# motion to dismiss — Pringle v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0850%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** motion to dismiss - **Published:** January 1, 1981 - **Citation:** 451 U.S. 901 ## Text 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 * >> 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 Page f NUED ett caer en Rane i 3... ee wind iii , has Cea dniegaa eee ee ae 1 , ² ¾ ’ ·w when Bk aig Mig 2 CONSTITUTIONAL PROVISIONS, STATUTES, AND ORDINANCES INVOLVED ....................... 2 r 3 , uA 4 vcs ead yee euler aes 4 D . dc RACIST 5 , ̃ ͤ AN NMNM—- , ⅛ m i ̃ Ä 9 * iii 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 , e gdb b 2 , ciwecn bed Ok WOR a 2 ,,, Se eT ̃ĩͤ ß ĩͤ ARE 2 , ß cto UR wine Meo kG 7 dc RG Gy a Da ĩ⅛ M3. wie Gia 2 // / hr OOK eee 2 , ß Ia NG See aye a 5 , d ee cama e oa 4 , d beayaieers 5 Tex. Code Crim. Proc. Ann. art. 40.0-o6:.—:inititi 2 Tex. Rev. Civ. Stat. Ann. art. 6687 ùꝶ/ ˖ h 2.5, 8 4 45 1 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 ’ > * 3 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. 5 5 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, 2 * 8 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. * * 9 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. rs 10 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0850%3A2. Public record. Not legal advice.