By West H.B. No. 259
75R2010 SAW-D
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 (d) The court has jurisdiction over Class C misdemeanor
2-3 cases that are punishable by fine only.
2-4 SECTION 3. Section 30.354(b), Government Code, is amended to
2-5 read as follows:
2-6 (b) The governing body of the city shall appoint a municipal
2-7 court judge and an alternate municipal court judge under an
2-8 ordinance adopted by the governing body [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 alternate [for the regular]
2-27 municipal judges, who shall be known as alternate judges [judge].
3-1 An alternate judge must meet the qualifications prescribed for the
3-2 municipal judge. The governing body shall set the compensation of
3-3 the alternate judges. The municipal judge may assign an alternate
3-4 judge to act for a judge who is temporarily unable to act for any
3-5 reason. An alternate judge [The appointee] has all the powers and
3-6 duties of the office [and] while acting for [serving is entitled to
3-7 the same compensation as] the municipal [regular] judge. [A
3-8 temporary municipal judge serves at the pleasure of the governing
3-9 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 by ordinance shall provide for the appointment of a court
3-26 reporter for the purpose of preserving a record in cases tried
3-27 before a municipal court of record. The court reporter must meet
4-1 the qualifications provided by law for official court reporters.
4-2 (b) The city by ordinance may provide that, instead of
4-3 providing a court reporter at trial, [All] proceedings in a
4-4 municipal court of record may [shall] be recorded by a good quality
4-5 electronic recording device [and the recording kept and stored for
4-6 not less than 20 days]. If the recording device is used, the court
4-7 reporter need not be present at trial to record the proceedings.
4-8 The proceedings that are appealed shall be transcribed from the
4-9 recording by an official [by a] court reporter.
4-10 (c) The city by ordinance may provide for the use of written
4-11 notes, transcribing equipment, or recording equipment, or a
4-12 combination of those methods, to record the proceedings of the
4-13 court. The court reporter shall keep the record for a 30-day
4-14 period beginning the day after the last day of the court
4-15 proceeding, trial, or denial of motion for new trial, whichever
4-16 occurs last.
4-17 (d) No one is required to record testimony in a case unless
4-18 the judge or one of the parties requests a record. A party's
4-19 request for a record must be in writing and must be filed with the
4-20 court not less than five days before the date of the trial.
4-21 (e) The court reporter shall certify the official record.
4-22 [(b) A municipal judge may appoint an official court
4-23 reporter to transcribe the trial proceedings, including testimony,
4-24 voir dire examinations, objections, and final arguments. Each
4-25 reporter must be a sworn officer of the court. The reporter shall
4-26 be compensated by the city in the manner determined by the
4-27 governing body of the city.]
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 complaint filed
5-8 in a municipal court of record must begin "In the name and by
5-9 authority of the State of Texas" and must conclude "Against the
5-10 peace and dignity of the State."
5-11 (b) Complaints must comply with Article 45.17, Code of
5-12 Criminal Procedure.
5-13 (c) Pleadings must be in writing and must be filed with the
5-14 municipal court clerk.
5-15 Sec. 30.3603. JURY. (a) A person brought before a
5-16 municipal court of record and charged with an offense is entitled
5-17 to be tried by a jury of six persons, unless that right is waived
5-18 according to law.
5-19 (b) A juror for the court must have the qualifications
5-20 required of jurors by law and must be a resident of the city.
5-21 (c) A juror is entitled to receive the compensation for each
5-22 day and each fraction of a day in attendance on a municipal court
5-23 of record jury as provided by Chapter 61.
5-24 (d) The clerk of the court shall establish a fair,
5-25 impartial, and objective juror selection process.
5-26 Sec. 30.3604. COURT RULES. (a) Except as modified by this
5-27 subchapter, the Code of Criminal Procedure as applied to county
6-1 courts at law governs the trial of cases before municipal courts of
6-2 record.
6-3 (b) Bonds must be payable to the state for the use and
6-4 benefit of the city. The court may not assess court costs other
6-5 than warrant fees, capias fees, and other fees authorized for
6-6 municipal courts of record.
6-7 (c) A peace officer may serve a process issued by a
6-8 municipal court of record.
6-9 (d) A conviction, judgment, and sentence are in the name of
6-10 the state, and the state recovers from the defendant the fine and
6-11 fees for the use and benefit of the city.
6-12 (e) Fines, fees, costs, and bonds shall be paid to the clerk
6-13 of the court, who shall deposit them in the city general fund.
