in Re Byron Gayle Brehmer , 2014 Tex. App. LEXIS 4489 ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00104-CV
IN RE BYRON GAYLE BREHMER RELATOR
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ORIGINAL PROCEEDING
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OPINION
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Relator Byron Gayle Brehmer contends the county court lacked subject
matter jurisdiction to consider his appeal from the justice court’s decision
divesting him of ownership of thirty horses pursuant to health and safety code
section 821.023. See Tex. Health & Safety Code Ann. § 821.023 (West Supp.
2013). For the reasons explained below, we deny relator’s petition for writ of
mandamus.
Background
Relator’s horses were seized pursuant to a warrant issued by the justice
court on February 14, 2014. After a hearing on February 26, the justice court
found that Relator cruelly treated the horses and divested him of ownership. The
court ordered that the horses be sold at public auction or given to a nonprofit
animal shelter, pound, or society for the protection of animals. Relator timely
appealed the order to the county court, and the justice court delivered a copy of
the clerk’s record to the county court clerk on March 7. See id. § 821.025(b), (c)
(West Supp. 2013).
The county court set the matter for jury trial on March 31. On March 20,
Relator filed a plea to the jurisdiction with the county court, contending that it
lacked jurisdiction over the appeal because the justice court failed to hold a
hearing to determine whether Relator’s horses had been cruelly treated within
ten calendar days of the date the warrant was issued. See id. § 821.022(b)
(West 2010) (“On a showing of probable cause to believe that the animal has
been or is being cruelly treated, the court . . . shall issue a warrant and set a time
within 10 calendar days of the date of issuance for a hearing . . . to determine
whether the animal has been cruelly treated.”).
On March 28, Relator filed his petition for writ of mandamus requesting
that this court compel Respondent, the Honorable Kenneth Liggett, presiding
judge of Clay County Court, to grant Relator’s plea to the jurisdiction, to dismiss
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the case with prejudice, and to order Relator’s horses be returned to him. Before
the jury trial began on March 31, the county court denied Relator’s plea to the
jurisdiction. On April 2, the jury returned a verdict finding that Relator
unreasonably deprived the seized horses of necessary food, water, and care.
Analysis
In three issues, Relator presents an issue of first impression in this court
regarding the county court’s subject matter jurisdiction over an appeal from a
justice court’s order divesting an owner of ownership of an animal under health
and safety code section 821.023, contending that the deadlines set forth in
sections 821.022(b) and 821.025(d) are jurisdictional. See id. § 821.022(b),
§ 821.025(d) (West Supp. 2013). In his first and third issues, Relator argues that
the justice court’s failure to hold a hearing to determine whether Relator’s horses
had been cruelly treated within ten calendar days of the date the warrant was
issued as required by section 821.022(b) deprived both the justice court and the
county court of jurisdiction. See id. § 821.022(b). In his second issue, Relator
contends that the county court’s failure to consider and dispose of his appeal
from the justice court’s order within ten calendar days after the county court
received a copy of the clerk’s record from the justice court as mandated by
section 821.025(d) also deprived the county court of jurisdiction. See id. §
821.025(d) (“Not later than the 10th calendar day after the date the county court
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or county court at law, as appropriate, receives a copy of the clerk’s record, the
court shall consider the matter de novo and dispose of the appeal.”).
To determine whether the statutory deadlines in these sections are
jurisdictional, we apply statutory construction principles. See Wichita Cnty. v.
Hart, 917 S.W.2d 779, 783 (Tex. 1996) (“If the provision’s wording does not
indicate whether the Legislature wanted courts to consider it jurisdictional, we
must resolve the issue by applying the rules of statutory construction.”). Our goal
is to ascertain the legislature’s intent. City of Desoto v. White, 288 S.W.3d 389,
394 (Tex. 2009); see Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140
S.W.3d 351, 359 (Tex. 2004) (“Since the Legislature is bound to know the
consequences of making a requirement jurisdictional, one must ask, in trying to
determine legislative intent, whether the Legislature intended those
consequences.”), superseded by statute, Tex. Gov’t Code Ann. § 311.034 (West
2013).1 In determining whether the legislature intended a provision to be
jurisdictional, we may consider the plain meaning of the statute, “the presence or
absence of specific consequences for noncompliance,” the purpose of the
statute, and “the consequences that result from each possible interpretation.”
