BILL ANALYSIS
H.B. 3121
By: West
C.S.H.B. 3121
By: Thompson
04-25-95
Committee Report (Substituted)
BACKGROUND
The City of Odessa wishes to establish a municipal court of
record without holding an election to do so. Moreover, once
established, the City wishes to appoint, rather than elect, judges
to preside over this court. The City Charter, to which the city
wishes to comply, provides that Municipal Court Judges be appointed
since the cost of conducting a campaign would discourage many
attorneys from running for the position. Several other Texas
cities have enjoyed this, along with many other advantages such a
method brings.
Current law (Government Code Sections 30.352 and 30.354)
establishes the authority to create the court, but requires that an
election be held to do so. Current law also provides that judges
to this court be elected to terms of office between two and four
years in duration.
PURPOSE
This bill would authorize the City of Odessa to establish,
without an election, a municipal court of record. It would also
provide for the appointment, rather than the election, of judges
sitting on the court. Additionally, it would change the
jurisdiction and possible number of municipal courts, the recording
of proceedings, and certain aspects of the appeal from such a
court. This bill would indirectly reduce the number of appeals.
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 Government Code Section 30.352(a) strikes
language regarding the singularity of the present court.
SECTION 2 amends Gov't Code Section 30.353, Jurisdiction of
the Odessa Municipal Court.
Current Sec. 30.353 becomes new Subsec. (a) and is
amended to strike language referring to exclusive original
jurisdiction in criminal cases, other than traffic offenses,
arising under city ordinances and other jurisdiction granted
by state law. The amended language grants jurisdiction in
criminal cases arising under the city's ordinances.
New Subsec. (b) grants the municipal court concurrent
jurisdiction with the justice courts in criminal cases arising
within the city limits and punishable by fine only.
New Subsec. (c) grants the court jurisdiction over cases
arising outside the city under ordinances authorized by Loc.
Gov't Code §§ 215.072 (inspection of dairies and
slaughterhouses), 217.042 (Nuisances), 341.903 (crimes
committed on municipal property, lakes, and streets outside
the city), and 401.002 (environmental controls).
New Subsec. (d) grants jurisdiction over Class C
misdemeanors punishable by fine only.
SECTION 3. Gov't Code Section 30.354(c) is amended by
striking language providing for the election of judges to this
court and adding language providing authority to the governing body
of a city to appoint judges and alternate judges to the court for
two-year terms
SECTION 4. Gov't Code Section 30.354(b) is amended to delete
a reference to the municipal judicial election.
SECTION 5. Gov't Code Section 30.356(b) is amended to
accommodate the appointment and compensation of alternate judges
who would act for a judge temporarily unable to act for any reason.
Language regarding the former provision for temporary municipal
judges is deleted.
SECTION 6. Gov't Code Section 30.358(a) is amended to
substitute the city manager for the governing body as the person
who appoints the municipal clerk.
SECTION 7 amends Gov't Code Section 30.359.
New Subsec. (a) requires that the city provide a
qualified court reporter.
Current Subsec. (a) becomes Subsec. (b) and is amended
to provide that the city is authorized, in lieu of a court
reporter, to provide for the electronic recording of court
proceedings.
Current Subsec. (b), allowing the judge to appoint the
court reporter, is deleted. New Subsec. (c) provides
that the court reporter may use
a combination of methods to
record court proceedings and
requires the reporter to keep
the record for 30 days.
New Subsec. (d) provides that a testimony need not be
recorded unless a party requests a record in writing at least
five days before trial.
New Subsec. (e) requires the reporter to certify the
official record.
SECTION 8 adds new Sections 30.3601, 30.3602, 30.3603, and
30.3604 to the Government Code.
New Sec. 30.3601 provides that prosecutions will be
conducted by the city attorney or an assistant or deputy.
New Sec. 30.3602 sets out requirements for complaints
and pleadings.
New Sec. 30.3603 makes provisions for municipal court
juries in Odessa.
