                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00084-CV


IN RE GREGORY SCOTT MIZER                                              RELATOR


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                            ORIGINAL PROCEEDING

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                                    OPINION

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                                  I. Introduction

      Relator Gregory Scott Mizer seeks a writ of mandamus that directs

Respondent, the Honorable Joe Bridges of Denton County Criminal Court No. 4,

to withdraw its order dismissing his appeal, enter a scheduling order providing

time for the parties to submit briefs, hear oral arguments, and rule on the merits

of his appeal. We conditionally grant the requested relief in part.

                    II. Factual and Procedural Background

      The City of Roanoke cited Mizer fourteen times for violating a city

ordinance by parking cars on an unapproved surface in a lot next to his auto
repair shop. The City filed complaints for the citations, Mizer pleaded not guilty,

and the cases were tried in a municipal court of record. On September 27, 2011,

the municipal court found Mizer guilty of all charges and fined him $25,396.

Mizer filed a motion for new trial, in which he contested the constitutionality of the

city ordinance under which he was convicted, the validity of the complaint, the

jurisdiction of the municipal court, and the sufficiency of the evidence.        The

municipal court denied his motion for new trial on October 12, 2011.

      Mizer subsequently filed a notice of appeal and attempted to file appeal

bonds for the convictions. The municipal court denied Mizer‘s appeal bonds on

November 2, 2011, and Mizer petitioned Respondent for mandamus relief. While

Mizer‘s petition for writ of mandamus was pending with Respondent, he received

a notice from the same court that stated, ―This court is considered the Appellant

[sic] Court for the above reference [sic] case. The appeal for this case was filed

with our office on 1/4/2012. Please consult the rules of Appellate Procedure

regarding the filing of Briefs [sic] on this matter.‖

      On May 17, 2012, Respondent granted Mizer mandamus relief and held

that his bonds were valid and that it had jurisdiction to hear his appeal. Mizer did

not file a brief with Respondent, and on October 26, 2012, Respondent

dismissed his appeal without notifying him before the dismissal. Respondent

sent notice of its decision to Mizer at the City‘s attorney‘s address on October 30,

2012, and the City‘s attorney forwarded the notice to Mizer two days later.




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      In its dismissal order, Respondent stated that it was dismissing Mizer‘s

appeal on the ground that he had failed to file a brief as required by government

code section 30.00021(b). According to Respondent‘s order, its January 4, 2012

notice informed Mizer that the trial record had been filed with Respondent as

required by government code section 30.00020, and because Mizer had failed to

file a brief within fifteen days of this notice or Respondent‘s May 17, 2012 order

permitting his appeal, Respondent was dismissing Mizer‘s appeal. The order

―dismissed [Mizer‘s appeal] and remanded [it] back to the lower court for

execution of sentence.‖

      Mizer appealed Respondent‘s order to this court in November 2012, and

we dismissed the appeal for want of jurisdiction because Respondent had not

affirmed the municipal court‘s judgment or passed on the merits of Mizer‘s

constitutional question as required under government code section 30.00027 for

an appeal to a court of appeals. Mizer v. State, No. 02-12-00560-CR, 2013 WL

709274, at *1 (Tex. App.—Fort Worth Feb. 28, 2013, no pet. h.) (mem. op., not

designated for publication). Mizer now petitions this court for mandamus relief.

                                   III. Analysis

      Mizer argues in his petition that Respondent abused its discretion by

dismissing his appeal for failure to file a brief, in violation of rule of appellate

procedure 38.8(b) and article 44.33(b) of the code of criminal procedure. See

Tex. R. App. P. 38.8(b)(1); see also Tex. Code Crim. Proc. Ann. art. 44.33(b)

(West 2006). The City responds that only chapter 30 of the government code


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controls appeals to county criminal courts and that Respondent acted within its

discretion by dismissing Mizer‘s appeal for his failure to file a brief under section

30.00021(b). See Tex. Gov‘t Code Ann. § 30.00021(b) (West 2012). In reply,

Mizer argues that even if rule of appellate procedure 38.8(b) does not apply,

Respondent abused its discretion by disposing of his appeal in a manner not

prescribed by section 30.00024 of the government code. See id. § 30.00024(a)

(West Supp. 2012).

   A. Standard of Review

      Mandamus relief is proper only to correct a clear abuse of discretion when

there is no adequate remedy by appeal. In re State, 355 S.W.3d 611, 613 (Tex.

2011) (orig. proceeding). A court clearly abuses its discretion when it reaches a

decision so arbitrary and unreasonable as to amount to a clear and prejudicial

error of law or if it clearly fails to correctly analyze or apply the law. In re Olshan

Found. Repair Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig. proceeding); Walker

v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

B. Dismissal

      Section 30.00024 of the government code states that an appellate court

may dispose of appeals over which it has jurisdiction in four ways: ―(1) affirm the

judgment of the municipal court of record; (2) reverse and remand for a new trial;

(3) reverse and dismiss the case; or (4) reform and correct the judgment.‖ Tex.

Gov‘t Code Ann. § 30.00024(a). Additionally, any court may dismiss a case for

lack of jurisdiction over the controversy. See Reger v. State, 222 S.W.3d 510,


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512–13 (Tex. App.—Fort Worth 2007, pet. ref‘d) (citing Olivo v. State, 918

S.W.2d 519, 523 (Tex. Crim. App. 1996)).

