ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 2, 2008

The Honorable Jeri Yenne

Brazoria County Criminal District Attorney

111 East Locust, Suite 408A

Angleton, Texas 77515

Dear Ms. Yenne:

Opinion No. GA-0660

Re: Whether a municipal courtmay hear compliance

applications filed under section 822.042(c) of the

Health and Safety Code and appeals of dangerousdog determinations under section 822.0421 (b) ofthe

same code (RQ-0685-GA)

You ask several questions about a municipal court's authority to hear compliance

applications filed under section 822.042(c) ofthe Health and SafetyCode and appeals ofdangerousdog determinations under section 822.0421 (b) ofthe same code. 1 In particular, you ask:

1. Does a municipal court have jurisdiction to hear dangerous dog

determination appeals [under Health and Safety Code section

822.0421 (b)] and compliance hearings [under section

822.042(c)] ... as set forth in Chapter 822, Subchapter D ofthe

Texas Health and Safety Code?

2. If a dog owner chooses to appeal the dangerous dog

determination to the municipal court in Lake Jackson, Texas,

can the city refuse to hear the appeal claiming no competent

jurisdiction?

3. Once the dog owner files his/her notice of appeal in municipal

court, may the city refer the appeal to another court, i. e. [,]

justice court or county court? Is the municipal court obligated

to hear the appeal as requested by the dog owner?

ISee Letterfrom Honorable Jeri Venne, BrazoriaCountyCriminal DistrictAttorney, to Honorable GregAbbott,

Attorney General of Texas, at 3 (Mar. 4, 2008) (on file with the Opinion Committee, also available at

http://www.texasattorneygeneral.gov) [hereinafter Request Letter]. See generally Brief from Sherri Russell, Lake

Jackson City Attorney, to Nancy Fuller, Chair, Opinion Committee, Attorney General ofTexas, at 1-2 (Mar. 31,2008)

[hereinafter Lake Jackson Brief].
The Honorable Jeri Yenne - Page 2 (GA-0660)

4. Does the dog owner get to choose the location ofappeal, i.e. [,]

municipal court, justice court, county court? Or is the citizen

required to file notice ofappeal at the location as set forth in the

dangerous dog determination notice or any other notice of

hearing pertaining to a dangerous dog?

Request Letter, supra note 1, at 3. You refer to hearings under section 822.042(c) as "compliance

hearings" and to hearings under section 822.0421 (b) as "dangerous dog determination appeals," and

we adopt that terminology in this opinion. Id.

Chapter 822, subchapter D (sections 822.041 through 822.047) ofthe Health and Safety Code

regulates dangerous-dog owners. See TEX. HEALTH & SAFETY CODE ANN. ch. 822, subch. D

(Vernon 2003 & Supp. 2008). Section 822.041 (2) definesthe term "dangerous dog" to be a dog that:

(A) makes an unprovoked attack on a person that causes

bodily injury and occurs in a place other than an enclosure in which

the dog was being kept and that was reasonably certain to prevent the

dog from leaving the enclosure on its own; or

(B) commits unprovoked acts in a place other than an

enclosure in which the dog was being kept and that was reasonably

certain to prevent the dog from leaving the enclosure on its own and

those acts cause a person to reasonably believe that the dog will

attack and cause bodily injury to that person.

Id § 822.041(2) (Vernon 2003); see also id § 822.041(3) (defining "dog"). Section 822.042(a)

requires the owner of the dog, upon learning that the dog is dangerous, to comply with four

requirements: (1) register the dog with the animal control authority; (2) restrain the dog at all times;

(3) obtain liability insurance covetage or show financial responsibility in a specified amount;

and (4) comply with applicable municipal or county regulations.2 See id § 822.042(a); see also ide

§ 822.041(5) (defining "owner"). Under section 822.042(c), "[i]f, on application of any person, a

justice court, county court, or municipal court finds, after notice and hearing ... , that the owner of

a dangerous dog has failed to comply" with these four requirements, "the courtshall orderthe animal

control authority to seize the dog ...." Id § 822.042(c). An owner's failure to comply may lead

to the dog's destruction and criminal prosecution ofthe owner for a Class C misdemeanor or, ifthe

owner is a repeat offender, a Class B misdemeanor. See id §§ 822.042(b), (e), .045.