New Sec. 30.3604 provides for court rules of procedure,
payment of bonds, service of process, and payment and recovery
of fines, fees and court costs.
SECTION 9. Gov't Code Section 30.361 is amended to allow the
city to appeal as provided in the Code of Criminal Procedure and to
provide that the Ector County statutory county courts are the
initial courts of review for cases from municipal court, unless
otherwise specified in law.
SECTION 10. Gov't Code Section 30.362 is amended to define
the process and terms necessary for the court to allow the
defendant's appeal, including an appeal bond.
SECTION 11. Gov't Code Section 30.363 is amended to change
the requirements for perfecting an appeal.
Subsec. (a) is amended to require the defendant to file
a motion for a new trial setting out the assignments of error
within 10 days of the judgment. It further provides that if
the court does not act on the motion within 30 days of filing,
it is overruled by operation of law. Current law provides
that notice of appeal may be given orally or in writing and
does not require assignments of error.
New Subsec. (b) requires a defendant to give written
notice of appeal and pay a transcription fee not to exceed $25
within 10 days of overruling the motion for a new trial.
Current Subsecs. (b) and (c) are deleted.
New Subsec. (c) requires the city attorney, an assistant
or deputy city attorney to prosecute appeals.
SECTION 12 amends Gov't Code Section 30.364 to require the
defendant to pay costs of transcription of a record on appeal.
SECTION 13 amends Gov't Code Section 30.365.
Subsec. (a) is amended to conform Subsec. (a) with the
rest of the bill. Several changes are made to the list of
materials to be included in the transcript: court orders
replace docket entries; the jury charge is deleted; findings
of fact and conclusions of law replace notice of appeal;
motion for new trial and the order on the motion replace all
written motions and pleas and orders; the notice of appeal,
statement of materials to be included in the record, the
appeal bond, statement of facts and signed material papers are
added to the list.
New Subsec. (b) is added to require that the defendant
or his attorney file a copy of the written instructions with
the clerk and deliver a copy to the city attorney.
Current Subsec. (b) becomes Subsec. (c) and is amended
to provide that additional portions of the proceedings will be
included in the transcripts if the clerk is instructed by the
city attorney or an assistant or deputy. Currently, the
transcript may include additional portions of the proceedings
if requested by either party.
SECTION 14 amends Gov't Code Section 30.367(a) to make
language in this section gender neutral.
SECTION 15 amends Gov't Code Section 30.368 to simplify the
filing of the record. Provisions allowing the judge to extend the
time for filing are deleted.
SECTION 16. Gov't Code Section 30.369 is amended.
Current Subsec. (a), requiring a defendant's brief on
appeal to present points of error, is deleted.
Subsecs. (b) and (c) are relettered and amended to give
each party an additional 15 days to file a brief on appeal.
New Subsec. (c) is added to limit the record and briefs
on appeal to the questions relied upon for reversal.
Subsec. (d) is amended to strike "opposing party" as a
person to whom delivery of a copy of the brief shall be made.
Subsec. (e), allowing the appellate court discretion to
extend the times for filing briefs, is deleted.
SECTION 17. Gov't Code Section 30.370 is amended to strike
language regarding the authority of an appellate court's rulings on
technicalities. Subsec. (b), allowing court review of unassigned
errors and to remove the requirement that the appellate court
review all grounds of error and arguments urged by defendant in his
brief, is deleted.
SECTION 18. Government Code Section 30.371(c) is amended to
include court orders as a method by which an appellate court may
dispose of a case on appeal.
SECTION 19. Government Code Section 30.372 is amended for
clarification. Section 30.372(3) is added to make the defendant's
property subject to execution upon affirmance by the appellate
court of the municipal court's judgment.
SECTION 20. Government Code Section 30.374 is amended for
clarification.
SECTION 21 repeals Gov't Code Sections 30.352(c) and 30.366 of
the Government Code. Section 30.352(c) provides for an election to
establish the municipal court of record. Section 30.366 allows the
inclusion of bills of exception in the transcript on appeal and
filing requirements thereof by either party.
