BILL ANALYSIS



H.B. 438
By: Brimer and Goodman
Committee Report (Unamended)


BACKGROUND

     Currently, the municipal court in Mansfield is not a court of
record.  This means that all citations issued in the City of
Mansfield 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 backlog 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 Mansfield 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 rulemaking authority to any state agency, officer,
department or institution.


SECTION BY SECTION ANALYSIS

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

     Sec. 30.1041 provides that this subchapter shall apply to the
City of Mansfield.

     Sec. 30.1042 permits the governing body of the City to create
municipal courts of record by ordinance.

     Sec. 30.1043 provides that the general law regarding municipal
courts and justice courts and any charter provision or ordinance
relating to municipal courts apply to municipal courts of record
unless they are in conflict with this subchapter.

     Sec. 30.1044 provides for a municipal judge to be appointed by
the governing body of the city and establishes the qualifications
for appointment, guidelines for salary, parameters of authority and
terms of removal of a judge.  Judges may exchange benches.  This
section also sets out required judicial notice.  The governing body
may fill vacancies in the office of municipal judge and appoint
alternate judges.

     Sec. 30.1045 permits the governing body to appoint one or more
magistrates who need not have the same qualifications as a
municipal judge.  The magistrate may not preside over the municipal
court of record but may conduct arraignments, indigency hearings,
accept pleas, sign judgments, set bonds and perform other
magistrate duties.

     Sec. 30.1046 provides for the appointment of a clerk of the
municipal court of record and establishes the clerk's duties. 

     Sec. 30.1047 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. 30.1048 provides that prosecutions in the municipal court
of record will be conducted by the city attorney or an assistant or
deputy city attorney. 

     Sec. 30.1049 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. 30.1050 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. 30.1051 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. 30.1052 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. 30.1053 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. 30.1054 provides that either party may include bills of
exception in the transcript if they are timely filed with the
municipal court clerk. 

     Sec. 30.1055 sets forth what must be contained in a statement
of facts if required to be included in a record on appeal. 

     Sec. 30.1056 provides for the completion, approval and
transfer of the record upon appeal to the county appellate court. 

     Sec. 30.1057 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. 30.1058 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. 30.1059 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. 30.1060 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. 30.1061 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. 30.1062 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.


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 438.  The Chair
recognized the author, Rep. Brimer, to explain the bill.  Elizabeth
Elam, representing the City of Mansfield, testified for H.B. 438. 
There were no other witnesses for, on or against the bill.  Rep.
Goodman moved that H.B. 438 be reported back to the full House,
without amendment, 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.