the State of Texas v. Matthew Dale Pugh

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-21-00108-CR
___________________________

THE STATE OF TEXAS

V.

MATTHEW DALE PUGH, Appellee

On Appeal from County Criminal Court No. 10
Tarrant County, Texas
Trial Court No. A3236651

Before Sudderth, C.J.; Birdwell and Bassel, JJ.
Memorandum Opinion by Chief Justice Sudderth
 MEMORANDUM OPINION

I. Introductory Summary

In the City of Arlington Municipal Court, a municipal court of record, a jury

convicted Matthew Dale Pugh of offensive physical contact, a Class C misdemeanor,

and the court assessed a $500 fine as Pugh’s punishment. See Tex. Penal Code Ann.

§ 22.01(a)(3), (c). Pugh appealed the municipal court’s judgment to County Criminal

Court No. 10, 1 which ruled in Pugh’s favor, reversed the municipal court’s judgment,

and remanded Pugh’s case for a new trial. The State now seeks to appeal the county

court’s judgment to us.

Concerned that we lacked jurisdiction over the State’s appeal because the State

did not meet the requirements of Texas Government Code Section 30.00027(a), we

asked the parties to show cause why it should not be dismissed. See Tex. Gov’t Code

Ann. § 30.00027(a). The State responded and asserted that we have jurisdiction.

Without ruling on the jurisdictional issue, we set the case for submission. The case

now having been submitted, we hold that we do not have jurisdiction over the State’s

appeal. See id.

For brevity, we refer to it as the county court.
1

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 II. Our Jurisdiction

When a case originates in a municipal court of record, is appealed to a county

court, and is then appealed to our court, the statute governing our jurisdiction is

Texas Government Code Section 30.00027:

(a) The appellant has the right to appeal to the court of appeals[ 2] if:

(1) the fine assessed against the defendant exceeds $100 and the
judgment is affirmed by the appellate court; or

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

(b) The provisions of the Code of Criminal Procedure relating to direct
appeals from a county or a district court to the court of appeals apply to
the appeal, except that:

(1) the record and briefs on appeal in the appellate court constitute
the record and briefs on appeal to the court of appeals unless the
rules of the court of criminal appeals provide otherwise; and

(2) the record and briefs shall be filed directly with the court of
appeals.

Id. at § 30.00027. In our clerk’s letter to the parties, we questioned our jurisdiction

because (1) the State was not appealing a case in which the defendant received a fine

in excess of $100 that the county court affirmed and (2) the State could not be

appealing the constitutionality of any underlying statute or ordinance on which the

2
In the context of the Texas Government Code, the “court of appeals” refers
to one of the fourteen district court of appeals, such as our own. The “appellate
court” refers to the county court acting in its capacity as an appellate court. See Tex.
Gov’t Code Ann. § 30.00002(1).

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conviction was based because there was no conviction. In the State’s response, it

argued that we have jurisdiction to hear the state’s appeal under Article 44.01 of the

Texas Code of Criminal Procedure, which entitles the state to appeal certain orders,

including orders that grant a new trial or modify a judgment. See Tex. Code Crim.

Proc. Ann. art. 44.01(a)(2)-(3). The State also argues that we have jurisdiction to

review the county court’s exercise of its jurisdiction.

III. The State’s Arguments and Analysis

A. Article 44.01

The State presents four arguments to support its position that it has the right to

appeal under Article 44.01. We address each argument in turn.

1. Section 30.00014(a)

First, to support its argument that Section 30.00027 does not prohibit an appeal

under Article 44.01, the State relies on Section 30.00014(a), which provides: “A

defendant has the right of appeal from a judgment or conviction in a municipal court

of record. 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). But Section 30.00014(a)

applies to appeals from the municipal courts of record to the county courts, not to

appeals from the county courts to a court of appeals. Section 30.00027 governs the

latter, and Section 30.00027 does not expressly refer to Article 44.01.

In our view, Section 30.00014(a) undercuts the State’s position, because in it

the legislature deliberately gave the State the right to appeal under Article 44.01. It

4
could have used that same language in Section 30.00027 but did not. See Fireman’s

Fund Cnty. Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 769 (Tex. 2000) (“When the Legislature

has employed a term in one section of a statute and excluded it in another, we

presume that the Legislature had a reason for excluding it.”)

