74R5323 MLR-F
By Brimer H.B. No. 436
Substitute the following for H.B. No. 436:
By Goodman C.S.H.B. No. 436
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the creation of municipal courts of record in
1-3 Kennedale.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 30, Government Code, is amended by adding
1-6 Subchapter BB to read as follows:
1-7 SUBCHAPTER BB. KENNEDALE
1-8 Sec. 30.0761. APPLICATION. This subchapter applies to the
1-9 City of Kennedale.
1-10 Sec. 30.0762. CREATION. (a) The governing body of the city
1-11 may by ordinance create a municipal court of record if it
1-12 determines that the formation of the court is necessary to provide
1-13 a more efficient disposition of cases arising in the city. The
1-14 governing body may by ordinance determine the number of municipal
1-15 courts of record that are required to dispose of the cases and may
1-16 establish as many as are needed. The ordinance establishing the
1-17 courts shall give each court a numerical designation, beginning
1-18 with "Municipal Court of Record No. 1."
1-19 (b) A municipal court of record may not exist concurrently
1-20 with municipal courts that are not courts of record in the city.
1-21 (c) A municipal court of record has no terms and may sit at
1-22 any time for the transaction of the business of the court.
1-23 Sec. 30.0763. APPLICATION OF OTHER LAWS. The general law
1-24 regarding municipal courts, the general law regarding justice
2-1 courts on matters not covered by the law regarding municipal
2-2 courts, and any charter provision or ordinance of the city relating
2-3 to the municipal court apply to a municipal court of record unless
2-4 the law, charter provision, or ordinance is in conflict or
2-5 inconsistent with this subchapter.
2-6 Sec. 30.0764. JUDGE. (a) A municipal court of record is
2-7 presided over by a municipal judge.
2-8 (b) If there is more than one municipal judge in the city,
2-9 the governing body of the city shall appoint one of the judges to
2-10 be the chief judge.
2-11 (c) A municipal judge, including the chief judge, is
2-12 appointed by the governing body of the city for a term of two
2-13 years.
2-14 (d) A municipal judge must be a licensed attorney in good
2-15 standing in this state and must have two or more years of
2-16 experience in the practice of law in this state. The judge must be
2-17 a citizen of the United States and of this state. The judge shall
2-18 devote as much time to the office as it requires.
2-19 (e) If there is more than one municipal court of record in
2-20 the city, the judges may exchange benches and may sit and act for
2-21 each other in any proceeding pending in the courts. An act
2-22 performed by any of the judges is binding on all parties to the
2-23 proceeding.
2-24 (f) A municipal judge is entitled to a salary from the city,
2-25 the amount of which is determined by the governing body of the city
2-26 and may not be diminished during the judge's term of office. The
2-27 salary may not be based directly or indirectly on fines, fees, or
3-1 costs collected by the court.
3-2 (g) A municipal judge may be removed from office by the
3-3 governing body of the city at any time for incompetency,
3-4 misconduct, malfeasance, or disability.
3-5 (h) A municipal judge shall take judicial notice of the city
3-6 ordinances and the corporate limits of the city in a case tried
3-7 before a municipal court of record. A municipal judge may grant
3-8 writs of mandamus, injunction, and attachment and other writs
3-9 necessary to the enforcement of the jurisdiction of the court and
3-10 may issue writs of habeas corpus in cases in which the offense
3-11 charged is within the jurisdiction of the court. A municipal judge
3-12 may issue administrative search warrants.
3-13 (i) The governing body of the city shall appoint a qualified
3-14 person to fill a vacancy in the office of municipal judge for the
3-15 remainder of the unexpired term.
3-16 (j) The governing body may appoint one or more qualified
3-17 persons to be available to serve for a municipal judge who is
3-18 temporarily absent due to illness, family death, continuing legal
3-19 or judicial education programs, or for any other reason. The chief
3-20 judge, or the municipal judge if there is no chief judge, shall
3-21 select one of the persons appointed by the governing body to serve
3-22 during an absence. An alternate judge, while serving, has all the
3-23 powers and shall discharge all the duties of a municipal judge. An
3-24 alternate judge must have the same qualifications as a municipal
3-25 judge.
3-26 Sec. 30.0765. CLERK; OTHER PERSONNEL. The city manager or
3-27 city administrator of the city shall appoint a clerk of the
4-1 municipal court of record who may hire, direct, and remove the
4-2 personnel authorized in the city's annual budget for the clerk's
4-3 office. The clerk or the clerk's deputies shall keep the records
4-4 of the municipal courts of record, issue process, and generally
4-5 perform the duties for the courts that a clerk of the county court
4-6 exercising criminal jurisdiction is required by law to perform for
4-7 that court. The clerk shall perform the duties in accordance with
4-8 statutes, the city charter, and city ordinances.