2A county or municipality may adopt additional requirements or restrictions pertaining to dangerous dogs so

long as the requirements orrestrictions are not breed-specific and are more stringent than the statutory restrictions. TEX.

HEALTH & SAFETY CODE ANN. § 822.047 (Vernon 2003). Because your questions expressly involve compliance

hearings and dangerous-dog-determination appeals under chapter 822, subchapter D ofthe Health and Safety Code,we

do not consider the impact of any city charter provisions or city ordinances that may be relevant.
The Honorable Jeri Yenne - Page 3 (GA-0660)

A person learns that he or she is the owner ofa dangerous dog in one ofthree ways; relevant

to your question is the circumstance in which "the owner is informed by the animal control authority

that the dog is a dangerous dog under section 822.0421." Id. § 822.042(g)(3). Section 822.0421 (to

which section 822.042(g)(3) refers) authorizes an animal control authority to investigate a report that

a dog has made unprovoked attacks or committed unprovoked threatening acts outside of a secure

.enclosure and, after receiving witnesses' sworn statements, to determine whether the dog is

dangerous, and to notify the owner of the determination. See ide § 822.0421(a); see also id

§ 822.041(2) (defining "dangerous dog"). Under section 822.0421(b), the owner may appeal the

animal control authority's determination within fifteen days "to ajustice, county, or municipal court

of competent jurisdiction." Id § 822.0421 (b).

You tell us that your office has received a question from the Lake Jackson City Attorney

about the Lake Jackson Municipal Court's jurisdiction to hear, in particular, a dangerous-dogdetermination appeal under section 822.0421 (b). See Request Letter, supra note 1, at 1. The City

Attorney is concerned that the municipal court, which is not a court of record, is not a court of

"competent jurisdiction" for purposes of section 822.0421(b). See id As you explain the City

Attorney's argument, she "maintains that the matter must be 'criminal in nature' before the

municipal court has jurisdiction [and that the municipal court therefore does not have jurisdiction

over dangerous-dog-determination appeals] because the authority does not come from the general

statutes governing municipal courts." Id. Although you do not detail the reasons for your questions

about a municipal court's jurisdiction over compliance hearings under section 822.042(c), we

assume they similarly stem from the fact that the Lake Jackson Municipal Court is not a court of

record and does not, under general statutes, have jurisdiction over matters that are not criminal in

nature.

The Legislature has provided for the creation ofmunicipal courts by statute in accordance

with the Legislature's constitutional authority to establish "such other courts" as necessary. See TEX.

CaNST. art. V, § 1 (vestingjudicial power in "one Supreme Court, in one Court ofCriminal Appeals,

in Courts ofAppeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of

Justices of the Peace, and in such other courts as may be provided by law" (emphasis added));

see also Tex. Att'y Gen. Ope No. DM-427 (1996) at 2 (stating that "municipal courts are not

constitutionally created courts but rather exist only by virtue ofthe [L]egislature's constitutional

power to 'establish such other courts as it may deem necessary'" (quoting TEX. CaNST. art. V, § 1)).

The Legislature has provided for the creation oftwo kinds ofmunicipal courts: municipal courts and

municipal courts of record. See TEX. GaV'T CaDE ANN. §§ 29.002 (Vernon 2004) (creating a

municipal court in eachmunicipality), 30.00003(a) (permitting a municipal governing bodyto create,

in addition to the municipal court created under section 29.002, a municipal court ofrecord ifthe

governing body determines that the creation is necessary to more efficiently dispose of cases).

