BILL ANALYSIS
H.B. 436
By: Brimer (Harris)
Jurisprudence
5-3-95
Senate Committee Report (Unamended)
BACKGROUND
The municipal court in Kennedale is not a court of record.
Consequently, 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, and 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 the
municipal court. In practice, however, the county level often has
such a backlog that the citations may never be reached, or, if the
case is reached, there may be a plea bargain with costs going to
the county. The ease of appeal from a municipal court that is not
a court of record may impair the city's ability to enforce traffic
laws and local ordinances. An appeal from a municipal court of
record occurs only after a trial, and is based only upon errors of
law.
PURPOSE
As proposed, H.B. 436 authorizes the city of Kennedale to create
municipal courts of record.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is granted
to the municipal court of record in the City of Kennedale under
SECTION 1 (Section 30.0777(a), Government Code) and to the
appellate courts in the City of Kennedale under SECTION 1 (Section
30.0777(d), Government Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 30, Government Code, by adding Subchapter
BB, as follows:
SUBCHAPTER BB. KENNEDALE
Sec. 30.0761. APPLICATION. Applies this subchapter to the
City of Kennedale.
Sec. 30.0762. CREATION. (a) Authorizes the governing body of
the city (governing body) by ordinance to create a municipal
court of record (court) and determine the number of courts to
provide a more efficient disposition of cases. Requires the
ordinance to give each court a numerical designation.
(b) Prohibits a court from existing concurrently with
municipal courts that are not courts of record.
(c) Provides that a court has no terms and is authorized to
sit at any time for the transaction of court business.
Sec. 30.0763. APPLICATION OF OTHER LAWS. Applies the general
law regarding municipal courts and justice courts and any
charter provision or city ordinance relating to the municipal
court to the courts unless the provision is in conflict with
this subchapter.
Sec. 30.0764. JUDGE. (a) Provides that a court is presided
over by a municipal judge.
(b) Requires the governing body to appoint one of the judges
to be the chief judge if there is more than one municipal
judge.
(c) Provides that municipal judges are appointed by the
governing body for a two-year term.
(d) Requires a municipal judge to be a licensed attorney and
to have two or more years of practice in this state.
Requires the judge to be a citizen of the United States and
of this state and to devote as much time to the office as
necessary.
(e) Authorizes the judges to exchanges benches and to sit
and act for each other in any pending proceeding. Provides
that an act performed by any of the judges is binding on all
parties to the proceeding.
(f) Entitles a judge to a salary from and determined by the
city and prohibits the city from diminishing it during the
judge's term of office. Prohibits the salary from being
based on fines, fees, or costs collected by the court.
(g) Authorizes the removal of a judge from office by the
governing body at any time for incompetency, misconduct,
malfeasance, or disability.
(h) Requires a judge to take judicial notice of the city
ordinances and the corporate limits of the city in a case.
Authorizes a judge to grant writs of mandamus, injunction,
and attachment and other necessary writs and to issue writs
of habeas corpus in cases in which the offense charged is
within the court's jurisdiction. Authorizes a judge to
issue administrative search warrants.
(i) Requires the governing body to appoint a person to fill
a vacancy in the office of a judge for the remainder of the
unexpired term.
(j) Authorizes the governing body to appoint persons to be
available to serve for a judge who is temporarily absent.
Requires the chief judge to select one of the persons
appointed by the governing body to serve during an absence.
Provides that an alternate judge has all the powers and the
judge shall discharge all the duties of the judge. Requires
a judge to have the same qualifications as a municipal
judge.
Sec. 30.0765. CLERK; OTHER PERSONNEL. Requires the city
manager to appoint a clerk of the court who is authorized to
hire, direct, and remove the personnel in the clerk's office.
Requires the clerk or deputies to keep court records, issue
process, and perform general duties for the court that a clerk
of the county criminal court performs. Requires the clerk to
perform the duties in accordance with statutes and the city
charter and ordinances.
Sec. 30.0766. COURT REPORTER. (a) Requires the city to
provide a court reporter for the purpose of preserving a
record in cases tried before the court. Requires the clerk to
appoint the court reporter who is required to meet the
qualifications provided by law. Requires the reporter to be
compensated by the city.
(b) Authorizes the court reporter to use written notes,
transcribing equipment, video or audio recording equipment,
or a combination of those methods to record court
proceedings. Requires a record to be kept for a certain
time period.
(c) Provides that the court reporter is not required to
record testimony unless requested by the judge or one of the
parties. Requires a request to be in writing and be filed
before trial.
(d) Authorizes the governing body to provide that
proceedings in a court may be recorded by an electronic
recording device. Provides that the court reporter is not
required to be present at trial to certify the statement of
facts. Requires the recording to be kept for a certain time
period. Requires appealed proceedings to be transcribed
from the recording.
Sec. 30.0767. PROSECUTIONS BY CITY ATTORNEY. Requires all
court prosecutions to be conducted by the city attorney or an
assistant or deputy city attorney.
Sec. 30.0768. JURY. (a) Entitles a person brought before a
court who is charged with an offense to be tried by a jury of
six persons unless that right is waived. Requires the jury to
decide all questions of fact or credibility of witnesses.
Requires the court to determine all matters of law and to
charge the jury on the law.
(b) Requires a juror who serves in the court to meet certain
qualifications.
Sec. 30.0769. APPEAL. (a) Provides that a defendant has the
right of appeal. Provides that county courts at law of
Tarrant County have jurisdiction over an appeal. Provides
that the state has no right to an appeal or to a new trial.
