1-1 By: Harris of Dallas S.B. No. 1310 1-2 (In the Senate - Filed March 24, 1993; March 25, 1993, read 1-3 first time and referred to Committee on Jurisprudence; 1-4 April 27, 1993, reported adversely, with favorable Committee 1-5 Substitute by the following vote: Yeas 5, Nays 0; April 27, 1993, 1-6 sent to printer.) 1-7 COMMITTEE VOTE 1-8 Yea Nay PNV Absent 1-9 Henderson x 1-10 Harris of Tarrant x 1-11 Brown x 1-12 Harris of Dallas x 1-13 Luna x 1-14 Parker x 1-15 West x 1-16 COMMITTEE SUBSTITUTE FOR S.B. No. 1310 By: Harris of Dallas 1-17 A BILL TO BE ENTITLED 1-18 AN ACT 1-19 relating to the creation of municipal courts of record in 1-20 Carrollton. 1-21 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-22 SECTION 1. Chapter 30, Government Code, is amended by adding 1-23 Subchapter V to read as follows: 1-24 SUBCHAPTER V. CARROLLTON 1-25 Sec. 30.851. APPLICATION. This subchapter applies to the 1-26 City of Carrollton. 1-27 Sec. 30.852. CREATION. (a) The governing body of the city 1-28 may by ordinance create a municipal court of record if it 1-29 determines that formation of the court is necessary to provide a 1-30 more efficient disposition of cases arising in the city. The 1-31 governing body may by ordinance determine the number of municipal 1-32 courts of record that are required to dispose of the cases and may 1-33 establish as many as are needed. The ordinance establishing the 1-34 courts must give each court a numerical designation, beginning with 1-35 "Municipal Court No. 1." 1-36 (b) On creation of the initial municipal court of record, 1-37 the governing body of the city shall determine the method of 1-38 selecting the judge of a municipal court of record by: 1-39 (1) adopting an ordinance that provides for the 1-40 appointment of a municipal judge by the governing body of the city; 1-41 (2) adopting an ordinance that provides for the 1-42 election of a municipal judge by the qualified voters of the city; 1-43 or 1-44 (3) ordering an election in which the qualified voters 1-45 of the city determine whether a municipal judge is appointed by the 1-46 governing body of the city or elected. 1-47 (c) A municipal court of record may not exist concurrently 1-48 with municipal courts that are not courts of record in the city. 1-49 (d) A municipal court of record has no terms and may sit at 1-50 any time for the transaction of business of the court. 1-51 Sec. 30.853. JURISDICTION. (a) A municipal court of record 1-52 created under this subchapter has jurisdiction within the 1-53 territorial limits of the city in all criminal cases arising under 1-54 the ordinances of the city. 1-55 (b) The court has concurrent jurisdiction with a justice of 1-56 the peace in any precinct in which the city is located in criminal 1-57 cases within the justice court jurisdiction that: 1-58 (1) arise within the territorial limits of the city; 1-59 and 1-60 (2) are punishable by fine only. 1-61 (c) The court has jurisdiction over cases arising outside 1-62 the territorial limits of the city under ordinances authorized by 1-63 Section 215.072, 217.042, 341.903, or 401.002, Local Government 1-64 Code. 1-65 Sec. 30.854. WRIT POWER. The judge of a municipal court of 1-66 record created under this subchapter may grant writs of mandamus, 1-67 injunction, attachment, and other writs necessary to the 1-68 enforcement of the jurisdiction of the court and may issue writs of 2-1 habeas corpus in cases in which the offense charged is within the 2-2 jurisdiction of the court. 2-3 Sec. 30.855. APPLICATION OF OTHER LAWS. The general law 2-4 regarding municipal courts of record, the general law regarding 2-5 justice courts on matters not covered by the law regarding 2-6 municipal courts, and any charter provision or ordinance of the 2-7 city relating to the municipal court apply to a municipal court of 2-8 record unless the law, charter provision, or ordinance is in 2-9 conflict or inconsistent with this subchapter. 2-10 Sec. 30.856. JUDGE. (a) A municipal court of record is 2-11 presided over by a municipal judge. The municipal judge must be a 2-12 licensed attorney in good standing in this state. The judge must 2-13 be a citizen of the United States and a resident of this state but 2-14 need not be a resident of the city. The municipal judge shall 2-15 devote full time to the duties of the office as necessary. 