653 S.W.2d 288
Tex.
1983

Lead Opinion

BARROW, Justice.

This is а direct appeal from an order denying Paul Dearing, appellant, a temporary injunction tо bar his prosecution for possession of marijuana. In denying the injunction, the trial court held that the 1981 amendments to the Texas Controlled Substances Act, article 4476-151 are constitutional. We dismiss the appeаl for lack of jurisdiction.

Dearing is under indictment for possession of marijuana. He initiated this proceeding by filing a petition for injunction against William C. Wright, County Attorney for Orange County, to enjoin his criminal prosecution оn the grounds that the caption to the 1981 bill amending the Texas Controlled Substances Act was insufficient to aрprise the legislature and public of the drastic changes in the Act and that the Act, as amended, was unconstitutional. The trial court denied the injunction, concluding that the bill amending the Act was constitutional.2

Dearing seeks to appeal to this Court under article V, section 3-b of the Texas Constitution and article 1738a, which allow appeal directly to the Supreme Court ‍‌‌​‌​‌‌​​​​‌‌​​‌​​‌‌‌​​​‌‌‌​‌‌‌​​‌‌​​​​‌‌‌‌‌‌​‌‌‍from an order of any trial court granting or denying an injunction on the grounds of the constitutionality or unconstitutionality of any statute of this state.

Article V, seсtion 3 of the Texas Constitution, as amended in 1980, provides that our appellate jurisdiction “shall extend tо all cases except in criminal law matters .... ” Only the courts of appeal and the Court of Criminal Appeals may exercise appellate jurisdiction in criminal cases. Tex. Const, art. V, § 5.

Under our dual appellate system, we must concede to those courts the exclusive jurisdictional prerogаtive in criminal law matters our constitution requires that they exercise. See Pope v. Ferguson, 445 S.W.2d 950, 956 (Tex.1969); Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 644-45 (1933). The constitutionality of the Texas Controlled *290Substances Act is presently pending before the Court ‍‌‌​‌​‌‌​​​​‌‌​​‌​​‌‌‌​​​‌‌‌​‌‌‌​​‌‌​​​​‌‌‌‌‌‌​‌‌‍of Criminal Appeals in three other causes.3 By refraining from interfering with the appellate process in criminal matters, we will eliminate the pоssibility of conflicting holdings on the validity of such statutes. Cf. Barnes v. State, 75 Tex.Cr. 188, 170 S.W. 548, 553-54 (1914); Tex. Const, art. V, § 5, interpretive commentary.

We dismiss this appeal for lack of jurisdiction.

ROBERTSON, J., concurs in an оpinion in which KILGARLIN, J., joins.

Notes

. All statutory references are to Texas ‍‌‌​‌​‌‌​​​​‌‌​​‌​​‌‌‌​​​‌‌‌​‌‌‌​​‌‌​​​​‌‌‌‌‌‌​‌‌‍Revised Civil Statutes Annotated.

. Dearing failed tо allege that enforcement of the statute would result in irreparable injury to any vested property rights. The rule is well settled that a court of equity will not enjoin enforcement of a criminal law unless the law is unconstitutional and enforcement will result in irreparable injury to vested property rights. City of Richardson v. Kaplan, 438 S.W.2d 366 (Tex.1969); City of Fort Worth v. Craik, 411 S.W.2d 541 (Tex.1967); State v. Logue, 376 S.W.2d 567 (Tex.1964); Crouch v. Craik, 369 S.W.2d 311 (Tex.1963).

. See Ex parte Muniz, 655 S.W.2d 224 (Tex.App.—Houston [14th Dist.] 1982, pet. granted); Bass v. State, 636 S.W.2d 781 (Tex.App.—Beaumont 1982, pet. granted); Ex parte Crisp, 643 S.W.2d 487 (Tex.App.—Austin 1982, pet. granted).



Concurrence Opinion

ROBERTSON, Justice,

concurring.