2. Morales

Second, the State points to an opinion, State v. Morales, involving the State’s

appeal of a county criminal court’s orders affirming municipal court orders

(1) granting the defendant’s motion for new trial and (2) granting the defendant’s

application for writ of habeas corpus and entering a judgment of acquittal. 322

S.W.3d 297, 298 (Tex. App.—Dallas 2010, no pet.). In noting that “the State timely

appealed that judgment to this Court,” our sister court cited to Texas Code of

Criminal Procedure Article 44.01(a)(3) and (4). Id. To the extent that Morales

supports the position that we can consider Article 44.01 in our jurisdictional analysis,

we decline to follow it. But we are not convinced that Morales supports that

proposition at all. In Morales, the court of appeals’ jurisdiction does not appear to

have been a contested issue. The jurisdictional question was neither addressed nor

analyzed in the opinion, so there is no indication that the court, in citing to Article

44.01, was doing so after having received the benefit of adversarial briefing on that

point.

3. Alvarez

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 Third, the State relies on Alvarez v. Eighth Court of Appeals of Texas, 977 S.W.2d

590 (Tex. Crim. App. 1998) (orig. proceeding). But our case and Alvarez are not in the

same procedural posture. Our case involves the typical appellate ladder—municipal

court, to county court, to court of appeals. In contrast, Alvarez involved criminal

proceedings in the El Paso Municipal Court that were still pending; petitions for writ

of habeas corpus in the appellate court (the El Paso County Court at Law No. 3)—

original proceedings, not appeals; petitions for writ of mandamus and writ of

prohibition in the court of appeals (Eighth District Court of Appeals at El Paso)—

again, original proceedings, not appeals; and a petition for writ of mandamus in the

Texas Court of Criminal appeals—yet another original proceeding. Id. at 591. For

that reason, Government Code Section 30.00027 never came into play.3 Thus, Alvarez

3
Nor would Section 30.00027 (or any of its statutory predecessors) have ever
come into play. Had there been an ordinary appeal, El Paso municipal courts had a
city-specific statute, not a general statute, such as Section 30.00027, that would have
governed:

Sec. 30.073. APPEALS TO COURT OF APPEALS; RECORDS. (a) If
a judgment is affirmed or an appeal is dismissed by the appellate court,
the appellant may appeal to the court of appeals if the fine assessed
against the appellant in the municipal court of record exceeds $100 or if
the appellant has placed in issue in his brief filed in the appellate court
the constitutionality of the statute or ordinance on which his conviction
is based. If the constitutionality of a statute or an ordinance is in issue,
the court of appeals may consider only that issue and not other issues
that were before the appellate court.

Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws, 1720, 1841
(formerly codified at Tex. Gov’t Code Ann. § 30.073). In 1997, Section 30.073 was

6
did not address whether the City of El Paso had the right to appeal a county court

order disposing of an appeal from a municipal court of record.

4. Morse

Fourth, the State relies on State v. Morse, which involved the State’s attempt to

appeal a county court’s ruling reversing Morse’s conviction and ordering that the trial

court enter a judgment of aquittal. 903 S.W.2d 100, 101 (Tex. App.—El Paso 1995,

no pet.). Morse involved a Midland municipal court and was decided under Section

30.246 of the Texas Government Code, which applied specifically to Midland

municipal courts. Id. at 101–02.

Although Section 30.246 was similar to Section 30.00027(a), it differed from

Section 30.00027(a) in one important way:

SUBCHAPTER H. MIDLAND

....

§ 30.246. APPEAL TO COURT OF APPEALS

The defendant has the right to appeal to the court of appeals if the fine
assessed against the defendant exceeds $100 and the judgment is
affirmed by the appellate court. The provisions of the Code of Criminal
Procedure, 1965, relating to direct appeals from a county or a district
court to the court of appeals apply to the appeal, except that:

(1) the record and briefs on appeal in the appellate court and the
transcript of proceedings in the appellate court constitute the record

renumbered as Section 30.00163. Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 8.06,
1997 Tex. Gen. Laws 327, 389.

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 and briefs on appeal to the court of appeals unless the rules of the
court of criminal appeals provide otherwise; and

(2) the record and briefs shall be filed directly with the court of
appeals.

Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws, 1720, 1866

(formerly codified at Tex. Gov’t Code Ann. § 30.246) (emphasis added).

In holding that Article 44.01 authorized the state to pursue its appeal, the El

Paso Court of Appeals reasoned that because nothing in Section 30.246 expressly

prohibited a State’s appeal, Article 44.01 applied as a default provision. Morse, 903

S.W.3d at 103 (“[S]ince Section 30.237 and Section 30.246 have not been amended to

expressly prohibit a State’s appeal, such an appeal may be provided for in some

provision other than these statutes, namely, Article 44.01.”).