2-16 (b) If more than one municipal court of record is created, 2-17 judges of each municipal court of record may at any time exchange 2-18 benches and sit and act for each other in any pending case, matter, 2-19 or proceeding. 2-20 (c) A municipal judge is entitled to receive a salary and 2-21 other benefits set by the governing body of the city. The judge's 2-22 salary may not be diminished during the term of office. The salary 2-23 may not be based directly or indirectly on fines, fees, or other 2-24 costs that the municipal judge is required by law to collect during 2-25 a term of office. 2-26 Sec. 30.857. VACANCIES; TEMPORARY REPLACEMENT; REMOVAL. 2-27 (a) If a vacancy occurs in the office of municipal judge, the 2-28 governing body of the city shall appoint a qualified person to fill 2-29 the office for the remainder of the unexpired term. 2-30 (b) The governing body of the city may appoint persons as 2-31 relief municipal judges, who shall be known as assistant municipal 2-32 judges. An assistant judge must meet the qualifications prescribed 2-33 for the municipal judge. The governing body shall set the 2-34 compensation of the assistant judges. The municipal judge may 2-35 assign an assistant judge to act for a municipal judge who is 2-36 temporarily unable to act for any reason. An assistant judge has 2-37 all the powers and duties of the office while acting for the 2-38 municipal judge. 2-39 (c) A municipal judge or assistant municipal judge may be 2-40 removed from office in the manner prescribed for removal of a 2-41 county court at law judge. 2-42 Sec. 30.858. CLERK; OTHER PERSONNEL. (a) The city manager 2-43 shall appoint a clerk of the municipal court of record who shall be 2-44 known as the municipal court clerk. 2-45 (b) The clerk or the clerk's deputies shall keep the records 2-46 of the municipal courts of record, issue process, and generally 2-47 perform the duties for the court that a clerk of the county court 2-48 exercising criminal jurisdiction is required by law to perform for 2-49 that court. The clerk shall perform the duties in accordance with 2-50 statutes, the city charter, and city ordinances. 2-51 (c) The clerk may hire, direct, and remove the personnel 2-52 authorized in the city's annual budget for the clerk's office. 2-53 Sec. 30.859. COURT REPORTER. (a) The city shall provide a 2-54 court reporter for the purpose of preserving a record in cases 2-55 tried before the municipal court of record. The clerk of the court 2-56 shall appoint the court reporter, who must meet the qualifications 2-57 provided by law for official court reporters. 2-58 (b) The clerk may provide that, instead of providing a court 2-59 reporter at trial, proceedings in a municipal court of record may 2-60 be recorded by a good quality electronic recording device. If the 2-61 recording device is used, the court reporter need not be present at 2-62 trial to record the proceedings. The proceedings that are appealed 2-63 shall be transcribed from the recording by an official court 2-64 reporter. 2-65 (c) The clerk may provide for the use of written notes, 2-66 transcribing equipment, or a combination of those methods to record 2-67 the proceedings of the court. The court reporter shall keep the 2-68 record for a 20-day period beginning the day after the last day of 2-69 the court proceeding, trial, or denial of motion for new trial, 2-70 whichever occurs last. 3-1 (d) No one is required to record testimony in a case unless 3-2 the judge or one of the parties requests a record. A party's 3-3 request for a record must be in writing and must be filed with the 3-4 court before trial. 3-5 (e) The court reporter shall certify the official record. 3-6 Sec. 30.860. PROSECUTION BY CITY ATTORNEY. All prosecutions 3-7 in the municipal court of record must be conducted by the city 3-8 attorney or an assistant or deputy city attorney. 3-9 Sec. 30.861. COMPLAINT, PLEADING. (a) A proceeding in a 3-10 municipal court of record commences with the filing of a complaint. 3-11 A complaint must begin "In the name and by authority of the State 3-12 of Texas" and must conclude "Against the peace and dignity of the 3-13 State." 3-14 (b) Complaints must comply with Article 45.17, Code of 3-15 Criminal Procedure. 3-16 (c) Pleadings must be in writing and must be filed with the 3-17 municipal court clerk. 