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 
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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