1-1 By: Montford S.B. No. 1286
1-2 (In the Senate - Filed March 10, 1995; March 20, 1995, read
1-3 first time and referred to Committee on Jurisprudence;
1-4 April 26, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; April 26, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1286 By: Henderson
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to municipal courts of record in Odessa.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Subsection (a), Section 30.352, Government Code,
1-13 is amended to read as follows:
1-14 (a) The <In addition to its existing municipal court, the>
1-15 governing body of the City of Odessa may create municipal courts of
1-16 record by adoption of an ordinance consistent with this subchapter.
1-17 SECTION 2. Section 30.353, Government Code, is amended to
1-18 read as follows:
1-19 Sec. 30.353. JURISDICTION. (a) A municipal court of record
1-20 has <exclusive original> jurisdiction in all criminal cases <other
1-21 than traffic offenses> arising under the ordinances of the city
1-22 <and has the jurisdiction granted to municipal courts by state
1-23 law>.
1-24 (b) The court has concurrent jurisdiction with a justice of
1-25 the peace in any precinct in which the city is located in criminal
1-26 cases within the justice court jurisdiction that:
1-27 (1) arise within the territorial limits of the city;
1-28 and
1-29 (2) are punishable by fine only.
1-30 (c) The court has jurisdiction over cases arising outside
1-31 the territorial limits of the city under ordinances authorized by
1-32 Sections 215.072, 217.042, 341.903, and 401.002, Local Government
1-33 Code.
1-34 (d) The court has jurisdiction over Class C misdemeanor
1-35 cases that are punishable by fine only.
1-36 SECTION 3. Subsection (b), Section 30.354, Government Code,
1-37 is amended to read as follows:
1-38 (b) The governing body of the city shall appoint a municipal
1-39 court judge and an alternate municipal court judge under an
1-40 ordinance adopted by the governing body. A municipal judge,
1-41 including an alternate judge, is appointed for a term of two years
1-42 <provide by charter or ordinance for the election of a municipal
1-43 judge of a court of record. The election must be for a definite
1-44 term in office of not less than two nor more than four years>.
1-45 SECTION 4. Section 30.355, Government Code, is amended to
1-46 read as follows:
1-47 Sec. 30.355. SALARY. A municipal judge is entitled to
1-48 compensation by the city on a salary basis. The amount of the
1-49 salary is determined by the governing body of the city and may not
1-50 be diminished during the judge's term of office. The salary may
1-51 not be based directly or indirectly on fines, fees, or costs that
1-52 the judge is required by law to collect during his term of office.
1-53 <The governing body shall determine the salary of the judge at
1-54 least two weeks prior to the deadline for filing for election.>
1-55 SECTION 5. Subsection (b), Section 30.356, Government Code,
1-56 is amended to read as follows:
1-57 (b) The <If a municipal judge is temporarily unable to act
1-58 for any reason, the> governing body of the city may appoint <a>
1-59 qualified persons <person> to sit as alternate <for the regular>
1-60 municipal judges, who shall be known as alternate municipal judges
1-61 <judge>. An alternate judge must meet the qualifications
1-62 prescribed for the municipal judge. The governing body shall set
1-63 the compensation of the alternate judges. The municipal judge may
1-64 assign an alternate judge to act for a judge who is temporarily
1-65 unable to act for any reason. An alternate judge <The appointee>
1-66 has all the powers and duties of the office <and> while acting for
1-67 <serving is entitled to the same compensation as> the municipal
1-68 <regular> judge. <A temporary municipal judge serves at the
2-1 pleasure of the governing body until the regular judge returns.>
2-2 SECTION 6. Subsection (a), Section 30.358, Government Code,
2-3 is amended to read as follows:
2-4 (a) The city manager <governing body> shall provide for the
2-5 appointment of a clerk of the municipal courts of record, who shall
2-6 be known as the municipal clerk. The municipal clerk shall
2-7 perform, as applicable, the duties prescribed by law for the county
2-8 clerk of a county court at law. In addition, the clerk shall:
2-9 (1) maintain central docket records for all cases
2-10 filed in the municipal courts of record; and
2-11 (2) maintain an index of all municipal court of record
2-12 judgments in the same manner as county clerks are required by law
2-13 to prepare for criminal cases arising in county courts.
2-14 SECTION 7. Section 30.359, Government Code, is amended to
2-15 read as follows:
2-16 Sec. 30.359. RECORDING OF PROCEEDINGS; COURT REPORTER.