3-18 Sec. 30.862. JURY. (a) A person brought before the 3-19 municipal court and charged with an offense is entitled to be tried 3-20 by a jury of six persons, unless that right is waived according to 3-21 law. 3-22 (b) A juror for the municipal court must have the 3-23 qualifications required of jurors by law and must be a resident of 3-24 the city. 3-25 (c) A juror is entitled to receive the compensation for each 3-26 day and each fraction of a day in attendance on a municipal court 3-27 of record jury as provided by Chapter 61. 3-28 (d) The municipal court clerk shall establish a fair, 3-29 impartial, and objective juror selection process. 3-30 Sec. 30.863. COURT RULES. (a) Except as modified by this 3-31 subchapter, the Code of Criminal Procedure as applied to county 3-32 courts at law governs the trial of cases before municipal courts of 3-33 record. 3-34 (b) Bonds must be payable to the state for the use and 3-35 benefit of the city. The court may not assess court costs other 3-36 than warrant fees, capias fees, and other fees authorized for 3-37 municipal courts. 3-38 (c) A peace officer may serve a process issued by a 3-39 municipal court of record. 3-40 (d) On conviction, judgment and sentence are in the name of 3-41 the state, and the state recovers from the defendant the fine and 3-42 fees for the use and benefit of the city. The court may require 3-43 that the defendant remain in the custody of the chief of police 3-44 until the fines and costs are paid and shall order that execution 3-45 issue to collect the fines and penalties. 3-46 (e) Fines, fees, costs, and bonds shall be paid to the 3-47 municipal court clerk, who shall deposit them in the city general 3-48 fund. 3-49 Sec. 30.864. APPEAL. (a) A defendant has the right of 3-50 appeal from a judgment of conviction in a municipal court of record 3-51 as provided by this subchapter. The state has the right to an 3-52 appeal as provided by Article 44.01, Code of Criminal Procedure. 3-53 The county criminal courts of appeal of Dallas County have 3-54 jurisdiction of appeals from the municipal courts of record. 3-55 (b) The appellate court shall determine each appeal from a 3-56 municipal court of record conviction on the basis of the errors 3-57 that are set forth in the defendant's motion for new trial and that 3-58 are presented in the transcript and statement of facts prepared 3-59 from the proceedings leading to the conviction. An appeal from the 3-60 municipal court of record may not be by trial de novo. 3-61 (c) To perfect an appeal, the defendant must file a motion 3-62 for new trial not later than the 10th day after the date on which 3-63 the judgment and sentence are rendered. The motion must be in 3-64 writing and must be filed with the clerk of the municipal court of 3-65 record. The motion constitutes the assignment of error on appeal. 3-66 A ground or an error not set forth in the motion is waived. If the 3-67 court does not act on the motion before the expiration of 30 days 3-68 after it is filed with the clerk, the motion is overruled by 3-69 operation of law. 3-70 (d) After an order overruling a motion for new trial, the 4-1 defendant shall give written notice of appeal and pay the 4-2 transcript preparation fee not later than the 10th day after the 4-3 date on which the motion is overruled. The governing body shall 4-4 set a reasonable transcript preparation fee not to exceed $25. The 4-5 clerk shall note the payment of the fee on the docket of the court. 4-6 If the case is reversed on appeal, the fee shall be refunded to the 4-7 defendant. 4-8 (e) The city attorney or the assistant or deputy city 4-9 attorney shall prosecute all appeals from the municipal courts of 4-10 record. 4-11 Sec. 30.865. APPEAL BOND; RECORD ON APPEAL. (a) If the 4-12 defendant is not in custody, the defendant may not take an appeal 4-13 until the defendant files an appeal bond with the municipal court 4-14 of record. The bond must be approved by the court and must be 4-15 filed not later than the 10th day after the date on which the 4-16 motion for new trial is overruled. If the defendant is in custody, 4-17 the defendant shall be committed to jail unless the defendant posts 4-18 the appeal bond. 4-19 (b) The appeal bond must be in the amount of $50 or double 4-20 the amount of fines and costs adjudged against the defendant, 4-21 whichever is greater. The bond must be payable to the state for 4-22 the use and benefit of the city and must be conditioned on the 4-23 defendant's immediate and daily personal appearance in the court to 4-24 which the appeal is taken. 