CAUSENUMBERJl 0-035408-0

STATEOF TEXAS $ IN THE MUNICIPAL COURTNO. 6

$
$ CITY OF DALLAS
$
ROBERTGRODEN $ DALLAS COUNTY.TEXAS

STATE'S MOTION FOR RECONSIDERATION AND BRIEF

TO THE HONORABLE ruDGE OF SAID COURT:

The State of Texas ("the State"), by and through its attorney, Frederick E. Williams,

Assistant City Attorney, moves the Court to reconsider its Order dated December 16,2010,

which granted the Motion to Quash filed by Robert Groden, Defendant (the "Order"), and

schedule this cause for a trial on the merits. In support of this motion, the State respectfully

shows the following:

1. Procedural History

The Order quashedand dismissedthe State's complaint becausethe Court fbund that the

State'scomplaint shouldhave allegedthat Defendantviolated Section50-156 of the Dallas City

Code (which contains a defenseto prosecutionthat purportedly authorizedDefendant's conduct),

rather than allege that Defendant violated Section 32-10 of the code (which does not contain that

defense).I The Court then found that the State had not presentedany evidence that Defendant

had in fact violated several elementsof the offense described in Section 32-10.2 Based on these
'Jurisdiction over the case as presentedoo
and
findings, the Court concluded it did not have

granted the motion and dismissedthe complaint.3

'SeeOrder,pp. l-2.
pp.3-4.
" SeeOrder,
'See Order,p. 5. trf

and Brief - PageI

State'sMotion for Reconsideration
2. Summary of Argument.

The Court erred as a matter of law becausethe State (not the Defendant or the Court) has

the sole prerogative to choose the offense with which to charge the Defendant, the Defendant

cannot challenge sufficiency of the evidence through pretrial motions, and the Court has subject-

matter jurisdiction of the offense charged. In this case, the State's choice to prosecute the

Defendant under Section 32-10 is appropriate because it is a fundamental rule of statutory

construction that the specific provision governs over the general provision. Moreover, a

defendantmay not challengethe sufficiency of the evidence in a pre-trial motion and the State is

not required to present any evidence at that stage. Furthermore, the Dallas municipal court has

jurisdiction of the offense alleged in the complaint. For all these reasons, the Court should

reconsider its earlier ruling and deny Defendant's motion to quash before the Court's plenary

power over the matter expires, forcing the Stateto appeal.

3. The Court erred in determining that the State's complaint was required to have
charged Defendant with a violation of Section 50-156 rather than Section 32-10.

In the Order, the Court determined that the State did not charge the Defendant with a

violation of the proper ordinance.a However, neither the Defendant nor the Court has a right to

choosethe offense for which the Defendant is to be charged. In fact, the "separation of powers"

doctrine protects that the prosecutor's discretion to choose the offense to be prosecuted from

usurpation by the trial court. Charging decisions are within the prosecutor'sexclusive domain

'oseparationof powers" and "prosecutorial discretion" doctrines mandatejudicial respect

and the

for the prosecutor'sindependence. SeeMeshell v. State,739 S.W.2d 246, 257 (Tex. Crim. App.

19S7)(en banc) (Texas SpeedyTrial Act unconstitutional under "separation of powers doctrine"

for interfering with prosecutorialdiscretion); Roisev. State, T S.W.3d 225, 243 (Tex. App.-
r:; i

o Order,pp. l-2 (finding Defendant'sargument"persuasive.").

^'*
-Page2
State'sMotion for Reconsideration pqh
Austin 1999, pet. refd), cert. denied, 53I U.S. 895 (2000) ("The presumption of regularity

supports . . . prosecutorial decisions and in the absenceof clear evidence to the contrary, the

courts presume that they have properly dischargedtheir duties. In the ordinary case, so long as

the prosecutor has probable cause to believe that the accusedcommitted an offense defined by

statute,the decision whether or not to prosecute,and what chargeto file . . . generally restsin his

discretion." (citations and internal quotation marks omitted)). An accusedhas no constitutional

right to be prosecutedunder any particularstatute. United Statesv. Snype,441F.3d llg,l4l (2d

Cir. 2006), cert. denied,549 U.S. 923 (2006). It is the Statethat brings the prosecution,chooses

the allegationsand files the formal charginginstrument. See,e.g.,Tex. Code of Crim. Proc. arts.

21.20, 45.014(a),45.018, 45.201; Dallas City Charter ch. VII, g 3(3). The State has the

discretion not only to decide what chargesto bring, but to decide whether charges should be

dismissed. Peoplev. Van Schoyck,904N.E.2d 29,34 (Ill. 2009); seealso Tex. Code Crim Proc.

art.2.0I.

The Order erroneously transmutes evidentiary sufficiency decisions that a trial court

should make only after trial to the pretrial stage,at which the prosecutor,not the court, decides

what to charge. This shift in dynamics and balance of powers from the pretrial to the trial stage

has been well-described in the context of an appeal involving the choice whether to charge

lesser-includedoffenses:

Before trial, the power lies wholly with the state. The state has the burden of
proving an accusation,but it also has great discretion as to what that accusation
will be. As a generalrule, the statehas more resourcesavailable to it, particularly
investigatory resources.The state gathers the evidence, and on the basis of that
evidence, chooseswhat offenses to allege in the charging instrument. The state
may amend the indictment or information, abandoncounts or elements,or dismiss
and refile. It may restrict defenseaccessto physical evidence. State witnessesare
not compelled to communicate with defensecounsel, and their statementsdo not
have to be divulged until after they testifu on direct examination. Although many
prosecutors' offtces do let defense counsel see physical evidence and witness

State's Motion for Reconsideration- Page 3

PEf
 statementsbefore trial, they are not required to do so, and some offices do not do
so.

