BILL ANALYSIS



C.S.H.B. 1395
By: Place
4-28-95
Committee Report (Substituted)


BACKGROUND

Judges are prohibited by law from dismissing the prosecution of a
criminal offense without the consent of the prosecuting attorney. 
Yet, many governmental entities refuse to provide prosecuting
attorneys for Class C misdemeanors in justice or municipal courts. 
This includes violations of traffic laws.  A judge is bound by two
ethical provisions:  (1) to dispose of the business of the court
promptly; and (2) to sit as a fair, impartial, and neutral judge of
the cases pending in his or her court.  When a prosecuting attorney
is not provided to the court, the judge must either allow the case
to languish on the docket, call the case to trial and prosecute it
himself, or call up the case and when the state does not answer the
docket call, find the defendant "not guilty."  More citizens come
into contact with justices of the peace and municipal court judges
than with judges from any other court in our legal system.  There
is a need for judges to have the ability to dismiss these cases
without leaving them on the docket or delivering a verdict of not
guilty.  A dismissal prior to the swearing of witnesses allows the
state to re-file the charges against the defendant, if the two-year
statute of limitations has not yet expired.

PURPOSE

If enacted, C.S.H.B. 1395 would empower justices of the peace and
municipal court judges with the legal authority to dismiss the
prosecution of traffic offenses when they can show good cause for
such action and if certain other conditions apply.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency, or institution.

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Article 45.23, Code of Criminal Procedure (TO
TRY CAUSE WITHOUT DELAY), by changing the title of the article to
read TO TRY CAUSE WITHOUT DELAY; DISMISSALS and as follows:

     (a) Adds a municipal court judge in addition to a justice to
     try a defendant's cause under this section.

     (b) Allows a justice or municipal court judge to dismiss the
     prosecution of an offense involving violation of a traffic law
     if:

           (1) the justice or judge gives notice of the trial no
           later than five days before the cause is set for trial
           to:

               (A) the prosecuting attorney; or

               (B) the district or county attorney (if no
               prosecuting attorney is assigned in that court) if
               the case is pending in justice court or to the city
               attorney if pending in municipal court; and

           (2) when the justice or judge of the municipal court
           calls the cause to trial, the state's attorney does not
           appear and announce the attorney's intention to
           prosecute the cause.

SECTION 2.  Emergency clause.  Effective upon passage.

COMPARISON OF ORIGINAL TO SUBSTITUTE

SECTION 1 of the substitute includes municipal court judges among
those allowed to postpone or dismiss a defendant's trial in certain
situations.  The substitute does not allow justices or judges to
dismiss for good cause, but rather if certain conditions apply and
within a certain time frame.


SUMMARY OF COMMITTEE ACTION

HB 1395 was considered by the full committee in a public hearing on
March 27, 1995.  The following person testified in favor of the
bill:

     Michael L. O'Neal, representing the Texas Municipal Courts
     Association. 

The bill was left pending.

HB 1395 was considered by the full committee in a formal meeting on
April 28, 1995.  The committee considered a complete committee
substitute.  The substitute was adopted without objection.  HB 1395
was reported favorably as substituted, with the recommendation that
it do pass and be printed, by a record vote of 7 ayes, 0 nays, 0
pnv, and 2 absent.