2-17 (a) The city by ordinance shall provide for the appointment of a
2-18 court reporter for the purpose of preserving a record in cases
2-19 tried before a municipal court of record. The court reporter must
2-20 meet the qualifications provided by law for official court
2-21 reporters.
2-22 (b) The city by ordinance may provide that, instead of
2-23 providing a court reporter at trial, <All> proceedings in a
2-24 municipal court of record may <shall> be recorded by a good quality
2-25 electronic recording device <and the recording kept and stored for
2-26 not less than 20 days>. If the recording device is used, the court
2-27 reporter need not be present at trial to record the proceedings.
2-28 The proceedings that are appealed shall be transcribed from the
2-29 recording by an official <a> court reporter.
2-30 (c) The city by ordinance may provide for the use of written
2-31 notes, transcribing equipment, or recording equipment, or a
2-32 combination of those methods, to record the proceedings of the
2-33 court. The court reporter shall keep the record for a 30-day
2-34 period beginning the day after the last day of the court
2-35 proceeding, trial, or denial of motion for new trial, whichever
2-36 occurs last.
2-37 (d) No one is required to record testimony in a case unless
2-38 the judge or one of the parties requests a record. A party's
2-39 request for a record must be in writing and must be filed with the
2-40 court not less than five days before the date of the trial.
2-41 (e) The court reporter shall certify the official record.
2-42 <(b) A municipal judge may appoint an official court
2-43 reporter to transcribe the trial proceedings, including testimony,
2-44 voir dire examinations, objections, and final arguments. Each
2-45 reporter must be a sworn officer of the court. The reporter shall
2-46 be compensated by the city in the manner determined by the
2-47 governing body of the city.>
2-48 SECTION 8. Subchapter L, Chapter 30, Government Code, is
2-49 amended by adding Sections 30.3601, 30.3602, 30.3603, and 30.3604
2-50 to read as follows:
2-51 Sec. 30.3601. PROSECUTION BY CITY ATTORNEY. All
2-52 prosecutions in a municipal court of record must be conducted by
2-53 the city attorney or an assistant or deputy city attorney.
2-54 Sec. 30.3602. COMPLAINT; PLEADING. (a) A complaint filed
2-55 in a municipal court of record must begin "In the name and by
2-56 authority of the State of Texas" and must conclude "Against the
2-57 peace and dignity of the State."
2-58 (b) Complaints must comply with Article 45.17, Code of
2-59 Criminal Procedure.
2-60 (c) Pleadings must be in writing and must be filed with the
2-61 municipal court clerk.
2-62 Sec. 30.3603. JURY. (a) A person brought before a
2-63 municipal court of record and charged with an offense is entitled
2-64 to be tried by a jury of six persons, unless that right is waived
2-65 according to law.
2-66 (b) A juror for the court must have the qualifications
2-67 required of jurors by law and must be a resident of the city.
2-68 (c) A juror is entitled to receive the compensation for each
2-69 day and each fraction of a day in attendance on a municipal court
2-70 of record jury as provided by Chapter 61.
3-1 (d) The clerk of the court shall establish a fair,
3-2 impartial, and objective juror selection process.
3-3 Sec. 30.3604. COURT RULES. (a) Except as modified by this
3-4 subchapter, the Code of Criminal Procedure as applied to county
3-5 courts at law governs the trial of cases before municipal courts of
3-6 record.
3-7 (b) Bonds must be payable to the state for the use and
3-8 benefit of the city. The court may not assess court costs other
3-9 than warrant fees, capias fees, and other fees authorized for
3-10 municipal courts of record.
3-11 (c) A peace officer may serve a process issued by a
3-12 municipal court of record.
3-13 (d) A conviction, judgment, and sentence are in the name of
3-14 the state, and the state recovers from the defendant the fine and
3-15 fees for the use and benefit of the city.
3-16 (e) Fines, fees, costs, and bonds shall be paid to the clerk
3-17 of the court, who shall deposit them in the city general fund.
3-18 SECTION 9. Section 30.361, Government Code, is amended to
3-19 read as follows:
3-20 Sec. 30.361. APPELLATE COURTS. (a) A defendant has the
3-21 right of appeal from a judgment of conviction in a municipal court
3-22 of record under the procedures prescribed by this subchapter. The
3-23 state has the right to an appeal as provided by Article 44.01, Code
3-24 of Criminal Procedure, and, for purposes of that appeal, the
3-25 prosecuting attorney is the city attorney or an assistant or deputy
3-26 city attorney.