At trial, the balance of power shifts somewhat.The state still controls the content
of the indictment and most of the evidence, but now the defendant has more
opportunity to challenge that evidence. If defense counsel determines that the
state has failed in its burden to prove each and every element of the charged
offense, then the choice of requesting instructions on lesser-includedoffenses-or
not-must be made. At times, the decision is influenced by a client who adamantly
opposes instructions on lesser-includedoffenses. The gamble for the defense is
that the jury will discem the failure of proof and, with no other choice available,
acquit.The choice is big win versusbig loss."

Haynesv. State,273S.W.3d 183, 191(Tex. Crim.App. 2008)(Johnson,J., concurring).

4. The State's complaint may appropriately charge Defendant with a violation of

Section 32-10.

Assuming that the law allows the Court to determine whether the State charged the

Defendant with the appropriate offense (which the State strongly denies), it would nevertheless

still be proper (and even more appropriate) to charge the Defendant with a violation of Section

32-10 of the City Code rather than Section 50-156. It is a fundamental rule of statutory

construction that the more specific provision in a law controls over the more general. See, e.g.,

Horizon/CMS Healthcare Corp. v. Auld,34 S.W.3d 887, 901 (Tex. 2000); LuJkin v. City of

Galveston,63 Tex. 437, 439 ( 1885).

In this case,Section32-10is more specificthan Section50-156becauseit appliesonly to

"areas under the control of the park board" rather than to "public property in the city."

Furthermore, the article of the City Code containing Section 50-156 expressly provides that

nothing in the article prohibits enforcementof any other ordinance:

The provisions of this article and other city ordinances are cumulative law, and
this chapterdoes not prevent enforcementof another city ordinance that regulates
an areacoveredby this article and is otherwise applicable.

DallasCity Code$ 50-154.

State's Motion for Reconsideration- Page4

 Thus, the State's complaint appropriately charged Defendant with a violation of Section

32-rc.s

5. Section 32-ll of the City Code is inapplicable to the State's complaint.

The Order notes that both parties agreethat no Park Board regulations have been posted

at Dealey Plazaas purportedlyrequired by Section32-11 of the City Code as of the date of its

hearingon Defendant'smotion to quashon November 16, 2010.6 However, Section32-11 does

not apply to the State'scomplaint. Section32-ll states:

The park board shall adopl such rules and regulations as it deems best for the
managementof the public parks and where such rules have been adoptedfor a
specific park area and posted within the specific park so regulated, any person
found guilty of violating such rules is guilty of an offense.

Dallas City Code $ 32-11 (emphasisadded).

Here, the State is not charging the Defendant with a violation of a rule adopted by the

Park Board. Instead, the State is charging Defendant with a violation of Section 32-10. As is

shown in Section 7 of this motion (below), the Dallas City Council enactedSection 32-10 by

ordinance.

5 Defendant alleges that he was told by city staff that there was no processor procedure in place to obtain
an agreementor permits for Dealey Plaza. Defendant implies that the City must have or create such a procedureand
allow him to apply for a permit or agreementbefore the City may prosecute him for a violation of Section 32-10.
But Section :2- iO does not require the City to have or create such a procedure. Moreover, Defendant has not shown
the Court that he is entitled by law to have the City maintain or establish such a procedure before the State may
prosecutehim for a violation ofSection 32-10.
Moreover, it is irrelevant that Chapter 32 of the City Code does not specifically list Dealey Plaza as a
..public park" and that the State did not provide evidence in its responseto Defendant's motion to quash that Dealey
plaza is-a "public park." Section 32-10 on its face does not apply to "public parks"; instead,it appliesto "areas
under the control of the park board." The State will have the burden at trial to prove that Dealey Plaza is an area
under the control ofthe Park Board.
Likewise, it is irrelevant that neither side has presented the Court with the specific legal effects of the
designation of Dealey Plaza as a National Historic Landmark. The designation would be relevant only if it totally
diveited the City of iU rigtrts to regulate activities at the site. The Defendant has made no such showing. In fact,
the designationdo"r not aifect the siatus of Dealey Plazafor purposesof Section 32'10. See 36 C.F.R.65'2 "Effects
of Designation" and http://www.nps.eov/history/nhVQA.htm#6
6
Seeorder, p. 4
'
i i': , 7 ' ' . ii i
State's Motion for Reconsideration- Page 5 f\ ,/
M{n
 It is an elementaryrule that all personsare presumedto know the law. See,e.g., Greater

Houston Transp. Co. v. Phillips, S0l S.W.2d 523,528 n.3 (Tex. 1990); City of Fort Il'orth v.

Johnson, 388 S.W.2d 400, 403 (Tex. 1964). In particular, courts have repeatedlyheld that

personsare chargedwith knowledgeof a city's ordinances.See,e.g., Johnson,388 S.W.2d at

403; Boord of Adjustmentof San Antonio v. Nelson,577 S.W.2d 783, 786 (Tex. Civ. App. - San

Antonio 1979,wit refd n.r.e). Thus, the law did not require the City to post Section32-10 of

the City Code at Dealey Plaza, any more than the law would require the State to post the

burglary section of the Penal Code at the door of a residence to enable the prosecution of a

burglar.

Furthermore, Section 32-11 does not require the Park Board to adopt rules for and post

rules at all parks; it merely requires that any rules adopted be posted before a person may be

charged with an offense. Again, the State is not charging Defendant with a violation of a Park

Board rule. Accordingly, the fact that no Park Board rules have been posted at Dealey Plaza is

irrelevant.

5. The Court erred by examining evidencerather than focusing only on the complaint.

Article 27.02 of the Texas Code of Criminal Procedurelists the eight pre-trial pleadings

and motions a defendantmay make. Only two of thesecould possibly apply to this case: "(1) A

motion to set aside or an exception to [a charging instrument] for some matter of form or

substance;. . . and (8) AnV other motions or pleadings that are by law permitted to be filed."

