By Brimer, Wohlgemuth H.B. No. 437 74R2042 MLR-F A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the creation of municipal courts of record in Burleson. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. Chapter 30, Government Code, is amended by adding 1-5 Subchapter DD to read as follows: 1-6 SUBCHAPTER DD. BURLESON 1-7 Sec. 30.1341. APPLICATION. This subchapter applies to the 1-8 City of Burleson. 1-9 Sec. 30.1342. CREATION. (a) The governing body of the city 1-10 may by ordinance create a municipal court of record if it 1-11 determines that the formation of the court is necessary to provide 1-12 a more efficient disposition of cases arising in the city. The 1-13 governing body may by ordinance determine the number of municipal 1-14 courts of record that are required to dispose of the cases and may 1-15 establish as many as are needed. The ordinance establishing the 1-16 courts shall give each court a numerical designation, beginning 1-17 with "Municipal Court of Record No. 1." 1-18 (b) A municipal court of record may not exist concurrently 1-19 with municipal courts that are not courts of record in the city. 1-20 (c) A municipal court of record has no terms and may sit at 1-21 any time for the transaction of the business of the court. 1-22 Sec. 30.1343. APPLICATION OF OTHER LAWS. The general law 1-23 regarding municipal courts, the general law regarding justice 1-24 courts on matters not covered by the law regarding municipal 2-1 courts, and any charter provision or ordinance of the city relating 2-2 to the municipal court apply to a municipal court of record unless 2-3 the law, charter provision, or ordinance is in conflict or 2-4 inconsistent with this subchapter. 2-5 Sec. 30.1344. JUDGE. (a) A municipal court of record is 2-6 presided over by a municipal judge. 2-7 (b) If there is more than one municipal judge in the city, 2-8 the governing body of the city shall appoint one of the judges to 2-9 be the chief judge. 2-10 (c) A municipal judge, including the chief judge, is 2-11 appointed by the governing body of the city for a term of two 2-12 years. 2-13 (d) A municipal judge must be a licensed attorney in good 2-14 standing in this state and must have two or more years of 2-15 experience in the practice of law in this state. The judge must be 2-16 a citizen of the United States and of this state. The judge shall 2-17 devote as much time to the office as it requires. 2-18 (e) If there is more than one municipal court of record in 2-19 the city, the judges may exchange benches and may sit and act for 2-20 each other in any proceeding pending in the courts. An act 2-21 performed by any of the judges is binding on all parties to the 2-22 proceeding. 2-23 (f) A municipal judge is entitled to a salary from the city, 2-24 the amount of which is determined by the governing body of the city 2-25 and may not be diminished during the judge's term of office. The 2-26 salary may not be based directly or indirectly on fines, fees, or 2-27 costs collected by the court. 3-1 (g) A municipal judge may be removed from office by the 3-2 governing body of the city at any time for incompetency, 3-3 misconduct, malfeasance, or disability. 3-4 (h) A municipal judge shall take judicial notice of the city 3-5 ordinances and the corporate limits of the city in a case tried 3-6 before a municipal court of record. A municipal judge may grant 3-7 writs of mandamus, injunction, and attachment and other writs 3-8 necessary to the enforcement of the jurisdiction of the court and 3-9 may issue writs of habeas corpus in cases in which the offense 3-10 charged is within the jurisdiction of the court. A municipal judge 3-11 may issue administrative search warrants. 3-12 (i) The governing body of the city shall appoint a qualified 3-13 person to fill a vacancy in the office of municipal judge for the 3-14 remainder of the unexpired term. 3-15 (j) The governing body may appoint one or more qualified 3-16 persons to be available to serve for a municipal judge who is 3-17 temporarily absent due to illness, family death, continuing legal 3-18 or judicial education programs, or any other reason. The chief 3-19 judge, or the municipal judge if there is no chief judge, shall 3-20 select one of the persons appointed by the governing body to serve 3-21 during an absence. An alternate judge, while serving, has all the 3-22 powers and shall discharge all the duties of a municipal judge. An 3-23 alternate judge must have the same qualifications as a municipal 3-24 judge. 