The State of Texas v. Xoticas-Laredo, Inc.--Appeal from County Court at Law of Webb County

MEMORANDUM OPINION
No. 04-03-00584-CR
The STATE of Texas,
Appellant
v.
XOTICAS-LAREDO, INC.,
Appellee
From the County Court at Law No. 1, Webb County, Texas
Trial Court No. 2002-CVD-000077-L1
Honorable Henry Schuble, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: January 7, 2004

DISMISSED

Xoticas Laredo, Inc. ("Xoticas") was convicted of operating a sexually oriented business within 1,000 feet of a residential zone in violation of the City of Laredo. Xoticas was fined $2,000 for each of its three violations of the ordinance, with the fines to run concurrently. On appeal to the County Court at Law No. 1 of Webb County, Texas, in a trial de novo, the three complaints against Xoticas were dismissed with prejudice because the court determined "that the retroactive application of the ordinance in question to [Xoticas] . . . is unconstitutional as an ex post facto law and constitutes an unlawful taking of property in violation of the due process clause of the U.S. Constitution." In its appeal to this court, the State contends that the county court erred in dismissing the complaints because there is no evidence in the record to support the court's findings.

Although not addressed by the parties, we must first determine whether we have jurisdiction to entertain this appeal. A court's own jurisdiction is fundamental, and a court may not ignore the lack of jurisdiction. Wolfe v. State, 878 S.W.2d 645, 646 (Tex. App.--Dallas 1994, no pet.). "Even if the parties do not raise lack of jurisdiction, a court must take notice of that circumstance even on its own motion." Id. An appellate court must dismiss an appeal if it concludes that it does not have jurisdiction to decide the merits of the appeal. Id.

A municipal court has exclusive original jurisdiction over all criminal matters arising under municipal ordinances within the city. Tex. Code Crim. Proc. Ann. art. 4.14(a) (Vernon Supp. 2003); Flores v. State, 33 S.W.3d 907, 915 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd). However, a municipal court's jurisdiction in criminal cases is restricted to offenses punishable by fine only. See Tex. Code Crim. Proc. Ann. art. 4.14(a)-(c) (Vernon Supp. 2003); Flores, 33 S.W.3d at 915. A municipal court does not have exclusive original jurisdiction over violations of ordinances punishable by confinement in jail or imprisonment. See Tex. Code Crim. Proc. Ann. art. 4.14(a)-(c); Flores, 33 S.W.3d at 915. By contrast, a county court at law "has exclusive original jurisdiction of misdemeanors other than misdemeanors involving official misconduct and cases in which the highest fine that may be imposed is $500 or less." Tex. Gov't Code Ann. 26.045 (Vernon Supp. 2003).

Here, Xoticas was charged with violating a municipal ordinance regulating its sexually oriented business. Violations of municipal ordinances regulating sexually oriented businesses are Class A misdemeanors. Tex. Loc. Gov't. Code Ann. 243.010(b) (Vernon 1999). The punishment for committing a Class A misdemeanor includes a fine or confinement in jail for a term not to exceed one year. Tex. Pen. Code Ann. 12.21 (Vernon 2003). "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 court at law and not a municipal court." Flores, 33 S.W.3d at 915. Therefore, in the case at bar, the municipal court of the City of Laredo had no jurisdiction to entertain this case. See id. Because the municipal court of the City of Laredo was without jurisdiction to entertain this case, the county court also was without jurisdiction on appeal. See Bonner v. State, 436 S.W.2d 904, 906 (Tex. Crim. App. 1968); Billingsly v. State, 3 Tex. Ct. App. 686, 688 (1878). It thus follows that we do not have jurisdiction in this instance, and this appeal should be dismissed. See Bonner, 436 S.W.2d at 906; Billingsly, 3 Tex. Ct. App. at 688.

This appeal is dismissed.

Catherine Stone, Justice

DO NOT PUBLISH