4-9 Sec. 30.0766. COURT REPORTER. (a) The city shall provide a
4-10 court reporter for the purpose of preserving a record in cases
4-11 tried before the municipal court of record. The clerk of the court
4-12 shall appoint the court reporter, who must meet the qualifications
4-13 provided by law for official court reporters. The reporter shall
4-14 be compensated by the city in the manner determined by the
4-15 governing body of the city.
4-16 (b) The court reporter may use written notes, transcribing
4-17 equipment, video or audio recording equipment, or a combination of
4-18 those methods to record the proceedings of the court. A record
4-19 shall be kept for the 20-day period beginning the day after the
4-20 last day of the court proceeding, trial, or denial of motion for
4-21 new trial, whichever occurs last.
4-22 (c) The court reporter is not required to record testimony
4-23 in a case unless the judge or one of the parties requests a record.
4-24 A party's request for a record must be in writing and be filed with
4-25 the court before trial.
4-26 (d) The governing body may provide that, in lieu of
4-27 providing a court reporter at trial, proceedings in a municipal
5-1 court of record may be recorded by a good quality electronic
5-2 recording device. If the governing body authorizes the electronic
5-3 recording, the court reporter need not be present at trial to
5-4 certify the statement of facts. The recording shall be kept and
5-5 stored for the 20-day period beginning the day after the last day
5-6 of the proceeding, trial, or denial of motion for new trial,
5-7 whichever occurs last. The proceedings that are appealed shall be
5-8 transcribed from the recording by an official court reporter.
5-9 Sec. 30.0767. PROSECUTIONS BY CITY ATTORNEY. All
5-10 prosecutions in the municipal court of record must be conducted by
5-11 the city attorney or an assistant or deputy city attorney.
5-12 Sec. 30.0768. JURY. (a) A person who is brought before a
5-13 municipal court of record and who is charged with an offense is
5-14 entitled to be tried by a jury of six persons unless that right is
5-15 waived according to law. The jury shall decide all questions of
5-16 fact or credibility of witnesses. The court shall determine all
5-17 matters of law and shall charge the jury on the law.
5-18 (b) A juror who serves in the municipal courts of record
5-19 must meet the qualifications provided by Chapter 62.
5-20 Sec. 30.0769. APPEAL. (a) A defendant has the right of
5-21 appeal from a judgment or conviction in a municipal court of record
5-22 as provided in this subchapter. The county criminal courts of
5-23 Tarrant County have jurisdiction over an appeal. The state has no
5-24 right to an appeal or to a new trial.
5-25 (b) The appellate court shall determine each appeal from a
5-26 municipal court of record conviction on the basis of the errors
5-27 that are set forth in the defendant's motion for new trial and that
6-1 are presented in the transcript and statement of facts prepared
6-2 from the proceedings leading to the conviction. An appeal from the
6-3 municipal court of record may not be by trial de novo.
6-4 (c) To perfect an appeal, the defendant must file with the
6-5 municipal court clerk a written motion for new trial not later than
6-6 the 10th day after the date on which judgment is rendered. The
6-7 motion must set forth the points of error of which the defendant
6-8 complains. The motion or an amended motion may be amended by leave
6-9 of court at any time before action on the motion is taken, but not
6-10 later than the 20th day after the date on which the original or
6-11 amended motion is filed. The court may for good cause extend the
6-12 time for filing or amending but the extension may not exceed 90
6-13 days from the original filing deadline. If the court does not act
6-14 on the motion before the expiration of the 30 days allowed for
6-15 determination of the motion, the original or amended motion is
6-16 overruled by operation of law.
6-17 (d) To perfect an appeal, the defendant must also give
6-18 notice of the appeal. If the defendant requests a hearing on the
6-19 motion for new trial, the defendant may give the notice of appeal
6-20 orally in open court on the overruling of the motion. If there is
6-21 no hearing, the defendant must give written notice of appeal and
6-22 must file the notice with the court not later than the 10th day
6-23 after the date on which the motion is overruled. The court may for
6-24 good cause extend that time period, but the extension may not
6-25 exceed 90 days from the original filing deadline.
