                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-12-00216-CR
                               No. 10-12-00217-CR

MARK KEN TAFEL,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                        From the 220th District Court
                          Hamilton County, Texas
                   Trial Court Nos. CR07724 and CR07725


                         MEMORANDUM OPINION


      In each cause number, the trial court convicted Mark Ken Tafel of the offense of

unlawful carrying of a handgun by a license holder and assessed his punishment at a

fine of $1,500.00. We vacate and remand.

                                 Background Facts

      Mark Ken Tafel is a County Commissioner for Hamilton County. Sheriff Gregg

Bewley met with Tafel in February 2011 over concerns that Tafel was carrying a
concealed handgun to meetings of the Commissioners Court and informed Tafel that he

was not authorized to bring a weapon to the meetings. On April 14, 2011, County Judge

Randy Mills issued a letter to Tafel authorizing Tafel to carry concealed handguns to

the meetings. Judge Mills gave a copy of the letter to Tafel and also kept a copy for

himself. Judge Mills did not file the letter in any court in Hamilton County.

        On November 14, 2011, Sheriff Bewley attended the meeting of the

Commissioners Court and observed a bulge that he believed was a weapon under

Tafel’s left arm. Sheriff Bewley recovered a .45 caliber handgun and a .22 caliber

revolver from Tafel, and he placed Tafel under arrest.

        Tafel was indicted on two felony charges and two misdemeanor charges related

to the incident. The trial court acquitted Tafel on the felony charges and convicted him

on the misdemeanor charges.

                                        Jurisdiction

        In his first issue, Tafel argues that the 220th District Court of Hamilton County

did not have subject-matter jurisdiction over the misdemeanor charges. The Texas

Code of Criminal Procedure states that:

        District courts and criminal district courts shall have original jurisdiction
        in criminal cases of the grade of felony, of all misdemeanors involving
        official misconduct, and of misdemeanor cases transferred to the district
        court under Article 4.17 of this code.

TEX. CODE CRIM. PRO. ANN. art. 4.05 (West 2005). A county court has exclusive original

jurisdiction of misdemeanors other than misdemeanors involving official misconduct




Tafel v. State                                                                          Page 2
and cases in which the highest fine that may be imposed is $500 or less. TEX. GOV’T

CODE ANN. § 26.045 (a) (West Supp. 2012).

        The State argues that the charges were within the subject-matter jurisdiction of

the district court because the charges involve official misconduct.    Official misconduct

is defined as “an offense that is an intentional or knowing violation of a law committed

by a public servant while acting in an official capacity as a public servant.” TEX. CODE

CRIM. PRO. ANN. art. 3.04 (1) (West 2005). Tafel argues that the indictment did not allege

official misconduct so as to invest the district court with subject-matter jurisdiction.

        To constitute an indictment, the charging instrument must charge: (1) a person,

and (2) the commission of an offense. Teal v. State, 230 S.W.3d 172, 179 (Tex. Crim. App.

2007). The proper test to determine if a charging instrument alleges "an offense" is

whether the allegations in it are clear enough that one can identify the offense alleged.

Teal v. State, 230 S.W.3d at 180.

        In Teal, the indictment alleged the offense of hindering apprehension, but the

indictment failed to include an allegation that the defendant had knowledge of the

suspect's status as a fugitive felon, the element that raised the offense to a felony. The

Court found that the indictment was defective because it omitted one of the two

elements that raise hindering apprehension from a misdemeanor to a felony, but it was

nonetheless sufficient to vest jurisdiction because it charged "an offense" and one could

fairly conclude from the face of the charging instrument that the State intended to

charge a felony offense. Teal v. State, 230 S.W.3d 172, 182. The Court further found that



Tafel v. State                                                                         Page 3
the appellant should have objected to the defective indictment if he was confused about

whether the State did or intended to charge him with a felony. Id.

        In Kirkpatrick v. State, the appellant was indicted for one felony offense and two

misdemeanor offenses. The appellant was convicted of the two misdemeanor offenses

and argued on appeal that the district court lacked subject-matter jurisdiction over the

misdemeanor offenses. Kirkpatrick v. State, 279 S.W.3d 324 (Tex. Crim. App. 2009). The

Court found that “although the indictment properly charged a misdemeanor and

lacked an element necessary to charge a felony, the felony offense exists, and the

indictment's return in a felony court put appellant on notice that the charging of the

felony offense was intended.” Kirkpatrick v. State, 279 S.W.3d at 329. The Court further

noted that “the face of each indictment contains a heading: ‘Indictment-Tampering

with a Governmental Record 3rd Degree Felony,--TPC § 37.10(a)-Code 73990275.’” Id.