Because your questions relate specifically to a municipal court that is not a court ofrecord, we limit

our response to such courts, and we use the term "municipal court" generally to refer only to

municipal courts, established under G~vernment Code chapter 29, that are not courts ofrecord.

Before we examine a municipal court's jurisdiction in relation to your questions, we

summarize general jurisdictional principles. The term "jurisdiction" "refers to a court's authority
The Honorable Jeri Yenne - Page 4 (GA-0660)

to adjudicate a case." Reiss v. Reiss, 118 S.W.3d439, 443 (Tex. 2003) (citing Dubai Petroleum Co.

v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000)); In re Sheppard, 193 S.W.3d 181, 185 (Tex. App.-Houston

[1st Dist.] 2006, no pet.) (citing Reiss, 118 S.W.3d at 443). Whether a court has jurisdiction is a

question oflaw. See Tex. Dep't ofParks & Wildlife v. Miranda, 133 S.W.3d 217,226 (Tex. 2004)

(citing Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849,855 (Tex. 2002))

(subject-matterjurisdiction); BMCSoftware Belgium v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)

(citing Hotel Partners v. Craig, 993 S.W.2d 116, 120 (Tex. App.-Dallas 1994,writ denied))

(personal jurisdiction).

Courts considering civil matters have stated that jurisdiction comprises two components:

subject-matterjurisdiction and personal jurisdiction over a party. See CSR Ltd. v. Link, 925 S.W.2d

591, 594 (Tex. 1996); Fed. Underwriters Exch. v. Pugh, 174 S.W.2d 598, 600 (Tex. 1943); see also

Ace Ins. Co. v.' Zurich Amer. Ins. Co., 59 S.W.3d 424,428 (Tex. App.-Houston [1st Dist.] 2001,

pet. denied) (defining subject-matterjurisdiction and personal jurisdiction (quoting United States v.

Morton, 467 U.S. 822, 828 (1984)). Subject-matterjurisdiction "refers to the court's power to hear

a particular type ofsuit" and "exists by operation oflaw only." CSR Ltd., 925 S.W.2d at 594; Fed.

Underwriters Exch., 174 S.W.2d at 600. Subject-matterjurisdiction comprises both subject-matter

and territorial components. See Lange v. State, 639 S.W.2d 304, 305 (Tex. Crim. App. 1982),

superseded by rule on other grounds as stated by Volosen v. State, 227 S.W.3d 77,81 n.12 (Tex.

Crim. App. 2007); Estrada v. State, 148 S.W.3d 506, 508 (Tex. App.-EI Paso 2004, no pet.).

Personal jurisdiction, on the other hand, "concerns the court's power to bind a particular person

or party" and "can be conferred by consent or waiver." CSR Ltd., 925 S.W.2d at 594; Fed.

Underwriters Exch., 174 S.W.2d at 600; see also Kawasaki Steel Corp. v. Middleton, 699 S.W.2d

199,200 (Tex. 1985) (setting out the two elements ofpersonal jurisdiction: (1) the defendant must

be amenable to the court's jurisdiction, and (2) the plaintiffmust invoke that jurisdiction by valid

service of process).

Government Code chapter 29, which concerns municipal courts generally, provides such

courts with "exclusive original jurisdiction within the municipality's territorial limits and property

owned by the municipality located in the municipality's extraterritorial jurisdiction in all criminal

cases that" arise under municipal ordinances and that are punishable by a fine not to exceed a certain

amount. TEX. GOV'TCODEANN. § 29.003(a) (Vernon Supp. 2008); accordTEx.CODECRIM.PROC.