Tex. Code Crim. Proc.art. 27.02(I), (8).

Grounds for a motion to set aside and an exception are expressly set forth, respectively,

in Article 27.03 (set aside),and Article 27.08 (exceptionto substance).Statev. Rosenbaum,gl0

S.W.2d 934, 944 (Tex. Crim. App. 1994). A so-called "motion to quaphl' is the functional

State's Motion for Reconsideration- Page6

ir:'i': M
equivalentof a motion to set aside.TId.; State v. Eaveso800 S.W.2d,220, 221 n.5 (Tex. Crim.

App. 1990);seealso Crwen v. State,6l3 S.W.2d488, at 489-490(Tex. Crim. App. 1981).

The facts that go to the merits of the complaint should not be considered in a pre-trial

motion. See Woodsv. Stote, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005) ("The purposeof a

pre-trial motion is to addresspreliminary matters, not the merits of the case itself. Preliminary

matters are those issuesthat can be determined before there is a trial on the general issue of the

case.") (footnote omitted). A motion to quash should be granted only if a defect of form or

substanceexists. See Wellsv. State,516 S.W.2d 663,664 (Tex. Crim.App. 1974) (holding that

a complaint that is valid on its face is sufficient to support a prosecutionby complaint). "[I]n a

pretrial setting there is no constitutional or statutory authority for an accusedto raise and for a

trial court to determine sufficiency of evidence to support or defeat an alleged element of an

offense.. . ." Rosenbaum.910

S.W.2dat 948.

In granting the Defendant's Motion to Quash, however, the Court considered several

issuesof fact which are not properly entertainedin a motion to quash. For example, the Court's

Order states:

"As applied to the case at hand, it is always incumbent upon the State to show how the

actions of the Defendant fall within this section of the Dallas Ciw Code and are therefore

within the jurisdiction of the Court."8

"The Defendant stated that when he presented himself inquiring of such fseeking a

permit] he was told that no process or procedure was in place for agreement and/or

'
Although Defendant'smotion could theoreticallybe authorizedby Article 27.02(8) of the TexasCode of
Criminal Procedure,Defendant's motion fails to identiff what law would authorize its filing and the State is aware
of none.
8
SeeOrder,p. 3, lines I l-13.

State's Motion for Reconsideration- Page 7

P(t{
 permits for Dealy Plaza. This fact was not controverted by the State."e (Emphasis

added).

o 'oThe Court has been presented with no authority indicating that Dealey Plaza is

considereda'public park'."10

o "The specific legal effects of designation [as a National Historic Landmark] have not

beenpresentedto the Court."ll

o "The Court does not consider nor co[lment on any of the other argumentspresentedby

the Defendant and this Order is limited to the application of the lsw to thefacts presented

in this hearing regardingthis case." (Emphasisadded).

Each of these statementscontainsone or more issuesof fact to be determinedat trial.

Here, neither the Defendant nor the Court cites any defects of form or substancein the

complaint which would be proper grounds for quashing the complaint. Instead, Defendant's

motion requires this Court to go behind the face of the complaint before trial to see if there is

sufficient evidence to support alleged elements of the offense. But, other than grand jury

irregularities proscribed in Article 28.03 of the Code of Criminal Procedure(which of course do

not apply here), the trial court may test only the facial validity of allegations in a charging

instrument. Rosenbaum, 910 S.W.2d at 947. The Texas Court of Criminal Appeals has

'Jurisdictional" claims are

consistently refused to look beyond an indictment where analogous

made by motion to set aside or otherwise. Id. In this case, the complaint complies with the

statutoryrequirements,provides adequatenotice to the Defendant of the alleged offense, and was

e
SeeOrder, p. 3, lines 17-20.
10
SeeOrder, p. 4, lines 6-8.
1r
SeeOrder,p.4, lines 15-16.

w{
,';iiti
State's Motion for Reconsideration- Page 8
timely filed. Thus, the complaint is valid on its face and legally sufficient to support a trial on

the merits.12

7. The Court erred in determining that it did not have jurisdiction over the offense
alleged in the complaint.

In granting Defendant's motion, the Court found that it did not have 'Jurisdiction over

tfis caseas presented."l3 However, statelaw clearly provides that the Court hasjurisdiction over

all criminal cases(such as this one) that arise under the ordinancesof the municipality and are

punishableby a fine.

Specifically,"[a] municipal court of record has the.jurisdictionprovided by generallaw

for municipal courts." Tex. Gov't Code $ 30.00005(a). The TexasGovernmentCode setsforth

the generallaw for municipal court jurisdiction as follows:

A municipal court, including a municipal court of record, shall have 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 casesthat:
(1) ariseunder:
(A) the ordinancesof the municipalif; . . . and
(2) arc punishableby a fine . . . |,

Tex. Gov't Code g 29.003(a).

Similarly, the Texas Code of Criminal Procedure provides: "A municipal court,

including a municipal court of recordo shall have exclusive original jurisdiction within the

territorial limits of the municipality in all criminal casesthat: (1) arise under the ordinancesof

the municipality;and (2) arepunishableby a fine . . . ." Tex. Code Crim. Proc. art. a.l4(a).

't
The State has the burden at trial to prove each element of the offense alleged in the complaint beyond a
reasonable doubt. When the State presents a factually deficient case, the Texas Code of Criminal procedure
provides a safeguard for criminal defendants-a directed verdict: "lf upon the trial of a case in a . . . municipal
court, the State fails to prove a prima facie caseof the offense alleged in the complaint, the defendant is entitled to a
directed verdict of not guilty." Tex. Code Crim. Proc. art. 45.032. Thus, if the State does not present facts in its
case in chief that provide at least some proof of each of the required elements of the offense illeged, the Court
should grant a directed verdict upon proper motion.
''
Order.p. 5.

