motion to dismiss — Pringle v. Texas

8 0 8 5 1 ö Office-Supreme C :

FIL

NO. 80-651 MAR 19

ALEXANDER L. |

IN THE CLERK

SUPREME COURT OF THE UNITED S

OCTOBER TERM, 1980

CLARENCE A. PRINGLE,

Appellant

V.

THE STATE OF TEXAS,

Appellee

On Appeal From The County Court of

Hale County, Texas

APPELLEE’S MOTION TO

DISMISS OR AFFIRM

MARK WHITE W. BARTON BOLING

Attorney General of Texas Assistant Attorney General

Chief, Enforcement Division

JOHN W. FAINTER, JR.

First Assistant DOUGLAS M. BECKER

Attorney General Attorney General

RICHARD E. GRAY, III P. O. Box 12548, Capitol Station

Executive Assistant Austin,Texas 7871

Attorney General (512) 475-3281

; Attorneys for Defendant

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QUESTIONS PRESENTED

1. Whether the Hale Center municipal ordinances

challenged herein are unconsitutionally vague?

2. Whether Appellant was impermissibly sentenced?

3. Whether Appellant was subjected to double jeopar-

dy?

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS, STATUTES,

AND ORDINANCES INVOLVED ....................... 2

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INDEX OF AUTHORITIES

Cases Page

Blockburger v. United States, 284 U.S. 299(1932) ........ Ate

Brown, v. Ohio, 482 U.S. 161 (1977) .. 6... ccc cee eee 4,9

Colten v. Kentucky, 407 U.S. 104 (197 ꝶùł) 6

Grayned v. City of Rockford, 408 U.S. 104(1972) .............. 6

Greene v. McElroy, 360 U.S. 464 (195909 6

Schware v. Board of Law Examiners, 352 U.S. 232

% ( er. 6

United States v. Marzurie, 419 U. S. 544 (1970) 5

United States v. Powell, 423 U.S. 87 (19701) 5

Constitutions, Statutes, and Rules

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Tex. Code Crim. Proc. Ann. art. 40.0-o6:.—:inititi 2

Tex. Rev. Civ. Stat. Ann. art. 6687 ùꝶ/ ˖ h 2.5, 8

4

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NO. 80-651

INTHE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

CLARENCE A. PRINGLE,

Appellant

V.

THE STATE OF TEXAS.

Appellee

On Appeal From The County Court of

Hale County, Texas

APPELLEE’S MOTION TO

DISMISS OR AFFIRM

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT:

The Appellee moves the Court to dismiss the appeal

herein or, in the alternative, to affirm the judgments of

the County Court of Hale County, Texas.

OPINIONS BELOW

There is no written opinion of the County Court of

Hale County, Texas, in this case. Appellant has set

2

forth the judgments and sentences under which he was

convicted and punished as Appendices C and D, respec-

tively, to his jurisdictional statement.

JURISDICTION

The Court has jurisdiction over the cause. The

judgments and sentences appealed were entered on June

20, 1980 (Petitioner’s Appendix C), and July 28, 1980

(Petitioner’s Exhibit D), respectively. Appellant sub-

mitted and was granted a motion for leave to file a mo-

tion for new trial under Tex. Code Crim. Proc. Ann. art.

40.05. As a result, the timely filed motion for new trial,

which raised the issues Appellant raises herein, was con-

sidered and overruled by operation of law on September

25, 1980. Notice of appeal was timely filed the same

day. The jurisdictional statement was filed and the ap-

peal docketed in this Court on November 24, 1980,

within ninety days after final judgment as evidenced by

the denial of the timely filed motion for new trial. See,

28 U.S.C. §2101(d). Sup. Ct. R. 12, 13.

CONSTITUTIONAL PROVISIONS, STATUTES,

AND ORDINANCES INVOLVED

Appellant cites and sets forth Ordinances Nos. 220,

291, of the Municipal Code of Hale Center, Texas. He

also relies upon the due proess clause of U.S. Const.

amends. V, XIV. Also involved is Tex. Rev. Civ. Stat.

