1-1 By: Horn (Senate Sponsor - Carriker) H.B. No. 2851
1-2 (In the Senate - Received from the House May 12, 1993;
1-3 May 13, 1993, read first time and referred to Committee on
1-4 Jurisprudence; May 25, 1993, reported favorably by the following
1-5 vote: Yeas 5, Nays 0; May 25, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Henderson x
1-9 Harris of Tarrant x
1-10 Brown x
1-11 Harris of Dallas x
1-12 Luna x
1-13 Parker x
1-14 West x
1-15 A BILL TO BE ENTITLED
1-16 AN ACT
1-17 relating to the creation of municipal courts of record in Denton.
1-18 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-19 SECTION 1. Chapter 30, Government Code, is amended by adding
1-20 Subchapter Y to read as follows:
1-21 SUBCHAPTER Y. DENTON
1-22 Sec. 30.981. APPLICATION. This subchapter applies to the
1-23 city of Denton.
1-24 Sec. 30.982. CREATION. (a) The governing body of the city
1-25 may by ordinance create a municipal court of record if it
1-26 determines that the formation of the court is necessary to provide
1-27 a more efficient disposition of cases arising in the city. The
1-28 governing body may by ordinance determine the number of municipal
1-29 courts of record that are required to dispose of the cases and may
1-30 establish as many as are needed. The ordinance establishing the
1-31 courts must give each court a numerical designation, beginning with
1-32 "Municipal Court No. 1."
1-33 (b) On creation of the initial municipal court of record,
1-34 the governing body of the city shall determine the method of
1-35 selecting the judge of a municipal court of record by:
1-36 (1) adopting an ordinance that provides for the
1-37 appointment of a municipal judge by the governing body of the city;
1-38 (2) adopting an ordinance that provides for the
1-39 election of a municipal judge by the qualified voters of the city;
1-40 or
1-41 (3) ordering an election in which the qualified voters
1-42 of the city determine whether a municipal judge is appointed by the
1-43 governing body of the city or elected.
1-44 (c) A municipal court of record may not exist concurrently
1-45 with municipal courts that are not courts of record in the city.
1-46 (d) A municipal court of record has no terms and may sit at
1-47 any time for the transaction of business of the court.
1-48 Sec. 30.983. JURISDICTION. (a) A municipal court of record
1-49 created under this subchapter has jurisdiction within the
1-50 territorial limits of the city in all criminal cases arising under
1-51 the ordinances of the city.
1-52 (b) The court has concurrent jurisdiction with a justice of
1-53 the peace in any precinct in which the city is located in criminal
1-54 cases within the justice court jurisdiction that:
1-55 (1) arise within the territorial limits of the city;
1-56 and
1-57 (2) are punishable by fine only.
1-58 (c) The court has jurisdiction over cases arising outside
1-59 the territorial limits of the city under ordinances authorized by
1-60 Section 215.072, 217.042, 341.903, or 401.002, Local Government
1-61 Code.
1-62 Sec. 30.984. WRIT POWER. The judge of a municipal court of
1-63 record created under this subchapter may grant writs of mandamus,
1-64 injunction, attachment, and other writs necessary to the
1-65 enforcement of the jurisdiction of the court and may issue writs of
1-66 habeas corpus in cases in which the offense charged is within the
1-67 jurisdiction of the court.
1-68 Sec. 30.985. APPLICATION OF OTHER LAWS. The general law
2-1 regarding municipal courts of record, the general law regarding
2-2 justice courts on matters not covered by the law regarding
2-3 municipal courts, and any charter provision or ordinance of the
2-4 city relating to the municipal court apply to a municipal court of
2-5 record unless the law, charter provision, or ordinance is in
2-6 conflict or inconsistent with this subchapter.
2-7 Sec. 30.986. JUDGE. (a) A municipal court of record is
2-8 presided over by a municipal judge. The municipal judge must be a
2-9 licensed attorney in good standing in this state. The judge must
2-10 be a citizen of the United States and resident of this state but
2-11 need not be a resident of the city. The municipal judge shall
2-12 devote full time to the duties of the office as necessary.