6-14 SECTION 9. Section 30.361, Government Code, is amended to
6-15 read as follows:
6-16 Sec. 30.361. APPELLATE COURTS. (a) A defendant has the
6-17 right of appeal from a judgment of conviction in a municipal court
6-18 of record under the procedures prescribed by this subchapter. The
6-19 state has the right to an appeal as provided by Article 44.01, Code
6-20 of Criminal Procedure, and for purposes of that appeal, the
6-21 prosecuting attorney is the city attorney or an assistant or deputy
6-22 city attorney.
6-23 [(b)] The [county court and a county court at law of] Ector
6-24 County courts at law shall be initial courts of review for
6-25 appellate review of cases from a municipal court of record and
6-26 shall hear all appeals except in cases in which the county courts
6-27 do not have jurisdiction of an appeal [appeals from a municipal
7-1 court of record. The county court's jurisdiction under this
7-2 subsection is limited to the jurisdiction it has of appeals] from a
7-3 justice court, in which case the appeal shall be heard by the court
7-4 that has jurisdiction of an appeal from the justice court.
7-5 (b) The appellate court shall determine each appeal from a
7-6 municipal court of record conviction on the basis of the errors
7-7 that are set forth in the defendant's motion for new trial and that
7-8 are presented in the transcript and statement of facts prepared
7-9 from the proceedings leading to the conviction. An appeal from a
7-10 municipal court of record may not be by trial de novo.
7-11 [(c) Appeals from convictions of the municipal courts that
7-12 are not of record are de novo. This subchapter does not affect the
7-13 procedure for an appeal from a municipal court that is not of
7-14 record.]
7-15 SECTION 10. Section 30.362, Government Code, is amended to
7-16 read as follows:
7-17 Sec. 30.362. APPEAL BOND [ON RECORD]. (a) The defendant
7-18 may not take an appeal until the defendant files an appeal bond
7-19 with the municipal court of record. The bond must be approved by
7-20 the court and must be filed not later than the 10th day after the
7-21 date on which the motion for new trial is overruled.
7-22 (b) The appeal bond must be in the amount of $50 or double
7-23 the amount of fines and costs adjudged against the defendant,
7-24 whichever is greater. The bond must be payable to the state for
7-25 the use and benefit of the city and must be conditioned on the
7-26 defendant's immediate and personal appearance in the court to which
7-27 the appeal is taken [An appeal from a municipal court of record
8-1 conviction is determined by the appellate court solely on the basis
8-2 of errors presented in the transcript and statement of facts
8-3 prepared from the municipal court of record proceedings].
8-4 SECTION 11. Section 30.363, Government Code, is amended to
8-5 read as follows:
8-6 Sec. 30.363. PERFECTING APPEAL. (a) To perfect an appeal,
8-7 the defendant must file a motion for new trial not later than the
8-8 10th day after the date on which the judgment and sentence are
8-9 rendered [give notice of the appeal]. The motion constitutes the
8-10 assignments of error on appeal. A ground or error not set forth in
8-11 the motion is waived. If the court does not act on the motion
8-12 before the expiration of 30 days after it is filed with the clerk,
8-13 the motion is overruled by operation of law [The notice of appeal
8-14 may be given orally in open court, or it may be given in writing
8-15 and filed with the municipal court of record. The notice is
8-16 sufficient if it shows the desire of the defendant to appeal from
8-17 the municipal court of record conviction].
8-18 (b) After an order overruling a motion for new trial, the
8-19 defendant shall give written notice of appeal and pay the
8-20 transcript preparation fee not later than the 10th day after the
8-21 date on which the motion is overruled. The governing body by
8-22 ordinance may provide for a reasonable transcript preparation fee
8-23 not to exceed $25. The clerk shall note the payment of the fee on
8-24 the docket of the court [Notice of appeal must be given or filed:]
8-25 [(1) not later than the 10th day after the date on
8-26 which a motion for new trial is overruled, if a motion is made; or]
8-27 [(2) not later than the 10th day after the date on
9-1 which judgment is rendered, whether or not the punishment is
9-2 suspended by an order of probation].
9-3 (c) The city attorney or the assistant or deputy city
9-4 attorney shall prosecute all appeals from the municipal courts of
9-5 record [A motion for new trial must be made not later than the
9-6 fifth day after the date on which judgment is rendered. If no
9-7 ruling is made, the motion is overruled by operation of law at the
9-8 expiration of the 10th day after its filing date].