3-27 <(b)> The <county court and a county court at law of> Ector
3-28 County courts at law shall be initial courts of review for
3-29 appellate review of cases from a municipal court of record and
3-30 shall hear all appeals except in cases in which the county courts
3-31 do not have jurisdiction of an appeal <appeals from a municipal
3-32 court of record. The county court's jurisdiction under this
3-33 subsection is limited to the jurisdiction it has of appeals> from a
3-34 justice court, in which case the appeal shall be heard by the court
3-35 that has jurisdiction of an appeal from the justice court.
3-36 (b) The appellate court shall determine each appeal from a
3-37 municipal court of record conviction on the basis of the errors
3-38 that are set forth in the defendant's motion for new trial and that
3-39 are presented in the transcript and statement of facts prepared
3-40 from the proceedings leading to the conviction. An appeal from a
3-41 municipal court of record may not be by trial de novo.
3-42 <(c) Appeals from convictions of the municipal courts that
3-43 are not of record are de novo. This subchapter does not affect the
3-44 procedure for an appeal from a municipal court that is not of
3-45 record.>
3-46 SECTION 10. Section 30.362, Government Code, is amended to
3-47 read as follows:
3-48 Sec. 30.362. APPEAL BOND <ON RECORD>. (a) The defendant
3-49 may not take an appeal until the defendant files an appeal bond
3-50 with the municipal court of record. The bond must be approved by
3-51 the court and must be filed not later than the 10th day after the
3-52 date on which the motion for new trial is overruled.
3-53 (b) The appeal bond must be in the amount of $50 or double
3-54 the amount of fines and costs adjudged against the defendant,
3-55 whichever is greater. The bond must be payable to the state for
3-56 the use and benefit of the city and must be conditioned on the
3-57 defendant's immediate and personal appearance in the court to which
3-58 the appeal is taken <An appeal from a municipal court of record
3-59 conviction is determined by the appellate court solely on the basis
3-60 of errors presented in the transcript and statement of facts
3-61 prepared from the municipal court of record proceedings>.
3-62 SECTION 11. Section 30.363, Government Code, is amended to
3-63 read as follows:
3-64 Sec. 30.363. PERFECTING APPEAL. (a) To perfect an appeal,
3-65 the defendant must file a motion for new trial not later than the
3-66 10th day after the date on which the judgment and sentence are
3-67 rendered <give notice of the appeal>. The motion constitutes the
3-68 assignments of error on appeal. A ground or error not set forth in
3-69 the motion is waived. If the court does not act on the motion
3-70 before the expiration of 30 days after it is filed with the clerk,
4-1 the motion is overruled by operation of law <notice of appeal may
4-2 be given orally in open court, or it may be given in writing and
4-3 filed with the municipal court of record. The notice is sufficient
4-4 if it shows the desire of the defendant to appeal from the
4-5 municipal court of record conviction>.
4-6 (b) After an order overruling a motion for new trial, the
4-7 defendant shall give written notice of appeal and pay the
4-8 transcript preparation fee not later than the 10th day after the
4-9 date on which the motion is overruled. The governing body by
4-10 ordinance may provide for a reasonable transcript preparation fee
4-11 not to exceed $25. The clerk shall note the payment of the fee on
4-12 the docket of the court <Notice of appeal must be given or filed:>
4-13 <(1) not later than the 10th day after the date on
4-14 which a motion for new trial is overruled, if a motion is made; or>
4-15 <(2) not later than the 10th day after the date on
4-16 which judgment is rendered, whether or not the punishment is
4-17 suspended by an order of probation>.
4-18 (c) The city attorney or the assistant or deputy city
4-19 attorney shall prosecute all appeals from the municipal courts of
4-20 record <A motion for new trial must be made not later than the
4-21 fifth day after the date on which judgment is rendered. If no
4-22 ruling is made, the motion is overruled by operation of law at the
4-23 expiration of the 10th day after its filing date>.
4-24 SECTION 12. Section 30.364, Government Code, is amended to
4-25 read as follows:
4-26 Sec. 30.364. RECORD ON APPEAL. The record on appeal
4-27 consists of a transcript and, if necessary to the appeal, a
4-28 statement of facts. The court reporter shall prepare the record
4-29 from the reporter's record or mechanical recordings of the
4-30 proceedings. The defendant shall pay for the cost of the
4-31 transcription.
