March 23. 1999
The Honorable William T. Hill, Jr. Opinion No. JC-0025
Dallas County Criminal District Attorney
411 Elm Street Re: Whether municipal court has jurisdiction
Dallas, Texas 75202 over cases arising under nuisance ordinance
prohibiting outdoor burning within 5,000 feet
outside city limits (RQ-1212)
Dear Mr. Hill:
Your predecessor in offrce asked us to determine which court has jurisdiction over violations
of a municipal ordinance that occur outside the city limits of the City of Wylie. The City has
adopted a nuisance ordinance that prohibits outdoor burning within Wylie and within 5,000 feet
outside the city limits. We assume that the ordinance was validly adopted pursuant to the authority
granted to home-rule cities in Local Government Code section 217.042, which provides:
(a) The municipality may define and prohibit any nuisance within the
limits of the municipality and within 5,000 feet outside the limits.
(b) The municipality may enforce all ordinances necessary to prevent and
summarily abate and remove a nuisance.
TEX. Lot. GOV'T CODE ANN. $ 217.042 (Vernon 1988). A violation of the ordinance is a
misdemeanor and is punishable by a fine not to exceed $2,000. Wylie, Tex., Ordinance 98-7, 5 5
(Jan. 27, 1998).
For violations of the ordinance that occur inside city limits, the City’s municipal court has
exclusive jurisdiction. Government Code section 29.003 provides, in relevant part:
(a) A municipal court, including a municipal court of record, shall have
exclusive original jurisdiction within the territorial limits of the municipality
in all criminal cases that:
(1) arise under the ordinances of the municipality; and
(2) are punishable by a tine not to exceed:
The Honorable William T. Hill, Jr. - Page 2 (JC-0025)
(A) $2,000, in all cases arising under municipal ordinances that
govern tire safety, zoning, or public health and sanitation, including dumping
of refuse; or
(B) $500 in all other cases arising under a municipal ordinance.
TEX. GOV’T CODE ANN. § 29.003 (Vernon Supp. 1999) (emphasis added); see also TEX. CODE
GRIM.PROC.ANN. art. 4.14 (Vernon Supp. 1999) (containing identical provision for municipal court
jurisdiction). As a general rule, then, a municipal court only has jurisdiction to enforce ordinance
violations occurring within the corporate limits of a city.
Where a municipal court is established as a “municipal court of record,” however, its
jurisdiction may reach beyond city limits. Appeals from municipal courts of record must be based
upon errors in the record set out in the defendant’s motion for new trial, see TEX. GOV’TCODEANN.
5 30.00013 (Vernon Supp. 1999), while appeals from regular municipal courts must be tried de nova
in county court, see TEX. CODE GRIM. PROC. ANN. art. 45.10 (Vernon Supp. 1999). Under the
general law for municipal courts of record, the governing body of a city may establish its courts as
municipal courts of record “if the formation of municipal courts of record is necessary to provide
a more efficient disposition of appeals from the municipal court.” TEX. GOV’T CODE ANN.
4 30.00002 (Vernon Supp. 1999).
The jurisdiction of a general municipal court of record is broader than that of a regular
municipal court, as follows:
(a) A municipal court of record has the jurisdiction provided by general
law for municipal courts.
(b) The court hasjurisdiction of criminal cases arising under ordinances
authorized by[Local Government Codesections 215.072,217.042. 341.903,
401.002].
Id. 5 30.00005 (emphasis added). The ordinances described in subsection (b) are ordinances that
may be applied outside of a city’s boundaries, including a nuisance ordinance enacted pursuant to
Local Government Code section 217.042. Thus municipal courts of record established pursuant to
the general law for municipal courts of record have express jurisdiction over certain criminal cases
arising from ordinance violations outside city limits.
Your predecessor informed us that the City of Wylie has not established its municipal court
as a municipal court of record. Wylie’s municipal court thus does not have express jurisdiction over
cases arising from ordinance violations outside city limits. We consider, therefore, whether
jurisdiction may be implied. “[J]urisdiction may be conferred upon a court by necessary implication
as effectually as by express terms.” Spence v. Fenchler, 180 S.W. 597, 601 (Tex. 1915); see
Eichelberger Y. Eichelberger, 582 S.W.2d 395,399 (Tex. 1979).
