The State of Texas v. Iqbal Jivani

DISMISS and Opinion Filed December 28, 2023




                                    S   In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-23-00839-CR

                       THE STATE OF TEXAS, Appellant
                                   V.
                          IQBAL JIVANI, Appellee

         On Appeal from the County Criminal Court of Appeals No. 1
                           Dallas County, Texas
                   Trial Court Cause No. MC23-R0001-D

                         MEMORANDUM OPINION
                    Before Justices Molberg, Reichek, and Smith
                             Opinion by Justice Smith
      The State appeals the county criminal court of appeals’ judgment affirming

the judgment of the municipal court of record quashing the complaint against

appellee, Iqbal Jivani. We questioned whether we had jurisdiction over this appeal,

and we requested the parties to file jurisdictional briefs. The parties have filed their

briefs on the jurisdictional question. We conclude we lack jurisdiction over this

appeal, and we dismiss this appeal for want of jurisdiction.
                                 BACKGROUND

      On October 18, 2022, the State filed a complaint in the City of Dallas

Municipal Court charging appellee with violating section 31-27 of the Dallas Code

by loitering in a public place “in a manner and under circumstances manifesting the

purpose of inducing another to commit an act of prostitution . . . to wit: said actor

was in a known prostitution area and stopped to engage passers-by in conversation.”

See DALLAS, TEX., CODE § 31-27. Appellee filed a motion to quash the complaint,

arguing section 31-27 was unconstitutional and void for vagueness and overbreadth.

The municipal court agreed with appellee and granted the motion to quash,

concluding the ordinance was “unconstitutional on its face because the Ordinance is

both vague and overbroad in violation of the First Amendment to the United States

Constitution.”

      The State appealed to the Dallas County Criminal Court of Appeals. That

court affirmed the municipal court’s quashing of the complaint, stating, “Dallas

Code section 31-27 is unconstitutional on its face because it is overbroad and vague

in violation of the First Amendment to the United States Constitution.” The State

timely appealed the county criminal court of appeals’ decision.

                                 JURISDICTION

      This Court’s jurisdiction in appeals of criminal cases exists only as

specifically authorized by statute. State ex rel. Lykos v. Fine, 

(Tex. Crim. App. 2011). “In Texas, ‘[t]he standard for determining jurisdiction [of

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an appellate court] is not whether the appeal is precluded by law, but whether the

appeal is authorized by law.’” 

 (quoting Abbott v. State, 

, 696–

97 (Tex. Crim. App. 2008)); see TEX. CONST. art. V, § 6(a) (courts of appeals “shall

have appellate jurisdiction co-extensive with the limits of their respective districts,

which shall extend to all cases of which the District Courts or County Courts have

original or appellate jurisdiction, under such restrictions and regulations as may be

prescribed by law” and “[s]aid courts shall have such other jurisdiction, original and

appellate, as may be prescribed by law”). Article 4.03 of the Code of Criminal

Procedure provides that courts of appeals’ jurisdiction does not extend to cases from

“the county court, the county criminal court or county court at law” in which “the

fine imposed or affirmed by the county court, the county criminal court or county

court at law does not exceed one hundred dollars, unless the sole issue is the

constitutionality of the statute or ordinance on which the conviction is based.” TEX.

CODE CRIM. PROC. ANN. art. 4.03. In this case, no fine was imposed or affirmed, and

there was no conviction.

      The State cites two statutes as providing jurisdiction over this appeal: article

44.01(a)(1) of the Code of Criminal Procedure and section 30.00027(a)(2) of the

Government Code. We conclude neither provision provides us with jurisdiction.

      Article 44.01(a)(1) provides, “The state is entitled to appeal an order of a court

in a criminal case if the order: (1) dismisses an indictment, information, or complaint

or any portion of an indictment, information, or complaint . . . .” CRIM. PROC. art.

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44.01(a)(1). We default to this statute for determining the State’s right of appeal

“unless another legislative directive applicable to the case provides otherwise.”

