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Paul Anthony Nix, Appellant v. the State of Texas

April 11, 2013

PAUL ANTHONY NIX, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE



On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1301654

The opinion of the court was delivered by: Adele Hedges Chief Justice

Affirmed and Opinion filed April 11, 2013.

In The Fourteenth Court of Appeals

OPINION

Appellant pleaded guilty to one count of unlawfully owning and operating a pain management clinic. The trial court entered an order of deferred adjudication and placed appellant on a three-year period of community supervision. In two issues, we are asked to decide whether the trial court had jurisdiction over the case, and if so, whether it erred by denying appellant's motion to quash. Finding no error, we overrule appellant's issues and affirm the judgment of the trial court.

PLEA TO THE JURISDICTION

In his first issue, appellant challenges the trial court's denial of his plea to the jurisdiction. Appellant essentially contends that the State charged him with a misdemeanor rather than a felony, and that his case therefore belonged in county criminal court rather than state district court. Compare Tex. Code Crim. Proc. art.

4.05 (providing that state district courts have original jurisdiction in all felony cases and certain misdemeanors not implicated here), with Tex. Code Crim. Proc. art. 4.07 (providing that county criminal courts have original jurisdiction in all misdemeanors). Such jurisdictional issues are governed by the Texas Constitution and the statutory procedures relating to the use of charging instruments. Kirkpatrick v. State, 279 S.W.3d 324, 327 (Tex. Crim. App. 2009). Our review is de novo. See id.

"The presentment of an indictment or information to a court invests the court with jurisdiction of the cause." Tex. Const. art. V, § 12(b). The law does not require that the charging instrument be presented strictly without defects. A felony court may still acquire jurisdiction over a case even though the indictment, because of its defects, alleges only a misdemeanor. That was the case in Kirkpatrick, where the State failed to allege the elements that would elevate the charge of forgery from a misdemeanor to a felony. See Kirkpatrick, 279 S.W.3d at 325. The court of criminal appeals explained that the test for assessing the trial court's jurisdiction is not whether the indictment actually alleges a felony, but whether the indictment, despite its substantive defects, is "capable of being construed as intending to charge a felony (or a misdemeanor for which the district court has jurisdiction)." Id. at 328 (citing Teal v. State, 230 S.W.3d 172, 181 (Tex. Crim. App. 2007)). The indictment in Kirkpatrick satisfied this test because a felony offense existed and the defendant had notice that the State intended to charge her with the felony: specifically, the indictment was returned to a felony court, it described the offense as a felony in the third degree, and it provided the defendant with citations to the relevant penal statutes. Id. at 329.

Following Kirkpatrick, we must now determine whether the indictment in this case is capable of being construed as intending to charge a felony. With the formal parts omitted, the indictment alleges that:

Paul Anthony Nix, hereafter styled the Defendant, heretofore on or about November 30, 2010, did then and there unlawfully, intentionally and knowingly own and operate a pain management clinic, namely North Houston Wellness & Weight Loss Clinic, at 12100 Veterans Memorial, Houston, Harris County, and the Defendant was not a physician who practices in the State of Texas under an unrestricted license to practice medicine.

The indictment describes the offense as a felony charge, and it was returned to a court with felony jurisdiction. Although no statutes were cited, the language of the indictment closely tracks that of section 168.102 of the Texas Occupations Code. This section is entirely regulatory in nature. It mandates an application process for obtaining the certification required of pain management clinics. It also provides that a clinic "must be owned and operated by a medical director who is a physician who practices in this state under an unrestricted license."*fn1 See Tex. Occ. Code § 168.102(a).

The Code does not expressly state whether a person commits a felony or a misdemeanor when he violates Section 168.102. To determine whether a felony offense exists, we must accordingly look to guidance from other provisions. Our analysis requires that we engage in matters of statutory interpretation. When construing a statute, our primary objective is to ascertain and give effect to the intent of the legislature. May v. State, 919 S.W.2d 422, 423 (Tex. Crim. App. 1996). We interpret statutes according to the plain and ordinary meaning of the words used, unless doing so yields an absurd result. Tex. Gov't Code § 311.011; Ex parte Ervin, 187 S.W.3d 386, 388 (Tex. Crim. App. 2005).

Appellant argues that the legislature intended to charge this offense as a misdemeanor, not a felony. His argument is based on a reading of another provision that generally establishes a person's criminal liability under the subtitle regulating ...


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