1-1     By:  West (Senate Sponsor - Duncan)                    H.B. No. 259

 1-2           (In the Senate - Received from the House April 21, 1997;

 1-3     April 22, 1997, read first time and referred to Committee on

 1-4     Jurisprudence; May 6, 1997, reported favorably by the following

 1-5     vote:  Yeas 6, Nays 0; May 6, 1997, sent to printer.)

 1-6                            A BILL TO BE ENTITLED

 1-7                                   AN ACT

 1-8     relating to municipal courts of record in Odessa.

 1-9           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-10           SECTION 1.  Section 30.352(a), Government Code, is amended to

1-11     read as follows:

1-12           (a)  The [In addition to its existing municipal court, the]

1-13     governing body of the City of Odessa may create municipal courts of

1-14     record by adoption of an ordinance consistent with this subchapter.

1-15           SECTION 2.  Section 30.353, Government Code, is amended to

1-16     read as follows:

1-17           Sec. 30.353.  JURISDICTION.  (a)  A municipal court of record

1-18     has [exclusive original] jurisdiction in all criminal cases [other

1-19     than traffic offenses] arising under the ordinances of the city

1-20     [and has the jurisdiction granted to municipal courts by state

1-21     law].

1-22           (b)  The court has concurrent jurisdiction with a justice of

1-23     the peace in any precinct in which the city is located in criminal

1-24     cases within the justice court jurisdiction that:

1-25                 (1)  arise within the territorial limits of the city;

1-26     and

1-27                 (2)  are punishable by fine only.

1-28           (c)  The court has jurisdiction over cases arising outside

1-29     the territorial limits of the city under ordinances authorized by

1-30     Sections 215.072, 217.042, 341.903, and 401.002, Local Government

1-31     Code.

1-32           (d)  The court has jurisdiction over Class C misdemeanor

1-33     cases that are punishable by fine only.

1-34           SECTION 3.  Section 30.354(b), Government Code, is amended to

1-35     read as follows:

1-36           (b)  The governing body of the city shall appoint a municipal

1-37     court judge and an alternate municipal court judge under an

1-38     ordinance adopted by the governing body [provide by charter or

1-39     ordinance for the election of a municipal judge of a court of

1-40     record.  The election must be for a definite term in office of not

1-41     less than two nor more than four years].

1-42           SECTION 4.  Section 30.355, Government Code, is amended to

1-43     read as follows:

1-44           Sec. 30.355.  SALARY.  A municipal judge is entitled to

1-45     compensation by the city on a salary basis.  The amount of the

1-46     salary is determined by the governing body of the city and may not

1-47     be diminished during the judge's term of office.  The salary may

1-48     not be based directly or indirectly on fines, fees, or costs that

1-49     the judge is required by law to collect during his term of office.

1-50     [The governing body shall determine the salary of the judge at

1-51     least two weeks prior to the deadline for filing for election.]

1-52           SECTION 5.  Section 30.356(b), Government Code, is amended to

1-53     read as follows:

1-54           (b)  The [If a municipal judge is temporarily unable to act

1-55     for any reason, the] governing body of the city may appoint [a]

1-56     qualified persons [person] to sit as alternate [for the regular]

1-57     municipal judges, who shall be known as alternate judges [judge].

1-58     An alternate judge must meet the qualifications prescribed for the

1-59     municipal judge.  The governing body shall set the compensation of

1-60     the alternate judges.  The municipal judge may assign an alternate

1-61     judge to act for a judge who is temporarily unable to act for any

1-62     reason.  An alternate judge [The appointee] has all the powers and

1-63     duties of the office [and] while acting for [serving is entitled to

1-64     the same compensation as] the municipal [regular] judge.  [A

 2-1     temporary municipal judge serves at the pleasure of the governing

 2-2     body until the regular judge returns.]

 2-3           SECTION 6.  Section 30.358(a), Government Code, is amended to

 2-4     read as follows:

 2-5           (a)  The city manager [governing body] shall provide for the

 2-6     appointment of a clerk of the municipal courts of record, who shall

 2-7     be known as the municipal clerk.  The municipal clerk shall

 2-8     perform, as applicable, the duties prescribed by law for the county

 2-9     clerk of a county court at law.  In addition, the clerk shall:

2-10                 (1)  maintain central docket records for all cases

2-11     filed in the municipal courts of record; and

2-12                 (2)  maintain an index of all municipal court of record

2-13     judgments in the same manner as county clerks are required by law

2-14     to prepare for criminal cases arising in county courts.

