1-1 By: Brimer (Senate Sponsor - Harris) H.B. No. 436
1-2 (In the Senate - Received from the House April 21, 1995;
1-3 April 24, 1995, read first time and referred to Committee on
1-4 Jurisprudence; May 3, 1995, reported favorably by the following
1-5 vote: Yeas 6, Nays 0; May 3, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the creation of municipal courts of record in
1-9 Kennedale.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Chapter 30, Government Code, is amended by adding
1-12 Subchapter BB to read as follows:
1-13 SUBCHAPTER BB. KENNEDALE
1-14 Sec. 30.0761. APPLICATION. This subchapter applies to the
1-15 City of Kennedale.
1-16 Sec. 30.0762. CREATION. (a) The governing body of the city
1-17 may by ordinance create a municipal court of record if it
1-18 determines that the formation of the court is necessary to provide
1-19 a more efficient disposition of cases arising in the city. The
1-20 governing body may by ordinance determine the number of municipal
1-21 courts of record that are required to dispose of the cases and may
1-22 establish as many as are needed. The ordinance establishing the
1-23 courts shall give each court a numerical designation, beginning
1-24 with "Municipal Court of Record No. 1."
1-25 (b) A municipal court of record may not exist concurrently
1-26 with municipal courts that are not courts of record in the city.
1-27 (c) A municipal court of record has no terms and may sit at
1-28 any time for the transaction of the business of the court.
1-29 Sec. 30.0763. APPLICATION OF OTHER LAWS. The general law
1-30 regarding municipal courts, the general law regarding justice
1-31 courts on matters not covered by the law regarding municipal
1-32 courts, and any charter provision or ordinance of the city relating
1-33 to the municipal court apply to a municipal court of record unless
1-34 the law, charter provision, or ordinance is in conflict or
1-35 inconsistent with this subchapter.
1-36 Sec. 30.0764. JUDGE. (a) A municipal court of record is
1-37 presided over by a municipal judge.
1-38 (b) If there is more than one municipal judge in the city,
1-39 the governing body of the city shall appoint one of the judges to
1-40 be the chief judge.
1-41 (c) A municipal judge, including the chief judge, is
1-42 appointed by the governing body of the city for a term of two
1-43 years.
1-44 (d) A municipal judge must be a licensed attorney in good
1-45 standing in this state and must have two or more years of
1-46 experience in the practice of law in this state. The judge must be
1-47 a citizen of the United States and of this state. The judge shall
1-48 devote as much time to the office as it requires.
1-49 (e) If there is more than one municipal court of record in
1-50 the city, the judges may exchange benches and may sit and act for
1-51 each other in any proceeding pending in the courts. An act
1-52 performed by any of the judges is binding on all parties to the
1-53 proceeding.
1-54 (f) A municipal judge is entitled to a salary from the city,
1-55 the amount of which is determined by the governing body of the city
1-56 and may not be diminished during the judge's term of office. The
1-57 salary may not be based directly or indirectly on fines, fees, or
1-58 costs collected by the court.
1-59 (g) A municipal judge may be removed from office by the
1-60 governing body of the city at any time for incompetency,
1-61 misconduct, malfeasance, or disability.
1-62 (h) A municipal judge shall take judicial notice of the city
1-63 ordinances and the corporate limits of the city in a case tried
1-64 before a municipal court of record. A municipal judge may grant
1-65 writs of mandamus, injunction, and attachment and other writs
1-66 necessary to the enforcement of the jurisdiction of the court and
1-67 may issue writs of habeas corpus in cases in which the offense
1-68 charged is within the jurisdiction of the court. A municipal judge
2-1 may issue administrative search warrants.
2-2 (i) The governing body of the city shall appoint a qualified
2-3 person to fill a vacancy in the office of municipal judge for the
2-4 remainder of the unexpired term.
2-5 (j) The governing body may appoint one or more qualified
2-6 persons to be available to serve for a municipal judge who is
2-7 temporarily absent due to illness, family death, continuing legal
2-8 or judicial education programs, or for any other reason. The chief
2-9 judge, or the municipal judge if there is no chief judge, shall
2-10 select one of the persons appointed by the governing body to serve
2-11 during an absence. An alternate judge, while serving, has all the
2-12 powers and shall discharge all the duties of a municipal judge. An
2-13 alternate judge must have the same qualifications as a municipal
2-14 judge.
