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# q**-C~** RECEIVED Court of Appeals



## NOV 2 5 2013

Lisa Matz Clerk, 5th District 

# IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NOS. PD-0001-13 & 

### PD-0202-13
THE STATE OFTEXAS 

# v. JAYSANDON COOPER, Appellee


### ONTHE STATE'S PETITIONFORDISCRETIONARYREVIEW FROMTHE FIFTH COURT OFAPPEALS, COLLIN COUNTY Womack, J, deliveredthe opinion of the unanimous Court.
The issue in these cases is whether the appellee was entitledto notice ofviolations ofa municipal code before his subsequent violations ofthe code could result in convictions. Holding that he was, we affirm thejudgments ofthe courts below.2 I The City ofPlano adopted the 2003 International Property Maintenance Code (IMPC) as
\ part ofits local Property Maintenance Code. The City's Code ofOrdinances contains its property code, Division 1 ofwhich read: 1 Sec. 6-45. Penalty. Anyperson, firm or corporation found to be violating any term orprovision ofthis article, shall be subjectto a fine in accordance with City Code ofOrdinances
.... Each day a violation continues shall constitute a separate offense. Sec. 6-46. Adoption ofInternational Maintenance Code, as amended. The City ofPlano hereby adopts the 2003 Edition ofthe International Property Maintenance code, a publication ofthe International Code Council, including all the appendices ofsuch code, and designates suchpublication as the Property Maintenance Code ofthe City ofPlano, subjectto the deletions, additions, and amendments prescribed inthis article. A copy ofthe 2003 edition ofthe International PropertyMaintenance Code is on file inthe office ofthe city secretary. Sees. 6-47-6-49. Reserved. Division 2 contained, in relevant part, the following: Sec. 6-50. Deletions, addition, and amendments to chapter 1 ofthe International Property Maintenance Code. The City ofPlano hereby amends Chapter 1,Administration, ofthe International Property Maintenance Code as follows:

... Subsection 106.3, Prosecution of violation, is changed to read as follows: Any person failing to comply with a notice ofviolation or order served in accordance with Section 107 [Notices and Orders] shall be deemed guilty ofa misdemeanor, and the violation shall be deemed a strict liability offense. Ifthe notice ofviolation is not complied with, the code official shall institute the appropriate proceeding at laworin equity to restrain, correct or abate such violation, orto require the removal ortermination ofthe unlawful occupancy ofthe structure in violation ofthe provisions ofthis code or ofthe order ordirection made pursuant thereto
....

1Unless otherwise indicated, all quotations from the City's code are to the ordinances as they read at the time ofthe appellee's prosecution.I
3 The appellee was charged by complaintwith two violations ofsection 6-46 and the specific subsections ofthe IPMC for (1) not maintaining the exterior ofa structure in good repair and in a structurally sound manner and (2) not supplying hot and coldrunning water to plumbing fixtures in a house. He was convicted ofboth counts after separate benchtrials. The appellee appealedboth cases to the county court at lawfor trial de novo and filed motions to dismiss the complaints because the State failed to allege that he was given notice that he was in violation ofthe code and then continued to violate the code as required under subsection 1 06.3. The appellee's motions were granted, and the State appealed to the Fifth Court ofAppeals, which consolidatedthe two cases. The lower court affirmed the trial court's orders,2 holding thatindividual provisions ofthe code could notbe taken in isolation and that, when taken as a whole, the code clearly required notice. 3 The City filed a petition for discretionary review that was supported by various amici briefs. 4 Here, the City argues that the municipal code creates two offenses: the one contained within the original IMPC and the one created by Plano that does not require notice. We granted review in orderto consider a city's abilityto prosecute crimes under a model code.

2State v. Cooper, 396 S.W.3d 603 (Tex. App.- Dallas 2012).
3 We do not find it necessary to address the issue so broadly.
4 An amicus briefwas filed by The General Counsel and Director ofEducation for the Texas Municipal Courts Education Center and another was filed by the Texas Municipal League, The Texas City Attorneys Association, and the International Municipal Lawyers Association.4 II Since the resolution ofthis issue does not turn on evaluations ofcredibility and demeanor ofwitnesses, we apply a de novo standard ofreview.5 When we interpret statutes, we seekto effectuate the collective intent orpurpose ofthe legislators who enacted the legislation. 6 In orderto do this, we necessarily focus our attention on the literal text ofthe statute in question and attempt to discern the fair, objective meaning ofthat text at the time ofits enactment.7 This is because the law is the only thing that is actually enacted through compromise and debate, and because it is the only definitive evidence ofwhat the legislators had in mind at the time ofenactment. 8 Further, under our constitution, thejudiciaryis supposed to faithfully follow and enforce the adopted text. 9 For these reasons, ifthe meaning ofthe text when read using the established canons of construction ofsuch text should have been plain to the legislators who voted on it, we ordinarily give effectto that plain meaning, unless the plaintext would lead to absurd consequences that the legislature could not possiblyhave intended. 10 In this case, the appellee was charged under section 6-46 ofthe Plano Code of Ordinances. Section 6-46 incorporates the IPMC as amended by the sections that follow in Plano's code. The amendments retained the majority ofthe original text and explicitlyretained