4-25 (c) The record on appeal consists of a transcript and, if 4-26 necessary to appeal, a statement of facts. The court reporter 4-27 shall prepare the record from the reporter's record or mechanical 4-28 recordings of the proceedings. The defendant shall pay for the 4-29 cost of the transcription. If the court finds that the defendant 4-30 is unable to pay or give security for the record on appeal after a 4-31 hearing in response to an affidavit by the defendant, the court 4-32 shall order the reporter to prepare the record without charge to 4-33 the defendant. If the case is reversed on appeal, the court shall 4-34 promptly refund the cost to the defendant. 4-35 Sec. 30.866. TRANSCRIPT. (a) The clerk of the municipal 4-36 court of record shall prepare under his hand and the seal of the 4-37 court a transcript of the proceedings in the municipal court of 4-38 record after payment of the transcript preparation fee under 4-39 Section 30.864. The clerk shall prepare the transcript under 4-40 written instructions from the defendant or the defendant's 4-41 attorney. Unless otherwise agreed by the parties in writing, the 4-42 transcript must include a copy of: 4-43 (1) the complaint; 4-44 (2) court orders on any motions or exceptions; 4-45 (3) the judgment; 4-46 (4) the verdict of the jury; 4-47 (5) any findings of fact or conclusions of law made by 4-48 the court; 4-49 (6) the motion for new trial and the order of the 4-50 court on the motion; 4-51 (7) the notice of appeal; 4-52 (8) any statement of the parties regarding material to 4-53 be included in the record; 4-54 (9) the appeal bond; and 4-55 (10) any signed paper designated as material by either 4-56 party. 4-57 (b) The defendant or the defendant's attorney shall file a 4-58 copy of the written instructions with the clerk and shall deliver a 4-59 copy to the city attorney. 4-60 (c) The city attorney shall file a written direction to the 4-61 clerk if additional portions of the trial proceedings in the 4-62 transcript are to be included. 4-63 Sec. 30.867. STATEMENT OF FACTS. (a) A statement of facts 4-64 included in the record on appeal must contain: 4-65 (1) a transcription of all or any part of the 4-66 municipal court of record proceedings in the case as recorded on 4-67 the electronic recording device or shown by the notes of the court 4-68 reporter recorded or taken before, during, or after the trial, if 4-69 the transcription is requested by a party, a party's attorney, or 4-70 the municipal judge; 5-1 (2) a brief statement of the facts of the case proven 5-2 at the trial as agreed to by the defendant or the defendant's 5-3 attorney and the prosecuting attorney; or 5-4 (3) a partial transcription and the agreed statement 5-5 of the facts of the case. 5-6 (b) The court reporter shall transcribe in duplicate any 5-7 portion of the recorded proceedings or the notes of the court 5-8 proceedings in the case at the request of either party or the 5-9 municipal judge. The defendant shall pay for the transcription 5-10 unless the court finds, after hearing in response to an affidavit 5-11 by the defendant, that the defendant is unable to pay or give 5-12 security for the transcription. On certification by the court that 5-13 the court reporter has rendered the service without charge to the 5-14 defendant, the court reporter shall be paid for the services by the 5-15 city. 5-16 Sec. 30.868. TRANSFER OF RECORD; FEE. The parties must file 5-17 the transcript and the statement of facts with the clerk of the 5-18 municipal court of record not later than the 60th day after the 5-19 date on which the transcript preparation fee was paid. The clerk 5-20 shall promptly forward them to the appellate court clerk. 5-21 Sec. 30.869. BRIEF ON APPEAL. (a) The defendant must file 5-22 a brief on appeal with the appellate court clerk not later than the 5-23 15th day after the date on which the transcript and statement of 5-24 facts are filed with that clerk. 5-25 (b) The city attorney must file appellee's brief with the 5-26 appellate court clerk not later than the 15th day after the date on 5-27 which the defendant's brief is filed. 5-28 (c) To avoid unnecessary delay, the record and briefs on 5-29 appeal shall be limited as far as possible to the questions relied 5-30 on for reversal. 5-31 (d) On filing, each party shall deliver a copy of the brief 5-32 to the opposing counsel. 