2-13 (b) If more than one municipal court of record is created,
2-14 judges of each municipal court of record may at any time exchange
2-15 benches and sit and act for each other in any pending case, matter,
2-16 or proceeding.
2-17 (c) A municipal judge is entitled to receive a salary and
2-18 other benefits set by the governing body of the city. The judge's
2-19 salary may not be diminished during the term of office. The salary
2-20 may not be based directly or indirectly on fines, fees, or other
2-21 costs that the municipal judge is required by law to collect during
2-22 a term of office.
2-23 Sec. 30.987. VACANCIES; TEMPORARY REPLACEMENT; REMOVAL.
2-24 (a) If a vacancy occurs in the office of municipal judge, the
2-25 governing body of the city shall appoint a qualified person to fill
2-26 the office for the remainder of the unexpired term.
2-27 (b) The governing body of the city may appoint persons as
2-28 relief municipal judges, who shall be known as "assistant municipal
2-29 judges." An assistant judge must meet the qualifications
2-30 prescribed for the municipal judge. The governing body shall set
2-31 the compensation of the assistant judges. The municipal judge may
2-32 assign an assistant judge to act for a municipal judge who is
2-33 temporarily unable to act for any reason. An assistant judge has
2-34 all the powers and duties of the office while acting for the
2-35 municipal judge.
2-36 (c) A municipal judge or assistant municipal judge may be
2-37 removed from office in the manner prescribed for removal of a
2-38 county court at law judge.
2-39 Sec. 30.988. CLERK; OTHER PERSONNEL. (a) The city manager
2-40 shall appoint a clerk of the municipal court of record who shall be
2-41 known as the "municipal court clerk."
2-42 (b) The clerk or the clerk's deputies shall keep the records
2-43 of the municipal courts of record, issue process, and generally
2-44 perform the duties for the court that a clerk of the county court
2-45 exercising criminal jurisdiction is required by law to perform for
2-46 that court. The clerk shall perform the duties in accordance with
2-47 statutes, city charter, and city ordinances.
2-48 (c) The clerk may hire, direct, and remove the personnel
2-49 authorized in the city's annual budget for the clerk's office.
2-50 Sec. 30.989. COURT REPORTER. (a) The city shall provide a
2-51 court reporter for the purpose of preserving a record in cases
2-52 tried before the municipal court of record. The clerk of the court
2-53 shall appoint the court reporter, who must meet the qualifications
2-54 provided by law for official court reporters.
2-55 (b) The clerk may provide that, instead of providing a court
2-56 reporter at trial, proceedings in a municipal court of record may
2-57 be recorded by a good quality electronic recording device. If the
2-58 recording device is used, the court reporter need not be present at
2-59 the trial to record the proceedings. The proceedings that are
2-60 appealed shall be transcribed from the recording by an official
2-61 court reporter.
2-62 (c) The court clerk may provide for the use of written
2-63 notes, transcribing equipment, recording equipment, or a
2-64 combination of those methods to record the proceedings of the
2-65 court. The court reporter shall keep the record for a 20-day
2-66 period beginning the day after the last day of the court
2-67 proceeding, trial, or denial of motion for new trial, whichever
2-68 occurs last.
2-69 (d) No one is required to record testimony in a case unless
2-70 the judge or one of the parties requests a record. A party's
3-1 request for a record must be in writing and filed with the court
3-2 before trial.
3-3 (e) The court reporter shall certify the official record.
3-4 Sec. 30.990. PROSECUTION BY CITY ATTORNEY. All prosecutions
3-5 in the municipal court of record must be conducted by the city
3-6 attorney or an assistant or deputy city attorney.
3-7 Sec. 30.991. COMPLAINT, PLEADING. (a) A proceeding in a
3-8 municipal court of record commences with the filing of a complaint.
3-9 A complaint must begin "In the name and by authority of the State
3-10 of Texas" and must conclude "Against the peace and dignity of the
3-11 State."
3-12 (b) Complaints must comply with Article 45.17, Code of
3-13 Criminal Procedure.
3-14 (c) Pleadings must be in writing and filed with the
3-15 municipal court clerk.
3-16 Sec. 30.992. JURY. (a) A person brought before the
3-17 municipal court and charged with an offense is entitled to be tried
3-18 by a jury of six persons, unless that right is waived according to
3-19 law.