The Honorable William T. Hill, Jr. - Page 3 (JC-0025)
In Treadgillv.%ate,275 S.W.2d658 (Tex. Crim. App. l954),ourCourtofCriminalAppeals
held that where a city is authorized to adopt a nuisance ordinance that applies extraterritorially, a
municipal court has implied authority to hear cases arising from violations of the ordinance that
occur outside city limits. At issue in Treadgill was a City of Houston ordinance making it unlawful
to sell fireworks within city limits and within 5,000 feet outside city limits. The ordinance was
adopted pursuant to former article 1175 of the Revised Civil Statutes, the predecessor to current
Local Government Code section 217.042. The statute allowed a city to “define all nuisances and
prohibit the same within the city and outside the city limits for a distance of five thousand feet.” Id.
at 662. A person who had been convicted in municipal court for selling fireworks within 5,000 feet
outside the city limits appealed his conviction, in part on the grounds that the municipal court was
without jurisdiction to hear his prosecution. The Court of Criminal Appeals acknowledged that the
statute conferring jurisdiction on municipal courts gave them express jurisdiction only within their
corporate limits. But the court said that the proper question was one ofvenue, not jurisdiction, citing
the legislature’s power to authorize the trying of a person in a jurisdiction other than the jurisdiction
in which the person committed the offense. Id. at 663; but see id. at 665 (Woodley, J., dissenting)
(arguing that question was one of jurisdiction rather than venue and that municipal court had no
jurisdiction to try case arising from act outside city limits). The court found that the authority of a
municipal court to try cases arising from conduct committed beyond corporate limits was implied
by the fact that the city was authorized to prohibit nuisances there:
The right to prohibit such nuisances carries with it the right to do all
things necessary to that end, which extends to prosecution and punishment
in the courts having jurisdiction of such offense.
The ordinance making it unlawful to sell fireworks within five thousand
feet of the boundary line of the City of Houston being valid, the corporation
court of the City of Houston was a proper court in which a prosecution for a
violation of that ordinance might be maintained.
From what has been said, it is apparent that the ordinance here involved
is valid and the corporation court of the city of Houston is a proper forum in
which violations of that ordinance might be determined.
Id. at 664 (on motion for rehearing). At least one subsequent court has recognized the implied
jurisdiction of a municipal court over extraterritorial ordinance violations. See City of Westlake Hills
v. WestwoodLegalDefense Fund, 598 S.W.2d 681,687 (Tex. Civ. App.-Waco 1980, no writ) (“A
municipal court may have jurisdiction to try offenses occurring outside the corporate limits if
the offenses constitute violations of city ordinances which validly apply to the area in which the
offense occurred.“).
In the present case, the statute authorizing cities to prohibit nuisances beyond their borders
allows cities to “enforce all ordinances necessary to prevent and summarily abate and remove a
nuisance.” TEX. Lot. GOV’TCODEANN. 5 217.042(b) (Vernon 1988). We conclude in accordance
The Honorable William T. Hill, Jr. - Page 4 (X-0025)
with Treadgill that the Wylie municipal court has implied authority to hear nuisance cases arising
from conduct outside city limits.
While it can be argued that the express extraterritorial jurisdiction given to municipal courts
of record divests regular municipal courts of any implied jurisdiction, we do not think that the
legislature intended such aresult. The municipal court ofrecord statute was enacted in 1987 to give
all cities the ability to take advantage ofthe more streamlined appeals process from municipal courts
of record, a process previously available to only a few cities with their own specific statutes. See
HOUSERESEARCHORGANIZATION,BILLANALYSIS,T~~.H.B. 1879,70thLeg.,R,S.(May 12,1987);
HOUSE COMM. ON JUDICIALAFFAIRS, BILL ANALYSIS, Tex. H.B. 1879,7Otb Leg., R.S. (1987). To
establish a municipal court of record, a city’s governing body must find that “the formation of
municipal courts of record is necessary to provide a more efficient disposition of appeals from the
municipal court.” TEX. GOV’TCODEANN. $30.00002 (Vernon Supp. 1999). We find no evidence
in the legislative history of section 30.00002 that indicates that the statute was intended to provide
a way for a municipal court to obtain extraterritorial jurisdiction. In fact, a city cannot establish its
courts as municipal courts of record merely for the purpose of gaining such jurisdiction. Id. Nor do
we find any indication in the legislative history that the statute was intended to foreclose the
authority ofmunicipal courts to enforce extraterritorial nuisance ordinance violations implied by the
Court of Criminal Appeals in Treadgill.
We conclude, therefore, that the City of Wylie’s municipal court has jurisdiction over cases
arising from violations of its nuisance ordinance, adopted pursuant to Local Government Code
section 217.042, that occur outside city limits.
The Honorable William T. Hill, Jr. - Page 5 (JC-0025)
SUMMARY
Where a municipality is authorized to adopt a nuisance ordinance
applicable to conduct occurring outside city limits and where the
municipality has adopted such an ordinance, a municipal court has implied
jurisdiction over cases arising from violations of the ordinance that occur
outside city limits.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Prepared by Barbara Griffin
Assistant Attorney General