We are not in the same procedural posture as Morse. While Section 30.246 did

not address a State’s appeal, Section 30.00027 does. Section 30.246 used the word

“defendant,” so the restriction in Morse applied clearly only to defendants. But

Section 30.00027(a)’s use of “appellant” is broader and includes both defendants and

the State, so the restrictions apply to both.

We note that the earliest version of Section 30.00027 (the general provision, as

distinguished from provisions that apply strictly to one city, like the one in Morse) was

Section 30.505, and it used the term “defendant.” Act of May 23, 1987, 70th Leg.,

R.S., ch. 811, § 1, 1987 Tex. Gen. Laws, 2809, 2814. Effective September 1, 1997,

Section 30.505 was renumbered (without any editing) as Section 30.00025. Act of

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May 8, 1997, 75th Leg., R.S., ch. 165, § 8.02, 1997 Tex. Gen. Laws 327, 389. Thus, we

know that at one time the restriction applied only to defendants who had appealed

from the municipal court to the county court, who lost their appeal in the county

court, and who wanted to appeal from the county court to the courts of appeals.

But effective September 1, 1999, Section 30.00025 was renumbered as Section

30.00027 and—more importantly—the word “defendant” was changed to

“appellant.” Act of May 27, 1999, 76th Leg., R.S., ch. 691, § 1, 1999 Tex. Gen. Laws,

3263, 3270. When the legislature amends a statute, we presume that the legislature

intended to change the law, and we give effect to that intended change. Phelps v. State,

532 S.W.3d 437, 444 (Tex. App.—Texarkana 2017, pet. ref’d). By changing

“defendant” to “appellant,” the legislature broadened Section 30.00027(a) to

encompass the State.

Because the State falls under Section 30.00027(a), we have no need to look

beyond it for a default provision. In short, Article 44.01 of the Texas Code of

Criminal Procedure becomes superfluous to the analysis.

Furthermore, if we broadened Section 30.00027 to include the Texas Code of

Criminal Procedure to expand the right of appeal, we would have to include—in

addition to Article 44.01—Article 44.02. With exceptions applicable to plea bargains

not relevant here, Article 44.02 affords defendants unrestricted appeals: “A defendant

in any criminal action has the right of appeal under the rules hereinafter prescribed

. . . .” Tex. Code Crim. Proc. Ann. art. 44.02. And if we applied both Article 44.01

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and Article 44.02 to establish our jurisdiction to hear these appeals, then Section

30.00027(a) would be rendered meaningless. “In interpreting a statute, we must read

it as a whole and construe it to give meaning and purpose to every part.” Adcock v.

Sherling, 923 S.W.2d 74, 77 (Tex. App.—San Antonio 1996, no writ); see Washington v.

State, 449 S.W.3d 555, 569 n.10 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

Courts should avoid constructions that render statutes or portions thereof

meaningless. See Ludwig v. State, 931 S.W.2d 239, 242 n.9 (Tex. Crim. App. 1996);

Gordon v. State, 707 S.W.2d 626, 629 (Tex. Crim. App. 1986); Washington, 449 S.W.3d at

569 n.10.

B. Jurisdiction to Review Jurisdiction

Finally, the State relies on four cases for the proposition that we have

jurisdiction—independently of Section 30.00027—to review the county court’s

exercise of its jurisdiction over appeals from municipal courts of record:4

1. Martin

In Martin, after the defendant was convicted in a corporation court and

assessed a fine of $100, he tried to appeal to the county court for a trial de novo, but

the county court dismissed his appeal because it concluded that the defendant’s bond

4
The four cases are: Martin v. State, 346 S.W.2d 840 (Tex. Crim. App. 1961);
Morse, 903 S.W.2d at 102; Scheidt v. State, 101 S.W.3d 798, 799 (Tex. App.—Amarillo
2003, no pet.); and Bailey v. State, No. 05-97-00935-CR, 1998 WL 737978, at *1 n.1
(Tex. App.—Dallas Oct. 23, 1998, pet. ref’d) (mem. op., not designated for
publication).

10
was improper. 346 S.W.2d at 840. The defendant then tried to appeal directly to the

Texas Court of Criminal Appeals.5 Id.