6-26 Sec. 30.0770. APPEAL BOND. (a) If the defendant is not in
6-27 custody, the defendant may not take an appeal until the defendant
7-1 files an appeal bond with the municipal court of record. The bond
7-2 must be approved by the court and must be filed not later than the
7-3 10th day after the date on which the motion for new trial is
7-4 overruled. If the defendant is in custody, the defendant shall be
7-5 committed to jail unless the defendant posts the appeal bond.
7-6 (b) The appeal bond must be in the amount of $50 or double
7-7 the amount of the fine and costs adjudged against the defendant,
7-8 whichever is greater. The bond must state that the defendant was
7-9 convicted in the case and has appealed, must be payable to the
7-10 state for the use and benefit of the city, and must be conditioned
7-11 on the defendant's appearance in the court to which the appeal is
7-12 taken.
7-13 Sec. 30.0771. RECORD ON APPEAL. The record on appeal
7-14 consists of a transcript and, if necessary to the appeal, a
7-15 statement of facts. The court reporter shall prepare the record
7-16 from the reporter's record or mechanical or videotape recordings of
7-17 the proceedings. The defendant shall pay for the cost of the
7-18 transcription. If the court finds that the defendant is unable to
7-19 pay or give security for the record on appeal after a hearing in
7-20 response to an affidavit by the defendant, the court shall order
7-21 the reporter to prepare the record without charge to the defendant.
7-22 If the case is reversed on appeal, the court shall promptly refund
7-23 the cost to the defendant.
7-24 Sec. 30.0772. TRANSCRIPT. (a) On the written request of
7-25 the defendant or the defendant's attorney, the municipal court
7-26 clerk shall prepare under the clerk's hand and seal a transcript of
7-27 the municipal court of record proceedings. The transcript must
8-1 include copies of:
8-2 (1) the complaint;
8-3 (2) material docket entries made by the court;
8-4 (3) the jury charge and verdict in a jury trial;
8-5 (4) the judgment;
8-6 (5) the motion for new trial;
8-7 (6) the notice of appeal;
8-8 (7) written motions and pleas;
8-9 (8) written orders of the court;
8-10 (9) any bills of exception filed with the court;
8-11 (10) the appeal bond; and
8-12 (11) exhibits admitted into evidence.
8-13 (b) The clerk may include in the transcript additional
8-14 portions of the proceedings in the court prepared from mechanical
8-15 or videotape recordings.
8-16 Sec. 30.0773. BILLS OF EXCEPTION. Either party may include
8-17 bills of exception in the transcript subject to the applicable
8-18 provisions of the Code of Criminal Procedure. The bills of
8-19 exception must be filed with the municipal court clerk not later
8-20 than the 60th day after the date on which the notice of appeal is
8-21 given or filed.
8-22 Sec. 30.0774. STATEMENTS OF FACTS. A statement of facts
8-23 included in the record on appeal must contain:
8-24 (1) a transcript of all or part of the municipal court
8-25 of record proceedings that are shown by the notes of the court
8-26 reporter to have occurred before, during, or after the trial, if
8-27 the transcript is requested by the defendant;
9-1 (2) a brief statement of the facts of the case proven
9-2 at trial as agreed to by the defendant and the prosecuting
9-3 attorney;
9-4 (3) a partial transcript and the agreed statement of
9-5 the facts of the case; or
9-6 (4) a transcript of all or part of the municipal court
9-7 of record proceedings in the case that is prepared from mechanical
9-8 or videotape recordings of the proceedings.
9-9 Sec. 30.0775. COMPLETION, APPROVAL, AND TRANSFER OF RECORD.
9-10 (a) Not later than the 60th day after the date on which the notice
9-11 of appeal is given or filed, the parties must file with the
9-12 municipal court clerk:
9-13 (1) the statement of facts;
9-14 (2) a written description of material to be included
9-15 in the transcript in addition to the required material; and
9-16 (3) any material to be included in the transcript that
9-17 is not in the custody of the clerk.
9-18 (b) On completion of the record, the municipal judge shall
9-19 approve the record in the manner provided for record completion,
9-20 approval, and notification in the court of appeals.
9-21 (c) After the court approves the record, the clerk shall
9-22 promptly send it to the appellate court clerk for filing. The
9-23 appellate court clerk shall notify the defendant and the
9-24 prosecuting attorney that the record has been filed.
9-25 Sec. 30.0776. BRIEF ON APPEAL. (a) A defendant's brief on
9-26 appeal from a municipal court of record must present points of
9-27 error in the manner required by law for a brief on appeal to the
10-1 court of appeals.
