State v. Farhad Nayeb
05-15-00302-CR
| Tex. App. | Aug 3, 2015Background
- Defendant Farhad Nayeb operated a convenience store in Melissa, Texas; city issued a Certificate of Occupancy permitting a convenience store with gas pumps. After Nayeb added check-cashing and money-transmission services, the City issued warning letters and ultimately 54 municipal citations under the City’s Comprehensive Zoning Ordinance No. 92-08 (CZO).
- Melissa Municipal Court convicted Nayeb and assessed fines; Nayeb appealed to the county court and moved to dismiss, arguing the CZO was unconstitutionally vague (facial and/or as-applied) because key commercial uses lacked definitions and “accessory use” was ambiguous.
- The trial court agreed and declared the entire CZO facially unconstitutional, dismissed the citations, and prompted this interlocutory appeal by the State under Article 44.01, Tex. Code Crim. P.
- The State (appellant) argues the appeal is not moot, contending: the facial challenge remains justiciable; the CZO was enforceable at the time of the citations; statute-of-limitations tolling preserves prosecution; public-interest considerations apply; and the trial court should have severed any invalid provisions rather than voiding the entire ordinance.
- The State further contends (1) Nayeb cannot lawfully perform banking or money-transmission functions without required state charters/licenses, so lack of definitions in the CZO did not render it void, and (2) Nayeb accepted the existing certificate of occupancy and thereby waived or is estopped from his constitutional challenge (acceptance-of-benefits doctrine).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Nayeb) | Held (trial court outcome under review / appellate posture) |
|---|---|---|---|
| Mootness / justiciability | Appeal is not moot: trial-court dismissal rests on a constitutional ruling; reversal would reinstate prosecutions; limitations tolled; public-interest exception applies | Case is moot because citations were dismissed, statute of limitations has run, and the ordinance has been superseded | Trial court dismissed prosecutions on constitutional grounds; State appeals that dismissal (court of appeals must decide justiciability) |
| Facial vagueness of CZO (Section 20 / accessory uses) | CZO is presumptively constitutional; vagueness claim fails because statute must be void in all applications to be facially invalid; many commercial uses are governed by state law (e.g., banking, money transmission) | CZO is unconstitutionally vague: 105 of 117 commercial uses undefined; accessory-use language fails to give fair notice, allowing enforcement arbitrariness | Trial court held the CZO facially vague and void in its entirety; State argues that ruling was erroneous and overbroad |
| Severability | If portions are unconstitutional, court should sever invalid parts and preserve remainder (CZO contains severance clause; Tex. Gov’t Code supports severance) | Nayeb sought total invalidation (or at least secured it) to avoid prosecution under any remaining provisions | Trial court invalidated the entire CZO rather than severing; State urges reversal and partial preservation of ordinance |
| Acceptance of benefits / vested rights | Nayeb accepted existing certificate of occupancy (for convenience store with gas) and waived challenge; he had no vested right to conduct banking or money transmission without state licensing; Chapter 245/vested-rights statute does not validate state-regulated activities | Nayeb asserts he had rights upon buying the property and did not accept city-bestowed benefits that would bar his challenge | Trial court did not rest decision on waiver/acceptance-of-benefits; State argues acceptance/waiver bars the challenge and that Nayeb lacked legal authority to perform bank/money-transmission functions absent state license |
Key Cases Cited
- Ex parte Matthews, 873 S.W.2d 40 (Tex. Crim. App. 1994) (facial unconstitutionality of a charging instrument can void prosecution)
- Baird v. City of Melissa, 170 S.W.3d 921 (Tex. App. — Dallas 2005) (zoning-grid approach: omitted uses are not permitted; accessory/incidentals are circumscribed by ordinance language)
- State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) (standards for facial challenges: statute must be invalid in all applications)
- FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) (considerations in reviewing ordinances and zoning regulation challenges)
- Zipp v. Wuemling, 218 S.W.3d 71 (Tex. 2007) (appeal mootness principle: action is moot when court cannot affect parties’ rights)