The State of Texas v. Iqbal Jivani

DISSENT 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
DISSENTING OPINION FROM DENIAL OF EN BANC
CONSIDERATION
by Justice Goldstein
The State appeals the county criminal court of appeals’ (CCCA) judgment
affirming the judgment of the municipal court of record quashing the complaint
against appellee, Iqbal Jivani. The panel questions and finds that this Court lacks
jurisdiction over the appeal, summarily dismissing this cause for want of jurisdiction
under this Court’s precedent in State v. Villa, 673 S.W.3d 43 (Tex. App.—Dallas
2023, pet. filed). I requested that the Court consider this issue en banc, which it
refused to do. For the reasons I stated in Villa, I disagree and respectfully dissent.
See Villa, 673 S.W.3d at 50 (Goldstein, J., dissenting); see also O’Connor v. First
Court of Appeals, 837 S.W.2d 94, 96 (Tex. 1992) (“[W]hen a court of appeals votes
against hearing a case en banc, any member of the court is entitled to file a dissent,
regardless of whether the judge was on the original panel deciding the case.”).
I write, not to belabor or reiterate my dissent in Villa, but rather, merely to
highlight the perpetuation and exacerbation of the analytical infirmities prevalent in
Villa, as well as Pugh, the opinion on which the Villa majority relied. See State v.
Pugh, No. 02-21-00108-CR, 2022 WL 1793518, at *6 (Tex. App.—Fort Worth June
2, 2022, no pet.) (mem. op., not designated for publication). The Code of Criminal
Procedure, Article 44.01, provides in part that:
(a) 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; [or]
...
(3) grants a new trial;
TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1), (3). Villa and Pugh involved the
State’s appeal under subsection (a)(3). Villa, 673 S.W.3d at 44; Pugh, 2022 WL
1793518, at *1. Here, the CCCA affirmed the municipal court’s judgment quashing
the complaint and dismissing the charges, thus invoking the State’s right of appeal
under subsection (a)(1). The panel concludes that Article 44.01 is trumped by
Chapter 30 of the Government Code. I disagree. When, as here, the CCCA affirms
the judgment of the municipal court of record quashing the complaint and dismissing
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the charges, the State may appeal that decision pursuant to § 30.00014 because
§ 30.00014 provides that the “state has the right to appeal as provided by Article
44.01, Code of Criminal Procedure” and Article 44.01 provides that the State may
appeal the dismissal of a complaint. TEX. GOV’T CODE ANN. § 30.00014; see also
Villa, 673 S.W.3d at 55 (Goldstein, J., dissenting).
What sets this case apart from Villa and Pugh is the panel’s interpretation and
thus its determination that the CCCA may make a final, non-appealable ruling
establishing the facial unconstitutionality of a municipal ordinance. The panel
concludes that when a county criminal court of appeals, a court of limited appellate
jurisdiction, affirms the municipal court’s quashing of the complaint, this Court, as
the constitutional appellate court, lacks jurisdiction over the appeal. The panel
reasons that “when the State appealed the dismissal of the complaint to the county
criminal court of appeals, it received its appeal under article 44.01.” In other words,
the panel specifically determines that the State’s right of appeal was exhausted, not
just as a practical matter but as a clear demarcation, precluding, without
equivocation, appellate review by the intermediate appellate courts or the Texas
Court of Criminal Appeals. The panel thus abdicates its appellate jurisdiction and
once again makes the CCCA the appellate court of last resort in criminal cases
originating in a municipal court of record.
The State argues that interpreting Chapter 30 of the Government Code to
preclude appellate review of a CCCA decision to uphold a municipal court of record
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ruling that strikes down as facially unconstitutional a municipal ordinance would
lead to absurd results. The panel rejects this argument, holding that even if the result
is inequitable, it is not absurd. I disagree. The Texas Constitution provides that:
The Court of Criminal Appeals shall have final appellate jurisdiction
coextensive with the limits of the state, and its determinations shall be
final, in all criminal cases of whatever grade, with such exceptions and
under such regulations as may be provided in this Constitution or as
prescribed by law.
TEX. CONST. art. V § 5(a) (emphasis added). Although this provision authorizes the
Legislature to limit appellate jurisdiction in some contexts, such a limitation must
be expressly stated. See id.; Ex parte Golden, 991 S.W.2d 859, 862 (Tex. Crim. App.
1999) (where Legislature intends a statute to be jurisdictional, it makes that intent
clear). In contrast, the panel’s opinion construes Chapter 30 of the Government Code
as an implicit limitation of jurisdiction, thus imbuing the CCCA with final authority
to determine the facial constitutionality of, and as a practical matter strike down, a
municipal ordinance. Such a regime allows for a particular ordinance enacted in
substantially the same form by two different Texas cities to be ruled constitutional
in one and unconstitutional in the other, with no recourse to, or review by,
constitutional appellate courts. This is an absurd result that runs contrary to what the
People of Texas intended when they adopted Article V, Section 5(a) of the
Constitution and vested the court of criminal appeals with final appellate jurisdiction
in all criminal cases.
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The State has filed a petition for discretionary review in Villa, supported by
two amicus curiae briefs, all of which aptly set forth the issues relative to the scope
of jurisdiction of the intermediate appellate courts and the Texas Court of Criminal
Appeals as it relates to municipal courts of record.1 The Texas Court of Criminal
Appeals has before it the opportunity to provide clarity and guidance in this
important, unique, and unprecedented jurisdictional conundrum of constitutional
magnitude. Alternatively, I would once again invite the Legislature to revisit the
issue of the State’s right to appeal and whether it intended to expressly divest the
intermediate courts of appeal or the Texas Court of Criminal Appeals of jurisdiction
in this context.
CONCLUSION
I would grant en banc consideration and conclude that we have jurisdiction
over this appeal. Because the Court fails to do so, I respectfully dissent.
/Bonnie Lee Goldstein/
Publish BONNIE LEE GOLDSTEIN
TEX. R. APP. P. 47.2(b) JUSTICE
230839DF.P05
1
State’s Pet. for Discretionary Rev., State v. Villa, No. PD-056-23 (Tex. Crim. App. filed Oct. 24,
2023); Br. for City of Plano as Amicus Curiae Supporting Petitioner, State v. Villa, No. PD-056-23 (Tex.
Crim. App. filed Nov. 8, 2023); Br. for Tex. Mun. Cts. Educ. Ctr. as Amicus Curiae Supporting Petitioner,
State v. Villa, No. PD-056-23 (Tex. Crim. App. filed Nov. 26, 2023). On December 13, 2023, the court of
criminal appeals struck the State’s petition for discretionary review for noncompliance with Texas Rule of
Appellate Procedure 68.6 and provided the State thirty days to redraw its petition. See State v. Villa, No.
PD-0756-23, 2023 WL 8613846, at *1 (Tex. Crim. App. Dec. 13, 2023). As of the date of this opinion, the
State has not yet redrawn its petition.
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