9-9 SECTION 12. Section 30.364, Government Code, is amended to
9-10 read as follows:
9-11 Sec. 30.364. RECORD ON APPEAL. The record on appeal
9-12 consists of a transcript and, if necessary to the appeal, a
9-13 statement of facts. The court reporter shall prepare the record
9-14 from the reporter's record or mechanical recordings of the
9-15 proceedings. The defendant shall pay for the cost of the
9-16 transcription.
9-17 SECTION 13. Section 30.365, Government Code, is amended to
9-18 read as follows:
9-19 Sec. 30.365. [CONTENTS OF] TRANSCRIPT. (a) The [On written
9-20 instructions from the defendant or the defendant's attorney, the
9-21 municipal] clerk of the municipal court of record shall prepare
9-22 under the clerk's [his] hand and seal of the court a transcript of
9-23 the municipal court of record proceedings after payment of the
9-24 transcript preparation fee required by Section 30.363. The clerk
9-25 shall prepare the transcript under written instructions from the
9-26 defendant or the defendant's attorney. Unless otherwise agreed by
9-27 the parties in writing, the [The] transcript must include copies
10-1 of:
10-2 (1) the complaint;
10-3 (2) court orders on any motions or exceptions
10-4 [material docket entries made by the court];
10-5 (3) the jury [charge and] verdict, if the trial is by
10-6 jury;
10-7 (4) the judgment;
10-8 (5) any findings of fact or conclusions of law made by
10-9 the court [the notice of appeal];
10-10 (6) the motion for new trial and the order of the
10-11 court on the motion [all written motions and pleas and orders of
10-12 the court]; [and]
10-13 (7) the notice of appeal;
10-14 (8) any statement of the parties regarding material to
10-15 be included in the record;
10-16 (9) the appeal bond;
10-17 (10) any statement of facts; and
10-18 (11) any signed paper designated as material by either
10-19 party [bills of exception].
10-20 (b) The defendant or the defendant's attorney shall file a
10-21 copy of the written instructions with the clerk and shall deliver a
10-22 copy to the city attorney or an assistant or deputy city attorney.
10-23 (c) The city attorney or an assistant or deputy city
10-24 attorney shall file a written direction to the [The] clerk if [may
10-25 include in the transcript] additional portions of the trial
10-26 proceedings in the transcript are to be included [court if so
10-27 instructed in writing by either party].
11-1 SECTION 14. Section 30.367(a), Government Code, is amended
11-2 to read as follows:
11-3 (a) A statement of facts included in the record on appeal
11-4 must contain:
11-5 (1) a transcription of all or any part of the
11-6 municipal court of record proceedings in the case as recorded on
11-7 the electronic recording device or shown by the notes of the court
11-8 reporter recorded or taken before, during, or after the trial, if
11-9 the transcription is requested by a party, a party's [his]
11-10 attorney, or the municipal judge;
11-11 (2) a brief statement of the facts of the case proven
11-12 at the trial as agreed to by the defendant or the defendant's [his]
11-13 attorney and the prosecuting attorney; or
11-14 (3) a partial transcription and the agreed statement
11-15 of the facts of the case.
11-16 SECTION 15. Section 30.368, Government Code, is amended to
11-17 read as follows:
11-18 Sec. 30.368. TRANSFER OF RECORD; FEE [FILING OF RECORD].
11-19 The parties must file the transcript and the statement of facts
11-20 with the clerk of the municipal court of record not [(a) Not]
11-21 later than the 60th day after the date on which the transcript
11-22 preparation fee was paid. The clerk shall promptly forward them to
11-23 the appellate court clerk [the notice of appeal is given or filed,
11-24 the parties must file with the clerk of the municipal court of
11-25 record:]
11-26 [(1) the statement of facts;]
11-27 [(2) a written designation of material to be included
12-1 in the transcript in addition to the material required under
12-2 Section 30.365(a); and]
12-3 [(3) any matter to be included in the transcript that
12-4 is not in the custody of the clerk.]
12-5 [(b) The municipal judge may for good cause extend the time
12-6 for filing.]
12-7 [(c) On completion of the record, the clerk shall notify the
12-8 parties and the municipal judge shall approve the record in the
12-9 manner provided by the Code of Criminal Procedure, 1965, for record
12-10 completion notification and approval in the court of appeals.]
12-11 [(d) After the court approves the record, the clerk shall
12-12 promptly send it to the appellate court clerk for filing].
12-13 SECTION 16. Section 30.369, Government Code, is amended to
12-14 read as follows:
12-15 Sec. 30.369. BRIEF ON APPEAL. (a) [A defendant's brief on
12-16 appeal from a municipal court of record must present points of
12-17 error in the manner required by the Code of Criminal Procedure,
12-18 1965, for a brief on appeal to the court of criminal appeals.]