      Here, Respondent dismissed Mizer‘s appeal and remanded the case to the

municipal court for execution of the sentence because Mizer had failed to file a

brief within the time provided in section 30.00021(b) of the government code.

Because Respondent‘s action is not among those permitted by government code

section 30.00024, see Tex. Gov‘t Code Ann. § 30.00024(a), we must determine

whether its dismissal for lack of jurisdiction was proper, see Reger, 222 S.W.3d

at 512–13.

      The City cites government code section 30.00021(b) for the proposition

that an appellant must timely file a brief before a county court may hear his

appeal. Indeed, section 30.00021(b) states that ―[t]he appellant must file the brief

with the appellate court clerk not later than the 15th day after the date on which

the clerk‘s record and reporter‘s record are filed with that clerk.‖ Tex. Gov‘t Code

Ann. § 30.00021(b).

      Although the Code Construction Act states that ―‗must‘ creates or

recognizes a condition precedent,‖ id. § 311.016(3) (West 2013), we consider

―the plain meaning of the words used, as well as the entire act, its nature and

object, and the consequences that would follow from each construction‖ when

determining whether a statute is mandatory or directory. Helena Chem. Co. v.

Wilkins, 47 S.W.3d 486, 494 (Tex. 2001).




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      Here, the legislature authorized cities to create municipal courts of record

and permitted appellate review by county courts to speed the disposition of cases

and to avoid the ―wasteful duplication of effort‖ caused by the de novo system of

review applied to most appeals to county courts. See House Comm. on Judicial

Affairs, Bill Analysis, Tex. H.B. 1879, 70th Leg., R.S. (1987). Neither section

30.00021(b) nor the statute‘s purpose indicates that the legislature intended the

briefing requirement to be a mandatory requirement.        Compare Nicholson v.

Shinn, No. 01-07-00973-CV, 2009 WL 3152111, at *4 (Tex. App.—Houston [1st

Dist.] Oct. 1, 2009, no pet.) (mem. op.) (holding that sections 74.051 and 74.052

of the civil practices and remedies code are mandatory because the sections

further the purpose of the Medical Liability and Improvement Act), with Charlton

v. State, 334 S.W.3d 5, 11 (Tex. App.—Dallas 2008, no pet.) (holding that the

three-day period provided under family code section 233.0024 for a trial court to

sign an agreed child support review order is not mandatory because to so hold

would contradict the statute‘s purpose).

      Even a mandatory statute is not necessarily jurisdictional, City of DeSoto v.

White, 288 S.W.3d 389, 395 (Tex. 2009), and we consider ―the presence or

absence of specific consequences for noncompliance‖ when determining

whether a statute is jurisdictional. Wilkins, 47 S.W.3d at 495. And a statute

specifying ―that an act be performed within a certain time without any words

restraining the act‘s performance after that time . . . is usually directory.‖   Id.




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Here, section 30.00021(b) provides no consequences for noncompliance. See

Tex. Gov‘t Code Ann. § 30.00021(b).

      Finally, we consider the ―consequences that result from each possible

interpretation.‖ Wilkins, 47 S.W.3d at 495. Interpreting section 30.00021(b) as a

jurisdictional requirement is contrary to this state‘s policy against appellate

courts‘ denying jurisdiction to hear criminal appeals without an appellant‘s brief.

See Tex. R. App. P. 38.8(b)(1); see also Tex. Code Crim. Proc. Ann. art.

44.33(b); Carter v. State, 656 S.W.2d 468, 469 (Tex. Crim. App. 1983) (noting

that an appellant invokes the appellate court‘s jurisdiction by filing a notice of

appeal, not by filing a brief); Easley v. State, No. 03-08-00098-CR, 2008 WL

900960, at *1 (Tex. App.—Austin Apr. 2, 2008, no pet.) (mem. op., not

designated for publication) (noting that the county court considered the appeal

and affirmed the conviction despite the appellant‘s failure to file a brief).

      Thus, government code section 30.00021(b) is neither mandatory nor

jurisdictional, and Respondent clearly abused its discretion by dismissing Mizer‘s

appeal on this ground. See Olshan Found. Repair Co., 328 S.W.3d at 888.

      Finally, as we held in our dismissal of Mizer‘s appeal in this case, we have

no jurisdiction to hear Mizer‘s appeal until Respondent affirms the conviction or

addresses the merits of Mizer‘s constitutional question. See Mizer, 2013 WL

709274, at *1. Thus, Mizer has no adequate remedy by appeal. See In re Van

Waters & Rogers, Inc., 145 S.W.3d 203, 210–11 (Tex. 2004) (orig. proceeding).




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                                  IV. Conclusion

      Having held that Respondent clearly abused its discretion by dismissing

Mizer‘s appeal and that Mizer has no adequate remedy by appeal, we

conditionally grant his petition for writ of mandamus in part and order

Respondent to set aside its October 26, 2012 order dismissing his appeal and to

enter a scheduling order granting Mizer fifteen days to file a brief. All other relief

requested is denied.     A writ of mandamus will issue only in the event that

Respondent fails to comply with our instructions within thirty days of the date of

this opinion.


                                                           BOB MCCOY
                                                           JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: May 30, 2013




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