Moreover, the fact that the Commissioner, by his rule, assessed an identical charge against the only non-corporate HMO cannot cure the constitutional defect apparent on the face of the statute. See Newsom v. Starkey, 572 S.W.2d 29 (Tex.Civ.App.-Dallas 1978, no writ), where the court declared a garnishment statute unconstitutional, void and insufficient to justify any acts performed under it, and held that a garnishee who received actual notice and a hearing could nevertheless challenge the statute's constitutionality on the basis that it did not expressly require these protections. A "court cannot remedy a constitutional defect in a statute by supplying the procedure that the statute fails to give."
Garnishee Allied Bank claims that the Wee Tote case had the effect of eliminating the underlying statutory right of garnishment in Texas, and that without the underlying statute the State Supreme Court's subsequent Rules were an impermissible attempt to "enlarge" (i.e., create) a substantive right, in contravention of Art. 1731a. In support of this proposition, Allied draws the Court's attention to Newsom v. Starkey, 572 S.W.2d 29 (Tex.Civ.App. 1978, no writ), which noted that "a court cannot remedy a constitutional defect in a statute by supplying the procedure that the statute fails to provide." Id. at 30.
The garnishment simply forced Plaintiff to pay a debt that was already found to be legally due. There are no allegations the garnishment was wrongful. Compare Newsom v. Starkey, 572 S.W.2d 29, 30 (Tex.App. 1978) ("The rule is now established in Texas that if a garnishment was wrongfully issued and levied, a cause of action arises for actual damages.") (Citation omitted.) 3.
In re Johnson, 554 S.W.2d 775, 787 (Tex.App. — Corpus Christi 1977), ref. n.r.e. 569 S.W.2d 882, held that an unconstitutional statute, as a general rule, amounts to nothing and accomplishes nothing and is no law citing Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328 (1943), and Miller v. Davis, 136 Tex. 299, 150 S.W.2d 973 (1941). Newson v. Starkey, 572 S.W.2d 29 (Tex.Civ.App. — Dallas 1978), held that generally a void law is no law and confers no rights, bestows no power on anyone and justifies no act performed under it citing Sharber v. Florence, 131 Tex. 341, 115 S.W.2d 604 (1938). See also Lowry v. State, 671 S.W.2d 601 (Tex.App. — Dallas 1984), affirmed in part, reversed in part 692 S.W.2d 86 (an unconstitutional statute is void from its inception); Fite v. King, 718 S.W.2d 345 (Tex.App. — Dallas 1986) ref. n.r.e. (unconstitutional act confers no right, imposes no duty, and affords no protection).
Williams v. Williams, 932 S.W.2d 904, 905 (Mo.App. E.D.1996) (“A judgment is void from its inception if the court that rendered judgment did not have jurisdiction.”); Section 479.020.1 (municipal courts have jurisdiction only to try violation of municipal ordinances and do not have jurisdiction to try violations of state law); see, e.g., State v. Jenkins, 295 Kan. 431, 284 P.3d 1037, 1044 (2012) (a city ordinance that conflicts with a state statute does not vest the municipal court with jurisdiction); State v. Chacon, 273 S.W.3d 375, 381 (Tex.App.2008) (municipal court had no jurisdiction over ordinance that conflicted with state law); see also Newsom v. Starkey, 572 S.W.2d 29, 30 (Tex.Civ.App.1978) (“a void statute is no law and confers no rights, bestows no power on anyone, and justifies no acts performed under it.”); Dean Milk Co. v. City of Aurora, 404 Ill. 331, 88 N.E.2d 827, 831 (1949) (where an ordinance is void, the ordinance is inoperative as though it had never been enacted). Inasmuch as the Ordinance is deemed void and unenforceable based upon the Ordinance's conflict with state law, the Arnold Municipal Court had no subject matter jurisdiction from inception, and all the judicial proceedings based on the Ordinance are consequently void.
Williams v. Williams, 932 S.W.2d 904, 905 (Mo. App. E.D. 1996) ("A judgment is void from its inception if the court that rendered judgment did not have jurisdiction."); Section 479.020.1 (municipal courts have jurisdiction only to try violation of municipal ordinances and do not have jurisdiction to try violations of state law); see, e.g., State v. Jenkins, 284 P.3d 1037, 1044 (Kan. 2012) (a city ordinance that conflicts with a state statute does not vest the municipal court with jurisdiction); State v. Chacon, 273 S.W.3d 375, 381 (Tex. App. 2008) (municipal court had no jurisdiction over ordinance that conflicted with state law); see also Newsom v. Starkey, 572 S.W.2d 29, 30 (Tex. App. 1978) ("a void statute is no law and confers no rights, bestows no power on anyone, and justifies no acts performed under it."); Dean Milk Co. v. City of Aurora, 88 N.E.2d 827, 831 (Ill. 1949) (where an ordinance is void, the ordinance is inoperative as though it had never been enacted). Inasmuch as the Ordinance is deemed void and unenforceable based upon the Ordinance's conflict with state law, the Arnold Municipal Court had no subject matter jurisdiction from inception, and all the judicial proceedings based on the Ordinance are consequently void.
Texas Antiquities, 554 S.W.2d at 928. Actions based on an invalid section of an ordinance are void and unenforceable. Newsom v. Starkey, 572 S.W.2d 29 (Tex.Civ.App. — Dallas 1978, no writ). The legal basis for the appellants' action in prohibiting the repair of appellee's signs was therefore unsound and appellee was entitled to summary judgment. Appellants' points of error are overruled. The judgment of the trial court is affirmed.