White, 288 S.W.3d at 395; see Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495
(Tex. 2001).
1
Although the legislature subsequently provided that the notice
requirement at issue in Loutzenhiser was jurisdictional, the court’s reasoning
remains valid with respect to the statutory analysis of alleged jurisdictional
provisions. White, 288 S.W.3d at 393.
4
We address the first two factors together and begin by examining the text
of the two statutes. Section 821.022(b) provides as follows:
On a showing of probable cause to believe that the animal has been
or is being cruelly treated, the court or magistrate shall issue the
warrant and set a time within 10 calendar days of the date of
issuance for a hearing in the appropriate justice court or municipal
court to determine whether the animal has been cruelly treated.
Tex. Health & Safety Code Ann. § 821.022(b). Section 821.025(d) states:
Not later than the 10th calendar day after the date the county court
or county court at law, as appropriate, receives a copy of the clerk’s
record, the court shall consider the matter de novo and dispose of
the appeal. A party to the appeal is entitled to a jury trial on request.
Id. § 821.025(d).
The Code Construction Act defines “shall” as follows: “‘Shall’ imposes a
duty.” Tex. Gov’t Code Ann. § 311.016(2) (West 2013). Courts generally
construe “shall” as mandatory, but it “may be and frequently is held to be merely
directory.” Chisholm v. Bewley Mills, 155 Tex. 400, 403, 287 S.W.2d 943, 945
(Tex. 1956); see Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999).
Mandatory statutory duties are not necessarily jurisdictional. Helena Chem. Co.,
47 S.W.3d at 494; Sinclair, 984 S.W.2d at 961. Absent clear legislative intent,
we resist classifying a statutory provision as jurisdictional. See White, 288
S.W.3d at 393; see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.
2000) (noting modern trend against exposing final judgment to attack on subject
matter jurisdiction by treating statutory prerequisites as jurisdictional).
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Here, the plain language of sections 821.022(b) and 821.025(d) indicates
that the deadlines are mandatory, but the statutes do not contain any explicit
language indicating that failure to comply with these deadlines deprives either the
justice court or the county court of jurisdiction. See White, 288 S.W.3d at 394
(stating that a mandatory statutory requirement is presumed not to be
jurisdictional and that the presumption may be “overcome only by clear legislative
intent to the contrary”); see also Tex. Dep’t of Pub. Safety v. Guerra, 970 S.W.2d
645, 648–50 (Tex. App.—Austin 1998, pet. denied) (holding, where there was no
jurisdictional language, that transportation code section 524.032, providing that
hearing on suspension of driver’s license “shall be held” within forty days of driver
receiving notice of suspension, is directory and failure to hold hearing within forty
days does not preclude Department from suspending license). Although both
sections set forth deadlines, the statutes provide no guidance on the
consequences for noncompliance with these deadlines. See White, 288 S.W.3d
at 396 (“We have also looked for ‘the presence or absence of specific
consequences for noncompliance’ in determining whether a provision is
jurisdictional.”); State v. $435,000, 842 S.W.2d 642, 644 (Tex. 1992) (“If the
Legislature had intended dismissal to be the consequence of a failure to hear a
forfeiture case within the prescribed period, it could easily have said so.”); see
also Sinclair, 984 S.W.2d at 961 (“[J]ust because a statutory requirement is
mandatory does not mean that compliance with it is jurisdictional.”).
