PMWJ H.B. 259 75(R)BILL ANALYSIS JUDICIAL AFFAIRS H.B. 259 By: West 4-2-97 Committee Report (Amended) BACKGROUND The City of Odessa wishes to establish a municipal court of record without holding an election to do so. Moreover, once established, the City wishes to appoint, rather than elect, judges to preside over this court. The City Charter, to which the city wishes to comply, provides that municipal court judges be appointed since the cost of conducting a campaign would discourage many attorneys from running for the position. Current law (Government Code, Sections 30.352 and 30.354) establishes the authority to create the court, but requires that an election be held to do so. Current law also provides that judges to this court be elected to terms of office between two and four years in duration. PURPOSE This bill would authorize the City of Odessa to establish, without an election, a municipal court of record. It would also provide for the appointment, rather than the election, of judges sitting on the court. Additionally, it would change the jurisdiction and possible number of municipal courts, the recording of proceedings, and certain aspects of the appeal from such a court. This bill would indirectly reduce the number of appeals. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1 amends Government Code, Section 30.352(a) by striking language regarding the singularity of the present court. SECTION 2 amends Government Code, Section 30.353, Jurisdiction of the Odessa Municipal Court. Current Sec. 30.353 becomes new Subsec. (a) and is amended to strike language referring to exclusive original jurisdiction in criminal cases, other than traffic offenses, arising under city ordinances and other jurisdiction granted by state law. The amended language grants jurisdiction in criminal cases arising under the city's ordinances. New Subsec. (b) grants the municipal court concurrent jurisdiction with the justice courts in criminal cases arising within the city limits and punishable by fine only. New Subsec. (c) grants the court jurisdiction over cases arising outside the city under ordinances authorized by Local Government Code 215.072 (inspection of dairies and slaughterhouses), 217.042 (Nuisances), 341.903 (crimes committed on municipal property, lakes, and streets outside the city), and 401.002 (environmental controls). New Subsec. (d) grants jurisdiction over Class C misdemeanors punishable by fine only. SECTION 3 amends Government Code ' 30.354(b) by striking language providing for the election and terms of judges to this court, and adding language providing authority to the governing body of a city to appoint judges and alternate judges to the court. SECTION 4 amends Government Code ' 30.355, Salary, to delete a reference to the municipal judicial election. SECTION 5 amends Government Code ' 30.356(b) is amended to accommodate the appointment and compensation of alternate judges who would act for a judge temporarily unable to act for any reason. Language regarding the former provision for temporary municipal judges is deleted. SECTION 6. Section 30.358(a), Government Code, is amended to substitute the city manager for the governing body as the person who appoints the municipal clerk. SECTION 7 amends Government Code, Section 30.359. New Subsec. (a) requires that the city provide an official court reporter. Current Subsec. (a) becomes Subsec. (b) and is amended to provide that the city is authorized, in lieu of a court reporter, to provide for the electronic recording of court proceedings. Current Subsec. (b), allowing the judge to appoint the court reporter, is repealed. New Subsec. (c) provides alternate methods to record the proceedings of court, including notes, transcribing equipment or recording equipment and sets out requirements for a court reporter to keep the record. New Subsec. (d) provides that testimony need not be recorded unless a party requests a record in writing at least five days before trial. New Subsec. (e) requires the reporter to certify the official record. SECTION 8 adds new Sections 30.3601-30.3604 to the Government Code. New Sec. 30.3601 provides that prosecutions will be conducted by the city attorney or an assistant or deputy. New Sec. 30.3602 sets out requirements for complaints and pleadings. New Sec. 30.3603 makes provisions for municipal court juries in Odessa. New Sec. 30.3604 provides for court rules of procedure, payment of bonds, service of process, and payment and recovery of fines, fees, and court costs. SECTION 9. Government Code ' 30.361 is amended to allow the city to appeal as provided in the Code of Criminal Procedure and to provide that the Ector County statutory county courts are the initial courts of review for cases from municipal court, unless otherwise specified in law. An appeal by trial de novo is prohibited. SECTION 10. Government Code ' 30.362 is amended to require the defendant to file an appeal bond with the municipal court of record not later than the 10th day after the defendant's motion for a new trial is overruled in the amount of $50 or double the amount of fines and costs adjudged against the defendant and sets out requirements for payment of the