Opinion
No. 05-05-01435-CV
Opinion Filed June 13, 2006.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 001-1412-05.
Affirm.
Before Justices O'NEILL, MORRIS, and MAZZANT.
MEMORANDUM OPINION
Appellants A.F, a minor, and her father as next friend, appeal from the county court's order granting the State of Texas' plea to the jurisdiction and dismissing appellants' claims with prejudice for lack of subject matter jurisdiction. In several points, appellants argue that the county court erred in denying their mandamus and request for declaratory relief. The State responds that we do not have jurisdiction because appellants' notice of appeal was untimely. Alternatively, the State contends A.F. could not seek relief in the county court before she was tried on her criminal case pending in municipal court. For the following reasons, we affirm the trial court's judgment.
Factual and Procedural Background
On January 22, 2005, A.F., a minor, was issued a citation for violating Texas Alcoholic Beverage Code section 106.04 (consumption of alcohol by a minor). Because the citation was issued within Plano city limits and is a Class C misdemeanor, jurisdiction was proper in the Plano Municipal Court.
Before A.F.'s trial on the alleged violation, appellants filed a "Verified Original Petition for Writ of Mandamus to the Municipal Court, City of Plano, Texas, and For Declaratory Relief" with the county court arguing that the municipal court had no subject matter jurisdiction to hear the case.
The State filed a response and a plea to the jurisdiction, arguing that the county court had no jurisdiction while the underlying offense was still pending in municipal court and that appellants had an adequate remedy on appeal. The county court granted the State's plea to the jurisdiction and dismissed with prejudice appellants' claims.
In their appeal, appellants largely ignore the issue of whether mandamus or declaratory relief was appropriate, instead focusing on the jurisdiction of the municipal court in the underlying criminal case and the unconstitutionality of portions of the Texas Code of Criminal Procedure. Because we conclude appellants' complaints must wait for a trial in municipal court, we affirm.
Timeliness of Motion for New Trial
We will begin by addressing the State's argument that we do not have jurisdiction over this appeal. The trial court signed its judgment on June 26, 2005. Appellants' October 25, 2005 notice of appeal is timely only if they filed a timely motion for new trial. Their motion for new trial was file-stamped on September 1, 2005. Because the deadline for filing a motion for new trial was August 25, 2005 and September 1, 2005 was beyond the thirty-day deadline required under Texas Rule of Civil Procedure 329b(a), we requested appellants provide an affidavit explaining the late filing of the motion. Upon affidavit, appellants explained that they originally mailed the motion for new trial on August 19, 2005; however, the court clerk returned it for failing to include the required filing fee. Appellants then resubmitted it on September 1, 2005, which is the date the clerk file-stamped it.
The Supreme Court of Texas has explicitly held that "the date of filing is when the document is first tendered to the clerk . . [t]hat date controls for appellate purposes." Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993); see also In re C.A.S., 128 S.W.3d 681, 686 (Tex.App.-Dallas 2003, no pet.) (relying on court's holding in Jamar). The court further noted that despite the lack of a filing fee, a motion is conditionally filed when tendered to the clerk and filing is complete when the filing fee is paid. Jamar, 868 S.W.2d at 319.
Thus, appellants' motion for new trial was conditionally filed on August 19, 2005, which was timely under Texas Rule of Civil Procedure 329b(a) and properly extended the deadline for filing a notice of appeal. The filing was complete on September 1, 2005 when they paid the filing fee. As such, the State's argument is without merit, and we have jurisdiction to consider this appeal.
Mandamus from Municipal Court to County Court at Law
After receiving a citation for consumption of alcohol by a minor but prior to any adjudication in municipal court, appellants filed a "Verified Original Petition for Writ of Mandamus to the Municipal Court, City of Plano, Texas, and For Declaratory Relief."
In Grimm v. Garner, the Supreme Court of Texas determined that a right to appeal from the justice court to the county court at law by trial de novo provided a defendant with an adequate remedy at law; therefore, the district court improperly issued a writ of mandamus to the justice court. Grimm v. Garner, 589 S.W.2d 955, 956-57 (Tex. 1979). "Since the appeal to the county court would be by trial de novo, [defendant] would have the right to reurge his same motion. . . ." Id. at 957.
In this case, appellants filed their mandamus requesting the county court overrule the municipal court's failure to dismiss the underlying complaint. However, because appellant's underlying trial was still pending in municipal court, she still had an adequate remedy at law. Once the municipal court determined guilt or innocence, appellant could then appeal to the county court and reargue the validity of the underlying complaint, which would be reviewed de novo. Id. Thus, appellants have an adequate remedy at law, and mandamus relief is improper.
Request for Declaratory Relief
In addition to a petition for writ of mandamus, appellants also requested a declaration from the county court that several articles of the Texas Code of Criminal Procedure are unconstitutional and violate due process.
The specific articles challenged are Texas Code of Criminal Procedure Articles 45.018 (complaint), 45.019 (requisites of complaint), and 45.201 (municipal prosecutions).
Pretrial orders on the constitutionality of a criminal statute, whether substantive or procedural, are interlocutory and may not be appealed until a final judgment is rendered. Franklin v. Kyle, 899 S.W.2d 405, 409 (Tex.App.-Waco 1995, no pet.). Likewise, a defendant may not seek declaratory relief regarding the constitutionality of the enforcement of criminal laws. Id. (holding that a court, through a declaratory action, could not construe the Board of Pardons and Paroles rules involving the right to a competency hearing prior to incarceration because a criminal defendant had no similar mechanism for challenging the constitutionality of criminal laws through declaratory judgment). A criminal defendant may argue to the trial court before her trial date that she believes the procedural devices enacted by the state legislature violate her state and/or federal rights; however, if the court disagrees, she must wait until she is convicted before appealing the constitutionality of the ruling. Id. At the time appellants filed their request for declaratory relief, A.F.'s misdemeanor violation was still pending before the municipal court; therefore, she was not entitled to declaratory relief. Id.
Further, the Supreme Court of Texas has held ". . . courts of equity will not interfere with the ordinary enforcement of a criminal statute unless the statute is unconstitutional and its enforcement will result in irreparable injury to vested property rights." State of Texas v. Morales, 869 S.W.2d 941, 945 (Tex. 1994). In Better Home Products of Texas, Co. v. City of Dallas, plaintiff sought a declaration from the trial court that a penal ordinance was unconstitutional. Better Home Products of Texas, Co. v. City of Dallas, 517 S.W.2d 373, 374 (Tex.App.-Dallas 1974, writ ref'd n.r.e.). This Court noted that although the suit was a statutory proceeding for declaratory relief rather than an equitable proceeding for injunctive relief, the purpose of the suit was to avoid prosecution under a criminal ordinance; therefore, the considerations that lead courts of equity to deny injunctive relief against enforcement of criminal laws apply with equal force. Id.; see also City of Dallas v. Dallas County Housemovers Ass'n, 555 S.W.2d 212, 213 (Tex App.-Dallas 1977, no writ) (noting that although civil courts are generally not concerned with the enforcement of criminal laws, civil courts may enjoin enforcement of a penal ordinance where it is void, and its enforcement will result in irreparable harm). We further held that a substantial controversy, such as a threat of irreparable injury, must be shown before a court will grant declaratory relief to avoid criminal prosecution. Better Home Products of Texas, Co., 517 S.W.2d at 374.
Here, appellants have not claimed that enforcement of the statutes will result in any irreparable injury. Therefore, declaratory relief was improper. Id.
Conclusion
We affirm the trial court's judgment.