concurring.
I concur in the result reached by the Court but cannot agree with its reasoning. The Court has implicitly abandoned the well settled rule that a suit to enjoin enforcement of a penal statute is a civil case. See, Passel v. Fort Worth Independent School District, 440 S.W.2d 61 (Tex.1969); City of Richardson v. Kaplan, 438 S.W.2d 366 (Tex.1969); City of Fort Worth v. Craik, 411 S.W.2d 541 (Tex.1967); State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.1964); State v. Logue, 376 S.W.2d 567 (Tex.1964); Crouch v. Craik, 369 S.W.2d 311 (Tex.1963); City of Dallas v. Dallas County House Movers Association, 555 S.W.2d 212 (Tex.Civ.App.—Dallas 1977, no writ); Holt v. City of San Antonio, 547 S.W.2d 715 (Tex.Civ.App.—San Antonio 1977, writ ref’d n.r.e.); Better Home Products of Texas Co. v. City of Dallas, 517 S.W.2d 373 (Tex.Civ.App.—Dallas 1974, writ ref’d n.r.e.). The basis for the Court’s opinion is the 1980 amendment to Article Y, section 3 of the Texas Constitution. The 1980 amendment, however, did not transform these civil cases into “criminal law matters.” The 1980 amendment did nothing more than recognize that the jurisdiction of the courts of appeal had expanded to include criminal cases. Before the amendment our appellate jurisdiction extended to “... questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction ...” Tex. Const, art. V, § 3 (1930). When the courts of civil appeals became courts of appeals with jurisdiction over both criminal and civil matters it became necessary to conform Article V, section 3.
The general rule is that equity will not enjoin enforcement of the criminal law. State v. Logue, supra at 569. Ordinarily the meaning and validity of a penal statute or ordinance should be determined by courts exercising criminal jurisdiction. Passel v. Fort Worth Independent School District, supra at 63. This Court, however, has recognized an exception to the general rule. Before the present opinion, a court of equity could enjoin enforcement of a criminal law if the law was unconstitutional and its enforcement would result in irreparable injury to vested property rights. See, Passel v. Fort Worth Independent School District, supra; City of Richardson v. Kaplan, supra; City of Fort Worth v. Craik, supra; State v. Shoppers World, Inc., supra; State v. Logue, supra; Crouch v. Craik, supra; City of Dallas v. Dallas County House Movers Association, supra; Holt v. City of San Antonio, supra; Better Home Products of Texas Co. v. City of Dallas, supra.
In our present case, Dearing has failed to plead or prove that any vested property right will be injured, irreparably or otherwise, if the State is allowed to proceed in the criminal case. Even had Dearing alleged injury to a vested property right, he could not have shown irreparable harm because he possessed an adequate remedy at law. Dearing may assert the unconstitutionality of the statute in question as a defense in his criminal case. City of Dallas v. Dallas County House Movers Association, supra. In Logue v. State, supra at 570, we said:
If there is an adequate remedy at law by setting up the defense of unconstitutionality of the statute in question in a criminal proceeding, then the trial court had no jurisdiction to enjoin such criminal proceedings...
*291The trial court therefore should not have ruled on the constitutional question in the absence of an irreparable injury to a vested property right, but should have dismissed the action for lack of jurisdiction. I would reverse the judgment of the trial court and dismiss the cause.
KILGARLIN, J., joins in this concurring opinion.