5-33 Sec. 30.870. PROCEDURE; DISPOSITION ON APPEAL. (a) The 5-34 appellate court shall hear appeals from the municipal court of 5-35 record at the earliest possible time with due regard to the rights 5-36 of the parties and the proper administration of justice. The court 5-37 may determine the rules for oral argument. The case may be 5-38 submitted on the record and briefs without oral argument. 5-39 (b) According to the law and the nature of the case, the 5-40 appellate court may: 5-41 (1) affirm the judgment of the municipal court of 5-42 record; 5-43 (2) reverse and remand for a new trial; 5-44 (3) reverse and dismiss the case; or 5-45 (4) reform and correct the judgment. 5-46 (c) Unless the matter was made an issue in the trial court 5-47 or it affirmatively appears to the contrary from the transcript or 5-48 the statement of facts, the appellate court shall presume that: 5-49 (1) venue was proven in the trial court; 5-50 (2) the jury, if any, was properly impaneled and 5-51 sworn; 5-52 (3) the defendant was arraigned and pleaded to the 5-53 complaint; and 5-54 (4) the municipal judge certified the charge and the 5-55 clerk filed the charge before it was read to the jury. 5-56 (d) In each case decided by the appellate court, the court 5-57 shall deliver a written opinion or order either sustaining or 5-58 overruling each assignment of error presented. The court need not 5-59 give a reason for overruling an assignment of error, but it may 5-60 cite the cases on which it relied. If an assignment of error is 5-61 sustained, the court shall set forth the reasons for the decision. 5-62 The appellate court clerk shall mail copies of the decision to the 5-63 parties and to the municipal judge as soon as the decision is 5-64 rendered. 5-65 Sec. 30.871. CERTIFICATE OF APPELLATE PROCEEDINGS. When the 5-66 judgment of the appellate court becomes final, the clerk of that 5-67 court shall certify the proceedings and the judgment and shall mail 5-68 the certificate to the clerk of the municipal court of record. 5-69 When the clerk of the municipal court of record receives the 5-70 record, the clerk shall file the record with the papers in the case 6-1 and note the filing on the docket of the municipal court of record. 6-2 If the municipal court of record judgment is affirmed, further 6-3 action to enforce the judgment is not necessary except to: 6-4 (1) forfeit the bond of the defendant; 6-5 (2) issue a writ of capias for the defendant; or 6-6 (3) issue an execution against the defendant's 6-7 property. 6-8 Sec. 30.872. EFFECT OF ORDER OF NEW TRIAL. If the appellate 6-9 court awards a new trial to the defendant, the case stands as if a 6-10 new trial had been granted by the municipal court of record. 6-11 Sec. 30.873. APPEAL TO THE COURT OF APPEALS. An appeal of 6-12 the appellate court decision to the court of appeals is governed by 6-13 the Code of Criminal Procedure, except that the transcript, briefs, 6-14 and statement of facts filed in the appellate court constitute the 6-15 transcript, briefs, and statement of facts on appeal to the court 6-16 of appeals unless the rules of the court of criminal appeals 6-17 provide otherwise. 6-18 SECTION 2. The importance of this legislation and the 6-19 crowded condition of the calendars in both houses create an 6-20 emergency and an imperative public necessity that the 6-21 constitutional rule requiring bills to be read on three several 6-22 days in each house be suspended, and this rule is hereby suspended, 6-23 and that this Act take effect and be in force from and after its 6-24 passage, and it is so enacted. 6-25 * * * * * 6-26 Austin, 6-27 Texas 6-28 April 27, 1993 6-29 Hon. Bob Bullock 6-30 President of the Senate 6-31 Sir: 6-32 We, your Committee on Jurisprudence to which was referred S.B. No. 6-33 1310, have had the same under consideration, and I am instructed to 6-34 report it back to the Senate with the recommendation that it do not 6-35 pass, but that the Committee Substitute adopted in lieu thereof do 6-36 pass and be printed. 6-37 Henderson, 6-38 Chairman 6-39 * * * * * 6-40 WITNESSES 6-41 FOR AGAINST ON 6-42 ___________________________________________________________________ 6-43 Name: Dab Johnson x 6-44 Representing: City of Carrollton 6-45 City: Carrollton 6-46 ------------------------------------------------------------------- 6-47 Name: Gary W. Blannscet x 6-48 Representing: City of Carrollton 6-49 City: Carrollton 6-50 -------------------------------------------------------------------