3-25 Sec. 30.1345. CLERK; OTHER PERSONNEL. The city manager of 3-26 the city shall appoint a clerk of the municipal court of record who 3-27 may hire, direct, and remove the personnel authorized in the city's 4-1 annual budget for the clerk's office. The clerk or the clerk's 4-2 deputies shall keep the records of the municipal courts of record, 4-3 issue process, and generally perform the duties for the courts that 4-4 a clerk of the county court exercising criminal jurisdiction is 4-5 required by law to perform for that court. The clerk shall perform 4-6 the duties in accordance with statutes, the city charter, and city 4-7 ordinances. 4-8 Sec. 30.1346. COURT REPORTER. (a) The city shall provide a 4-9 court reporter for the purpose of preserving a record in cases 4-10 tried before the municipal court of record. The clerk of the court 4-11 shall appoint the court reporter, who must meet the qualifications 4-12 provided by law for official court reporters. The reporter shall 4-13 be compensated by the city in the manner determined by the 4-14 governing body of the city. 4-15 (b) The court reporter may use written notes, transcribing 4-16 equipment, video or audio recording equipment, or a combination of 4-17 those methods to record the proceedings of the court. A record 4-18 shall be kept for the 20-day period beginning the day after the 4-19 last day of the court proceeding, trial, or denial of motion for 4-20 new trial, whichever occurs last. 4-21 (c) The court reporter is not required to record testimony 4-22 in a case unless the judge or one of the parties requests a record. 4-23 A party's request for a record must be in writing and be filed with 4-24 the court before trial. 4-25 (d) The governing body may provide that, in lieu of 4-26 providing a court reporter at trial, proceedings in a municipal 4-27 court of record may be recorded by a good quality electronic 5-1 recording device. If the governing body authorizes the electronic 5-2 recording, the court reporter need not be present at trial to 5-3 certify the statement of facts. The recording shall be kept and 5-4 stored for the 20-day period beginning the day after the last day 5-5 of the proceeding, trial, or denial of motion for new trial, 5-6 whichever occurs last. The proceedings that are appealed shall be 5-7 transcribed from the recording by an official court reporter. 5-8 Sec. 30.1347. PROSECUTIONS BY CITY ATTORNEY. All 5-9 prosecutions in the municipal court of record must be conducted by 5-10 the city attorney or an assistant or deputy city attorney. 5-11 Sec. 30.1348. JURY. (a) A person who is brought before a 5-12 municipal court of record and who is charged with an offense is 5-13 entitled to be tried by a jury of six persons unless that right is 5-14 waived according to law. The jury shall decide all questions of 5-15 fact or credibility of witnesses. The court shall determine all 5-16 matters of law and shall charge the jury on the law. 5-17 (b) A juror who serves in the municipal courts of record 5-18 must meet the qualifications provided by Chapter 62. 5-19 Sec. 30.1349. APPEAL. (a) A defendant has the right of 5-20 appeal from a judgment or conviction in a municipal court of record 5-21 as provided in this subchapter. The county courts at law of 5-22 Johnson County have jurisdiction over an appeal. The state has no 5-23 right to an appeal or to a new trial. 5-24 (b) The appellate court shall determine each appeal from a 5-25 municipal court of record conviction on the basis of the errors 5-26 that are set forth in the defendant's motion for new trial and that 5-27 are presented in the transcript and statement of facts prepared 6-1 from the proceedings leading to the conviction. An appeal from the 6-2 municipal court of record may not be by trial de novo. 6-3 (c) To perfect an appeal, the defendant must file with the 6-4 municipal court clerk a written motion for new trial not later than 6-5 the 10th day after the date on which judgment is rendered. The 6-6 motion must set forth the points of error of which the defendant 6-7 complains. The motion or an amended motion may be amended by leave 6-8 of court at any time before action on the motion is taken, but not 6-9 later than the 20th day after the date on which the original or 6-10 amended motion is filed. The court may for good cause extend the 6-11 time for filing or amending, but the extension may not exceed 90 6-12 days from the original filing deadline. If the court does not act 6-13 on the motion before the expiration of the 30 days allowed for 6-14 determination of the motion, the original or amended motion is 6-15 overruled by operation of law. 6-16 (d) To perfect an appeal, the defendant must also give 6-17 notice of the appeal. If the defendant requests a hearing on the 6-18 motion for new trial, the defendant may give the notice of appeal 6-19 orally in open court on the overruling of the motion. If there is 6-20 no hearing, the defendant must give written notice of appeal and 6-21 must file the notice with the court not later than the 10th day 6-22 after the date on which the motion is overruled. The court may for 6-23 good cause extend that time period, but the extension may not 6-24 exceed 90 days from the original filing deadline. 