State v. Villa, 

, 45 (Tex. App.—Dallas 2023, pet. filed). Chapter 30

of the Government Code contains express provisions for appeals from decisions of

the municipal court of record and from the county criminal court of appeals. Section

30.00014 governs appeals from municipal courts of record to the county criminal

court of appeals and, concerning State’s appeals, it provides, “The state has the right

to appeal as provided by Article 44.01, Code of Criminal Procedure.” TEX. GOV’T

CODE ANN. § 30.00014(a). Thus, when the State appealed the dismissal of the

complaint to the county criminal court of appeals, it received its appeal under article

44.01.

          Appeals from the county criminal court of appeals to the court of appeals are

governed by section 30.00027, which is titled “Appeals to Court of Appeals.” That

provision does not give the State the right of appeal under article 44.01. Instead, it

states:

          (a) The appellant has the right to appeal to the court of appeals if:

                (1) the fine assessed against the defendant exceeds $100 and the
                judgment is affirmed by the appellate court [i.e., the county
                criminal court of appeals]; or

                (2) the sole issue is the constitutionality of the statue or ordinance
                on which a conviction is based.

GOV’T § 30.00027(a). As the State acknowledges, this Court held in State v. Villa

that article 44.01(a)(1) does not apply to appeals to the court of appeals from the
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county criminal court of appeals under section 30.00027. See Villa, 673 S.W.3d at

48–50.

      The State also argues this Court has jurisdiction under Government Code

section 30.00027(a)(2) because the sole issue is the constitutionality of section

31-27. As mentioned above, section 30.00027(a)(2) provides, “The appellant has

the right to appeal to the court of appeals if . . . (2) the sole issue is the

constitutionality of the statute or ordinance on which a conviction is based.”

Applying the plain language of the statute, we conclude that the “appellant,” i.e., the

State, has no right of appeal in this case: although the basis for the appeal is the

constitutionality of section 31-27, no conviction was based on section 31-27 because

the charges against appellee were dismissed.

      The State argues the legislative history of section 30.00027 shows the

legislature intended for the State to be able to bring a State’s appeal. When the

statutory framework for appeals from municipal courts of record was originally

enacted, the State had no right of appeal; instead, the statute provided:

      The defendant has the right to appeal to the court of appeals if the fine
      assessed against the defendant exceeds $100 and if the judgment is
      affirmed by the appellate court.

See Act of May 23, 1985, 69th Leg., R.S., ch. 480, § 1, sec. 30.246, 

, 1866 (emphasis added). In 1987, the Texas Constitution was amended

to provide the State with the right to appeal in criminal cases “as authorized by

general law.” TEX. CONST. art. V, § 26. In 1999, section 30.00027 was modified to

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provide, “The appellant has the right to appeal to the court of appeals if the fine

assessed against the defendant exceeds $100 and if the judgment is affirmed by the

appellate court.” (Emphasis added.) Act of May 27, 1999, 76th Leg., R.S., ch. 691,

§ 1, sec. 30.00027, 

, 3270. Neither of these provisions,

however, permitted an appeal to the court of appeals unless the defendant was fined

more than $100 and the county criminal court of appeals affirmed the judgment

imposing the fine. In 2011, the legislature added the provision relied upon by the

State, paragraph (a)(2), which permits an “appellant” to appeal when “the sole issue

is the constitutionality of the statute or ordinance on which a conviction is based.”

Act of May 27, 2011, 82nd Leg., R.S., ch. 1324, § 4, 

,

3839 (now codified at GOV’T § 30.00027(a)(2)).

      The State asserts the legislature, by changing “defendant” to “appellant,”

intended to give the State appellate rights coextensive with those of defendants, and

the State argues the language of section 30.00027 deprives it of the right of appeal

that the defendant has. In section 30.00027, the change from “defendant” to

“appellant” gave the State the same right to appeal as the defendant. What appears

to be the State’s complaint is that the situations in the statute where an “appellant”

may bring an appeal—imposition of a fine exceeding $100 or where the sole issue

is the constitutionality of the statute on which a conviction is based—favor the

criminal defendant’s being able to appeal, not the State. The State argues that

requiring a conviction before the State can challenge a lower court’s interpretation

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of the constitution is an absurd result. However, a finding of absurdity is not reached

lightly.

