BILL ANALYSIS




By GOODMAN                COMMITTEE SUBSTITUTE FOR HOUSE BILL 436


BACKGROUND

Currently, the municipal court in Kennedale is not a court of
record.  This means that all citations issued in the City of
Kennedale have an automatic right of appeal to county courts.  The
defendant need only plead no contest or guilty, give notice of
appeal, submit a surety bond and the case is appealed to the
county.  At the county level, theoretically a new trial is held on
the merits without regard to anything that might have happened at
municipal court.  In practice, what happens at the county level is
either the back-log is so great that the citations are never
reached, or if the case is reached, there is a plea bargain with
costs going to the county.  The ease of appeal from a municipal
court that is not a court of record impairs the city's ability to
enforce traffic laws and local ordinances.  An appeal from a
municipal court of record may only occur after trial, and may only
be based upon errors of law.


PURPOSE

To permit the City of Kennedale to establish their municipal court
as a municipal court of record, so it may more effectively enforce
its ordinances and traffic laws.


RULEMAKING AUTHORITY

It is the opinion of the committee that this bill does not delegate
any rulemaking authority to a state agency, officer, department or
institution.


SECTION-BY-SECTION ANALYSIS

SECTION 1 amends Chapter 30 of the Government Code by adding
subchapter BB.

     Sec. 30.0761 provides that this subchapter shall apply to the
City of Kennedale.

     Sec. 30.0762 permits the governing body of the City to create
a municipal court of record by ordinance.

     Sec. 30.0763 provides that the general law regarding municipal
courts and any charter provision or ordinance relating to municipal
courts apply to the court of record unless they are in conflict
with this subchapter.

     Sec. 30.0764 provides for a municipal judge to be appointed by
the governing body of the city, and establishes the qualifications
for appointment, guidelines for salary, terms of renewal and
parameters of authority for the judge.  The governing body may fill
vacancies in the office of municipal judge and appoint alternate
judges.

     Sec. 30.0765 provides for the appointment of a clerk of the
municipal court of record and establishes the clerk's duties.

     Sec. 30.0766 provides for the appointment of a qualified court
reporter who may use written notes, transcribing equipment,
video/audio recording equipment or a combination of those methods
to record the proceedings of municipal court.  As with most
municipal courts of record, the court reporter is not required to
be present at trial and need only transcribe the proceedings from
the recording in the event of an appeal.

     Sec. 30.0767 provides that prosecutions in the municipal court
of record will be conducted by the city attorney or deputy city
attorney.

     Sec. 30.0768 provides that any person brought before the
municipal court of record charged with an offense is entitled to be
tried by a jury of six persons, unless that right is waived.

     Sec. 30.0769 provides that a defendant, and not the state, has
a right to appeal from a judgment or conviction in the municipal
court of record on the basis of errors.  The county criminal courts
of Tarrant County have jurisdiction over the appeal, which may not
be by trial de novo.  To perfect an appeal, the defendant must file
a written motion for new trial which sets forth the points of error
of which the defendant complains.  The defendant must also give
notice of the appeal upon the overruling of the motion for new
trial.

     Sec. 30.0770 provides that an appeal may not be taken unless
a bond approved by the court is filed not later than the tenth day
after the motion for new trial, and sets forth requirements for the
bond.

     Sec. 30.0771 details the required contents of the record on
appeal.  The defendant is required to pay for the costs of
transcription unless the court finds that the defendant is unable
to pay.  If the case is reversed on appeal, the court must refund
the cost of transcription to the defendant.

     Sec. 30.0772 requires the clerk to prepare a transcript of the
court proceedings if requested by the defendant and sets forth what
must be included in the transcript.

     Sec. 30.0773 provides that either party may include bills of
exception in the transcript if they are timely filed with the
municipal court clerk.

     Sec. 30.0774 sets forth what must be contained in a statement
of facts if required to be included in a record on appeal.

     Sec. 30.0775 provides for the completion, approval and
transfer of the record upon appeal to the county appellate court. 

     
     Sec. 30.0776 provides that the defendant and prosecutor must
file briefs with the clerk and establishes the time period in which
the briefs must be filed.

     Sec. 30.0777 provides that, except as modified by this
Subchapter, the Code of Criminal Procedure governs the trial of
cases before the municipal court of record and that the court may
make and enforce rules of practice and procedure necessary to
expedite the trial cases not inconsistent with general law.  A bond
must be payable to the state for the use and benefit of the city. 
A peace officer may serve process issued by the municipal courts of
record.  The county appellate courts can make and enforce rules of
practice and procedure not inconsistent with general law to
expedite appeals.

     Sec. 30.0778 authorizes the appellate court to, according to
the law and nature of the case, affirm the judgment of the
municipal court, reverse and remand the case for a new trial,
reverse and dismiss the case, or reform and correct the judgment. 
The appellate court is directed to deliver a written opinion order
either sustaining or overruling each assignment of error presented
to the court and to mail copies of the decision to all parties. 

     Sec. 30.0779 requires the county appellate court to certify
the appellate proceedings and mail the certificate to the municipal
court.  If the municipal court proceedings were affirmed, further
action to enforce the judgment is not necessary except to forfeit
the bond, issue a writ of capias or issue an execution against the
defendant's property.

     Sec. 30.0780 provides that if the appellate court awards a new
trial to the defendant, the case is tried in the municipal court of
record as if a new trial had been granted by the court of record.

     Sec. 30.0781 provides that the defendant may appeal to the
court of appeals if the fine assessed exceeds $100.00 and if the
judgment is affirmed by the county appellate court.  Provisions in
the Code of Criminal Procedure relating to appeals from a county or
a district court apply to the appeal except the record and brief on
appeal constitute the record, and the record and brief shall be
filed directly with the Court of Appeals.

SECTION 2.  Emergency clause.  Effective date.


COMPARISON OF ORIGINAL TO SUBSTITUTE


     In Section 1, the substitute adds "or city administrator"
following "city manager" on page 3, line 26, in Section 30.0765.


SUMMARY OF COMMITTEE ACTION


     Pursuant to a public notice posted in accordance with House
rules, the Committee on Judicial Affairs met in a public hearing on
February 21, 1995, to consider House Bill 436.  The Chair
recognized the author, Rep. Brimer, to explain the bill.  There
were no other witnesses for, on or against the bill.  Rep. Goodman
offered up a complete committee substitute for House Bill 436.  The
Chair moved to adopt the committee substitute for H.B. 436; there
being no objections, the substitute was adopted.  Rep. Goodman
moved that H.B. 436 be reported back to the full House, as
substituted, with the recommendation that it do pass, be printed
and placed on the local and consent calendar.  The motion prevailed
by the following record vote:  8 ayes, 0 nays, 0 PNV and 1 absent.


Committee on Judicial Affairs