State's Motion for Reconsideration- Page 9

wi
 In this case,the State'scomplaint dated July 23,2010 allegedthat Defendanthad violated

Section 32-10 of the Dallas City Codera and that the alleged offense occurred within the

territorial limits of the City of Dallas. The filing of the complaint in this case conferred

jurisdiction on the municipal court. SeeStatev. Boseman,830 S.W.2d 588, 590 n. 3 (Tex. Crim.

App. 1992); Bass v. State, 427 S.W.2d 624, 626 (Tex. Crim. App. 1968); Bailey v. State, 15

S.W.3d622,626 (Tex. App.-Dallas2000,no pet.).

In addition, the complaint alleged that Defendant committed the offense on or about June

13,2010. The complaint was therefore filed within the two-year limitation period establishedby

state law.rs Thus, the complaint filed in this causeis sufficient to vest jurisdiction in the Dallas

Municipal Court, and the Court maintains the authority to schedule the case for trial on the

merits to properly determineissuesof fact.

8. The State's complaint is legally sufficient.

The requirementsfor a complaint used as a misdemeanorcharging instrument are not as

stringent as the requirements for a complaint or affidavit for a search warrant. See Vallejo v.

state,408 s.w.2d 113, 114 (Tex. Crim. App. 1966);Rosev. State,799S.W.2d381, 384 (Tex.

App. Dallas 1990, no pet.). A complaint that is valid on its face is sufficient to support a

prosecutionby complaint. See Wells,516 S.W.2d at 664. A complaint'spurposeis to inform an

accusedof the facts surrounding the offense charged so he may preparea defense. See Chapa v.

to
The Dallas City Code is a codification of many ordinances enacted by the Dallas City Council. See
Dallas, Tex., Ordinance No. 8737 (Feb. 6, 196l) (a copy of the ordinance can be found at the beginning of both the
printed and electronic versions of Volume I of the City Code). The Texas Local Government Code authorizes
municipalitiesto codify their ordinances.,SeeTex. Loc. Gov't Code $ 53.001(a). A municipal code of ordinancesis
a record of the codified ordinances and establishesthe content of those ordinances. See Tex. Loc. Gov't Code $
53.005(b). A court shall admit a printed code of ordinancesin evidencewithout further proof. SeeTex. Loc. Gov't
Code $ 53.006(b). The penalty range for a violation of Chapter 32 of the Dallas City Code is S1.00 - $500.00.
Although the City is not required by law to show that Section 32-10 is a codification of an adopted ordinance as
shown above,the City notes that the section is a codification of part of Dallas, Tex., OrdinanceNo. 8019 (Apr. 6,
1959), a certified copy of which is attachedto and incorporatedby referenceas Exhibit A.
''
See Tex. Code Crim. Proc. art. 12.02. Of course, limitations is merely an affirmative defense, not a
jurisdictional element. Proctor v. State,967 S.W.2d 840, 843 (Tex. Crim. App. 1998). i'

State's Motion for Reconsideration- Page 10

w6
State,420S.W.2d943,944 (Tex. Crim. App. 1967);Kindleyv. Stqte,879S.W.2d261,263(Tex.

App.-Houston [14th Dist.] 1994,no pet.); fiose, 799 S.W.2d at3B4.

The complaint filed in this cause is facially valid, meets all statutory requirements,and

substantially complies with Article 45.019(a) of the Texas Code of Criminal Procedure.r6

Moreover, the complaint languageis clear and specific as to the offense alleged. The complaint

states: "Said actor did then and there knowingly sell merchandise,to wit: magazinesin areas

under the control of the Park Board, to wit: Dealy (sic) Plaza, without a written agreementor a

permit issuedfrom the Office of the Park Board permitting the sale of such items, in violation of

Section 32-10 of the Dallas City Code." The complaint tracks the language contained in the

ordinanceand provides sufftcient notice to allow Defendantto preparea defense.

The sufficiency of an indictment or complaint is a question of law. SeeState v. Mffi I54

S.W'3d 599, 601 (Tex. Crim. App. 2004). Ordinarily, an indictment is legally sufficient if it

tracks the languageof a penal statute that itself satisfiesthe constitutional requirement of notice.

Seeid.; seealso Lqwrencev. State,240 S.W.3d 9I2,916 (Tex. Crim. App. 2007);Statev. Mays,

967 S.W.zd 404,406 (Tex. Crim. App. 1998). The Stateneed not allege facts that are merely

t6
Article 45.0lg,"Requisitesof Complaint," provides:
(a) A complaint is sufficient, without regard to its form, if it substantially satisfiesthe following requisites:
(l) it must be in writing;
(2) it must commence "In the name and by the authority of the State of Texas";
(3) it must state the name of the accused, if known, or if unknown, must include a reasonably
definite description of the accused;
(4) it must show that the accusedhas committed an offense against the law of this state, or state
that the affiant has good reason to believe and does believe that the accusedhas committed an offense asainst the
law ofthis state;
(5) it must statethe date the offense was committed as definitely as the affiant is able to provide;
(6) it must bear the signature or mark of the affiant; and
(7) it must conclude with the words "Against the peaceand dignity of the State" and, if the offense
charged is an offense only under a municipal ordinance, it may also conclude with the words "Contrary to the said
ordinance".
(b) A complaint filed in justice court must allege that the offense was committed in the county in which the
complaint is made.
(c) A complaint filed in municipal court must allege that the offense was committed in the territorial limits
of the municipality in which the complaint is made.

j ,

State's Motion for Reconsideration- Page I I

P46
evidentiaryin nature.Mays, 967 S.W.2d at 406tMoreno v. State, 721 S.W.2d 2gS (Tex. Crim.