The State argued that the Court of Criminal Appeals lacked jurisdiction because

in cases originating from a corporation court, the Court of Criminal Appeals’

jurisdiction was limited to convictions where the fine assessed “in the County Court”

exceeded $100. 6 Id. The Court of Criminal Appeals agreed that its jurisdiction over

county court judgments in that procedural posture was limited to cases in which the

county court assessed a fine in excess of $100, but it held that it had jurisdiction to

consider whether a county court erred in refusing to assert its jurisdiction. Id. “[T]he

The courts of appeals did not acquire criminal appellate jurisdiction until
5

September 1, 1981. Todd v. State, 661 S.W.2d 116, 117–18 (Tex. Crim. App. 1983).
6
Article 4.03 had similar wording, but the legislature amended Article 4.03 in
2011 to add “or affirmed”:

Art. 4.03. COURTS OF APPEALS. The Courts of Appeals shall have
appellate jurisdiction coextensive with the limits of their respective
districts in all criminal cases except those in which the death penalty has
been assessed. This Article shall not be so construed as to embrace any
case which has been appealed from any inferior court to 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.

Act of May 27, 2011, 82nd Leg., R.S. ch. 1324, § 1, art. 4.03, 2011 Tex. Sess. Law Serv.
3838, 3838 (codified at Tex. Code Crim. Proc. Ann. art. 4.03) (emphasis added).

11
question here presented is whether the county court should have dismissed the

appeal. If the bond was proper, his appeal should not have been dismissed and he is

entitled to a trial de novo.” Id. It continued, “There is no [constitutional] exception

. . . which would withhold jurisdiction of such a question from this court,” and it

concluded, “It is clear[,] therefore, that this Court has jurisdiction to review an order

of a county court dismissing an appeal from an inferior court.” Id.

Martin involved a county court refusing to assert its jurisdiction, and it was the

failure to assert jurisdiction—not a ruling on the merits of the appeal—that the Court

of Criminal Appeals said authorized it to review the county court’s decision. Here we

have a county court that asserted jurisdiction, not one that refused to assert its

jurisdiction, so the Martin rationale does not apply. Martin never addressed whether

the State could appeal an adverse ruling from the county court after the county court

had properly or improperly exercised its jurisdiction.

Further, we note that in the context of a defendant’s appealing of a county

court’s dismissal order, we have declined to apply Martin. See Ramirez v. State, No. 02-

12-00011-CR, 2012 WL 955371, at *1 (Tex. App.—Fort Worth Mar. 22, 2012, pet.

ref’d) (per curiam) (mem. op., not designated for publication). We analyzed the case

under Section 30.00027(a). Id. Because Martin predated Section 30.00027, and

because the right to appeal is statutory, we declined to extend Martin to the facts in

Ramirez. Id. For the same reasons, we decline to apply Martin here.

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 We note too that the Court of Criminal Appeals in Martin relied on the Texas

Constitution to determine its jurisdiction. Martin, 346 S.W.2d at 840. At issue here is

not the Court of Criminal Appeals’ jurisdiction but ours. Martin never addressed

whether its analysis would be the same if the jurisdiction in question was that of a

court of appeals.

Under the Texas Constitution, we have jurisdiction as “prescribed by law.” See

Tex. Const. art. V, § 6. The prescribed law is Section 30.00027.

2. Morse

We recognize that Morse has read Martin more broadly: “[A] court of appeals

may address the propriety of the county court’s exercise of jurisdiction, or refusal to do

so, under its general jurisdiction.” Morse, 903 S.W.2d at 102 (emphasis added) (citing

Martin, 346 S.W.2d at 840). We do not, however, read Martin so broadly. Martin

addressed only a county court’s refusal to exercise jurisdiction.

The State appears to read Morse for the proposition that courts always have the

power to determine jurisdiction. While it is true that we have the power to determine

our own jurisdiction, see Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996), the

State’s complaint is not with our jurisdiction. Rather, the State’s complaint is with the

county court’s exercise of its jurisdiction. To answer that question, we must have

jurisdiction over the State’s appeal, but we have no such jurisdiction under Section

30.00027(a). When an appellate court’s jurisdiction is not legally invoked, the appellate