       “[D]etermining whether a particular result is absurd is a dangerously
       subjective endeavor.” Ritz, 533 S.W.3d at 308 (Newell, J., concurring).
       “[T]he bar for concluding a plain-faced interpretation of a statute would
       lead to absurd results is, and should be, high.” Id. (citing Combs v.
       Health Care Servs. Corp., 

 (Tex. 2013)). “It
       should be reserved for truly exceptional cases, and mere oddity does
       not equal absurdity.” 

 “Even if a consequence is unintended,
       improvident, or inequitable, it may still fall short of being unthinkable
       or unfathomable.” 

 The focus should be on “whether it is quite
       impossible that a rational legislature could have intended it.” 

Barrett v. State, No. 05-22-00219-CR, 

, at *10 (Tex. App.—

Dallas Apr. 28, 2023, no pet.) (mem op., not designated for publication). Quoting

from the dissenting opinion in Villa, the State argues the effect of limiting the State’s

right of appeal “is to do what the Legislature did not do in express terms: establish

the CCCA [county criminal court of appeals] as the court of last resort for the State’s

issues while preserving the defendant’s right to seek redress in the constitutionally

established court of last resort, the court of criminal appeals.” See Villa, 673 S.W.3d

at 54 (Goldstein, J., dissenting). The question, then, is whether it is “unthinkable or

unfathomable” for the legislature to have intended to deny the State the right of

appeal when the issue is the constitutionality of the statute on which the dismissal of

the charge is based.

       The State cites no authority, aside from the dissenting opinion in Villa, for the

proposition that requiring a conviction for this Court to have jurisdiction is an absurd

result even though based on the plain language of section 30.00027(a)(2). The
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majority in Villa rejected the dissent’s argument. See Villa, 673 S.W.3d at 49 n.6.

We conclude the State has not established that section 30.00027(a)(2)’s requirement

of a conviction before an “appellant” may bring an appeal challenging the county

criminal court of appeals’ interpretation of a constitutional provision is an absurd

result. That outcome follows from the plain language of the statute requiring there

be a conviction for an appellant to bring an appeal under section 30.00027(a)(2).

Even if the result is inequitable, as the State suggests, that does not necessarily make

the result “unthinkable or unfathomable” or irrational. See Barrett, 

, at *10. The State’s argument would have us delete the phrase “on which

a conviction is based” from section 30.00027(a)(2). The State cites no authority

permitting us to do so, and we decline to do so.

                                   CONCLUSION

      Section 30.00027 permits an appeal from the county criminal court of appeals

to this Court either when “the fine assessed against the defendant exceeds $100 and

the judgment is affirmed by the appellate court” or when “the sole issue is the

constitutionality of the statute or ordinance on which a conviction is based.” In this

case, appellee was not fined any amount, nor does the State’s appeal concern the

constitutionality of a statute or ordinance “on which a conviction is based.”

Accordingly, we lack jurisdiction over the State’s appeal.




                                          –8–
      We dismiss the State’s appeal for want of jurisdiction.




                                           /Craig Smith/
                                           CRAIG SMITH
                                           JUSTICE

Publish
TEX. R. APP. P. 47.2(b)
230839F.P05


      Goldstein, J., dissenting from denial of request for en banc consideration.




                                        –9–
                                 S
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                JUDGMENT

THE STATE OF TEXAS, Appellant               On Appeal from the County Criminal
                                            Court of Appeals No. 1, Dallas
No. 05-23-00839-CR         V.               County, Texas
                                            Trial Court Cause No. MC23-R0001-
IQBAL JIVANI, Appellee                      D.
                                            Opinion delivered by Justice Smith.
                                            Justices Molberg and Reichek
                                            participating.

      Based on the Court’s opinion of this date, this appeal is DISMISSED for
want of jurisdiction.


Judgment entered December 28, 2023




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