3-20 (b) A juror for the municipal court must have the
3-21 qualifications required of jurors by law and must be a resident of
3-22 the city.
3-23 (c) A juror is entitled to receive the compensation for each
3-24 day and each fraction of the day in attendance on a municipal court
3-25 of record jury as provided by Chapter 61.
3-26 (d) The municipal court clerk shall establish a fair,
3-27 impartial, and objective juror selection process.
3-28 Sec. 30.993. COURT RULES. (a) Except as modified by this
3-29 subchapter, the Code of Criminal Procedure as applied to county
3-30 courts at law governs the trial of cases before municipal courts of
3-31 record.
3-32 (b) Bonds must be payable to the state for the use and
3-33 benefit of the city. The court may not assess court costs other
3-34 than warrant fees, capias fees, and other fees authorized for
3-35 municipal courts.
3-36 (c) A peace officer may serve a process issued by a
3-37 municipal court of record.
3-38 (d) On conviction, judgment and sentence are in the name of
3-39 the state, and the state recovers from the defendant the fine and
3-40 fees for the use and benefit of the city. The court may require
3-41 that the defendant remain in the custody of the chief of police
3-42 until the fines and costs are paid and shall order the execution
3-43 issue to collect the fines and penalties.
3-44 (e) Fines, fees, costs, and bonds shall be paid to the
3-45 municipal court clerk, who shall deposit them in the city general
3-46 fund.
3-47 Sec. 30.994. APPEAL. (a) A defendant has the right of
3-48 appeal from a judgment of conviction in a municipal court of record
3-49 as provided by this subchapter. The state has the right to an
3-50 appeal as provided by Article 44.01, Code of Criminal Procedure.
3-51 The Denton County courts at law shall be the initial courts for
3-52 appellate review of cases from the municipal court of record and
3-53 shall hear all appeals except in cases in which the county courts
3-54 do not have jurisdiction of an appeal from a justice court, in
3-55 which case the appeal shall be heard by the court that has
3-56 jurisdiction of an appeal from the justice court.
3-57 (b) The appellate court shall determine each appeal from a
3-58 municipal court of record conviction on the basis of the errors
3-59 that are set forth in the defendant's motion for new trial and that
3-60 are presented in the transcript and statement of facts prepared
3-61 from the proceedings leading to the conviction. An appeal from the
3-62 municipal court of record may not be by trial de novo.
3-63 (c) To perfect an appeal, the defendant must file a motion
3-64 for new trial not later than the 10th day after the date on which
3-65 the judgment and sentence are rendered. The motion must be in
3-66 writing and must be filed with the clerk of the municipal court of
3-67 record. The motion constitutes the assignments of error on appeal.
3-68 A ground or error not set forth in the motion is waived. If the
3-69 court does not act on the motion before the expiration of 30 days
3-70 after it is filed with the clerk, the motion is overruled by
4-1 operation of law.
4-2 (d) After an order overruling a motion for new trial, the
4-3 defendant shall give written notice of appeal and pay the
4-4 transcript preparation fee not later than the 10th day after the
4-5 date on which the motion is overruled. The governing body shall
4-6 set a reasonable transcript preparation fee not to exceed $25. The
4-7 clerk shall note the payment of the fee on the docket of the court.
4-8 If the case is reversed on appeal, the fee shall be refunded to the
4-9 defendant.
4-10 (e) The city attorney or the assistant or deputy city
4-11 attorney shall prosecute all appeals from the municipal courts of
4-12 record.
4-13 Sec. 30.995. APPEAL BOND; RECORD ON APPEAL. (a) If the
4-14 defendant is not in custody, the defendant may not take an appeal
4-15 until the defendant files an appeal bond with the municipal court
4-16 of record. The bond must be approved by the court and must be
4-17 filed not later than the 10th day after the date on which the
4-18 motion for new trial is overruled. If the defendant is in custody,
4-19 the defendant shall be committed to jail unless the defendant posts
4-20 the appeal bond.
4-21 (b) The appeal bond must be in the amount of $50 or double
4-22 the amount of fines and costs adjudged against the defendant,
4-23 whichever is greater. The bond must be payable to the state for
4-24 the use and benefit of the city and must be conditioned on the
4-25 defendant's immediate and daily personal appearance in the court to
4-26 which the appeal is taken.