10-2 (b) The defendant must file the brief with the appellate
10-3 court clerk not later than the 15th day after the date on which the
10-4 transcript and statement of facts are filed with that clerk. The
10-5 defendant or the defendant's attorney must certify that the brief
10-6 has been properly mailed to the prosecuting attorney.
10-7 (c) The prosecuting attorney must file the appellee's brief
10-8 with the appellate court clerk not later than the 15th day after
10-9 the date on which the defendant's brief is filed.
10-10 (d) On filing, each party shall deliver a copy of the brief
10-11 to the opposing party and to the municipal judge.
10-12 Sec. 30.0777. COURT RULES. (a) Except as modified by this
10-13 subchapter, the Code of Criminal Procedure governs the trial of
10-14 cases before the municipal court of record. The court may make and
10-15 enforce all rules of practice and procedure necessary to expedite
10-16 the trial of cases before the court that are not inconsistent with
10-17 general law.
10-18 (b) A bond must be payable to the state for the use and
10-19 benefit of the city.
10-20 (c) A peace officer may serve a process issued by a
10-21 municipal court of record.
10-22 (d) The appellate courts may make and enforce all rules of
10-23 practice and procedure that are not inconsistent with general law
10-24 and that are necessary to expedite the dispatch of appeals from the
10-25 municipal court of record.
10-26 Sec. 30.0778. DISPOSITION ON APPEAL. (a) According to law
10-27 and the nature of the case, the appellate court may:
11-1 (1) affirm the judgment of the municipal court of
11-2 record;
11-3 (2) reverse and remand for a new trial;
11-4 (3) reverse and dismiss the case; or
11-5 (4) reform and correct the judgment.
11-6 (b) Unless the matter was made an issue in the trial court
11-7 or it affirmatively appears to the contrary from the transcript or
11-8 the statement of facts, the appellate court shall presume that:
11-9 (1) venue was proven in the trial court;
11-10 (2) the jury, if any, was properly impaneled and
11-11 sworn;
11-12 (3) the defendant was arraigned and pleaded to the
11-13 complaint; and
11-14 (4) the municipal judge certified the charge before it
11-15 was read to the jury.
11-16 (c) In each case decided by the appellate court, the court
11-17 shall deliver a written opinion or order either sustaining or
11-18 overruling each assignment of error presented. The court shall set
11-19 forth the reasons for its decision. The appellate court clerk
11-20 shall mail copies of the decision to the parties and to the
11-21 municipal judge as soon as the decision is rendered.
11-22 Sec. 30.0779. CERTIFICATE OF APPELLATE PROCEEDINGS. When
11-23 the judgment of the appellate court becomes final, the clerk of
11-24 that court shall certify the proceedings and the judgment and shall
11-25 mail the certificate to the municipal court. The court clerk shall
11-26 file the certificate with the papers in the case and note the
11-27 certificate on the case docket. If the municipal court of record
12-1 judgment is affirmed, further action to enforce the judgment is not
12-2 necessary except to:
12-3 (1) forfeit the bond of the defendant;
12-4 (2) issue a writ of capias for the defendant; or
12-5 (3) issue an execution against the defendant's
12-6 property.
12-7 Sec. 30.0780. EFFECT OF ORDER OF NEW TRIAL. If the
12-8 appellate court awards a new trial to the defendant, the case
12-9 stands as if a new trial had been granted by the municipal court of
12-10 record.
12-11 Sec. 30.0781. APPEAL TO COURT OF APPEALS. The defendant has
12-12 the right to appeal to the court of appeals if the fine assessed
12-13 against the defendant exceeds $100 and if the judgment is affirmed
12-14 by the appellate court. The provisions of the Code of Criminal
12-15 Procedure relating to direct appeals from a county or a district
12-16 court to the court of appeals apply to the appeal, except that:
12-17 (1) the record and briefs on appeal in the appellate
12-18 court constitute the record and briefs on appeal to the court of
12-19 appeals unless the rules of the court of criminal appeals provide
12-20 otherwise; and
12-21 (2) the record and briefs shall be filed directly with
12-22 the court of appeals.
12-23 SECTION 2. The importance of this legislation and the
12-24 crowded condition of the calendars in both houses create an
12-25 emergency and an imperative public necessity that the
12-26 constitutional rule requiring bills to be read on three several
12-27 days in each house be suspended, and this rule is hereby suspended,
13-1 and that this Act take effect and be in force from and after its
13-2 passage, and it is so enacted.