ANN. art. 4.14(a) (Vernon 2005); cf TEx. GOV'T CODE ANN. § 30.00005(a) (Vernon Supp. 2008)

(stating that a municipal court ofrecord "has the jurisdiction provided by general law for municipal

courts"). A municipal court also has "concurrentjurisdiction ,with the justice court ofa precinct in

which the municipality is located" in certain other criminal cases "arising under state law that arise

within the municipality's territorial limits or property owned by the municipality located in the

municipality's extraterritorial jurisdiction" and that are punishable by fine and sanctions not

consisting ofconfinement injail or imprisonment. TEX. GOV'TCODEANN. §29.003(b)-(c) (Vernon

Supp. 2008); accordTEX. CODECRIM. PROC. ANN. art. 4.14(b) (Vernon 2005); cf TEx. GOV'TCODE

ANN. § 30.00005(a) (Vernon Supp. 2008) (stating that a municipal court of record "has the

jurisdiction provided by general law for municipal courts"); id § 30.00005(c) (allowing a municipal

governing body to provide a municipal court ofrecord with jurisdiction concurrent with a justice

court in any precinct in which the municipality is located in certain.criminal cases). Nothing in
The Honorable Jeri Yenne - Page 5 (GA-0660)

GovernmentCode chapter 29 authorizes a municipal court to exercisejurisdiction over civil matters.

See generally ide §§ 29.001-.105 (Vernon 2004 & Supp. 2008).

We now consider a municipal court's jurisdiction under Health and Safety Code sections

822.042(c) and 822.0421(b). See TEX. HEALTH & SAFETY CODE ANN. §§ 822.042(c), .0421(b)

(Vernon 2003). Because section 822.042(c) pertainsto a compliance hearing by a "municipal court"

while section 822.0421 (b) pertains to an appeal of a dangerous-dog determination to "a municipal

court of competent jurisdiction," we analyze the two statutes separately. Id

I. Whether a Municipal Court Has Jurisdiction to Consider Applications Alleging That

a Dangerous-Dog Owner has Failed to Comply With Statutory Requirements or to

Hear Appeals of an Animal Control Authority's Determination That a Dog is

Dangerous

A. A municipal court'sjurisdiction under Health and SafetyCode section 822.042(c)

You first question a municipal court's authority under section 822.042(c) to hear an

application that a dangerous-dog owner has failed to complywith section 822.042(a)'srequirements.

.SeeRequest Letter, supra note 1, at 3. Section 822.042(c) expressly lists a "municipal court" as a

court that may adjudicate an application alleging that a dangerous-dog owner has failed to comply

with the statutory requirements set forth in section 822.042(a) or (b). TEX. HEALTH& SAFETY CODE

ANN. §822.042(c) (Vernon 2003);see also id § 822.042(a)-(b) (setting outrequirements with which

dangerous-dog owner must comply and providing that a dangerous-dog owner who does not comply

must deliver the dog to the animal control authority within thirty days). A municipal court that is

not a court ofrecord is still a municipal court.3

Your question appears to suggest, however, that section 822.042(c) is insufficient by itself

to grant to a municipal court jurisdiction over noncriminal compliance hearings. In those instances

where a compliance hearing is not a criminal matter, therefore, we understand your question to

suggest that a municipal court lacks jurisdiction to adjudicate compliance hearings.4 But see TEX.

HEALTH & SAFETY CODE ANN. § 822.045 (Vernon 2003) (stating that a person who fails to comply

with section 822.042 commits a criminal offense).

Such a compliance hearing-which is initiated by an "application from any person"-is not

criminal in nature. TEX. HEALTH & SAFETY CODE ANN. § 822.042(c) (Vernon 2003); see Timmons

V. Pecorino, 977 S.W.2d 603, 604-05 (Tex. Crim. App. 1998) (Price, J., concurring in denial of

leave to file writ ofmandamus); see also Tex. Att'y Gen. Ope No. GA-0316 (2005) at 4 (stating that

nonconsent-tow hearings "are clearly not criminal matters" because they "are not designed to secure

3you do not ask whether the term "municipal court" in section 822.042(c) encompasses municipal courts of

record. See generally Request Letter, supra note 1.