4-32 SECTION 13. Section 30.365, Government Code, is amended to
4-33 read as follows:
4-34 Sec. 30.365. <CONTENTS OF> TRANSCRIPT. (a) The <On written
4-35 instructions from the defendant or the defendant's attorney, the
4-36 municipal> clerk of the municipal court of record shall prepare
4-37 under the clerk's <his> hand and seal of the court a transcript of
4-38 the municipal court of record proceedings after payment of the
4-39 transcript preparation fee required by Section 30.363. The clerk
4-40 shall prepare the transcript under written instructions from the
4-41 defendant or the defendant's attorney. Unless otherwise agreed by
4-42 the parties in writing, the <The> transcript must include copies
4-43 of:
4-44 (1) the complaint;
4-45 (2) court orders on any motions or exceptions
4-46 <material docket entries made by the court>;
4-47 (3) the jury <charge and> verdict, if the trial is by
4-48 jury;
4-49 (4) the judgment;
4-50 (5) any findings of fact or conclusions of law made by
4-51 the court <the notice of appeal>;
4-52 (6) the motion for new trial and the order of the
4-53 court on the motion <all written motions and pleas and orders of
4-54 the court>; <and>
4-55 (7) the notice of appeal;
4-56 (8) any statement of the parties regarding material to
4-57 be included in the record;
4-58 (9) the appeal bond;
4-59 (10) any statement of facts; and
4-60 (11) any signed paper designated as material by either
4-61 party <bills of exception>.
4-62 (b) The defendant or the defendant's attorney shall file a
4-63 copy of the written instructions with the clerk and shall deliver a
4-64 copy to the city attorney or an assistant or deputy city attorney.
4-65 (c) The city attorney or an assistant or deputy city
4-66 attorney shall file a written direction to the <The> clerk if <may
4-67 include in the transcript> additional portions of the trial
4-68 proceedings in the transcript are to be included <court if so
4-69 instructed in writing by either party>.
4-70 SECTION 14. Subsection (a), Section 30.367, Government Code,
5-1 is amended to read as follows:
5-2 (a) A statement of facts included in the record on appeal
5-3 must contain:
5-4 (1) a transcription of all or any part of the
5-5 municipal court of record proceedings in the case as recorded on
5-6 the electronic recording device or shown by the notes of the court
5-7 reporter recorded or taken before, during, or after the trial, if
5-8 the transcription is requested by a party, a party's <his>
5-9 attorney, or the municipal judge;
5-10 (2) a brief statement of the facts of the case proven
5-11 at the trial as agreed to by the defendant or the defendant's <his>
5-12 attorney and the prosecuting attorney; or
5-13 (3) a partial transcription and the agreed statement
5-14 of the facts of the case.
5-15 SECTION 15. Section 30.368, Government Code, is amended to
5-16 read as follows:
5-17 Sec. 30.368. TRANSFER <FILING> OF RECORD; FEE. The parties
5-18 must file the transcript and the statement of facts with the clerk
5-19 of the municipal court of record not <(a) Not> later than the 60th
5-20 day after the date on which the transcript preparation fee was
5-21 paid. The clerk shall promptly forward them to the appellate court
5-22 clerk <the notice of appeal is given or filed, the parties must
5-23 file with the clerk of the municipal court of record:>
5-24 <(1) the statement of facts;>
5-25 <(2) a written designation of material to be included
5-26 in the transcript in addition to the material required under
5-27 Section 30.365(a); and>
5-28 <(3) any matter to be included in the transcript that
5-29 is not in the custody of the clerk.>
5-30 <(b) The municipal judge may for good cause extend the time
5-31 for filing.>
5-32 <(c) On completion of the record, the clerk shall notify the
5-33 parties and the municipal judge shall approve the record in the
5-34 manner provided by the Code of Criminal Procedure, 1965, for record
5-35 completion notification and approval in the court of appeals.>
5-36 <(d) After the court approves the record, the clerk shall
5-37 promptly send it to the appellate court clerk for filing>.
5-38 SECTION 16. Section 30.369, Government Code, is amended to
5-39 read as follows:
5-40 Sec. 30.369. BRIEF ON APPEAL. (a) <A defendant's brief on
5-41 appeal from a municipal court of record must present points of
5-42 error in the manner required by the Code of Criminal Procedure,
5-43 1965, for a brief on appeal to the court of criminal appeals.>
5-44 <(b)> The appellant <defendant> must file a <the> brief on
5-45 appeal with the appellate court clerk not later than the 30th
5-46 <15th> day after the date on which the transcript and statement of
5-47 facts are filed with that <the appellate court> clerk.
