Local Government Code, the county criminal court at law had jurisdiction over the case. Therefore, the trial court did not abuse its discretion in denying appellant's motion to quash the information on appellant's jurisdictional complaint. Accordingly, appellant's first and second points of error are overruled.

Fundamental Error

In her third and fourth points...