By Montford S.B. No. 1286
74R3504 MLR-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to municipal courts of record in Odessa.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 30.352(a), Government Code, is amended to
1-5 read as follows:
1-6 (a) The <In addition to its existing municipal court, the>
1-7 governing body of the City of Odessa may create municipal courts of
1-8 record by adoption of an ordinance consistent with this subchapter.
1-9 SECTION 2. Section 30.353, Government Code, is amended to
1-10 read as follows:
1-11 Sec. 30.353. JURISDICTION. (a) A municipal court of record
1-12 has <exclusive original> jurisdiction in all criminal cases <other
1-13 than traffic offenses> arising under the ordinances of the city
1-14 <and has the jurisdiction granted to municipal courts by state
1-15 law>.
1-16 (b) The court has concurrent jurisdiction with a justice of
1-17 the peace in any precinct in which the city is located in criminal
1-18 cases within the justice court jurisdiction that:
1-19 (1) arise within the territorial limits of the city;
1-20 and
1-21 (2) are punishable by fine only.
1-22 (c) The court has jurisdiction over cases arising outside
1-23 the territorial limits of the city under ordinances authorized by
1-24 Sections 215.072, 217.042, 341.903, and 401.002, Local Government
2-1 Code.
2-2 SECTION 3. Section 30.354(b), Government Code, is amended to
2-3 read as follows:
2-4 (b) The governing body of the city shall appoint qualified
2-5 persons to serve in the capacity of municipal court judge and
2-6 assistant municipal court judge under an ordinance adopted by the
2-7 governing body. A municipal judge, including an assistant judge,
2-8 is appointed for a term of two years <provide by charter or
2-9 ordinance for the election of a municipal judge of a court of
2-10 record. The election must be for a definite term in office of not
2-11 less than two nor more than four years>.
2-12 SECTION 4. Section 30.355, Government Code, is amended to
2-13 read as follows:
2-14 Sec. 30.355. SALARY. A municipal judge is entitled to
2-15 compensation by the city on a salary basis. The amount of the
2-16 salary is determined by the governing body of the city and may not
2-17 be diminished during the judge's term of office. The salary may
2-18 not be based directly or indirectly on fines, fees, or costs that
2-19 the judge is required by law to collect during his term of office.
2-20 <The governing body shall determine the salary of the judge at
2-21 least two weeks prior to the deadline for filing for election.>
2-22 SECTION 5. Section 30.356(b), Government Code, is amended to
2-23 read as follows:
2-24 (b) The <If a municipal judge is temporarily unable to act
2-25 for any reason, the> governing body of the city may appoint <a>
2-26 qualified persons <person> to sit as relief <for the regular>
2-27 municipal judges, who shall be known as assistant municipal judges
3-1 <judge>. An assistant judge must meet the qualifications
3-2 prescribed for the municipal judge. The governing body shall set
3-3 the compensation of the assistant judges. The municipal judge may
3-4 assign an assistant judge to act for a judge who is temporarily
3-5 unable to act for any reason. An assistant judge <The appointee>
3-6 has all the powers and duties of the office <and> while acting for
3-7 <serving is entitled to the same compensation as> the municipal
3-8 <regular> judge. <A temporary municipal judge serves at the
3-9 pleasure of the governing body until the regular judge returns.>
3-10 SECTION 6. Section 30.358(a), Government Code, is amended to
3-11 read as follows:
3-12 (a) The city manager <governing body> shall provide for the
3-13 appointment of a clerk of the municipal courts of record, who shall
3-14 be known as the municipal clerk. The municipal clerk shall
3-15 perform, as applicable, the duties prescribed by law for the county
3-16 clerk of a county court at law. In addition, the clerk shall:
3-17 (1) maintain central docket records for all cases
3-18 filed in the municipal courts of record; and
3-19 (2) maintain an index of all municipal court of record
3-20 judgments in the same manner as county clerks are required by law
3-21 to prepare for criminal cases arising in county courts.
3-22 SECTION 7. Section 30.359, Government Code, is amended to
3-23 read as follows:
3-24 Sec. 30.359. RECORDING OF PROCEEDINGS; COURT REPORTER. (a)
3-25 The city shall provide a court reporter for the purpose of
3-26 preserving a record in cases tried before a municipal court of
3-27 record. The clerk of the court shall appoint the court reporter,
4-1 who must meet the qualifications provided by law for official court
4-2 reporters.