SECTION 22. Effective date.
SECTION 23. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
Sections 1 and 2 are the same in both versions.
Section 3 in the substitute replaces the phrase "appoint
qualified persons to serve in the capacity of municipal court
judge" with "appoint a municipal court judge." References to an
assistant municipal judge are replaced with references to an
alternate municipal judge.
Section 4 is the same in both versions.
Section 5 in the substitute replaces all references to
assistant municipal judges with references to alternate municipal
judges.
Section 6 is the same in both versions.
Section 7 in the substitute substitutes "The city by ordinance
shall provide for the appointment of a court reporter" for "The
city shall provide a court reporter." A provision that the court
clerk appoint the court reporter is deleted. In Subsecs. (b) and
(c), the substitute replaces "the clerk may provide" with "the city
by ordinance may provide." In Subsection (c), the substitute
requires the clerk to keep the record for 30 days; in the original,
it was 20 days. In Subsec. (d), the substitute requires that a
party's request for a record must be filed not less than five days
before trial; in the original, the request only had to be made
before trial.
Section 8 in the substitute adds a provision in new Section
30.3602(a) that a proceeding in a municipal court of record begins
with the filing of a complaint; this was not in the original. In
Section 30.3604(d), "on conviction" is replaced with "a
conviction." A provision in the original bill's Section 30.3604(d)
that the court may require the defendant to remain in custody until
all fines and costs are paid is deleted in the substitute.
Section 9 in the substitute adds "or an assistant or deputy
city attorney" to the definition of a prosecuting attorney for the
purposes of appeals.
Section 10 in the substitute, in Subsection (a), strikes "If
the defendant is in custody" as a qualification to appeal unless an
appeal bond has been filed. A provision that a defendant in
custody shall be committed to jail unless an appeal bond is posted
was deleted in the substitute. In Subsec. (b), a requirement that
the defendant make appearances in the court to which the appeal is
taken was deleted in the substitute.
Section 11 in the original bill required the governing body to
set a transcription fee not to exceed $25. Section 11 in the
substitute allows the city to set a transcription not to exceed $25
by ordinance. A provision allowing the defendant to have the
transcription fee refunded if the case is reversed on appeal was
deleted in the substitute.
Section 12 of the substitute deletes requirements that the
defendant be refunded costs for the record if the case is reversed
on appeal. In addition, a provision allowing the court to order a
record prepared without charge if the defendant proves indigency
was deleted in the substitute.
Section 13 of the substitute adds "or an assistant or deputy
city attorney" after "city attorney" in Subsecs. (b) and (c).
Sections 14 and 15 are the same in both versions.
Section 16 in the substitute replaces "defendant" with
"appellant" and "city attorney" with "appellee." In the
substitute, the appellant is given 30 days to file a brief instead
of 15 days; the appellee is given 30 days, instead of 15 days, from
the filing of the appellant's brief to file a brief.
Sections 17 through 23 are the same in both versions.
SUMMARY OF COMMITTEE ACTION
Pursuant to the suspension of the 5-day posting rule made on
April 25, 1995 while the House was still in session, the Committee
on Judicial Affairs met in a public hearing on April 25, 1995, to
consider House Bill 3121. The Chair laid out H.B. 3121. There
being no witnesses to testify, the Chair moved to leave H.B. 3121
pending. There were no objections. Following subsequent business,
the Chair again laid out H.B. 3121. The Chair offered, laid out
and explained a complete committee substitute to H.B. 3121. The
Chair moved adoption of the substitute. There being no objection,
the substitute was adopted. The Chair moved that H.B. 3121, as
substituted, be reported favorably back to the full House with the
recommendation that it do pass, be printed and sent to the Local &
Consent Calendars Committee. The motion prevailed by the following
record vote: 5 ayes, 0 nays, 0 PNV and 4 absent.