4For a similar argument regarding section 822.0421 (b), see generally Lake Jackson Brief, supra note 1.
The Honorable Jeri Yenne - Page 6 (GA-0660)

a conviction and punishment" and are not initiated by a complaint "but ... by written request from

the person whose vehicle has been towed").

For several reasons, we conclude that section 822.042(c) provides a municipal court

jurisdiction to conduct dangerous-dog compliance hearings where the court also has territorial and

personaljurisdiction. The court'sjurisdiction isthus cumulative ofthe jurisdictionthat Government

Code chapter 29 provides municipal courts.

First, the Legislature has constitutional authority to create municipal courts and to provide

them withjurisdiction. TEX. CONST. art. V, § 1 (vesting judicial power in "such other courts as may

be provided by law"). Nothing requires the Legislature to provide jurisdiction only in the acts

establishing a particular court. Thus, the jurisdiction of a municipal court can be established in a

statute outside ofGovernment Code chapter 29, and the Legislature has, in fact, done so in at least

one other instance. See TEx. TRANSP. CODE ANN. § 682.011(a) (Vernon Supp. 2008) (authorizing

a person whom a hearing officer has determined violated a municipal vehicle parking or stopping

ordinance to appeal the determination to a municipal court).

Second, in construing a statute, we must presume that the Legislature intended the entire

statute to be effective. See TEX. GOV'T CODE ANN. § 311.021 (2) (Vernon 2005). "[W]e give effect

to all its words and, ifpossible, do not treat any statutory language as mere surplusage." State v.

Shumake~ 199 S.W.3d 279, 287 (Tex. 2006) (citing Cont'l Cas. Ins. Co. v. Functional Restoration

Assocs., 19 S.W.3d393, 402 (Tex. 2000)); see also In re Mo. Pac. R.R., 998 S.W.2d 212,216 (Tex.

1999) (stating that a court does not "lightly presume that the Legi~lature may have done a useless

act"). To conclude that section 822.042(c) does not provide j~risdiction to municipal courts to

conduct compliance hearings-when no other statute does so-renders ineffective section

822.042(c)'s express reference to a municipal court. Moreover, section 822.042(c) cannot be said

to refer only to municipal courts of record, which may have some civil jurisdiction under

Government Code chapter 30 to hear cases regarding the enforcement of "municipal ordinances

enacted under Subchapter A, Chapter 214, Local Government Code ['Municipal Regulation of

Housing and Other Structures'], or Subchapter E, Chapter 683, Transportation Code ['Junked

Vehicles: Public Nuisance; Abatement']." TEX. GOV'TCODEANN. § 30.00005(d)(1) (Vernon Supp.

2008). Thus, even ifa municipal court ofrecord has been granted authority to hear civil cases under

Government Code chapter 30, that authority cannot extend to proceedings under Health and Safety

Code chapter 822, subchapter D. A municipal court ofrecord consequently has jurisdiction over

compliance hearings only ifsection 822.042(c) supplies it.

And finally, this office suggested in 2005 that chapter 822 provides an "isolated grant[] of

authority to municipal courtsto conduct hearings for a particular purpose." Tex. Att'y Gen. Ope No.

GA-0316 (2005) at 5. Analogously, in 1998 four members ofthe Texas Court ofCriminal Appeals

suggested that sections 822.002 and 822.003 ofthe Health and Safety Code, which authorize "[a]

justice court, county court, or municipal court" to order the seizure and destruction ofa dog that has

caused death or serious bodily injury to a person, "may well confer jurisdiction upon" municipal

courts "for this specific type of action." TEX. HEALTH & SAFETY CODE ANN. §§ 822.002(a),

.003(d)-(e) (Vernon 2003); Timmons, 977 S.W.2d at 604 n.3.
The Honorable Jeri Yenne - Page 7 (GA-0660)