Ann. art. 6687-9, the Texas Abandoned Motor Vehicle

Act, which provides in pertinent part as follows:

Sec. 9. Junked vehicles which are located in

any place where they are visible from a public

place or public right-of-way are detrimental to

the safety and welfare of the general public, ten-

ding to reduce the value of private property, to

invite vandalism, to create fire hazards, to con-

stitute an attractive nuisance creating a hazard

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to the health and safety of minors, and are

detrimental to the economic welfare of the

State, by producing urban blight which is

adverse to the maintenance and continuing

development of the municipalities in the State

of Texas and such vehicles are therefore,

declared to be a public nuisance.

Sec. 10. Any city, town, or county within this

State may adopt procedures for the abatement

and removal of junked vehicles or parts thereof,

as public nuisances, from private property,

public property or public rights-of-way; provid-

ed, however, that any such procedures shall

contain: [those provisions contained in Hale

Center Municipal Ordinance No. 291]

...(h)...If a person is found guilty of maintain-

ing a public nuisance as defined in Section 9 of

this Act, the person shall be punished by a fine

not to exceed two hundred dollars ($200) and

the court shall order removal and abatement of

the nuisance.

STATEMENT OF THE CASE

Because the complaints against Appellant contained

in Appendix B to his jurisdictional statement are ob-

viously mispaginated and misnumbered, Appellee can-

not determine with certainty whether Appellant's

characterizations of those complaints are

accurate. Other allegations in Appellant’s Statement of

the Case are correct.

4

MOTION TO DISMISS

Pursuant to S.Ct. R. 16.1(b), the appeal should be

dismissed because it fails to present a substantial

federal question. Appellant complains that the

language prohibiting ‘“unsightly’’ and ‘‘objectionable’”’

conditions contained in Ordinance No. 220 is unconstitu-

tionally vague, but he was not found guilty for conduct

constituting a violation only of those allegedly vague

provisions. He was found guilty because of violations of

those provisions and for another prohibiting un-

sanitary conditions. His convictions, therefore, rest in-

dependently upon uncontested criminal liability. They

would remain valid even if this Court agreed with Ap-

pellant that the challenged provisions of the ordinance

are invalid.

Appellant further complains that he was convicted for

violation of Ordinance No. 291, which contains no provi-

sion for criminal penalties and with which he was not

charged. Neither contention is true, as discussed

below. Even if they were true, these are matters to be

corrected by way of habeas corpus, either state or

federal, and unworthy of this Court’s attention. It is

well-settled that a person cannot be found guilty of an

offense with which he has not been charged. It is also

well-settled that a criminal statute must give fair notice

of the penalties that will be imposed against those who

violate its terms. Appellant suggests no reason, and

Appellee knows of none, why the Court should either

reconsider or reaffirm these time-worn axioms of the

criminal law. Appellant has other adequate remedies to

redress such wrongs.

Appellant’s double jeopardy claim is also plainly in-

substantial, having been adversely and dispositively ad-

dressed only recently in Brown v. Ohio, 431 U.S. 161,

169 n. 8 (1977). There is no reason for the Court to write

again on that which has so recently been decided.

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The questions presented are insubstantial for another

reason suggesting dismissal of the appeal under S. Ct. R.

16.1(a). Despite the existence of Tex. Rev. Civ. Stats.

Ann. art. 6687-9, authorizing local governmental en-

tities to enact such ordinances as No. 291, there is no

allegation or showing that such ordinances are

widespread even in Texas, much less elsewhere. The

statutes plainly appear to be a valid exercise of

municipal police power. The questions raised by Ap-

pellant are non-existent, answered upon the face of the

ordinances, or amendable to relief elsewhere. The ap-

peal should be dismissed for want of any question justi-

fying the Court’s attention.

