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                               * * * * *