In sum, section 822.042(c) provides a municipal court that is not a court of record with

jurisdiction over compliance hearings held under that subsection. Whether a municipal court also

has territorial and personal jurisdiction is a question oflaw that the trial court must resolve in light

ofthe particular facts. See BMC Software Belgium, 83 S.W.3d at 794; LeBlanc v. Kyle, 28 S.W.3d

99, 100-01 (Tex. App.-Texarkana 2000, pet. denied) (weighing conflicting allegations regarding

the defendant's contact with the area over which the court hadjurisdiction); accordC-Loc Retention

Sys. v. Hendrix, 993 S.W.2d473, 476 (Tex. App.-Houston [14th Dist.] 1999, no pet.); see also Tex.

Att'y Gen. Ope No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion

process.").

B. A municipal court's jurisdiction under Health and Safety Code section

822.0421(b)

We next con~ider a municipal court's jurisdiction under section 822.0421(b) to hear an

appeal ofan animal control authority's determination that a particular dog is dangerous. See Request

Letter, supra note 1, at 3. You do not specify whether the animal control authority is a municipal

animal control office, a county animal·control office, or a county sheriff. See TEX. HEALTH &

SAFETY CODE ANN. § 822.041(1) (Vernon 2003) (defining "animal control authority"). We assume

that you refer to a dangerous-dog determination made by a municipal animal control office under

section 822.0421(a). See ide § 822.0421 (a)(allowing an animal control authority to investigate a

report that and to determine whether a particular dog is dangerous).

Section 822.0421 (b) allowsthe owner ofa dog that an animal control agency has determined

is dangerous to appeal that determination "to a justice, county, or municipal court of competent

jurisdiction." Id. § 822.0421 (b). The Lake Jackson attorney, you indicate, equates the phrase

"municipal court of competent jurisdiction" for purposes of Health and Safety Code section

822.0421 (b) with a municipal court ofrecord. See Request Letter, supra note 1, at 1. Texas courts

have indicated that a dangerous-dog appeal under section 822.0421 (b) is not a criminal proceeding.

See In re Loban, 243 S.W.3d 827, 830 (Tex. App.-.Fort Worth 2008, no pet.) (stating that a

municipal court ofrecord's "affirmance" ofthe municipal animal control officer's dangerous-dog

determination "is not a criminal action"); Timmons, 977 S.W.2d at 604 (Price, J., concurring in

denial ofapplication for writ ofmandamus) (stating that a court order under Health and Safety Code

sections 822.001-.004 requiring the destruction ofa dog causing the death oforserious bodily injury

to a person is "in no way ... considered 'criminal"').

Nothing in chapter 822 defines the term "court of competent jurisdiction" for purposes of

section 822.0421 (b), but we note that the phrase applies to justice and county courts as well as to

municipal courts: "An owner ... may appeal ... to a justice, county, or municipal court of

competent jurisdiction." TEx. HEALTH & SAFETY CODE ANN. § 822.0421(b) (Vernon 2003). The

phrase '" court ofcompetentjurisdiction' ... usually ... refer[s] to subject-matterjurisdiction." Ace

Ins. Co. V. Zurich Amer. Ins. Co., 59 S.W.3d 424, 428 (Tex. App.-Houston [1st Dist.] 2001, pet.

denied) (quoting United States v. Morton, 467 U.S. 822,828 (1984)); see Foreness v. Hexamer, '971

S.W.2d 525, 529, 531 (Tex. App.-Dallas 1997, pet. denied) (stating that "[a] 'court ofcompetent

jurisdiction' is one with subject-matter jurisdiction" to issue a judgment in a case); State V. Hall,
The Honorable Jeri Yenne - Page 8 (GA-0660)

829 S.W.2d 184, 187 (Tex. Crim. App. 1992) (for purposes ofCode ofCriminal Procedure article

12.05, "a court ofcompetentjurisdiction is a court with jurisdiction to try the case" (citing Exparte

Ward, 560 S.W.2d 660, 664 (Tex. Crim. App~ 1978)). As we stated above however, subject-matter

jurisdiction has both a subject-matter and a geographic component. See supra page 4. And in this

case, we believe the phrase "court ofcompetentjurisdiction" in section 822.0421 (b) refers to a court

with territorialjurisdiction in the matter. 5 This ascribes meaning to the phrase while effectuating the

legislative intent, clear from the statute's plain language, to permit municipal courts to consider

appeals of dangerous-dog determinations.

