Opinion
No. 05-07-00680-CR
Opinion issued February 20, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Dallas County Criminal Court of Appeals, Dallas County, Texas, Trial Court Cause No. MC-06-R-0003-D.
Before Justices RICHTER, FRANCIS, and LANG-MIERS.
OPINION.
Gary Wayne Weiss appeals his conviction for maintaining a building in a substandard condition. In two issues, appellant contends the trial court erred in denying his first amended motion to quash and he was denied due process of law. We affirm. Appellant is the president of a company that manages apartments in the city of Carrollton. By ordinance, Carrollton has adopted the Uniform Housing Code (UHC), 1997 edition, as part of its construction code. Section 204 of the UHC provides "[i]t shall be unlawful for any person, firm or corporation to . . . use, occupy, or maintain any building or structure or cause or permit the same to be done in violation of this code." During an inspection, Carrollton discovered substandard conditions in the apartments and issued a repair notice to the apartment complex. Subsequently, Carrollton cited appellant for violating UHC section 1001.8 for "faulty weather protection due to deteriorated (crack) exterior brick wall" in building 5, unit 503 of the apartment complex. Appellant moved to quash the citation. Among other grounds, appellant contended that Carrollton violated his right to due process of law when it cited him without first giving him personal notice of the substandard condition and allowing him an administrative appeal of the repair order. Appellant cited UHC section 202 which covers abating the public nuisance caused by a substandard building. Section 202 states that the abatement process is governed by procedures set out in UHC chapter 11. Chapter 11, in turn, includes provisions for notifying the record owner of the building of the repair order and of the owner's right to administratively appeal the finding that the building is substandard. After a hearing, the trial court denied appellant's first amended motion to quash. Appellant entered a nolo contendere plea to the offense, and the trial court assessed punishment at a $300 fine. The Dallas County Criminal Court of Appeals affirmed. After noting that Carrollton is a home rule city, the criminal court of appeals concluded that appellant's interpretation of the UHC ordinance would limit Carrollton's constitutionally derived power to enforce its ordinances and protect its citizens. The court further noted that chapter 12 of the UHC allows a cited defendant to appeal an action of the building inspector, and the record did not indicate that appellant had availed himself of this appellate remedy. Appeal is brought from the criminal court of appeals's decision. See Tex. Gov't Code Ann. § 30.00027 (Vernon 2004) (allowing appellant the right to appeal to this Court and providing the record and briefs filed with the criminal court of appeals constitute the record on appeal). In his first issue, appellant contends the trial court erred in denying his first amended motion to quash. In his second issue, appellant contends Carrollton's ordinance required it to notify him of his right to request an administrative appeal, and afford him such appeal, before issuing criminal citations for violating the ordinance or failing to make repairs to the property. Because the issues are intertwined and argued jointly, we will address them together. The City of Carrollton is a home rule city. See Carrollton, Tex., Charter art. I, § 1.04 (2004). A home rule city is self-governing, may adopt ordinances consistent with its charter, and exercises all powers consistent with the Constitution and state statutes. See Tex. Const. art. XI, § 5; Wilson v. Andrews, 10 S.W.3d 663, 666 (Tex. 1999). Appellant does not contend that the City's ordinance is unconstitutional nor does he cite any statute that would require the City to notify him of a right to appeal the finding of a substandard condition at the apartments before citing him for violating the ordinance. Appellant complains only of the manner in which Carrollton has interpreted and applied its ordinance to him. We interpret ordinances and statutes under the same rules of construction. City of Dallas v. Blanton, 200 S.W.3d 266, 277 (Tex.App.-Dallas 2006, no pet.). Our primary duty is to carry out the intent of the municipal legislative body. Id. To discern the legislative intent, we focus on the literal text of the ordinance to make out its plain meaning. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991) (en banc). We give effect to the plain meaning of a clear and unambiguous ordinance unless doing so would lead to absurd results. Williams v. State, 127 S.W.3d 442, 444-45 (Tex.App.