12-19 [(b)] The appellant [defendant] must file a [the] brief on
12-20 appeal with the appellate court clerk not later than the 30th
12-21 [15th] day after the date on which the transcript and statement of
12-22 facts are filed with that [the appellate court] clerk.
12-23 (b) [(c)] The appellee [prosecuting attorney] must file the
12-24 appellee's brief with the appellate court clerk not later than the
12-25 30th [15th] day after the date on which the appellant's [defendant
12-26 files his] brief is filed [with the clerk].
12-27 (c) To avoid unnecessary delay, the record and briefs on
13-1 appeal shall be limited as far as possible to the questions relied
13-2 on for reversal.
13-3 (d) On filing, each party shall deliver a copy of the brief
13-4 to the [opposing party or the] opposing party's attorney.
13-5 [(e) The appellate court may in its discretion extend the
13-6 times for filing briefs.]
13-7 SECTION 17. Section 30.370, Government Code, is amended to
13-8 read as follows:
13-9 Sec. 30.370. PROCEDURE ON APPEAL. [(a)] The appellate
13-10 court shall hear [and determine] an appeal from a municipal court
13-11 of record at the earliest possible time with due regard to the
13-12 rights of parties and the proper administration of justice. [The
13-13 court may not affirm or reverse a case based on mere technicalities
13-14 or on technical errors in the presentation and filing of the record
13-15 on appeal.] The court may determine the rules for oral argument.
13-16 The parties may submit the case on the records and briefs without
13-17 oral arguments.
13-18 [(b) The appellate court shall review all grounds of error
13-19 and arguments urged in the defendant's brief on appeal and may
13-20 review any unassigned error in the interest of justice.]
13-21 SECTION 18. Section 30.371(c), Government Code, is amended
13-22 to read as follows:
13-23 (c) In each case decided by the appellate court, the court
13-24 shall deliver a written opinion or order [either] sustaining or
13-25 overruling each assignment of error presented. If an assignment of
13-26 error is overruled, no reason need be given by the appellate court,
13-27 but cases relied upon by the court may be cited. If an assignment
14-1 of error is sustained, the appellate court shall set forth the
14-2 reasons for the decision. The appellate court clerk shall mail
14-3 copies of the appellate court decision to the parties and to the
14-4 municipal judge as soon as the decision is rendered.
14-5 SECTION 19. Section 30.372, Government Code, is amended to
14-6 read as follows:
14-7 Sec. 30.372. CERTIFICATE OF APPELLATE PROCEEDINGS. When the
14-8 judgment of the appellate court becomes final, the clerk of that
14-9 court shall certify the proceedings and the judgment and shall mail
14-10 the certificate to the clerk of the municipal court of record.
14-11 When the clerk of the municipal court of record receives the
14-12 record, the [The municipal] clerk shall file the record and
14-13 certificate with the papers [records] in the case and note the
14-14 filing [certificate] on the docket. If the municipal court of
14-15 record's judgment is affirmed, further action to enforce the
14-16 judgment is not necessary except to:
14-17 (1) forfeit the bond of the defendant; [or]
14-18 (2) issue a writ of capias for the defendant; or
14-19 (3) issue an execution against the defendant's
14-20 property.
14-21 SECTION 20. Section 30.374, Government Code, is amended to
14-22 read as follows:
14-23 Sec. 30.374. APPEALS TO COURT OF APPEALS. An appeal of a
14-24 [Appeals to the court of appeals from the] decision of the
14-25 appellate court to the court of appeals is[, if permitted by law,
14-26 are] governed by the [provisions of the] Code of Criminal
14-27 Procedure, [1965, relating to direct appeals from a county or a
15-1 district court to the court of appeals,] except that[:]
15-2 [(1)] the transcript, [record and] briefs, and
15-3 statement of facts filed [on appeal] in the appellate court
15-4 constitute the transcript, [record and] briefs, and statement of
15-5 facts on appeal to the court of appeals unless the rules of the
15-6 court of criminal appeals provide otherwise[; and]
15-7 [(2) the record and briefs shall be filed directly
15-8 with the court of appeals].
15-9 SECTION 21. Sections 30.352(c) and 30.366, Government Code,
15-10 are repealed.
15-11 SECTION 22. This Act takes effect September 1, 1997.
15-12 SECTION 23. The importance of this legislation and the
15-13 crowded condition of the calendars in both houses create an
15-14 emergency and an imperative public necessity that the
15-15 constitutional rule requiring bills to be read on three several
15-16 days in each house be suspended, and this rule is hereby suspended.