4-27 (c) The record on appeal consists of a transcript and, if
4-28 necessary to appeal, a statement of facts. The court reporter
4-29 shall prepare the record from the reporter's record or mechanical
4-30 recordings of the proceedings. The defendant shall pay for the
4-31 cost of the transcription. If the court finds that the defendant
4-32 is unable to pay or give security for the record on appeal after a
4-33 hearing in response to an affidavit by the defendant, the court
4-34 shall order the reporter to prepare the record without charge to
4-35 the defendant. If the case is reversed on appeal, the court shall
4-36 promptly refund the cost to the defendant.
4-37 Sec. 30.996. TRANSCRIPT. (a) The clerk of the municipal
4-38 court of record shall prepare under his hand and the seal of the
4-39 court a transcript of the proceedings in the municipal court of
4-40 record after payment of the transcript preparation fee under
4-41 Section 30.994. The clerk shall prepare the transcript under
4-42 written instructions from the defendant or the defendant's
4-43 attorney. Unless otherwise agreed by the parties in writing, the
4-44 transcript must include a copy of:
4-45 (1) the complaint;
4-46 (2) court orders on any motions or exceptions;
4-47 (3) the judgment;
4-48 (4) the verdict of the jury;
4-49 (5) any findings of fact or conclusions of law made by
4-50 the court;
4-51 (6) the motion for new trial and the order of the
4-52 court on the motion;
4-53 (7) the notice of appeal;
4-54 (8) any statement of the parties regarding material to
4-55 be included in the record;
4-56 (9) the appeal bond;
4-57 (10) any statement of facts; and
4-58 (11) any signed paper designated as material by either
4-59 party.
4-60 (b) The defendant or the defendant's attorney shall file a
4-61 copy of the written instructions with the clerk and shall deliver a
4-62 copy to the city attorney.
4-63 (c) The city attorney shall file a written direction to the
4-64 clerk if additional portions of the trial proceedings in the
4-65 transcript are to be included.
4-66 Sec. 30.997. STATEMENT OF FACTS. (a) A statement of facts
4-67 included in the record on appeal must contain:
4-68 (1) a transcription of all or any part of the
4-69 municipal court of record proceedings in the case as recorded on
4-70 the electronic recording device or shown by the notes of the court
5-1 reporter recorded or taken before, during, or after the trial, if
5-2 the transcription is requested by a party, a party's attorney, or
5-3 the municipal judge;
5-4 (2) a brief statement of the facts of the case proven
5-5 at the trial as agreed to by the defendant or the defendant's
5-6 attorney and the prosecuting attorney; or
5-7 (3) a partial transcription and the agreed statement
5-8 of the facts of the case.
5-9 (b) The court reporter shall transcribe in duplicate any
5-10 portion of the recorded proceedings or the notes of the court
5-11 proceedings in the case at the request of either party or the
5-12 municipal judge. The defendant shall pay for the transcription
5-13 unless the court finds, after hearing in response to an affidavit
5-14 by the defendant, that the defendant is unable to pay or give
5-15 security for the transcriptions. On certification by the court
5-16 that the court reporter has rendered the service without charge to
5-17 the defendant, the court reporter shall be paid for the services by
5-18 the city.
5-19 Sec. 30.998. TRANSFER OF RECORD; FEE. The parties must file
5-20 the transcript and the statement of facts with the clerk of the
5-21 municipal court of record not later than the 60th day after the
5-22 date on which the transcript preparation fee was paid. The clerk
5-23 shall promptly forward them to the appellate court clerk.
5-24 Sec. 30.999. BRIEF ON APPEAL. (a) The defendant must file
5-25 a brief on appeal with the appellate court clerk not later than the
5-26 15th day after the date on which the transcript and statement of
5-27 facts are filed with that clerk.
5-28 (b) The city attorney must file appellee's brief with the
5-29 appellate court clerk not later than the 15th day after the date on
5-30 which the defendant's brief is filed.
5-31 (c) To avoid unnecessary delay, the record and briefs on
5-32 appeal shall be limited as far as possible to the questions relied
5-33 on for reversal.