4-3 (b) The clerk may provide that, instead of providing a court
4-4 reporter at trial, <All> proceedings in a municipal court of record
4-5 may <shall> be recorded by a good quality electronic recording
4-6 device <and the recording kept and stored for not less than 20
4-7 days>. If the recording device is used, the court reporter need
4-8 not be present at trial to record the proceedings. The proceedings
4-9 that are appealed shall be transcribed from the recording by an
4-10 official <by a> court reporter.
4-11 <(b) A municipal judge may appoint an official court
4-12 reporter to transcribe the trial proceedings, including testimony,
4-13 voir dire examinations, objections, and final arguments. Each
4-14 reporter must be a sworn officer of the court. The reporter shall
4-15 be compensated by the city in the manner determined by the
4-16 governing body of the city.>
4-17 (c) The clerk may provide for the use of written notes,
4-18 transcribing equipment, or recording equipment, or a combination of
4-19 those methods, to record the proceedings of the court. The court
4-20 reporter shall keep the record for a 20-day period beginning the
4-21 day after the last day of the court proceeding, trial, or denial of
4-22 motion for new trial, whichever occurs last.
4-23 (d) No one is required to record testimony in a case unless
4-24 the judge or one of the parties requests a record. A party's
4-25 request for a record must be in writing and must be filed with the
4-26 court before trial.
4-27 (e) The court reporter shall certify the official record.
5-1 SECTION 8. Subchapter L, Chapter 30, Government Code, is
5-2 amended by adding Sections 30.3601, 30.3602, 30.3603, and 30.3604
5-3 to read as follows:
5-4 Sec. 30.3601. PROSECUTION BY CITY ATTORNEY. All
5-5 prosecutions in a municipal court of record must be conducted by
5-6 the city attorney or an assistant or deputy city attorney.
5-7 Sec. 30.3602. COMPLAINT; PLEADING. (a) A proceeding in a
5-8 municipal court of record begins with the filing of a complaint. A
5-9 complaint must begin "In the name and by authority of the State of
5-10 Texas" and must conclude "Against the peace and dignity of the
5-11 State."
5-12 (b) Complaints must comply with Article 45.17, Code of
5-13 Criminal Procedure.
5-14 (c) Pleadings must be in writing and must be filed with the
5-15 municipal court clerk.
5-16 Sec. 30.3603. JURY. (a) A person brought before a
5-17 municipal court of record and charged with an offense is entitled
5-18 to be tried by a jury of six persons, unless that right is waived
5-19 according to law.
5-20 (b) A juror for the court must have the qualifications
5-21 required of jurors by law and must be a resident of the city.
5-22 (c) A juror is entitled to receive the compensation for each
5-23 day and each fraction of a day in attendance on a municipal court
5-24 of record jury as provided by Chapter 61.
5-25 (d) The clerk of the court shall establish a fair,
5-26 impartial, and objective juror selection process.
5-27 Sec. 30.3604. COURT RULES. (a) Except as modified by this
6-1 subchapter, the Code of Criminal Procedure as applied to county
6-2 courts at law governs the trial of cases before municipal courts of
6-3 record.
6-4 (b) Bonds must be payable to the state for the use and
6-5 benefit of the city. The court may not assess court costs other
6-6 than warrant fees, capias fees, and other fees authorized for
6-7 municipal courts of record.
6-8 (c) A peace officer may serve a process issued by a
6-9 municipal court of record.
6-10 (d) On conviction, judgment and sentence are in the name of
6-11 the state, and the state recovers from the defendant the fine and
6-12 fees for the use and benefit of the city. The court may require
6-13 that the defendant remain in the custody of the chief of police
6-14 until the fines and costs are paid and shall order that execution
6-15 issue to collect the fines and penalties.
6-16 (e) Fines, fees, costs, and bonds shall be paid to the clerk
6-17 of the court, who shall deposit them in the city general fund.
6-18 SECTION 9. Section 30.361, Government Code, is amended to
6-19 read as follows:
6-20 Sec. 30.361. APPELLATE COURTS. (a) A defendant has the
6-21 right of appeal from a judgment of conviction in a municipal court
6-22 of record under the procedures prescribed by this subchapter. The
6-23 state has the right to an appeal as provided by Article 44.01, Code
6-24 of Criminal Procedure, and for purposes of that appeal, the
6-25 prosecuting attorney is the city attorney.