(b) Requires the appellate court to determine each appeal
from the court conviction on the basis of the errors that
are set forth in the defendant's motion for new trial and
that are presented in the transcript and statement of facts.
Prohibits an appeal from the court from being by trial de
novo.
(c) Requires the defendant to file a written motion for a
new trial within 10 days of the judgment. Requires the
motion to set forth the points of error of which the
defendant complains. Authorizes the motion or an amended
motion to be amended by leave of court within a certain time
period. Authorizes the court to extend the time for filing
or amending. Provides that the original or amended motion
is overruled by operation of law if the court does not act
within a certain time period.
(d) Requires the defendant to give notice of the appeal to
perfect it. Authorizes the defendant to give the notice of
appeal orally in open court on the overruling if the
defendant requests a hearing on the motion of a new trial.
Requires the defendant to give written notice of appeal and
file it with the court in a certain time period. Authorizes
the court to extend the filing deadline.
Sec. 30.0770. APPEAL BOND. (a) Prohibits the defendant from
taking an appeal until the defendant files an appeal bond with
the court if the defendant is not in custody. Requires the
bond to be court-approved and be filed within 10 days of the
overruling. Requires the defendant to be committed to jail
unless the defendant posts the appeal bond.
(b) Sets forth requirements for the appeal bond's amount and
its issuing.
Sec. 30.0771. RECORD ON APPEAL. Provides that the record on
appeal consists of a transcript and a statement of facts.
Requires the court reporter to prepare the record from the
reporter's record or recordings. Requires the defendant to
pay for the cost of the transcription. Requires the court to
order the reporter to prepare the record without charge to the
defendant if the defendant is unable to pay or give security
for the record on appeal. Requires the court to refund the
cost to the defendant if the case is reversed.
Sec. 30.0772. TRANSCRIPT. (a) Requires the clerk to prepare
a transcript of the court proceedings on the defendant or the
defendant's request. Requires the transcript to include
copies of certain materials.
(b) Authorizes the clerk to include additional portions of
the proceedings prepared from mechanical or videotape
recordings.
Sec. 30.0773. BILLS OF EXCEPTION. Authorizes parties to
include bills of exception in the transcript. Requires the
bills of exception to be filed with the clerk within 60 days
of filing or giving the motion of appeal.
Sec. 30.0774. STATEMENTS OF FACTS. Requires a statement of
facts included in the record on appeal to contain certain
information.
Sec. 30.0775. COMPLETION, APPROVAL, AND TRANSFER OF RECORD.
(a) Requires the parties to file certain information with the
clerk within 60 days of giving or filing the motion of appeal.
(b) Requires the judge to approve the record in the manner
provided for record completion, approval, and notification
in the court of appeals.
(c) Requires the clerk to send the record to the appellate
clerk for filing. Requires the appellate clerk to notify
the defendant and the prosecuting attorney that the record
has been filed.
Sec. 30.0776. BRIEF ON APPEAL. (a) Requires a defendant's
brief on appeal from a court to present points of error in the
manner required by law for a brief on appeal to the court of
appeals.
(b) Requires the defendant to file the brief with the
appellate clerk within 15 days of the filing of the
transcript and statement of facts. Requires the defendant
or the defendant's attorney to certify that the brief has
been mailed to the prosecution.
(c) Requires the prosecuting attorney to file the appellee's
brief with the appellate court clerk within 15 days of the
date on which the defendant's brief is filed.
(d) Requires each party to deliver a copy of the brief to
the opposing party and to the judge.
Sec. 30.0777. COURT RULES. (a) Provides that the Code of
Criminal Procedure governs the trial of cases by the court.
Authorizes the court to make and enforce all rules of practice
and procedure that are not inconsistent with general law.
(b) Requires a bond to be payable to the state for the use
and benefit of the city.
(c) Authorizes a peace office to serve a process issued by
a court.
(d) Authorizes the appellate courts to make and enforce all
rules of practice and procedure that are not inconsistent
with general law.
Sec. 30.0778. DISPOSITION ON APPEAL. (a) Sets forth
authorized actions for the appellate court, according to the
nature of the case.
(b) Requires the appellate court to presume certain
circumstances exist if the matter was made an issue in the
trial court or it affirmatively appears to the contrary.
(c) Requires the court to deliver an opinion or order,
including the reasoning, either sustaining or overruling
each assignment of error presented. Requires the appellate
clerk to mail copies of the decision to the parties and the
judge.
Sec. 30.0779. CERTIFICATE OF APPELLATE PROCEEDINGS. Requires
the clerk to certify the proceedings and the judgment and mail
the certificate to the municipal court. Requires the clerk to
file the certificate with the papers in the case and not the
certificate on the case docket. Provides that further action
to enforce the judgment is not necessary if the judgment is
affirmed, with exceptions.
Sec. 30.0780. EFFECT OF ORDER OF NEW TRIAL. Provides that if
the appellate court awards a new trial to the defendant, the
case stands as if a new trial had been granted by the court.
Sec. 30.0781. APPEAL TO COURT OF APPEALS. Provides that the
defendant has the right to appeal to the court of appeals if
the find exceeds $100 and if the judgment is affirmed by the
appellate court. Applies the provisions of the Code of
Criminal Procedure to the appeal, with exceptions.
SECTION 2. Emergency clause.
Effective date: upon passage.