MOTION TO AFFIRM

Pursuant to S.Ct. R. 16.1(d), the judgments should be

affirmed because Appellant’s complaints are without

merit. First, the challenged ordinances are not

vague. Outside the area of protected speech activities,

this Court has limited attacks on vagueness grounds, re-

quiring an examination in the light of the facts of the

case at hand. United States v. Mazurie, 419 U.S. 544,

550 (1975). In another case, the Court has stated,

While doubts as to the applicability of the language in

marginal fact situations may be conceived, we think

that the statute gave [the defendant adequate warning

that her act] was a criminal offense.’’ United States v.

Powell, 423 U.S. 87, 93 (1975).

In this case, Appellant was convicted for conduct

which clearly falls within areas proscribed. Ordinance

No. 220 prohibits allowing ‘‘rubbish, brush or any other

unsightly, objectionable or unsanitary matter to ac-

cumulate on any lot within the corporate limits of Hale

Center. Whatever other things it might in some future

case conceivably be construed to reach, this ordinance

clearly prohibits that for which Appellant was con-

victed: “‘unlawfully and willingly allow{ing] rubbish,

trash and other unsightly, objectionable and unsanitary

matter, specifically, junked vehicle bodies, scrap iron,

empty petroleum drums and other items of scrap metal

to accumulate on lots in the City of Hale Center.. (em-

phasis added).

Appellant complains that the terms unsightly and

“objectionable” are vague. Whatever the merits of

theat debate, the question is not properly raised in this

case because Appellant’s conviction rests upon an

allegation and finding that he has maintained un-

sanitary conditions. Appellant does not and could not

successfully contend that the state has no right to pro-

hibit such conditions or that men of ordinary understan-

ding cannot fathom the meaning of the prohibiting

language. Ordinance No. 220 is constitutional. Grayn-

ed v. City of Rockford, 408 U.S. 104 (1972); Colten v.

Kentucky, 407 U.S. 104 (1972).

Ordinance No. 291 is éven more specific in its

terms. Sect.sn 9 (Appendix A-2 of Appellant’s jurisdic-

tional statement) specifically declares junked vehicles as

defined, to be a public nuisance. Appellant’s assertion

that he had no notice that such junked vehicles were pro-

hibited is clearly without merit.

There is no merit to Appellant’s argument that he was

deprived of his right to earn a livelihood under Greene v.

McElroy, 360 U.S. 474 (1959), and Schware v. Board of

Law Examiners, 352 U.S. 232 (1957), by the operation of

these ordinances. Ordinance No. 291 specifically pro-

vides:

Excepted from the provisions of this Ordinance are the

following ... [2] A vehicle or part thereof which is stored

or parked in a lawful manner on the property in connec-

tion with the business of a licensed vehicle dealer or

junkyard.

1

Ordinance No. 291, Section 10(f)(2).

Hence, Appellant, if he operates a bona fide junkyard

as he asserts, cannot be deprived of his livelihood by

violation of Ordinance No. 291. If he is, then obviously

he has a substantive defense under the

statute. Deprivation of this defense might well provide

a ground for habeas corpus relief or conceivably even a

suit for damages under 42 U.S.C. §1983, but it provides

no basis whatsoever for holding the ordinance un-

constitutional. As to Ordinance No. 220, not even a

keeper of a junkyard has the right to maintain un-

sanitary conditions, the circumstance for which Ap-

pellant has suffered criminal penalties, so he cannot

complain of the operation of that ordinance.

Next, Appellant’s complaints about the manner in

which he was charged and sentenced are insubstantial

and meritless. The specific language common to the

sentences giving rise to his complaints is as follows:

The defendant Clarence Pringle is hereby

sentenced [to] a fine of $100.00 on each viola-

tion of Ordinance No. 220, together with all

costs of prosecution and costs of Court In

violations of Ordinance No. 291, the defendant

is hereby ORDERED to cease and desist the

maintence [sic] of such conditions as may exist

upon ten (10) days from the entry of this order

to demonstrate compliance with this

order. The State shall also recover all costs of

prosecution and costs of court in cases alleging

violation of Ordinance No. 291. (Appendix D to

Appellant’s jurisdictional statement.).