App. 1986).

9- The Court erred by dismissing the State's complaint before trial becauseDefendant
did not meet his burden of proof.

The defendant has the burden to prove that a complaint is defective. See Kindley, 879

S.W.2dat263; Bagsbyv. State,72l S.W.2d 567,569(Tex. App.-Fort Worrh 1986,no pet.). In

a motion to quash, a defendant has the burden of proof and must present evidence or legal

authorityto supporthis motion. Weat v. State,537 S.W.2d,Z0,2l (Tex. Crim.App. 1976);

worton v. state,492 S.W.2d519, 520 (Tex. crim. App. Ig73); Belt v. state, g14 s.w.2d22g.

231 (Tex. App.-HoustonIlst. Dist] 1991,pet. refd); Statev. Perez,948S.W.2d 362,364(Tex.

App.-Eastland 1997,pet. refd).

In the Defendant's SupplementalResponseand Motion to Dismiss, he cites four reasons

to quashthe complaint: (1) He was not properly servedwith notice of the complaint-Defendant

does not cite any authority that the complaint must be served in misdemeanorcases,and in fact,

service of the charging instrument is not required in misdemeanorcas"slt; (2) The ordinance is

inapplicable to Defendant-Defendant does not state how the ordinance is inapplicable to him;

(3) The ordinance is unreasonablyvague-again, Defendant does not state how the ordinance
is

vague; and (a) The charge againsthim, his arrest, seizureof his property and his prosecutionare

unconstitutional.-although defendantcites the First, Fourth and Founeenth Amendmentsto the

United StatesConstitution, he does not state in specific terms how his constitutional rights were

violated.

Similarly, the Defendant's subsequentMotion to Quash does not cite any legal authority

for Defendant's conclusions. The Defendant again cites four reasonsto quash the complaint: (1)

" SeeTex.CodeCrim.proc.arts.25.01.25.04.
il

- page12
State'sMotion for Reconsideration I
,n
EI
,.1
A third complaint was filed which does not purport to amend or withdraw previous complaints

and the complaint was not servedon Defendant-Defendant does not cite any legal authority for

his claims; (2) Defendant adopts argumentspreviously made in his prior motions; (3) The new

complaint assertsa totally different ordinance and is procedurally invalid and fundamentally

unconstitutional-Defendant does not state how the filing of the complaint is unconstitutional;

and (a) Defendant again assertsthat the ordinance is inapplicable, but does not state why the

ordinance does not apply to Defendant. In both the Defendant's Supplemental Responseand

Motion to Dismiss and the Defendant's Motion to Quash,the Defendant fails to presentevidence

or legal authority to support his motion, so the Court should deny the Motion to Quash/Dismiss.

WHEREFORE, PREMISES CONSIDERED, the Stateof Texas respectfully requeststhat

this Court: (l) reconsiderits decision granting the Defendant's motion to quash, (2) withdraw its

Order granting the motion dated December 16,2010, (3) enter an order denying the motion to

quash, (4) schedulethis causefor a trial on the merits, and (5) grant the State all fuither relief to

which it is entitled or the Court deemsappropriate.

Respectfullysubmitted,

zuCK E. WILLIAMS
TexasStateBar No.24025714
AssistantCity Auorney
2014Main Street,Suite206
Dallas,Texas75201
Telephone- (214) 670-4439
Fax- (214)670-4814

State's Motion for Reconsideration- Page 13

pEf
 CERTItr'ICATE OX'SERVICE

I hereby certifi that on this 286 day of December,2010, a copy of the foregoing

documentwas delivered by facsimile to Defendant'scounsel of record, D. Bradley Kiz.zia at

214.651.4330. . ,/

("'
FREDERICKE. WILLIAMS

Stete'sMotion for Reconskleration- Page14

 CAUSENUMBERJlO-035408-01

STATEOF TEXAS $ IN THE MUNICIPAL COURTNO. 6

$
v. $ ctTY oF DALLAS
$
ROBERTGRODEN $ DALLAS COLINTY,TEXAS

ORDER

IT IS ORDEREDthat the State'sMotion for Reconsideration.

which wasconsideredthis

the day of 2010.is herebv:

Granted Denied

Presiding Judge,Dallas Municipal Court No. 6

State's Motion for Reconsideration- Page 15

frq,f
 City of Dallas

STATEOF TEXAS $
COUNry OF DALTAS $
CITYOF DALI-AS $

l, ROSA A. RIOS,AssistantCity Secretary,of the City of Dallas,Texas,do hereby

certify that the attached is a true and conect copy of:

ORDINANCENO.8O19

Whichwas passedby the DallasCityCouncilon April 6, 1959.

WITNESSMYHANDANDTHESEALoF THEclTY oF DALLAS,TEXAS,thisthe

23thday of December,2010.