-Dallas 2004, pet. ref'd). We presume that every word in the ordinance was used purposefully and every word, phrase, clause, and sentence is given effect if reasonably possible. Ex parte Hood, 211 S.W.3d 767, 773 (Tex.Crim.App. 2007), cert. denied, 128 S.Ct. 48 (2007). Applying the rules of construction to the present case, nothing in the UHC suggests that Carrollton must notify a defendant of the right to administratively appeal a finding that property is substandard before citing the defendant for maintaining the property in a substandard condition. In comparing sections 202 and 204 of the UHC, we note that section 202 governs the remediation of substandard buildings while section 204 describes violations of the law arising from the substandard conditions. Section 202 expressly states that the repair, rehabilitation, demolition, or removal of the substandard building must occur "in accordance with the procedure specified in Chapter 11 of this code." Chapter 11 is not mentioned in section 204. We presume that words excluded from an ordinance were excluded on purpose. See Blanton, 200 S.W.3d at 277. Turning to the language of Chapter 11, we find it focuses on the substandard building and does not address any criminal violations, fines, or offenses that might be charged against the owner or owner's representative. Section 1101 states that after the City's building official determines that a building is substandard, "the building official shall commence proceedings to cause the repair, rehabilitation, vacation or demolition of the building." Section 1101 describes the contents of the notice that must be given to the property owner, including the right to appeal the building official's finding, and describes how the owner must be served. The remaining provisions of Chapter 11 discuss recording of the notice and order, the standards applicable in resolving the substandard condition, and the posting of a notice to vacate, if necessary. We conclude, under the plain language of sections 202, 204, and the Chapter 11 provisions, Carrollton's citation to appellant for maintaining a substandard building is independent of its actions taken to abate the public nuisance caused by the substandard condition. See OHBA Corp. v. City of Carrollton, 203 S.W.3d 1, 4-5 (Tex.App.-Dallas 2006, pet. denied) (concluding corporate owner of Irishman's Creek apartments lacked standing to sue City of Carrollton over citations issued to property manager). Appellant contends that because he "stood in the shoes" of the building's owner, that he was entitled to notice of the earlier finding of substandard conditions. He contends the failure to provide him with such notice violated his right to due process "pursuant to the Federal and Texas constitutions, particularly pursuant to Article I, Section 19 of the Texas Constitution" because he would have pursued an administrative appeal. The Texas Constitution provides, "[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." Tex. Const. art. I, § 19. Appellant cites no authority interpreting article I, section 19 as entitling him to notice and an administrative appeal of the underlying determination of a substandard condition on the property. Even if appellant had notice, we are unpersuaded that he would have standing to pursue an appeal or that a justiciable controversy would exist between himself and the City. See OHBA, 203 S.W.3d at 4-5. Carrollton has both the right and the duty to exercise its police power for the safety and protection of its residents. Cf. Ex parte Clark, 139 Tex. Crim. 385, 140 S.W.2d 854, 856 (Tex.Crim.App. 1940) (a municipality using its police power within its scope, in a proper and lawful manner, is due process of law). Thus, we conclude the City did not violate appellant's right to due process of law. Because there was no due process violation, the trial court did not err in denying appellant's motion to quash. We overrule appellant's issues. The criminal court of appeals concluded that appellant could have appealed his conviction under chapter 12 of the UHC. We note that section 1201.1 allows appeal by "[a]ny person entitled to service under Section 1101.3. . . ." Section 1101.3 does not list property managers among those entitled to service. Because appellant was not entitled to notice, we view as immaterial any determination of whether he could have administratively appealed the substandard finding under the provisions of chapter 12. We affirm the judgment of the county criminal court of appeals.
The record indicates that a transcription was made of the hearing on the motion to quash. Although the transcription was filed with the county criminal court of appeals, the transcription does not appear in our record. In his brief, appellant cites the reporter's record of the hearing as showing he was president of the management company, the apartments were served with a notice of violation, he was subsequently criminally cited, he disputed the City's determination that the property was substandard, and he would have appealed the City's determination if he was informed of the opportunity to do so. Because this appeal turns upon an interpretation of the City's UHC ordinance rather than upon any disputed facts, we will assume arguendo the accuracy of appellant's representations regarding the testimony and evidence at the hearing.