6-26 <(b)> The <county court and a county court at law of> Ector
6-27 County courts at law shall be initial courts of review for
7-1 appellate review of cases from a municipal court of record and
7-2 shall hear all appeals except in cases in which the county courts
7-3 do not have jurisdiction of an appeal <appeals from a municipal
7-4 court of record. The county court's jurisdiction under this
7-5 subsection is limited to the jurisdiction it has of appeals> from a
7-6 justice court, in which case the appeal shall be heard by the court
7-7 that has jurisdiction of an appeal from the justice court.
7-8 (b) The appellate court shall determine each appeal from a
7-9 municipal court of record conviction on the basis of the errors
7-10 that are set forth in the defendant's motion for new trial and that
7-11 are presented in the transcript and statement of facts prepared
7-12 from the proceedings leading to the conviction. An appeal from a
7-13 municipal court of record may not be by trial de novo.
7-14 <(c) Appeals from convictions of the municipal courts that
7-15 are not of record are de novo. This subchapter does not affect the
7-16 procedure for an appeal from a municipal court that is not of
7-17 record.>
7-18 SECTION 10. Section 30.362, Government Code, is amended to
7-19 read as follows:
7-20 Sec. 30.362. APPEAL BOND <ON RECORD>. (a) If the defendant
7-21 is not in custody, the defendant may not take an appeal until the
7-22 defendant files an appeal bond with the municipal court of record.
7-23 The bond must be approved by the court and must be filed not later
7-24 than the 10th day after the date on which the motion for new trial
7-25 is overruled. If the defendant is in custody, the defendant shall
7-26 be committed to jail unless the defendant posts the appeal bond.
7-27 (b) The appeal bond must be in the amount of $50 or double
8-1 the amount of fines and costs adjudged against the defendant,
8-2 whichever is greater. The bond must be payable to the state for
8-3 the use and benefit of the city and must be conditioned on the
8-4 defendant's immediate and daily personal appearance in the court to
8-5 which the appeal is taken <An appeal from a municipal court of
8-6 record conviction is determined by the appellate court solely on
8-7 the basis of errors presented in the transcript and statement of
8-8 facts prepared from the municipal court of record proceedings>.
8-9 SECTION 11. Section 30.363, Government Code, is amended to
8-10 read as follows:
8-11 Sec. 30.363. PERFECTING APPEAL. (a) To perfect an appeal,
8-12 the defendant must file a motion for new trial not later than the
8-13 10th day after the date on which the judgment and sentence are
8-14 rendered <give notice of the appeal>. The motion constitutes the
8-15 assignments of error on appeal. A ground or error not set forth in
8-16 the motion is waived. If the court does not act on the motion
8-17 before the expiration of 30 days after it is filed with the clerk,
8-18 <The notice of appeal may be given orally in open court, or it may
8-19 be given in writing and filed with the municipal court of record.
8-20 The notice is sufficient if it shows the desire of the defendant to
8-21 appeal from the municipal court of record conviction.>
8-22 <(b) Notice of appeal must be given or filed:>
8-23 <(1) not later than the 10th day after the date on
8-24 which a motion for new trial is overruled, if a motion is made; or>
8-25 <(2) not later than the 10th day after the date on
8-26 which judgment is rendered, whether or not the punishment is
8-27 suspended by an order of probation.>
9-1 <(c) A motion for new trial must be made not later than the
9-2 fifth day after the date on which judgment is rendered. If no
9-3 ruling is made,> the motion is overruled by operation of law <at
9-4 the expiration of the 10th day after its filing date>.
9-5 (b) After an order overruling a motion for new trial, the
9-6 defendant shall give written notice of appeal and pay the
9-7 transcript preparation fee not later than the 10th day after the
9-8 date on which the motion is overruled. The governing body shall
9-9 set a reasonable transcript preparation fee not to exceed $25. The
9-10 clerk shall note the payment of the fee on the docket of the court.
9-11 If the case is reversed on appeal, the fee shall be refunded to the
9-12 defendant.
9-13 (c) The city attorney or the assistant or deputy city
9-14 attorney shall prosecute all appeals from the municipal courts of
9-15 record.
9-16 SECTION 12. Section 30.364, Government Code, is amended to
9-17 read as follows:
9-18 Sec. 30.364. RECORD ON APPEAL. The record on appeal
9-19 consists of a transcript and, if necessary to the appeal, a
9-20 statement of facts. The court reporter shall prepare the record
9-21 from the reporter's record or mechanical recordings of the
9-22 proceedings. The defendant shall pay for the cost of the
9-23 transcription. If the court finds that the defendant is unable to
9-24 pay or give security for the record on appeal after a hearing in
9-25 response to an affidavit by the defendant, the court shall order
9-26 the reporter to prepare the record without charge to the defendant.