2-15 Sec. 30.0765. CLERK; OTHER PERSONNEL. The city manager or
2-16 city administrator of the city shall appoint a clerk of the
2-17 municipal court of record who may hire, direct, and remove the
2-18 personnel authorized in the city's annual budget for the clerk's
2-19 office. The clerk or the clerk's deputies shall keep the records
2-20 of the municipal courts of record, issue process, and generally
2-21 perform the duties for the courts that a clerk of the county court
2-22 exercising criminal jurisdiction is required by law to perform for
2-23 that court. The clerk shall perform the duties in accordance with
2-24 statutes, the city charter, and city ordinances.
2-25 Sec. 30.0766. COURT REPORTER. (a) The city shall provide a
2-26 court reporter for the purpose of preserving a record in cases
2-27 tried before the municipal court of record. The clerk of the court
2-28 shall appoint the court reporter, who must meet the qualifications
2-29 provided by law for official court reporters. The reporter shall
2-30 be compensated by the city in the manner determined by the
2-31 governing body of the city.
2-32 (b) The court reporter may use written notes, transcribing
2-33 equipment, video or audio recording equipment, or a combination of
2-34 those methods to record the proceedings of the court. A record
2-35 shall be kept for the 20-day period beginning the day after the
2-36 last day of the court proceeding, trial, or denial of motion for
2-37 new trial, whichever occurs last.
2-38 (c) The court reporter is not required to record testimony
2-39 in a case unless the judge or one of the parties requests a record.
2-40 A party's request for a record must be in writing and be filed with
2-41 the court before trial.
2-42 (d) The governing body may provide that, in lieu of
2-43 providing a court reporter at trial, proceedings in a municipal
2-44 court of record may be recorded by a good quality electronic
2-45 recording device. If the governing body authorizes the electronic
2-46 recording, the court reporter need not be present at trial to
2-47 certify the statement of facts. The recording shall be kept and
2-48 stored for the 20-day period beginning the day after the last day
2-49 of the proceeding, trial, or denial of motion for new trial,
2-50 whichever occurs last. The proceedings that are appealed shall be
2-51 transcribed from the recording by an official court reporter.
2-52 Sec. 30.0767. PROSECUTIONS BY CITY ATTORNEY. All
2-53 prosecutions in the municipal court of record must be conducted by
2-54 the city attorney or an assistant or deputy city attorney.
2-55 Sec. 30.0768. JURY. (a) A person who is brought before a
2-56 municipal court of record and who is charged with an offense is
2-57 entitled to be tried by a jury of six persons unless that right is
2-58 waived according to law. The jury shall decide all questions of
2-59 fact or credibility of witnesses. The court shall determine all
2-60 matters of law and shall charge the jury on the law.
2-61 (b) A juror who serves in the municipal courts of record
2-62 must meet the qualifications provided by Chapter 62.
2-63 Sec. 30.0769. APPEAL. (a) A defendant has the right of
2-64 appeal from a judgment or conviction in a municipal court of record
2-65 as provided in this subchapter. The county criminal courts of
2-66 Tarrant County have jurisdiction over an appeal. The state has no
2-67 right to an appeal or to a new trial.
2-68 (b) The appellate court shall determine each appeal from a
2-69 municipal court of record conviction on the basis of the errors
2-70 that are set forth in the defendant's motion for new trial and that
3-1 are presented in the transcript and statement of facts prepared
3-2 from the proceedings leading to the conviction. An appeal from the
3-3 municipal court of record may not be by trial de novo.
3-4 (c) To perfect an appeal, the defendant must file with the
3-5 municipal court clerk a written motion for new trial not later than
3-6 the 10th day after the date on which judgment is rendered. The
3-7 motion must set forth the points of error of which the defendant
3-8 complains. The motion or an amended motion may be amended by leave
3-9 of court at any time before action on the motion is taken, but not
3-10 later than the 20th day after the date on which the original or
3-11 amended motion is filed. The court may for good cause extend the
3-12 time for filing or amending but the extension may not exceed 90
3-13 days from the original filing deadline. If the court does not act
3-14 on the motion before the expiration of the 30 days allowed for
3-15 determination of the motion, the original or amended motion is
3-16 overruled by operation of law.
3-17 (d) To perfect an appeal, the defendant must also give
3-18 notice of the appeal. If the defendant requests a hearing on the
3-19 motion for new trial, the defendant may give the notice of appeal
3-20 orally in open court on the overruling of the motion. If there is
3-21 no hearing, the defendant must give written notice of appeal and
3-22 must file the notice with the court not later than the 10th day
3-23 after the date on which the motion is overruled. The court may for
3-24 good cause extend that time period, but the extension may not
3-25 exceed 90 days from the original filing deadline.