In sum, section 822.0421 (b) provides a municipal court with jurisdiction over an appeal of

amunicipal animal control office's dangerous-dog determination. As we stated above, the municipal

court also must have territorial jurisdiction. See supra page 4.

II. Whether a Municipal Court May Refuse to Hear or May Refer an Appeal ofa

Dangerous-Dog Determination Made Under Section 822.0421(a)

We answer your second and third questions together. You ask second whether, if a dog

owner chooses to appeal an animal control authority's determination that the owner's dog is

dangerous to the Lake Jackson municipal court, the city may refuse to hear the appeal claiming that

it does not have competent jurisdiction. Request Letter, supra note 1, at 3. And you ask third

whether, once a dog ownerfiles a "notice ofappeal [ofa dangerous-dog determination] in municipal

court," the "city [may] refer the appeal" to a justice court or county court or, conversely, whetherthe

municipal court is obligated to hear the appeal. Request Letter, supra note 1, at 3. By "refer," we

understand you to ask whether the municipal court may transfer the appeal to a county or justice

court.

Given our answer to your first question, we conclude that the municipal court may not, on

the grounds of a lack of subject-matter jurisdiction, refuse to hear an appeal of a dangerous-dog

determination by a municipal animal control authority ifthe court hasjurisdiction over the relevant

territory. See supra. A municipal court that has territorial jurisdiction over an appeal filed with the

court must hear the appeal. Conversely, a municipal court may determine that it does not have

territorial jurisdiction in the matter and may refuse to hear the appeal on that basis.

A municipal court may not, however, transfer a dangerous-dog-determination appeal to a

justice or county court. State statutes do not provide for such a transfer.6 See generally TEX.

5The dog owner, by filing an appeal with the municipal court, would submit to the municipal court's personal

jurisdiction. Cf Von Briesen, Purtell, & Roper, S.C. v. French, 78 S.W.3d 570, 575 (Tex. App.-Amarillo 2002, pet.

dism'd w.o.j.) (stating that in Texas once a party has filed an answer or otherwise appeared in a case, it is subject to the

court's personal jurisdiction).

6The appellant in Allison v. State, a 2002 decision ofthe First District Court of Appeals, contended that "a

municipal court has no authority to transfer a case to the nearest justice of the peace." Allison v. State, 2002 WL

31388717, *2 (Tex. App.-Houston [1st Dist.] 2002, pet. refd) (not designated for publication). The court declined

(continued...)
The Honorable Jeri Yenne - Page 9 (GA-0660)

HEALTH & SAFETY CODE ANN. ch. 822, subch. D (Vernon 2003 & Supp. 2008). By comparison,

Government Code section 74.121(a) generally authorizes "[t]he judges of constitutional county

courts, statutory county courts, justice courts, and small claims courts in a county [to] transfer cases

to and from the dockets oftheir respective courts." TEX. GOV'T CODE ANN. § 74.121(a) (Vernon

2005). By not including municipal courts, section 74.121 (a) suggeststhat a municipal court may not

transfer cases to county orjustice courts. In addition, various statutes allow certain municipalities

with more than one municipal court to adopt ordinances permitting the transfer ofcases between the

municipal courts. See id §§ 29.101(d)(2), .102(d)(2), .103(d)(2) (Vernon 2004) (pertaining to a

municipality ofmore than 250,000; a municipality of 130,001 to 285,000; and the City ofEI Paso).