9-27 If the case is reversed on appeal, the court shall promptly refund
10-1 the cost to the defendant.
10-2 SECTION 13. Section 30.365, Government Code, is amended to
10-3 read as follows:
10-4 Sec. 30.365. <CONTENTS OF> TRANSCRIPT. (a) The <On written
10-5 instructions from the defendant or the defendant's attorney, the
10-6 municipal> clerk of the municipal court of record shall prepare
10-7 under the clerk's <his> hand and seal of the court a transcript of
10-8 the municipal court of record proceedings after payment of the
10-9 transcript preparation fee required by Section 30.363. The clerk
10-10 shall prepare the transcript under written instructions from the
10-11 defendant or the defendant's attorney. Unless otherwise agreed by
10-12 the parties in writing, the <The> transcript must include copies
10-13 of:
10-14 (1) the complaint;
10-15 (2) court orders on any motions or exceptions
10-16 <material docket entries made by the court>;
10-17 (3) the jury <charge and> verdict, if the trial is by
10-18 jury;
10-19 (4) the judgment;
10-20 (5) any findings of fact or conclusions of law made by
10-21 the court <the notice of appeal>;
10-22 (6) the motion for new trial and the order of the
10-23 court on the motion <all written motions and pleas and orders of
10-24 the court>; <and>
10-25 (7) the notice of appeal;
10-26 (8) any statement of the parties regarding material to
10-27 be included in the record;
11-1 (9) the appeal bond;
11-2 (10) any statement of facts; and
11-3 (11) any signed paper designated as material by either
11-4 party <bills of exception>.
11-5 (b) The defendant or the defendant's attorney shall file a
11-6 copy of the written instructions with the clerk and shall deliver a
11-7 copy to the city attorney.
11-8 (c) The city attorney shall file a written direction to the
11-9 <The> clerk if <may include in the transcript> additional portions
11-10 of the trial proceedings in the transcript are to be included
11-11 <court if so instructed in writing by either party>.
11-12 SECTION 14. Section 30.367(a), Government Code, is amended
11-13 to read as follows:
11-14 (a) A statement of facts included in the record on appeal
11-15 must contain:
11-16 (1) a transcription of all or any part of the
11-17 municipal court of record proceedings in the case as recorded on
11-18 the electronic recording device or shown by the notes of the court
11-19 reporter recorded or taken before, during, or after the trial, if
11-20 the transcription is requested by a party, a party's <his>
11-21 attorney, or the municipal judge;
11-22 (2) a brief statement of the facts of the case proven
11-23 at the trial as agreed to by the defendant or the defendant's <his>
11-24 attorney and the prosecuting attorney; or
11-25 (3) a partial transcription and the agreed statement
11-26 of the facts of the case.
11-27 SECTION 15. Section 30.368, Government Code, is amended to
12-1 read as follows:
12-2 Sec. 30.368. TRANSFER OF RECORD; FEE <FILING OF RECORD>.
12-3 The parties must file the transcript and the statement of facts
12-4 with the clerk of the municipal court of record not <(a) Not>
12-5 later than the 60th day after the date on which the transcript
12-6 preparation fee was paid. The clerk shall promptly forward them to
12-7 the appellate court clerk <the notice of appeal is given or filed,
12-8 the parties must file with the clerk of the municipal court of
12-9 record:>
12-10 <(1) the statement of facts;>
12-11 <(2) a written designation of material to be included
12-12 in the transcript in addition to the material required under
12-13 Section 30.365(a); and>
12-14 <(3) any matter to be included in the transcript that
12-15 is not in the custody of the clerk.>
12-16 <(b) The municipal judge may for good cause extend the time
12-17 for filing.>
12-18 <(c) On completion of the record, the clerk shall notify the
12-19 parties and the municipal judge shall approve the record in the
12-20 manner provided by the Code of Criminal Procedure, 1965, for record
12-21 completion notification and approval in the court of appeals.>
12-22 <(d) After the court approves the record, the clerk shall
12-23 promptly send it to the appellate court clerk for filing>.
12-24 SECTION 16. Section 30.369, Government Code, is amended to
12-25 read as follows:
12-26 Sec. 30.369. BRIEF ON APPEAL. (a) <A defendant's brief on
12-27 appeal from a municipal court of record must present points of
13-1 error in the manner required by the Code of Criminal Procedure,
13-2 1965, for a brief on appeal to the court of criminal appeals.>
13-3 <(b)> The defendant must file a <the> brief on appeal with
13-4 the appellate court clerk not later than the 15th day after the
13-5 date on which the transcript and statement of facts are filed with
13-6 that <the appellate court> clerk.