\
;J
- _--/
- ; ,()' te (-:tr-. -('zln_ r_,
ROSA A. RIOS
ASSISTANT CITY SECRETARY
CITY OF DALLAS, TEXAS

PREPARED
BY:AG

EXHIBIT
b
t
0
.!t

h l /4t t I l )r! 4,
t
I

OFFICE
OFTHECITYSECRETARYCITYHALL DALLAS.
TEXAS75201 TELEPHONE
2141670-3738
 ;l

45
oRD$IANCEN0. 3Or9

AN OFDII'IANCEA]"IBDE{G CIIAHTER94, TTILE )O{V, OF ffiE T9I}1 CODEOF CTTTL AI.ID CR]I'II{AI ORDII{AI{CESOT
TEE Crry 0F DALIAS, By RrPnAlrr.rc A3lrCl&S 94-r rO 9l+-10, rNCIUSTVE; nrAqmlrG 1r'l I,rEU TEEREoT'A
NElr cEAprER 94 CONSrSTrI.tc0F ARTTCIAS 94-1 T0 94-13, I]lCLttSwEi PRoVIDING RUi,ESAND REqrlprTrolls
FoR Tm oPEBATIoI\i 0F PT'BLIC PARKSAND SQUARESI]{ TIIE CoRPOnIfIE lIl'lIlS 0F Im CITY 0F DAilAS; PRo-
EDING lUR TEE SEED IIMITS IN SAID PAnKS A$D SQUARES;PRoUIBITI$G DoGs II{ PttBLrc PARKSlrNLEsS
RESTRAINED;PROVIDIIIG rUR THE PROTECTIoNOF FISE, A]{IMALS, AND IPI{I^S KPI IN PUBLIC PAR}$; PRo-
\rIDINc PISIAITIES FOR TEE WOIATIOI'I 0F TtrIS ORDII{AJ'ICE;PRoWDING FOR SyEnAEILIrY; AND HEEAJ.IIIG
AIL ORDINAI{CESIN CONFLICTlrIIfH TIIIS OIDI{ANCE, AI,ID DECIARINGAN ISfERGfliCY.

BE TT ORDA]]{EDBY TI]E CITT COUNCTLOF TIIE CITY OF DALIAS:

SECTIOII1. That Chapter th of Title )OCVof the l-941 Code of Civil &d Crimlxal Ord,inalces of the
City of DaILas be arrd tfre 6a&e is hereby repeated, and in lieu thereof the folLowins is
enacted., to-vl-!:

"cuAgtER 9l+

PARKS AI'ID SqUARES

Geneta]. Regulatlons

"Art. 94-1. Safety for Park Patrons,

"Arh. 91+-2' Injuring Gra6s, Vegetatlon or l&provenents.
"Art.94-3. Abuslve or Ind.ecent Ian€uage or Acts.
"Art,9l+-4. Pros'ultutes ard Sex Perverbs.
"Art.94-5. Cmelcia]- Vehicles.
"Arb.9l+-6. Speed Limits; Drivhg l4)on Walksi InJElng Vegetstlon.
"l;rr.94-7. Dogs.
"Art. 94-8. Protection of Fish, Antuals, Bnd Fow16 Kept il Pa,rks.
"Art. 94-9. Parking.
"Art, 94-lO, Possesslon of Firearms on Property Ormed, I€ased., or Controlled
by the C1-uy of Dallas Parh Deparbnent.
"Art. 94-11. Park operatin€ Schedu,l-es.
"Arb. 94-12. Sale of Merchandlse Ln Parks,
"Arb. 9L-13. Park Soard Strau Adcrpt Rules and negulations;
Postinr RenrllLtiong,
rrArt,.
9L-14. Penal-ty.
'Art. gafety for Parh Patrons -- It ls hereby nade unlawful for uy lndividual or group of
94-1.
tnd.lviduals to parttclpate j.n ary actli.lty on ary public perk area vhen such actlvity a'il]. create a
cla.nger to the publlc or na:r be considered a public nui6sce. the Park Board. my deslgnate partlcultr
locatlons within park areas for speclflc activities ard whqn d.eemed necessarXr, i'- uay limit the
conduct of such activlties by tbe 16sutrlce of speclal pemlts upon application whj.ch pemlts riIL
set out the partlcuLar condltlong uDd.er rhich activity is pemltted, Overnlght eepinG is
prohlblted on s,ny tr)arh property excelt by specl-al pemit i.ssued by the Parli Board or its
representatives for such actlvlty on speclfic occasions.

"Artlcle 94-2. lnJurlng Crass, Vegetation or lrq)rovments

It is hereby nade un].awful for sry pelson to cut, break, d.eface or in any vay illJure the trees,
shr:ubs, plmts, gras6, turf, fountalnE, seats, fences, structules, isprorements, orrra.&ents or
monuents or properby, $itbln or upon any of the public puks.

'Afclcle Abusive or Indecent ran'gua€e or Acts. -- No person sha1l use o! Epe8.k arx
94-3.
thr€atenjng, abusive, insultlng or lndecent lar€uate 1n my of the public parks, and. nc peraon
sheli cmit, i-n my of said. psrkt, ey ob6cene, Isd or lnaecent act or create uy nulsece.

"Artic].e !\-l+, Prostitutes and sec perverls - No comonly reputeal prostltute and/or serual
perveri shall be al]-otred. vitbin or shell gov,i-thln ery of the pub11c puks, ard no lErson shal1
accmlmy 6ny comonly reputed plostlture or se:ora]- perterb lnto or rlthin any of sald p8]'.s.

"Article 94-5. CGnmercial Vehlcles -- A1I vehlcles used. for the pur?ose of transporting freight
ud rnerchand.j"se, or brick, stone or gravel, al]d all those c(mon.Iy lsrm as floats, nove ltagons,
exprEss or delivery vagons are prohlbited frm entering upon or bei-ng drlven tbrough Bny of the
public parks of the Cjly.

Upon Walk6j InJurjng Vegetation -- It shall be unl€,wful- for

"Articte 94-6. *)eed. Ljri-ti Driving
aqy person to ride, dxive or go at a rate of speed. faster than speed llmlts as posted on stendard
trafflc signs, upon horeeback, ot upon any bicycle, motorcycl,e, vbeel or vheel6, or in sJry
autonobile or my vehicle vhatgoever, upon ay d-riv. or street in sJry park of the clty, or to ri.d'e
or drive any wheel or mimal upon any raLk in suchlatk, or to cLfu]b any tree, fence or buildlng,
or to do sry fujury to any tree, shrub, flower or tle 6rass in ay aucfr pe!h.