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In considering the third factor, we note that the legislature did not expressly
declare the statute’s purpose, but at least one court has stated that the statute’s
primary goal is protecting the welfare of animals. See Pine v. State, 921 S.W.2d
866, 873 (Tex. App—Houston [14th Dist.] 1996, writ dism’d w.o.j) (stating that the
legislature has “evidenced a willingness . . . to view animals as something more
than personal property subject to the vicissitudes of an owner’s rage, abuse, or
neglect”). And we agree with Relator that the intent behind sections 821.022(b)
and 821.025(d) is to provide for an expedited process in animal cruelty cases.
See Senate Comm. on Criminal Justice, Bill Analysis, Tex. H.B. 963, 82nd Leg.,
R.S. (2011) (“The purpose of H.B. 963 is to . . . expedite the appeal so that the
animals are not held in limbo for an extended period of time; and provide
adequate recovery of impound and care costs incurred during the litigation
process.”). The purpose of the hearing before the justice court is to determine
whether the owner has cruelly treated the animal. See Tex. Health & Safety
Code §§ 821.023(d)–(e)(2), (g). If the justice court determines that the owner
has not cruelly treated the animal, the court shall order the animal returned to the
owner. Id. § 821.023(g). Section 821.025 provides a mechanism through which
the owner can appeal the justice court’s order. See id. § 821.025. The ten-day
limitations in sections 821.022(b) and 821.025(d) afford owners a prompt, orderly
procedure by which they can seek return of seized animals. See id.
§§ 821.022(b), 821.025.
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The fourth factor—consideration of the implications of alternative
interpretations—suggests that sections 821.002(b) and 821.025(d) are not
jurisdictional. If we held that these deadlines were jurisdictional, lack of
jurisdiction would leave a decision vulnerable to collateral attacks well after
completion of the proceedings, even after the animal has a new owner or has
been humanely destroyed. See id. § 821.023(d) (providing that if the county
court finds that the animal’s owner has cruelly treated the animal, the owner shall
be divested of ownership of the animal and the court shall order a public sale of
the animal by auction, order the animal be given to an animal shelter or animal
welfare organization, or order the animal humanely destroyed); Kazi, 12 S.W.3d
at 76 (“[A] judgment will never be considered final if the court lacked subject-
matter jurisdiction.”). Construing the deadlines in sections 821.022(b) and
821.025(d) as jurisdictional would not be reasonable. See Tex. Gov’t Code Ann.
311.021(3) (West 2013) (providing that it is to be presumed the legislature
intends just and reasonable results when it enacts statutes); Kazi, 12 S.W.3d at
76 (recognizing that deeming a provision jurisdictional “opens the way to making
judgments vulnerable to delayed attack for a variety of irregularities that perhaps
better ought to be sealed in a judgment”).
Accordingly, we hold that the deadlines in health and safety code sections
821.022(b) and 821.025(d) are not jurisdictional.2 See, e.g., In re E.D.L., 105
2
We acknowledge that in In re Strachan, an original proceeding in which
the relator challenged the county court’s dismissal of his appeal from a justice
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S.W.3d 679, 688 (Tex. App.—Fort Worth 2003, pet. denied) (holding that
although family code section 262.201(a) requires a trial court to conduct a full
adversary hearing within fourteen days of the date a governmental entity takes
possession of a child, the requirement is procedural, not jurisdictional). We deny
relator’s petition for writ of mandamus.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DELIVERED: April 24, 2014
court’s decision divesting him of ownership of animals under section 821.023, our
sister court, citing section 821.025(d), determined that “[t]he county court at law
lost jurisdiction ten days after it received the clerk’s record, and it could not rule
on relator’s appeal after that date.” No. 05-12-00640-CV, 2012 WL 1833895, at
*1 (Tex. App.—Dallas May 21, 2012, orig. proceeding) (mem. op.). The opinion
contains no statutory analysis in arriving at its conclusion, and therefore, we
decline to follow it.
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