6-25 Sec. 30.1350. APPEAL BOND. (a) If the defendant is not in 6-26 custody, the defendant may not take an appeal until the defendant 6-27 files an appeal bond with the municipal court of record. The bond 7-1 must be approved by the court and must be filed not later than the 7-2 10th day after the date on which the motion for new trial is 7-3 overruled. If the defendant is in custody, the defendant shall be 7-4 committed to jail unless the defendant posts the appeal bond. 7-5 (b) The appeal bond must be in the amount of $50 or double 7-6 the amount of the fine and costs adjudged against the defendant, 7-7 whichever is greater. The bond must state that the defendant was 7-8 convicted in the case and has appealed, must be payable to the 7-9 state for the use and benefit of the city, and must be conditioned 7-10 on the defendant's appearance in the court to which the appeal is 7-11 taken. 7-12 Sec. 30.1351. RECORD ON APPEAL. The record on appeal 7-13 consists of a transcript and, if necessary to the appeal, a 7-14 statement of facts. The court reporter shall prepare the record 7-15 from the reporter's record or mechanical or videotape recordings of 7-16 the proceedings. The defendant shall pay for the cost of the 7-17 transcription. If the court finds that the defendant is unable to 7-18 pay or give security for the record on appeal after a hearing in 7-19 response to an affidavit by the defendant, the court shall order 7-20 the reporter to prepare the record without charge to the defendant. 7-21 If the case is reversed on appeal, the court shall promptly refund 7-22 the cost to the defendant. 7-23 Sec. 30.1352. TRANSCRIPT. (a) On the written request of 7-24 the defendant or the defendant's attorney, the municipal court 7-25 clerk shall prepare under the clerk's hand and seal a transcript of 7-26 the municipal court of record proceedings. The transcript must 7-27 include copies of: 8-1 (1) the complaint; 8-2 (2) material docket entries made by the court; 8-3 (3) the jury charge and verdict in a jury trial; 8-4 (4) the judgment; 8-5 (5) the motion for new trial; 8-6 (6) the notice of appeal; 8-7 (7) written motions and pleas; 8-8 (8) written orders of the court; 8-9 (9) any bills of exception filed with the court; 8-10 (10) the appeal bond; and 8-11 (11) exhibits admitted into evidence. 8-12 (b) The clerk may include in the transcript additional 8-13 portions of the proceedings in the court prepared from mechanical 8-14 or videotape recordings. 8-15 Sec. 30.1353. BILLS OF EXCEPTION. Either party may include 8-16 bills of exception in the transcript subject to the applicable 8-17 provisions of the Code of Criminal Procedure. The bills of 8-18 exception must be filed with the municipal court clerk not later 8-19 than the 60th day after the date on which the notice of appeal is 8-20 given or filed. 8-21 Sec. 30.1354. STATEMENTS OF FACTS. A statement of facts 8-22 included in the record on appeal must contain: 8-23 (1) a transcript of all or part of the municipal court 8-24 of record proceedings that are shown by the notes of the court 8-25 reporter to have occurred before, during, or after the trial, if 8-26 the transcript is requested by the defendant; 8-27 (2) a brief statement of the facts of the case proven 9-1 at trial as agreed to by the defendant and the prosecuting 9-2 attorney; 9-3 (3) a partial transcript and the agreed statement of 9-4 the facts of the case; or 9-5 (4) a transcript of all or part of the municipal court 9-6 of record proceedings in the case that is prepared from mechanical 9-7 or videotape recordings of the proceedings. 9-8 Sec. 30.1355. COMPLETION, APPROVAL, AND TRANSFER OF RECORD. 9-9 (a) Not later than the 60th day after the date on which the notice 9-10 of appeal is given or filed, the parties must file with the 9-11 municipal court clerk: 9-12 (1) the statement of facts; 9-13 (2) a written description of material to be included 9-14 in the transcript in addition to the required material; and 9-15 (3) any material to be included in the transcript that 9-16 is not in the custody of the clerk. 9-17 (b) On completion of the record, the municipal judge shall 9-18 approve the record in the manner provided for record completion, 9-19 approval, and notification in the court of appeals. 9-20 (c) After the court approves the record, the clerk shall 9-21 promptly send it to the appellate court clerk for filing. The 9-22 appellate court clerk shall notify the defendant and the 9-23 prosecuting attorney that the record has been filed. 9-24 Sec. 30.1356. BRIEF ON APPEAL. (a) A defendant's brief on 9-25 appeal from a municipal court of record must present points of 9-26 error in the manner required by law for a brief on appeal to the 9-27 court of appeals. 