"Arblcle 94-7. Dogs -- It shal.]- be unl-adul for €ny omer, keeper or person having the custodl''
or control of my d.og to cause or pemlt such arjltra]. to go lnto or upon the grounds of 8lty public
park trithjn the City of Dallas, unless such dog is led by sme person and. r€tained. in cu.stody by
bavlng such ani.mal- securel:r fastened. by means of a chaLn, rotr)e or 6trap.

"Arblcle 9l+-E. Protection of flsh, anj.nxa.Ls ard forls kept jll parlG -- liherever the Ciiy of
Dauj,s ovns or keeps a]ly flsh, a]}tu[a].s, or folrls on pub]-ic exhlbltlon in 8ry of-'the public larirs
or grouds of the City, j.t shsIl be u]-awful for my person in my rHDer to lniure, smoy or
i.nterfere vlth eny such ufual, fish or fow1, or to injue or interfere with, 1n ulj/ mer, el;
of the enclosures in which any aninal, fish or fonl may be kept. The tern 'annoy' or 'interfexe
vj.thr shal-l- includ.e €Jly attenryt on the psxt of the person, save BJrd except the d.uly authorized
keeper thereof, or person ln chsge thereof, to feed or offer sy foodstuff or otb.er substmce
to ary such €rlns-I, flsh or folll. Whenever ary flsir, fovl or 81lna1s are kept on ed1b1t1on, it
shall- be the duty of the publ-ic to obey al-l rules provlded by the P&rh Board or other authotit/

Nt46
for the extlibition of sy such elral, fish or fml.

"Articfe 94-9, Perking -- Where vehicl,e parhi.rlg lots or aJeas have been set aside jn lair Parii :
ard otirer public parlis ln the City of DalJas no vehlcle shall be drlven over or across the
curbs, sid.el,'eLi€, grass or 1am wii.lai! such parh, but sha1l be parked. on sucl] Lots within a1d
ce*vileen -.iLe l:t.es desi:latirl a single-velticle parl::n,: spece, uo not othenl is' '
 ORDEIAI{CElf0. 3019 conira'

lcts or axeas vlthln trb.ir Park and the other public patirs of the City of DaILas have been
Where parklng
for headjl parklng to front on a ilslble parhlng line fithout delineated. s1ng1e vehi.ch
destgn-ated
of the vehicle shall be placed on the parklng llne &'1d as near ao lractlcable to tire
the front
"i."E", oi the lsst parked vehiel-e ln l1ne. l.lo vebicle stla]-l be parkeal or left behlnd sny other vehicle
"iau l-tne or bach of such parkl.rlg l1ne in ey nanner so as to obstmct, blocl'. or hi.nd"er ingrese
i'rl the parking
troi th. utru. offlcers oi the Po1i.e Depaltnent of the City of Dellas or Park Depart"nent
-" .gt"'""
patr6l ehal1 isaue to vlolators of thi.s ord.linance trafflc tlckets or notlces to al1Filer to charges in the
Io*ur. ptun""ibed ln Sectlon 1 of Arblcle 85-23 of Orallnance No. 117?5, as mended-, Imown es the TraJfic
vith the appllcable sectlons of
ordinante of the Clty of DaILag and the ca6e shal-l proceed. 1n aceordsace
Ar-p3 ot the Traffie Ordlnance. Where a vehicle ls parked or left in viol-atlon of tbls
""iJe"tf"fu ll} such €r nsnner as to obstnrct or bLock traffic, and. the omer or operator of the vehicle
ordinance
pollce officers of the City or Park Department Patrol n€ir move the vehlcle so ttrat
cannot be found,
noi be lmped.ed., or ttre veblcle nay be re&oved llr accordace {ith section 10 of Artlcle
traffic v1ll
35-23 of the Trafflc O].d"lnance of the Clty of DeILas'

possesslon of Flrearns on Ploperty omed, I€ased or ControLled by the Clty of Dall€s

"Arblcl-e 9l+-10.
-- It shall be ulal'rftrf to have ln oners possesslon upon sny lsd- or sater ovned,
Park Departroent
of the clti' of DalLas Ps.rk Departnent, my firea:ms, rlfle, shotgun,-
leased or und.er the control
plstol or any other weapon deslgned for the pul?ose of flrlng or dlscharginE
autormtlc rifle, revolvel,
vrreiirer 6uch 6he11 or cargrld.ge is blenk or llve srmunlti-on; provlded, hdvl,.er,
s. shell- or cartrid.ge,
uhen acting ln the perfolrnjlce of
that thls artlcle shalL not apply to lav enforcilent leece officerE
thelr offLclal duties'

park Operatlng Schedules -- Whenever, i-n the ollnion of the Puk Board lt 1s deBirable
"Artlcle 94-IL. areas
op."ittrg trours durhg vhlch bulldL:ngs structlrres, faclllties, atbletlc
or necessalx. to establiih
th" Perk Board. ls authorized to establlsh such hours of operation blr
or other 1mlrovenents oo puit
-hours
"r.u.!,
so deslgnated. are posted on the entrsces to such bui-ldlngs, faclrlties'
resorution an6 when such
etc., the sme 6ha1]be demed as the offlcia]- hours of q)e"ation'

ir P€rl(.6. -- It sha]-l be unlavful for 8qy ind'lvldual to sell or

"ArElcIe 94-12. sal-e of Merchmdise
confectlona, merchandjse, or aervices ia areas under the control of
offer for sale any food., drln]|,s,
hs a wfltten agleement or a pellxi-t lssued frcm the office of the
the Park Boal]l u.nl-ess silch lerson
Apptleation for such €€reements or pend'ta shall be nade
Park Board petsltting the. sale df such items.
to the offlce of the Park Boaro.