Appellant says that not all the complaints against him

charge him with a violation of both ordinances. This

averment is untrue. Although some of the complaints

may not cite specifically the number of both ordinances,

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none fails to allege the conduct proscribed by those or-

dinances. It is the allegation of proscribed conduct that

is required by the due process clause, not a specific

reference to any particular ordinance or statute. In fact,

a statutory reference lacking allegations of specific con-

duct would itself be infirm.

In any event, Appellant was not imposed criminal

sanctions for violation of Ordinance No. 291, but only

Ordinance No. 220. Appellant erroneously urges that

no criminal penalties are authorized for violation of No.

291. The plain import of the applicable state statute,

Tex.Rev. Stats. Ann. art. 6687-9, sec. 10(h), authorizing

the ordinance is that although the municipality must

pass the enabling legislation set forth in the jurisdic-

tional statement to enact Ordinance No. 291, the penal-

ty provided in the state statute is self-operative upon

such municipal enactment.

Thus, Hale Center could have attached criminal

penalties to Appellant’s acts, but, contrary to Ap-

pellant’s allegations, it did not. The fine referred to in

the sentences is plainly a fine for violation of Ordinance

No. 220, which Appellant admits is authorized. No fine,

but only a cease and desist order, is provided for in the

sentence with respect to Ordinance No. 291. This order

is civil, not criminal, in nature, and is plainly authorized

by the terms of the ordinance, which states that the

Municipal Court of Hale County, Texas, may issue all

orders necessary to enforce such procedures to cause

the removal of a vehicle or parts thereof declared to be a

nuisance under the ordinance. Since the county court in

the trial de novo on appeal exercises all the powers the

municipal court had under the ordinance, such a cease

and desist order is clearly within the power of the court

toissue. The order plainly commands him to remove the

conditions-unsanitary junked cars-for which he had

just suffered the criminal and civil penalties of which he

now complains.

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Finally, Appellant's double jeopardy claim is without

merit. Unlike Brown v. Ohio, 432 U.S. 161 (1977), this

case does not involve a prosecutorial decision to divide

„a single crime into a series of t.mporal or spatial

units.“ 432 U.S. at 169. Rather, Ordinance No. 220

itself provides that ‘‘each and every day’s violation shall

constitute a separate and distinct offense.’’ (Appendix

A-1 to Appellant’s jurisdictional statement). This is the

type of case expressly distinguished by the Court in

Brown, 432 U.S. at 169 n. 8.

Precisely like the statute at issue in Blockburger v.

United States, 284 U.S. 299 (1932), this ordinance does

not prohibit a course of conduct, but provides that each

individual act is a violation. Each prosecution requires

proof of an additional fact which the others do not, the

date of the alleged violation. And it is significant that

each additional complaint serves as further notice that

the accused continues to be in violation of the

ordinance. If the rule were otherwise, then a violator

could simply pay his fine and continue to violate the or-

dinance with impunity, claiming that the double jeopar-

dy clause has conferred continuing immunity for his con-

tinuous act. This cannot be the law. For this reason, an

acquittal or conviction on any one of these charges acts

as no bar to prosecution on any of the others.

CONCLUSION

For the above reasons, Appellee the State of Texas

respectfully requests that this appeal be dismissed or af-

firmed.

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Respectfully submitted,

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant

Attorney General

RICHARD E. GRAY, III

Executive Assistant

Attorney General

W. BARTON BOLING

Assistant Attorney General

Chief, Enforcement Division

DOUGLAS M. BECKER

Assistant Attorney General

P. O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Appellee