5-48 (b) <(c)> The appellee <prosecuting attorney> must file the
5-49 appellee's brief with the appellate court clerk not later than the
5-50 30th <15th> day after the date on which the appellant's <defendant
5-51 files his> brief is filed <with the clerk>.
5-52 (c) To avoid unnecessary delay, the record and briefs on
5-53 appeal shall be limited as far as possible to the questions relied
5-54 on for reversal.
5-55 (d) On filing, each party shall deliver a copy of the brief
5-56 to the <opposing party or the> opposing party's attorney.
5-57 <(e) The appellate court may in its discretion extend the
5-58 times for filing briefs.>
5-59 SECTION 17. Section 30.370, Government Code, is amended to
5-60 read as follows:
5-61 Sec. 30.370. PROCEDURE ON APPEAL. <(a)> The appellate
5-62 court shall hear <and determine> an appeal from a municipal court
5-63 of record at the earliest possible time with due regard to the
5-64 rights of parties and the proper administration of justice. <The
5-65 court may not affirm or reverse a case based on mere technicalities
5-66 or on technical errors in the presentation and filing of the record
5-67 on appeal.> The court may determine the rules for oral argument.
5-68 The parties may submit the case on the records and briefs without
5-69 oral arguments.
5-70 <(b) The appellate court shall review all grounds of error
6-1 and arguments urged in the defendant's brief on appeal and may
6-2 review any unassigned error in the interest of justice.>
6-3 SECTION 18. Subsection (c), Section 30.371, Government Code,
6-4 is amended to read as follows:
6-5 (c) In each case decided by the appellate court, the court
6-6 shall deliver a written opinion or order <either> sustaining or
6-7 overruling each assignment of error presented. If an assignment of
6-8 error is overruled, no reason need be given by the appellate court,
6-9 but cases relied upon by the court may be cited. If an assignment
6-10 of error is sustained, the appellate court shall set forth the
6-11 reasons for the decision. The appellate court clerk shall mail
6-12 copies of the appellate court decision to the parties and to the
6-13 municipal judge as soon as the decision is rendered.
6-14 SECTION 19. Section 30.372, Government Code, is amended to
6-15 read as follows:
6-16 Sec. 30.372. CERTIFICATE OF APPELLATE PROCEEDINGS. When the
6-17 judgment of the appellate court becomes final, the clerk of that
6-18 court shall certify the proceedings and the judgment and shall mail
6-19 the certificate to the clerk of the municipal court of record.
6-20 When the clerk of the municipal court of record receives the
6-21 record, the <The municipal> clerk shall file the record and
6-22 certificate with the papers <records> in the case and note the
6-23 filing <certificate> on the docket. If the municipal court of
6-24 record's judgment is affirmed, further action to enforce the
6-25 judgment is not necessary except to:
6-26 (1) forfeit the bond of the defendant; <or>
6-27 (2) issue a writ of capias for the defendant; or
6-28 (3) issue an execution against the defendant's
6-29 property.
6-30 SECTION 20. Section 30.374, Government Code, is amended to
6-31 read as follows:
6-32 Sec. 30.374. APPEALS TO COURT OF APPEALS. An appeal of a
6-33 <Appeals to the court of appeals from the> decision of the
6-34 appellate court to the court of appeals is<, if permitted by law,
6-35 are> governed by the <provisions of the> Code of Criminal
6-36 Procedure, <1965, relating to direct appeals from a county or a
6-37 district court to the court of appeals,> except that<:>
6-38 <(1)> the transcript, <record and> briefs, and
6-39 statement of facts filed <on appeal> in the appellate court
6-40 constitute the transcript, <record and> briefs, and statement of
6-41 facts on appeal to the court of appeals unless the rules of the
6-42 court of criminal appeals provide otherwise<; and>
6-43 <(2) the record and briefs shall be filed directly
6-44 with the court of appeals>.
6-45 SECTION 21. Subsection (c), Sections 30.352 and Section
6-46 30.366, Government Code, are repealed.
6-47 SECTION 22. This Act takes effect September 1, 1995.
6-48 SECTION 23. The importance of this legislation and the
6-49 crowded condition of the calendars in both houses create an
6-50 emergency and an imperative public necessity that the
6-51 constitutional rule requiring bills to be read on three several
6-52 days in each house be suspended, and this rule is hereby suspended.
6-53 * * * * *