parh Board ShFrl Adot Rules and. Regulstionsi Postln€ Regulatlons -- Tlhe Park Boaro
:Arbfcle 94-13.
as 1t d.eerG best for the nalagement of the publlc parl-'s e'nd
sha]jl aaolt such rul-es a.nd regulstlons
park atea sd posteal wlth 1n the q)eciflc park so
rhere such l:u1e6 h.a,ve oeen ad.-pted for a speclfic
such nrlea shall be subJeet to the penalty ag
*g"l-"t"a that s1"v lndlvidual iounA gulltf of violating
provided j.rl Atticle !4-1h of thls chapter'

',artrcte penalty -- Any person who sha]-l vlolste 8ry of the tems, provislDns or conclltlons
9h-t1+.
uL guffty of a nlsdmeanor an{i upon convlctlotr thereof shall be flned not mor€
of thls Chapter shaLl
tharr lllo r:uroruo DolrARs ($2O0.0o)."
parts of tbls ordjnuce shal1 be he1d. to be Lnvalid, sucb i-nva}ld.1ty shall not
scTIoN 2, If ey pari or -remalnilg
parbs of thls oldtra,nce. The Clty council heleby declues tlEt it
affect the vari4lly of the
perbs-of this ord.lnance if lt haal lsxqm that such parb or parbs thereof
voul-d. have pa.ssed" the re[al-nil}g
would be declar€d inve1ic1.

lnconslstent ot conflicting vith the provlslons of this

SCTION 3. ALl- ord.lnsnces or parts of ord-lnsrces
provld.ed., howeverr that tbe repea] of exiEtlng ordlnances by ttlis
ordlnance are hefeby repesled;
or punlshnant of any person fot any act done or
ordinaJ1ce shall not aff-ect -ordi:ns:ce the pto6ecutlon
or-prevent
hereby repeaLed prior to the ta.ki-ng effect of this ordlnalce;
c@utritteal jn vlol€,tion of arry
rnay be instittt.a and causes presently pending proceeded vlth in all
but prosecutlom for such ofienses
r*eplct" aE 1f such prior ordlnace had not been repea].ed'

or corpo::atlon.vioJa,tiag eny of the Provlsions of this ordillmce 6hal1

scTlol{ 4. That alry person, fina
be subject to a fjxe, upon ionvlction 1n Cozporailon Colgt, 11 ary 5m not to exceed Two l{undred Doll-ars
thereof shaJ.l- constitute a distlnct €Jrd separate offense'
iAaoo.ool slrd each atxd. every d.ay of contlnuance

vith reference to the potlcing of public-parhs md

scTlol{ 5. The fact that the present tegulstiore
finiti of the City of Dallr's are itradequate creates an urgency and on ilergetrcy
squ:lres in the cor?orate ed
of tire public peace, heal"tb, corufort, safety, end' general velfare,
for the jrnedi.aterpreBervation
effect ln1ed.iately fron ard gfter i-ts passa€e, end it is
rqui.res that this ordj-narce sha1l takl
accordinglJ so ordained..

ATPRO\TED AS TO IONDI:

;. P. huUdg., UflY aLlomeY

BI: TED P. MACII/ASTEn, Assj.stant Clty Atborney

PASSED: Apr.LI 6' L959

S'IROLLED: APtiL 5, I95?

CORRECTLY
IKJ t Qzz-z-'+'+
APPRO\TED I !
CitY Attornelr

frq6
 rr i I
I
r ' ,' . ,l , : r l
;.,1
. ; l l l Ii r
I ,ill
ll,'
200{ Al,tTUU'
03:23 tiiI

Fax Number
NArIE

, tlime/wumner t 921455L4330
: 19 . , ,- : .,-. e 13.r s'.,?-1. ') ,
Page. , b..i,'td. tl{
' +' \ .r'r" l.lev-ri-zoo4 03!17A1.!TltE Eoq*'
start Tinb
Elapsed Tine : 05'54"
l,tode. : STD ECM.
Results : [O.K]

5lsr6
dE r-m
'E'n.ql
Ft&l " ':&-!r q. BpF lFtF||l4 ',*-^|"-T-J-I:=1
i'liliil
iiroi*nor qil pcrpror *rq nr
' a'r
l-!ry-I131l.3lj1l.3"t'.gggffitjffi*"*-rw "tT F. p.F nt .qt
Fn pdgrqpl{| p.. or-
qr PDr ol
dd|rd r-r?Frn|.'
,iill
. _ - ! _ r . t . i

qr'rq rp tofF.qil &ur||' FFFJ|E Fr

qFrylr€DpErlFlru i :li
ilt FFill

:sJ'NSl,lil{oc .. i I
I'ri,i r l i
'L.
:o8udlorequnNltlo{ i
0erqsr'AoC tqpnpg' \ . :llif l,:.
'" i t "+" , J'1. l'G !fr.,,-
!,!gp4Frrurrr1, ,ti'il';t !,
.t

:lgNuoJJv l^IouJ
!t8

!AIWdTMX,
:NOIINSIJV
, il l rii
iuf,{I{rNrvr
{e
Lrr *,.tt a ll.LVdl : ,'l

.I"flgHSUflAOC t'ImilSovd
6Wl1OL9 (91g) .raqung ocgl6
tlgts0r9 0IZ) rrequmNrBd
I0ZSI Xl'ctltEq
goz|[oou irirJts oFI I ?I0Z
wlryto dn7 ;t.i:iil
er;gg e,Ieuro11v ,tftf,
'!t ' '}^ 4U'
.,iiil
t *tr-: ,
i) ,
. t ir'i
NOrr3flS ESItod ch[v
a

'I
i I l,l