The Court held that because Penal Code section was easily ascertainable, and the

notation that the offense was a third-degree felony clearly indicated that the State

intended to charge a felony offense, the district court had subject-matter jurisdiction.

Appellant had adequate notice that she was charged with a felony. If she had confusion

about whether the State did, or intended to, charge her with a felony, she could have,

and should have, objected to the defective indictment before the date of trial.

        In the case before us, the indictments alleged that Tafel:

        did then and there, in Hamilton County, Texas, while [Tafel] was a person
        licensed to carry a handgun under Subchapter H, Chapter 411,
        Government Code of Texas, intentionally or knowingly carry a handgun
        under Subchapter H, Chapter 411, at a meeting of a governmental entity,


Tafel v. State                                                                      Page 4
        to-wit: a meeting of the Hamilton County, Texas Commissioners Court at
        the Hamilton County Texas Courthouse Annex District Courtroom…

The indictments do not allege that Tafel was a public servant acting in his official

capacity. The indictments do not in any way reference official misconduct, nor do they

clearly indicate that the State intended to charge Tafel with official misconduct. The

indictments reference TEX. PENAL CODE ANN. § 46.035 (c) (West 2011). Section 46.035 is

a misdemeanor offense and cannot be elevated to a felony offense. Unlike Teal and

Kirkpatrick, the indictments do not omit an element necessary to raise the offense from a

misdemeanor to a felony offense. The indictments do not give Tafel adequate notice

that the State intended to charge him with misdemeanors involving official misconduct.

        The Texas Code of Criminal Procedure states:

        If the defendant does not object to a defect, error, or irregularity of form or
        substance in an indictment or information before the date on which the
        trial on the merits commences, he waives and forfeits the right to object to
        the defect, error, or irregularity and he may not raise the objection on
        appeal or in any other postconviction proceeding.

TEX. CODE CRIM. PRO. ANN. art. 1.14 (b) (West 2005). The indictments properly charged

misdemeanor offenses. Unlike Teal and Kirkpatrick, the indictments were not defective

in failing to allege an element of the felony offense, and Tafel did not waive his

complaint.

        Additionally, prior to the start of the bench trial, the trial court noted that the

cases were misdemeanors.

        THE COURT: … In Cause 7724 and 7725, although indicted by the Grand
        Jury, these are, in fact, Class A Misdemeanor cases; is that correct?

        STATE: I believe that’s correct.

Tafel v. State                                                                            Page 5
        THE COURT: Is that correct, Mr. Lewellen?

        MR. LEWELLEN: It is, Your Honor.

        THE COURT: And to the extent that these are misdemeanor cases that might
        not otherwise be necessarily in the jurisdiction of the District Court, is
        there an agreement that the District Court, being the 220th District Court of
        Hamilton County, that the Court has jurisdiction of these cases for all
        purposes?

        MR. LEWELLEN: Yes, Your Honor.

        THE COURT: And do you agree, Mr. Tafel?

        THE DEFENDANT: Yes, sir. And the State?

        THE STATE: We agree, Your Honor.

The State did not inform the trial court or Tafel that the cases were misdemeanors

involving official misconduct and that, therefore, the district court had jurisdiction over

the charges.     The parties acknowledged that the charges were misdemeanors and

agreed that the District Court had jurisdiction. Subject-matter jurisdiction cannot be

conferred by agreement of the parties; jurisdiction must be vested in a court by

constitution or statute. See State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996),

overruled on other grounds, State v. Medrano, 67 S.W.3d 892, 903 (Tex. Crim. App. 2002).

        The district court did not have subject-matter jurisdiction over the misdemeanor

offenses. The indictments did not allege a misdemeanor involving official misconduct

to give the district court jurisdiction over the charges. We sustain Tafel’s first issue on

appeal. Because of our disposition of the first issue, we need not address the remaining

issues. TEX. R. APP. P 47.1.


Tafel v. State                                                                          Page 6
                                        Conclusion

        Because the trial court lacked jurisdiction to hear the causes, we vacate the

judgments of the trial court and remand the causes to the district court. The district

court is instructed to transfer the causes to the county court.




                                          AL SCOGGINS
                                          Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Vacated and remanded
Opinion delivered and filed February 21, 2013
Do not publish
[CR25]




Tafel v. State                                                                  Page 7