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court has no power to act. Id. We have no power to address the merits of the State’s

complaints. 7

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Assuming that we had jurisdiction to review whether the county court
improperly exercised jurisdiction over Pugh’s appeal, our review would be focused
only on whether the county court properly asserted jurisdiction and, if it did, we
would not reach the merits of the county court’s decision. It appears from the record
that the county court properly exercised jurisdiction over Pugh’s appeal.
The record shows that Pugh invoked the jurisdiction of the county court by
timely filing a motion for new trial and a written notice of appeal. Even though
Pugh’s notice of appeal was not filed as a separate document, it was contained within
his cash deposit in lieu of bond, thus complying with the Texas Government Code.
See Tex. Gov’t Code Ann. § 30.00014(c), (d); see also Tex. R. App. P. 25.2(c)(2)
(providing that a notice of appeal “is sufficient if it shows the party’s desire to appeal
from the judgment or other appealable order”); Harkcom v. State, 484 S.W.3d 432, 434
(Tex. Crim. App. 2016) (“We do not require ‘magic words’ or a separate instrument to
constitute notice of appeal.”).
Pugh also timely filed a cash deposit in lieu of bond—for twice the amount of
the municipal court fine and costs—that complied with the Government Code. See
Tex. Gov’t Code Ann. § 30.00015(b) (“The appeal bond must be in the amount of
$100 or double the amount of the fines and costs adjudged against the defendant,
whichever is greater.”). For unknown reasons, the county clerk at some point sent a
letter to the municipal court stating that it was returning Pugh’s “appeal” because
Pugh had purportedly filed his “Appeal Bond” untimely, and his cash deposit was
thereafter apparently forfeited by the municipal court because it had erroneously
concluded that the county court had dismissed Pugh’s appeal. But we fail to see how
errors made by the county and municipal court clerks could deprive the county court
of jurisdiction that it had rightfully acquired. Nor could the clerk’s letter indicating—
also erroneously—that the county court had dismissed Pugh’s appeal deprive the
court of jurisdiction. The record shows that the county court did not dismiss Pugh’s
appeal, notwithstanding the clerk’s letter to the contrary. See Tex. R. App. P.
26.2(a)(1) (providing that, when no motion for new trial is filed, defendant must file
notice of appeal “within 30 days . . . after the day the trial court enters an appealable
order”); State v. Rosenbaum, 818 S.W.2d 398, 402 (Tex. Crim. App. 1991) (stating that
“entered by the court” in Article 44.01(d) means the signing of an order by the trial
judge); In re Simmonds, 271 S.W.3d 874, 881 n.5 (Tex. App.—Waco 2008, no pet.)
(“Plainly, a clerk’s letter like those sent to [the inmate] cannot satisfy the statute’s

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 3. Scheidt

In Scheidt, after the defendant was convicted in a municipal court, the county

court dismissed his appeal for want of jurisdiction. 101 S.W.3d at 798. Citing Morse,

the court of appeals wrote, “This court has jurisdiction to determine whether the

[county court] properly exercised its jurisdiction.” Id. at 799. Despite the broad

statement made, this case, too, involved the refusal of a county court to exercise its

jurisdiction. But, more importantly, the court in Scheidt never attempted to analyze its

jurisdiction under Section 30.00027 but relied, instead, strictly on Morse. Scheidt adds

nothing new to the jurisdictional analysis.

4. Bailey

In Bailey, the municipal court found the defendant guilty and assessed a $45

fine. 1998 WL 737978, at *1. After the county court affirmed the municipal court’s

judgment, the defendant appealed to the court of appeals and argued that neither the

municipal court nor the county court had jurisdiction. Id. The court of appeals relied

on Morse to assert jurisdiction. Id. n.1. As discussed above, we are not persuaded that

Morse is dispositive.

After considering the four cases that the State relies on—Martin, Morse, Scheidt,

and Bailey—we hold that the State, as the appellant, cannot meet Section

requirement for a court order.”). Indeed, Pugh’s appeal remained pending in the
county court until, properly asserting its jurisdiction over the appeal, the county court
asked the parties to file briefs, and, ultimately ruled on the merits.

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30.00027(a)(1)’s requirement because, regardless of the amount of any fine, the county

court did not affirm Pugh’s conviction. After the county court’s ruling, Pugh has

neither a fine nor a conviction. And the State, as the appellant, cannot meet Section

30.00027(a)(2)’s requirement because the State is not contesting the constitutionality

of the statute or ordinance on which Pugh’s conviction was based.

Finally, Section 30.00027(b) providing that the provisions of the Code of

Criminal Procedure apply to these appeals, refers to “the appeal,” which we construe

to mean an appeal under Section 30.00027(a). Section 30.00027(b) addresses

procedural, not jurisdictional, issues, and for the reasons set forth above, we do not

read it to broaden our jurisdiction beyond that set forth in Section 30.00027(a).

The State’s appeal is thus not authorized under Section 30.00027.

We hold that we do not have jurisdiction over the State’s appeal. See Tex.

Gov’t Code Ann. § 30.00027.

IV. Conclusion

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

/s/ Bonnie Sudderth

Bonnie Sudderth
Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: June 2, 2022

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