13-7 (b) <(c)> The city <prosecuting> attorney must file the
13-8 appellee's brief with the appellate court clerk not later than the
13-9 15th day after the date on which the defendant's <defendant files
13-10 his> brief is filed <with the clerk>.
13-11 (c) To avoid unnecessary delay, the record and briefs on
13-12 appeal shall be limited as far as possible to the questions relied
13-13 on for reversal.
13-14 (d) On filing, each party shall deliver a copy of the brief
13-15 to the <opposing party or the> opposing party's attorney.
13-16 <(e) The appellate court may in its discretion extend the
13-17 times for filing briefs.>
13-18 SECTION 17. Section 30.370, Government Code, is amended to
13-19 read as follows:
13-20 Sec. 30.370. PROCEDURE ON APPEAL. <(a)> The appellate
13-21 court shall hear <and determine> an appeal from a municipal court
13-22 of record at the earliest possible time with due regard to the
13-23 rights of parties and the proper administration of justice. <The
13-24 court may not affirm or reverse a case based on mere technicalities
13-25 or on technical errors in the presentation and filing of the record
13-26 on appeal.> The court may determine the rules for oral argument.
13-27 The parties may submit the case on the records and briefs without
14-1 oral arguments.
14-2 <(b) The appellate court shall review all grounds of error
14-3 and arguments urged in the defendant's brief on appeal and may
14-4 review any unassigned error in the interest of justice.>
14-5 SECTION 18. Section 30.371(c), Government Code, is amended
14-6 to read as follows:
14-7 (c) In each case decided by the appellate court, the court
14-8 shall deliver a written opinion or order <either> sustaining or
14-9 overruling each assignment of error presented. If an assignment of
14-10 error is overruled, no reason need be given by the appellate court,
14-11 but cases relied upon by the court may be cited. If an assignment
14-12 of error is sustained, the appellate court shall set forth the
14-13 reasons for the decision. The appellate court clerk shall mail
14-14 copies of the appellate court decision to the parties and to the
14-15 municipal judge as soon as the decision is rendered.
14-16 SECTION 19. Section 30.372, Government Code, is amended to
14-17 read as follows:
14-18 Sec. 30.372. CERTIFICATE OF APPELLATE PROCEEDINGS. When the
14-19 judgment of the appellate court becomes final, the clerk of that
14-20 court shall certify the proceedings and the judgment and shall mail
14-21 the certificate to the clerk of the municipal court of record.
14-22 When the clerk of the municipal court of record receives the
14-23 record, the <The municipal> clerk shall file the record and
14-24 certificate with the papers <records> in the case and note the
14-25 filing <certificate> on the docket. If the municipal court of
14-26 record's judgment is affirmed, further action to enforce the
14-27 judgment is not necessary except to:
15-1 (1) forfeit the bond of the defendant; <or>
15-2 (2) issue a writ of capias for the defendant; or
15-3 (3) issue an execution against the defendant's
15-4 property.
15-5 SECTION 20. Section 30.374, Government Code, is amended to
15-6 read as follows:
15-7 Sec. 30.374. APPEALS TO COURT OF APPEALS. An appeal of a
15-8 <Appeals to the court of appeals from the> decision of the
15-9 appellate court to the court of appeals is<, if permitted by law,
15-10 are> governed by the <provisions of the> Code of Criminal
15-11 Procedure, <1965, relating to direct appeals from a county or a
15-12 district court to the court of appeals,> except that<:>
15-13 <(1)> the transcript, <record and> briefs, and
15-14 statement of facts filed <on appeal> in the appellate court
15-15 constitute the transcript, <record and> briefs, and statement of
15-16 facts on appeal to the court of appeals unless the rules of the
15-17 court of criminal appeals provide otherwise<; and>
15-18 <(2) the record and briefs shall be filed directly
15-19 with the court of appeals>.
15-20 SECTION 21. Sections 30.352(c) and 30.366, Government Code,
15-21 are repealed.
15-22 SECTION 22. This Act takes effect September 1, 1995.
15-23 SECTION 23. The importance of this legislation and the
15-24 crowded condition of the calendars in both houses create an
15-25 emergency and an imperative public necessity that the
15-26 constitutional rule requiring bills to be read on three several
15-27 days in each house be suspended, and this rule is hereby suspended.