3-26 Sec. 30.0770. APPEAL BOND. (a) If the defendant is not in
3-27 custody, the defendant may not take an appeal until the defendant
3-28 files an appeal bond with the municipal court of record. The bond
3-29 must be approved by the court and must be filed not later than the
3-30 10th day after the date on which the motion for new trial is
3-31 overruled. If the defendant is in custody, the defendant shall be
3-32 committed to jail unless the defendant posts the appeal bond.
3-33 (b) The appeal bond must be in the amount of $50 or double
3-34 the amount of the fine and costs adjudged against the defendant,
3-35 whichever is greater. The bond must state that the defendant was
3-36 convicted in the case and has appealed, must be payable to the
3-37 state for the use and benefit of the city, and must be conditioned
3-38 on the defendant's appearance in the court to which the appeal is
3-39 taken.
3-40 Sec. 30.0771. RECORD ON APPEAL. The record on appeal
3-41 consists of a transcript and, if necessary to the appeal, a
3-42 statement of facts. The court reporter shall prepare the record
3-43 from the reporter's record or mechanical or videotape recordings of
3-44 the proceedings. The defendant shall pay for the cost of the
3-45 transcription. If the court finds that the defendant is unable to
3-46 pay or give security for the record on appeal after a hearing in
3-47 response to an affidavit by the defendant, the court shall order
3-48 the reporter to prepare the record without charge to the defendant.
3-49 If the case is reversed on appeal, the court shall promptly refund
3-50 the cost to the defendant.
3-51 Sec. 30.0772. TRANSCRIPT. (a) On the written request of
3-52 the defendant or the defendant's attorney, the municipal court
3-53 clerk shall prepare under the clerk's hand and seal a transcript of
3-54 the municipal court of record proceedings. The transcript must
3-55 include copies of:
3-56 (1) the complaint;
3-57 (2) material docket entries made by the court;
3-58 (3) the jury charge and verdict in a jury trial;
3-59 (4) the judgment;
3-60 (5) the motion for new trial;
3-61 (6) the notice of appeal;
3-62 (7) written motions and pleas;
3-63 (8) written orders of the court;
3-64 (9) any bills of exception filed with the court;
3-65 (10) the appeal bond; and
3-66 (11) exhibits admitted into evidence.
3-67 (b) The clerk may include in the transcript additional
3-68 portions of the proceedings in the court prepared from mechanical
3-69 or videotape recordings.
3-70 Sec. 30.0773. BILLS OF EXCEPTION. Either party may include
4-1 bills of exception in the transcript subject to the applicable
4-2 provisions of the Code of Criminal Procedure. The bills of
4-3 exception must be filed with the municipal court clerk not later
4-4 than the 60th day after the date on which the notice of appeal is
4-5 given or filed.
4-6 Sec. 30.0774. STATEMENTS OF FACTS. A statement of facts
4-7 included in the record on appeal must contain:
4-8 (1) a transcript of all or part of the municipal court
4-9 of record proceedings that are shown by the notes of the court
4-10 reporter to have occurred before, during, or after the trial, if
4-11 the transcript is requested by the defendant;
4-12 (2) a brief statement of the facts of the case proven
4-13 at trial as agreed to by the defendant and the prosecuting
4-14 attorney;
4-15 (3) a partial transcript and the agreed statement of
4-16 the facts of the case; or
4-17 (4) a transcript of all or part of the municipal court
4-18 of record proceedings in the case that is prepared from mechanical
4-19 or videotape recordings of the proceedings.
4-20 Sec. 30.0775. COMPLETION, APPROVAL, AND TRANSFER OF RECORD.
4-21 (a) Not later than the 60th day after the date on which the notice
4-22 of appeal is given or filed, the parties must file with the
4-23 municipal court clerk:
4-24 (1) the statement of facts;
4-25 (2) a written description of material to be included
4-26 in the transcript in addition to the required material; and
4-27 (3) any material to be included in the transcript that
4-28 is not in the custody of the clerk.
4-29 (b) On completion of the record, the municipal judge shall
4-30 approve the record in the manner provided for record completion,
4-31 approval, and notification in the court of appeals.
4-32 (c) After the court approves the record, the clerk shall
4-33 promptly send it to the appellate court clerk for filing. The
4-34 appellate court clerk shall notify the defendant and the
4-35 prosecuting attorney that the record has been filed.
4-36 Sec. 30.0776. BRIEF ON APPEAL. (a) A defendant's brief on
4-37 appeal from a municipal court of record must present points of
4-38 error in the manner required by law for a brief on appeal to the
4-39 court of appeals.