bond. SECTION 11. Section 30.363,Government Code, is amended to change the requirements for perfecting an appeal. Subsec. (a) is amended to require the defendant to file a motion for a new trial setting out the assignments of error within 10 days of the judgment. It further provides that if the court does not act on the motion within 30 days of filing, it is overruled by operation of law. Current law provide that notice of appeal may be given orally or in writing, and does not require assignments of error. New Subsec. (b) requires a defendant to give written notice of appeal and pay a transcription fee not to exceed $25 within 10 days of overruling the motion for a new trial. Current Subsecs. (b) and (c) are deleted. New Subsec. (c) requires the city attorney, an assistant or deputy city attorney to prosecute appeals. SECTION 12 amends Government Code ' 30.364 to require the court reporter to prepare and the defendant to pay for costs of transcription of a record on appeal. SECTION 13 amends Government Code, Section 30.365. Subsec. (a) is amended to conform Subsec. (a) with the rest of the bill. Several changes are made to the list of materials to be included in the transcript: court orders replace docket entries; the jury charge is deleted; findings of fact and conclusions of law replace notice of appeal; motion for new trial and the order on the motion replace all written motions and pleas and orders; the notice of appeal, statement of materials to be included in the record, the appeal bond, statement of facts and signed papers designated as material are added to the list. New Subsec. (b) is added to require that the defendant or his attorney file a copy of the written instructions with the clerk and deliver a copy to the city attorney. Current Subsec. (b) becomes Subsec. (c) and is amended to provide that additional portions of the proceedings will be included in the transcripts if the clerk is instructed by the city attorney or an assistant or deputy. Currently, the transcript may include additional portions of the proceedings if requested by either party. SECTION 14 amends Government Code ' 30.367(a) to make language in this section gender neutral. SECTION 15 amends Government Code ' 30.368 to simplify the filing of the record. Provisions allowing the judge to extend the time for filing are deleted. SECTION 16 amends Government Code ' 30.369. Current Subsec. (a), requiring a defendant's brief on appeal to present points of error, is deleted. Subsecs. (b) and (c) are relettered and amended to give each party an additional 15 days to file a brief on appeal and to reflect that each party has the right to appeal. New Subsec. (c) is added to limit the record and briefs on appeal to the questions relied upon for reversal. Subsec. (d) is amended to strike "opposing party" as a person to whom delivery of a copy of the brief shall be made. Subsec. (e), allowing the appellate court discretion to extend the times for filing briefs, is deleted. SECTION 17 amends Sec. 30.370 of the Government Code to strike language regarding the authority of an appellate court's rulings on technicalities. Subsec. (b), allowing court review of unassigned errors and to remove the requirement that the appellate court review all grounds of error and arguments urged by defendant in his brief, is deleted. SECTION 18 amends Sec. 30.371(c) of the Government Code to include court orders as a method by which an appellate court may dispose of a case on appeal. SECTION 19 amends Sec. 30.372 of the Government Code for clarification. Section 30.372(3) is added to make the defendant's property subject to execution upon affirmance by the appellate court of the municipal court's judgment. SECTION 20. Government Code ' 30.374 is amended for clarification. SECTION 21 repeals Government Code, Sections 30.352(c) and 30.366. Section 30.352(c) provides for an election to establish the municipal court of record. Section 30.366 allows the inclusion of bills of exception in the transcript on appeal and filing requirements thereof by either party. SECTION 22. Effective date. SECTION 23. Emergency clause. EXPLANATION OF AMENDMENTS Committee Amendment No. 1 requires proceedings that are appealed from the Odessa municipal court of record to be transcribed by an official court reporter. Committee Amendment No. 2 makes changes to conform to the bill's provisions that the state may also appeal under limited circumstances, and to remove a requirement that the defendant always pay for transcriptions and records on appeal, even when the state is the appellant. Where appropriate, "or state" was added following "defendant," "defendant" was changed to "appellant," "defendant's or defendant's attorney" was changed to "appellant of appellant's attorney," "city attorney or an assistant or deputy city attorney" was changed to "appellee or appelle's attorney." Committee Amendment No. 3 changes "defendant" to "appellant" on page 9 and adds "If the appellant is defendant and the case is reversed on appeal, the court shall promptly refund the cost to the defendant" in order to ensure that an appellant-defendant who obtains a reversal on appeal will recover costs paid for the appeal.