5State v. Moff, 154 S.W.3d 599,601 (Tex. Cr. App. 2004).
6 Boykin v. State, 818 S.W.2d 782, 785 (Tex. Cr. App. 1991).
7 Ibid.
8 Ibid.
9 Ibid.
10 Ibid. 

## '•5 the requirement that persons be given notice that they are in violation ofthe code and then fail to comply before they can be charged with a misdemeanor. The charging instrument failed to allege that the appellee was given notice before being charged. Accordingly, it was insufficient to state
a chargeable offense and was properly dismissed. 11 The State argues that section 6-45 ofthe code constitutes a separate penal provision in addition to the original offense, section 106.3. Further, the State argues, that while 106.3 (as enacted through city ordinance 6-50) retains the requirement ofnotice before prosecution, the
new violation created by 6-45 carries no such requirement. We do notreach this contention because the record is clear thatboth complaints alleged violations ofsection 6-46 (incorporating the original prosecution clauses ofthe IPMC), not 6-45. In this case, the ordinance under which the City chose to charge the appellant is not ambiguous, and there is no need to lookto other canons ofstatutory interpretation. Thejudgment ofthe court ofappeals is affirmed. 

### III Our amici urged us to grant the State's petition in order to address more generally the adoption of"international" codes as adopted by municipalities and enforced under the Texas Code ofCriminal Procedure. To date, both the Texas legislature and at least 301 Texas cities have adopted at least one international code. These codes give local governments the ability to adopt more thorough and well-researched codes at lower costs to their taxpayers.

11 See Vallejo v. State, 408 S.W.2d 113, 114 (Tex. Cr. App. 1966) ("It is the rule that a complaint must state facts sufficientto show the commission ofan offense charged
...."); see also TEX. CODE CRIM. PROC. article 21.03 ("Everything should be stated in an indictment which is necessary to be proved.").6 Plano, like many cities in Texas, is a home-rule city. Under the Texas Constitution, home-rule cities have broad legislative powers provided that no city ordinance "shall contain any provision inconsistent with the Constitution ofthe State, or ofthe**ge~erallaws** enacted by the Legislature ofthis State." 12 In other words, so long as there is no actual conflict between a homerule ordinance and the Constitution or a statute, the home-rule ordinance is not void. The amicus brieffrom the General Counsel and Director ofEducation for the Texas Municipal Courts Education Centerurges us to overrule the Court ofAppeals's decision. It argues that the Court's opinion departs from long-accepted beliefs about charging instruments that allege city-ordinance violations and that it would limit the number ofavenues available for prosecutors to charge an offense. Similarly, the brieffiled by the Texas Municipal League, the Texas City Attorneys Association, and the International Municipal Lawyers Association argues that the Court ofAppeals's decision creates uncertainty for other cities seeking to enforce their legislative schemes. We do not agree. The City ofPlano leftthe notice requirement in the text ofthe code and charged the appellee under those provisions. 13 Indeed, it explicitly amended (rather than deleted) the section
on the requirements for a prosecution. Ifthe intent was actually to eliminate the required notice, the City should have donejustthat. Since, however, it did not, we are left to enforce the words of the ordinance rather than an unexpressed intent that the City wishes us to infer.

12 Tex. Const. art. XI § 5; Richardson v. Responsible Dog Owners, 794 S.W.2d 17, 19 (Tex. 1990),
13 After these appeals were taken, the entire notice provision has been removed from the City's codes. The constitutionality ofthe new ordinance is not before us.7 Ouropinion and that ofthe Court ofAppeals in no way limit a home-rule city from creating and enforcing municipal ordinances or limit its methods ofprosecution. However, we will not guess at what a city intended to do with its codes. Instead, as always, we will enforce the plain language ofthe code as adopted. Thejudgments ofthe courts below are affirmed.
DeliveredNovember 20, 2013. Publish.