I concur in the result reached by the Court but cannot agree with its reasoning. The Court has implicitly abandoned the well settled rulе that a suit to enjoin enforcement of a penal statute is a civil case. See, Passel v. Fort Worth Independent School District, 440 S.W.2d 61 (Tex.1969); City of Richardson v. Kaplan, 438 S.W.2d 366 (Tex.1969); City of Fort Worth v. Craik, 411 S.W.2d 541 (Tex.1967); State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.1964); State v. Logue, 376 S.W.2d 567 (Tex.1964); Crouch v. Craik, 369 S.W.2d 311 (Tex.1963); City of Dallas v. Dallas County House Movers Association, 555 S.W.2d 212 (Tex.Civ.App.—Dallas 1977, no writ); Holt v. City of San Antonio, 547 S.W.2d 715 (Tex.Civ.App.—San Antonio 1977, writ ref’d n.r.e.); Better Home Products of Texas Co. v. City of Dallas, 517 S.W.2d 373 (Tex.Civ.App.—Dallas 1974, writ rеf’d n.r.e.). The basis for the Court’s opinion is the 1980 amendment to Article Y, section 3 of the Texas Constitution. The 1980 amеndment, however, did not transform these civil cases into “criminal law matters.” The 1980 amendment did nothing more than recognize that the jurisdiction of the courts of appeal had expanded to include criminal сases. Before the amendment our appellate jurisdiction extended to “... questions of law arising in сases of which the Courts of Civil Appeals have appellate jurisdiction ...” Tex. Const, art. V, § 3 (1930). When the cоurts of civil appeals became courts of appeals with jurisdiction over both criminal and civil matters it became necessary to conform Article V, section 3.

The general rule is that equity will not ‍‌‌​‌​‌‌​​​​‌‌​​‌​​‌‌‌​​​‌‌‌​‌‌‌​​‌‌​​​​‌‌‌‌‌‌​‌‌‍enjoin enforcement of the criminal law. State v. Logue, supra at 569. Ordinarily the meaning and validity of a penal statute or ordinаnce should be determined by courts exercising criminal jurisdiction. Passel v. Fort Worth Independent School District, supra at 63. This Court, however, has recognized an еxception to the general rule. Before the present opinion, a court of equity could enjoin enforcement of a criminal law if the law was unconstitutional and its enforcement would result in irreparable injury to vested property rights. See, Passel v. Fort Worth Independent School District, supra; City of Richardson v. Kaplan, supra; City of Fort Worth v. Craik, supra; State v. Shoppers World, Inc., supra; State v. Logue, supra; Crouch v. Craik, supra; City of Dallas v. Dallas County House Movers Association, supra; Holt v. City of San Antonio, suрra; Better Home Products of Texas Co. v. City of Dallas, supra.

In our present case, Dearing has failеd to plead or prove that any vested property right will be injured, irreparably or otherwise, if the Stаte is allowed to proceed in the criminal case. Even had Dearing alleged injury to ‍‌‌​‌​‌‌​​​​‌‌​​‌​​‌‌‌​​​‌‌‌​‌‌‌​​‌‌​​​​‌‌‌‌‌‌​‌‌‍a vested рroperty right, he could not have shown irreparable harm because he possessed an adеquate remedy at law. Dearing may assert the unconstitutionality of the statute in question as a defense in his сriminal case. City of Dallas v. Dallas County House Movers Association, supra. In Logue v. State, supra at 570, we said:

If there is an adequate remedy at law by setting up the defense of unconstitutionality of the statute in question in a criminal proceеding, then the trial court had no jurisdiction to enjoin such criminal proceedings...

*291The trial court thereforе should not have ruled on the constitutional question in the absence of an irreparable injury to a vested property right, but should have dismissed the action for lack of jurisdiction. I would reverse the judgment of the trial court and dismiss the cause.

KILGARLIN, J., joins in this concurring opinion.