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.