5-34 (d) On filing, each party shall deliver a copy of the brief
5-35 to the opposing counsel.
5-36 Sec. 30.9991. PROCEDURE; DISPOSITION ON APPEAL. (a) The
5-37 appellate court shall hear appeals from the municipal court of
5-38 record at the earliest possible time with due regard to the rights
5-39 of the parties and the proper administration of justice. The court
5-40 may determine the rules for oral argument. The case may be
5-41 submitted on the record and briefs without oral argument.
5-42 (b) According to the law and the nature of the case, the
5-43 appellate court may:
5-44 (1) affirm the judgment of the municipal court of
5-45 record;
5-46 (2) reverse and remand for a new trial;
5-47 (3) reverse and dismiss the case; or
5-48 (4) reform and correct the judgment.
5-49 (c) Unless the matter was made an issue in the trial court
5-50 or it affirmatively appears to the contrary from the transcript or
5-51 the statement of facts, the appellate court shall presume that:
5-52 (1) venue was proven in the trial court;
5-53 (2) the jury, if any, was properly impaneled and
5-54 sworn;
5-55 (3) the defendant was arraigned and pleaded to the
5-56 complaint; and
5-57 (4) the municipal judge certified the charge and the
5-58 clerk filed the charge before it was read to the jury.
5-59 (d) In each case decided by the appellate court, the court
5-60 shall deliver a written opinion or order either sustaining or
5-61 overruling each assignment of error presented. The court need not
5-62 give a reason for overruling an assignment of error, but it may
5-63 cite the cases on which it relied. If an assignment of error is
5-64 sustained, the court shall set forth the reasons for the decision.
5-65 The appellate court clerk shall mail copies of the decision to the
5-66 parties and to the municipal judge as soon as the decision is
5-67 rendered.
5-68 Sec. 30.9992. CERTIFICATE OF APPELLATE PROCEEDINGS. When
5-69 the judgment of the appellate court becomes final, the clerk of
5-70 that court shall certify the proceedings and the judgment and shall
6-1 mail the certificate to the clerk of the municipal court of record.
6-2 When the clerk of the municipal court of record receives the
6-3 record, the clerk shall file the record with the papers in the case
6-4 and note the filing on the docket of the municipal court of record.
6-5 If the municipal court of record judgment is affirmed, further
6-6 action to enforce the judgment is not necessary except to:
6-7 (1) forfeit the bond of the defendant;
6-8 (2) issue a writ of capias of the defendant; or
6-9 (3) issue an execution against the defendant's
6-10 property.
6-11 Sec. 30.9993. EFFECT OF ORDER OF NEW TRIAL. If the
6-12 appellate court awards a new trial to the defendant, the case
6-13 stands as if a new trial had been granted by the municipal court of
6-14 record.
6-15 Sec. 30.9994. APPEAL TO THE COURT OF APPEALS. An appeal of
6-16 the appellate court decision to the court of appeals is governed by
6-17 the Code of Criminal Procedure, except that the transcript, briefs,
6-18 and statement of facts filed in the appellate court constitute the
6-19 transcript, briefs, and statement of facts on appeal to the court
6-20 of appeals unless the rules of the court of criminal appeals
6-21 provide otherwise.
6-22 SECTION 2. The importance of this legislation and the
6-23 crowded condition of the calendars in both houses create an
6-24 emergency and an imperative public necessity that the
6-25 constitutional rule requiring bills to be read on three several
6-26 days in each house be suspended, and this rule is hereby suspended,
6-27 and that this Act take effect and be in force from and after its
6-28 passage, and it is so enacted.
6-29 * * * * *
6-30 Austin,
6-31 Texas
6-32 May 25, 1993
6-33 Hon. Bob Bullock
6-34 President of the Senate
6-35 Sir:
6-36 We, your Committee on Jurisprudence to which was referred H.B.
6-37 No. 2851, have had the same under consideration, and I am
6-38 instructed to report it back to the Senate with the recommendation
6-39 that it do pass and be printed.
6-40 Henderson,
6-41 Chairman
6-42 * * * * *
6-43 WITNESSES
6-44 No witnesses appeared on H.B. No. 2851.