4-40 (b) The defendant must file the brief with the appellate
4-41 court clerk not later than the 15th day after the date on which the
4-42 transcript and statement of facts are filed with that clerk. The
4-43 defendant or the defendant's attorney must certify that the brief
4-44 has been properly mailed to the prosecuting attorney.
4-45 (c) The prosecuting attorney must file the appellee's brief
4-46 with the appellate court clerk not later than the 15th day after
4-47 the date on which the defendant's brief is filed.
4-48 (d) On filing, each party shall deliver a copy of the brief
4-49 to the opposing party and to the municipal judge.
4-50 Sec. 30.0777. COURT RULES. (a) Except as modified by this
4-51 subchapter, the Code of Criminal Procedure governs the trial of
4-52 cases before the municipal court of record. The court may make and
4-53 enforce all rules of practice and procedure necessary to expedite
4-54 the trial of cases before the court that are not inconsistent with
4-55 general law.
4-56 (b) A bond must be payable to the state for the use and
4-57 benefit of the city.
4-58 (c) A peace officer may serve a process issued by a
4-59 municipal court of record.
4-60 (d) The appellate courts may make and enforce all rules of
4-61 practice and procedure that are not inconsistent with general law
4-62 and that are necessary to expedite the dispatch of appeals from the
4-63 municipal court of record.
4-64 Sec. 30.0778. DISPOSITION ON APPEAL. (a) According to law
4-65 and the nature of the case, the appellate court may:
4-66 (1) affirm the judgment of the municipal court of
4-67 record;
4-68 (2) reverse and remand for a new trial;
4-69 (3) reverse and dismiss the case; or
4-70 (4) reform and correct the judgment.
5-1 (b) Unless the matter was made an issue in the trial court
5-2 or it affirmatively appears to the contrary from the transcript or
5-3 the statement of facts, the appellate court shall presume that:
5-4 (1) venue was proven in the trial court;
5-5 (2) the jury, if any, was properly impaneled and
5-6 sworn;
5-7 (3) the defendant was arraigned and pleaded to the
5-8 complaint; and
5-9 (4) the municipal judge certified the charge before it
5-10 was read to the jury.
5-11 (c) In each case decided by the appellate court, the court
5-12 shall deliver a written opinion or order either sustaining or
5-13 overruling each assignment of error presented. The court shall set
5-14 forth the reasons for its decision. The appellate court clerk
5-15 shall mail copies of the decision to the parties and to the
5-16 municipal judge as soon as the decision is rendered.
5-17 Sec. 30.0779. CERTIFICATE OF APPELLATE PROCEEDINGS. When
5-18 the judgment of the appellate court becomes final, the clerk of
5-19 that court shall certify the proceedings and the judgment and shall
5-20 mail the certificate to the municipal court. The court clerk shall
5-21 file the certificate with the papers in the case and note the
5-22 certificate on the case docket. If the municipal court of record
5-23 judgment is affirmed, further action to enforce the judgment is not
5-24 necessary except to:
5-25 (1) forfeit the bond of the defendant;
5-26 (2) issue a writ of capias for the defendant; or
5-27 (3) issue an execution against the defendant's
5-28 property.
5-29 Sec. 30.0780. EFFECT OF ORDER OF NEW TRIAL. If the
5-30 appellate court awards a new trial to the defendant, the case
5-31 stands as if a new trial had been granted by the municipal court of
5-32 record.
5-33 Sec. 30.0781. APPEAL TO COURT OF APPEALS. The defendant has
5-34 the right to appeal to the court of appeals if the fine assessed
5-35 against the defendant exceeds $100 and if the judgment is affirmed
5-36 by the appellate court. The provisions of the Code of Criminal
5-37 Procedure relating to direct appeals from a county or a district
5-38 court to the court of appeals apply to the appeal, except that:
5-39 (1) the record and briefs on appeal in the appellate
5-40 court constitute the record and briefs on appeal to the court of
5-41 appeals unless the rules of the court of criminal appeals provide
5-42 otherwise; and
5-43 (2) the record and briefs shall be filed directly with
5-44 the court of appeals.
5-45 SECTION 2. The importance of this legislation and the
5-46 crowded condition of the calendars in both houses create an
5-47 emergency and an imperative public necessity that the
5-48 constitutional rule requiring bills to be read on three several
5-49 days in each house be suspended, and this rule is hereby suspended,
5-50 and that this Act take effect and be in force from and after its
5-51 passage, and it is so enacted.
5-52 * * * * *