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 * * * * *