But no statute recognizes a transfer between a municipal court and a county orjustice court. Because

the Legislature has not provided for the possibility of transferring dangerous-dog-determination

appeals between a municipal court and a justice or county court, a municipal court may not transfer

the appeal and is obligated to hear it (assuming the court has territorial jurisdiction).

III. Whether, in Filing an Appeal of a Dangerous-Dog Determination, the Dog Owner May

Choose Between Justice Court, County Court, or Municipal Court

Fourth and finally, you ask whether a dog owner may choose to file an appeal ofa dangerousdog determination in a county court, justice court, Qr municipal court. Request Letter, supra note

1, at 3. Or, you ask, must the dog owner file the appeal "at the location as set forth in the dangerous

dog determination notice or any other.notice of hearing pertaining to a dangerous dog." Id. In

connection with this question, you have furnished a copy ofa "Notice to Owner ofDangerous Dog"

form. 7 The Notice, which bears the letterhead of the City of Lake Jackson Police Department,

informs a dog owner that the City of Lake Jackson Animal Control Division has investigated an

alleged occurrence involving a particular dog and has determined that the dog is dangerous. See

Notice, supra note 8, at 1. The Notice further informs the dog owner that he or she has "15 days

from the date ofthis notice to appeal the determination that you own a dangerous dog to the City of

Lake Jackson Municipal Court." Id at 1-2.

Section 822.0421 (b) on its face allows a dog ownerto appeal a dangerous-dog determination

to a county, justice, or municipal court with "competentjurisdiction"-which we have equated with

territorial jurisdiction. See TEx. HEALTH & SAFETY CODE ANN. § 822.0421(b) (Vernon 2003). A

municipality may not, by order ofits animal control authority or otherwise, limit the courts to which

a dog owner may appeal where the Legislature has provided, without limitation, that more than one

court has subject-matter jurisdiction. Rather, the dog owner may choose to file the appeal in any

county, justice, or municipal court that has subject-matter, including territorial, jurisdiction.

6(...continued)

to consider the issue because the appellant "failed to support his argument on this issue with legal authority or with

references to the record." Id This is the only case we. fmd that mentions the issue.

7Facsimile from Brazoria County Criminal District Attorney's Office (May 9, 2008) (on file with the Opinion

Committee) [hereinafter "Notice"].
The Honorable Jeri Yenne - Page 10 (GA-0660)

SUMMARY

A municipal court established under Government Code

chapter 29 has jurisdiction under Health and Safety Code section

822.042(c) over a compliance application filed under that section if

the court also has territorial and personal jurisdiction. Such a

municipal court also has jurisdiction under Health and Safety

Code section 822.0421(b) over an appeal of a municipal animal

control authority's dangerous-dog determination made under section

822.0421 (a) ifthe court also has territorial jurisdiction. The phrase

"court of competent jurisdiction" in section 822.0421 (b) refers to a

court with territorial jurisdiction over the matter.

A municipal court may not, on the grounds of a lack of

subject-matter jurisdiction, refuse to hear an appeal of a dangerousdog determination by amunicipal animal control authority ifthe court

has territorial jurisdiction. The court may, however, determine that

it does not have territorial jurisdiction. A dog owner may file an

appeal of a municipal animal control authority's dangerous-dog

determination with any municipal court, justice court, or county

court-all ofwhich have jurisdiction under section 822.042(c)-that

also has territorial jurisdiction. A municipal court may not transfer

a dangerous-dog-determination to a county or justice court and is

obligated to hear the appeal. A municipality may not, by order ofits

animal control authority or otherwise, dictate the courtto which a dog

owner may appeal a dangerous-dog determination ifmore than one

court has subject-matter, including territorial, jurisdiction.

KENT C. SULLIVAN

First Assistant Attorney General

ANDREW WEBER

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Kymberly K. Oltrogge

Assistant Attorney General, Opinion Committee