10-1 (b) The defendant must file the brief with the appellate 10-2 court clerk not later than the 15th day after the date on which the 10-3 transcript and statement of facts are filed with that clerk. The 10-4 defendant or the defendant's attorney must certify that the brief 10-5 has been properly mailed to the prosecuting attorney. 10-6 (c) The prosecuting attorney must file the appellee's brief 10-7 with the appellate court clerk not later than the 15th day after 10-8 the date on which the defendant's brief is filed. 10-9 (d) On filing, each party shall deliver a copy of the brief 10-10 to the opposing party and to the municipal judge. 10-11 Sec. 30.1357. COURT RULES. (a) Except as modified by this 10-12 subchapter, the Code of Criminal Procedure governs the trial of 10-13 cases before the municipal court of record. The court may make and 10-14 enforce all rules of practice and procedure necessary to expedite 10-15 the trial of cases before the court that are not inconsistent with 10-16 general law. 10-17 (b) A bond must be payable to the state for the use and 10-18 benefit of the city. 10-19 (c) A peace officer may serve a process issued by a 10-20 municipal court of record. 10-21 (d) The appellate courts may make and enforce all rules of 10-22 practice and procedure that are not inconsistent with general law 10-23 and that are necessary to expedite the dispatch of appeals from the 10-24 municipal court of record. 10-25 Sec. 30.1358. DISPOSITION ON APPEAL. (a) According to law 10-26 and the nature of the case, the appellate court may: 10-27 (1) affirm the judgment of the municipal court of 11-1 record; 11-2 (2) reverse and remand for a new trial; 11-3 (3) reverse and dismiss the case; or 11-4 (4) reform and correct the judgment. 11-5 (b) Unless the matter was made an issue in the trial court 11-6 or it affirmatively appears to the contrary from the transcript or 11-7 the statement of facts, the appellate court shall presume that: 11-8 (1) venue was proven in the trial court; 11-9 (2) the jury, if any, was properly impaneled and 11-10 sworn; 11-11 (3) the defendant was arraigned and pleaded to the 11-12 complaint; and 11-13 (4) the municipal judge certified the charge before it 11-14 was read to the jury. 11-15 (c) In each case decided by the appellate court, the court 11-16 shall deliver a written opinion or order either sustaining or 11-17 overruling each assignment of error presented. The court shall set 11-18 forth the reasons for its decision. The appellate court clerk 11-19 shall mail copies of the decision to the parties and to the 11-20 municipal judge as soon as the decision is rendered. 11-21 Sec. 30.1359. CERTIFICATE OF APPELLATE PROCEEDINGS. When 11-22 the judgment of the appellate court becomes final, the clerk of 11-23 that court shall certify the proceedings and the judgment and shall 11-24 mail the certificate to the municipal court. The court clerk shall 11-25 file the certificate with the papers in the case and note the 11-26 certificate on the case docket. If the municipal court of record 11-27 judgment is affirmed, further action to enforce the judgment is not 12-1 necessary except to: 12-2 (1) forfeit the bond of the defendant; 12-3 (2) issue a writ of capias for the defendant; or 12-4 (3) issue an execution against the defendant's 12-5 property. 12-6 Sec. 30.1360. EFFECT OF ORDER OF NEW TRIAL. If the 12-7 appellate court awards a new trial to the defendant, the case 12-8 stands as if a new trial had been granted by the municipal court of 12-9 record. 12-10 Sec. 30.1361. APPEAL TO COURT OF APPEALS. The defendant has 12-11 the right to appeal to the court of appeals if the fine assessed 12-12 against the defendant exceeds $100 and if the judgment is affirmed 12-13 by the appellate court. The provisions of the Code of Criminal 12-14 Procedure relating to direct appeals from a county or a district 12-15 court to the court of appeals apply to the appeal, except that: 12-16 (1) the record and briefs on appeal in the appellate 12-17 court constitute the record and briefs on appeal to the court of 12-18 appeals unless the rules of the court of criminal appeals provide 12-19 otherwise; and 12-20 (2) the record and briefs shall be filed directly with 12-21 the court of appeals. 12-22 SECTION 2. The importance of this legislation and the 12-23 crowded condition of the calendars in both houses create an 12-24 emergency and an imperative public necessity that the 12-25 constitutional rule requiring bills to be read on three several 12-26 days in each house be suspended, and this rule is hereby suspended, 12-27 and that this Act take effect and be in force from and after its 13-1 passage, and it is so enacted.