Jennifer Louise Bell v. State ( 1999 )

Jennifer Louise Bell v. The State of Texas

  IN THE

TENTH COURT OF APPEALS

No. 10-98-084-CR

     JENNIFER LOUISE BELL,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the County Court at Law No. 2

McLennan County, Texas

Trial Court # 980304 CR2

                                                                                                               Â

MEMORANDUM OPINION

                                                                                                               Â

      Jennifer Bell was convicted of three traffic violations in the Hewitt Municipal Court. She appealed the convictions and was tried de novo in the County Court at Law No. 2 of McLennan County. This appeal covers one of those convictions. Bell appeals on five points.

      Bell's first point asserts that the “original trial court lacked jurisdiction over unsworn 'complaint.'” She argues that the arresting officer testified in the municipal court that he did not “raise [his] hand and swear to these complaints.”

      Proceedings in municipal courts are commenced by complaint. Tex. Code Crim.. Proc. Ann. art. 45.01 (Vernon Supp. 1998). These complaints may be sworn to before any officer authorized to administer oaths, the municipal judge, the court clerk or his deputy, the city attorney or his deputy, or the city secretary. Id.

      The clerk's record contains two copies of the complaint: one dated June 20, 1997, and one dated December 8, 1997. Both are signed by Officer Robert Summers and “sworn to and subscribed before” Cathy Miller, the clerk of the municipal court. No statement of facts exists from the municipal court hearing. At the trial de novo, Officer Summers did not agree with Bell's recitation of his testimony in municipal court. Officer Summers stated that he had signed the same complaints against Bell three to four times. He testified that he had sworn to the information again the day of the trial de novo.

      We believe the evidence is sufficient to show that the complaint was properly verified. We overrule point one.

      Her second point asserts that both the Hewitt Municipal Court and the County Court at Law No. 2 “lack personam jurisdiction of the State.” Bell argues that the State should have been represented by the McLennan County District Attorney rather than the Hewitt city attorney.

      Bell argues that article V, section 21, of the Texas Constitution mandates that a county or district attorney represent the State in all criminal cases. Tex. Const. art. V, § 21. That constitutional provision states: “if any county shall be included in a district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shall in such counties be regulated by the Legislature.” Id.

      The Legislature has provided for prosecutions in municipal courts:

 

All prosecutions in a municipal court shall be conducted by the city attorney of such city, town or village, or by his deputy. . . . With the consent of the county attorney, appeals from municipal court to a county court, county court at law, or any appellate court may be prosecuted by the city attorney or his deputy.

Tex. Code Crim. Proc. Ann. art. 45.03 (Vernon Supp. 1998). We agree with the Fort Worth Court which has already visited this question in Naff v. State, 946 S.W.2d 529, 532 (Tex. App.—Fort Worth 1997, no pet.). A city attorney's representation for the State does not violate the Texas Constitution nor Bell's due process rights. We overrule point two.

      Bell's third point asserts “improperly set forum.” She argues that the City of Hewitt controls both the municipal prosecutor and the municipal judge in violation of due process. She further states that the municipal court has been “transformed into a forum where all officers are illegally controlled by the city council, (for the purpose of illicit revenue raising).”

      The State responds that the convictions before us are from the County Court at Law No. 2; that the presiding judge of that court is paid by McLennan County; and that therefore there is no issue of judicial influence or partiality. We agree with the State and overrule point three.

      Bell's fourth point asserts that the Hewitt City Court is “subverted to produce convictions and illegal revenue to cities and city attorneys.” She reiterates some of her arguments under points two and three.

      The Legislature has provided for proceedings in municipal courts. Tex. Code Crim. Proc. Ann. arts. 45.01-.56 (Vernon 1979 & Supp. 1998). Incorporated cities may pass ordinances and collect fines imposed by municipal courts. Id. art. 45.06. We do not find that these statutory provisions violate Bell's due process. We overrule point four.

      Bell's final point asserts that Kathleen Dow acted as the Hewitt City Attorney but is also the Municipal Judge of Bellmead. She asserts that by holding both offices, Dow is in violation of the Texas Constitution. Tex. Const. art. XVI, § 40. Article XVI, section 40, prohibits a person from holding more than one civil office at a time. Id. Section 40 also provides: “[A] nonelective State officer may hold other nonelective offices under the State . . . if the other office is of benefit to the State of Texas . . . and there is no conflict with the original office for which he receives salary or compensation.” Id.

      A municipal judge, whether elected or appointed, full or part-time, holds a “public office.” Op. Tex. Att'y Gen. No. DM-428 (1996). However, an assistant district attorney does not hold office. Id. (citing State ex rel., Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994). If Dow is an assistant prosecutor, she is not prohibited by section 40. Furthermore, even if both positions are “offices,” Dow may hold both if it benefits the State and there is no conflict. Id.; Tex. Const. art. XVI, § 40. We do not find the type of conflicting loyalties which would prohibit Dow from prosecuting for the City of Hewitt.

      We overrule point five and affirm the judgment.

 

                                                                   BILL VANCE

                                                                   Justice

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

      (Justice Cummings not participating)

Affirmed

Opinion delivered and filed January 20, 1999

Do not publish

MsoNormal> Justice

 

Before Chief Justice Gray,

  Justice Vance, and

          Justice Reyna

Affirmed

Opinion delivered and filed November 3, 2004

Do not publish

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