2-15           SECTION 7.  Section 30.359, Government Code, is amended to

2-16     read as follows:

2-17           Sec. 30.359.  RECORDING OF PROCEEDINGS; COURT REPORTER.  (a)

2-18     The city by ordinance shall provide for the appointment of a court

2-19     reporter for the purpose of preserving a record in cases tried

2-20     before a municipal court of record.  The court reporter must meet

2-21     the qualifications provided by law for official court reporters.

2-22           (b)  All proceedings in a municipal court of record shall be

2-23     recorded by a good quality electronic recording device and the

2-24     recording kept and stored for not less than 20 days.  The

2-25     proceedings that are appealed shall be transcribed from the

2-26     recording by an official [by a] court reporter.

2-27           (c)  The city by ordinance may provide for the use of written

2-28     notes, transcribing equipment, or recording equipment, or a

2-29     combination of those methods, to record the proceedings of the

2-30     court.  The court reporter shall keep the record for a 30-day

2-31     period beginning the day after the last day of the court

2-32     proceeding, trial, or denial of motion for new trial, whichever

2-33     occurs last.

2-34           (d)  No one is required to record testimony in a case unless

2-35     the judge or one of the parties requests a record.  A party's

2-36     request for a record must be in writing and must be filed with the

2-37     court not less than five days before the date of the trial.

2-38           (e)  The court reporter shall certify the official record.

2-39           [(b)  A municipal judge may appoint an official court

2-40     reporter to transcribe the trial proceedings, including testimony,

2-41     voir dire examinations, objections, and final arguments.  Each

2-42     reporter must be a sworn officer of the court.  The reporter shall

2-43     be compensated by the city in the manner determined by the

2-44     governing body of the city.]

2-45           SECTION 8.  Subchapter L, Chapter 30, Government Code, is

2-46     amended by adding Sections 30.3601, 30.3602, 30.3603, and 30.3604

2-47     to read as follows:

2-48           Sec. 30.3601.  PROSECUTION BY CITY ATTORNEY.  All

2-49     prosecutions in a municipal court of record must be conducted by

2-50     the city attorney or an assistant or deputy city attorney.

2-51           Sec. 30.3602.  COMPLAINT; PLEADING.  (a)  A complaint filed

2-52     in a municipal court of record must begin "In the name and by

2-53     authority of the State of Texas" and must conclude "Against the

2-54     peace and dignity of the State."

2-55           (b)  Complaints must comply with Article 45.17, Code of

2-56     Criminal Procedure.

2-57           (c)  Pleadings must be in writing and must be filed with the

2-58     municipal court clerk.

2-59           Sec. 30.3603.  JURY.  (a)  A person brought before a

2-60     municipal court of record and charged with an offense is entitled

2-61     to be tried by a jury of six persons, unless that right is waived

2-62     according to law.

2-63           (b)  A juror for the court must have the qualifications

2-64     required of jurors by law and must be a resident of the city.

2-65           (c)  A juror is entitled to receive the compensation for each

2-66     day and each fraction of a day in attendance on a municipal court

2-67     of record jury as provided by Chapter 61.

2-68           (d)  The clerk of the court shall establish a fair,

2-69     impartial, and objective juror selection process.

 3-1           Sec. 30.3604.  COURT RULES.  (a)  Except as modified by this

 3-2     subchapter, the Code of Criminal Procedure as applied to county

 3-3     courts at law governs the trial of cases before municipal courts of

 3-4     record.

 3-5           (b)  Bonds must be payable to the state for the use and

 3-6     benefit of the city.  The court may not assess court costs other

 3-7     than warrant fees, capias fees, and other fees authorized for

 3-8     municipal courts of record.

 3-9           (c)  A peace officer may serve a process issued by a

3-10     municipal court of record.

3-11           (d)  A conviction, judgment, and sentence are in the name of

3-12     the state, and the state recovers from the defendant the fine and

3-13     fees for the use and benefit of the city.

3-14           (e)  Fines, fees, costs, and bonds shall be paid to the clerk

3-15     of the court, who shall deposit them in the city general fund.

3-16           SECTION 9.  Section 30.361, Government Code, is amended to

3-17     read as follows:

3-18           Sec. 30.361.  APPELLATE COURTS.  (a)  A defendant has the

3-19     right of appeal from a judgment of conviction in a municipal court

3-20     of record under the procedures prescribed by this subchapter.  The

3-21     state has the right to an appeal as provided by Article 44.01, Code

3-22     of Criminal Procedure, and for purposes of that appeal, the

3-23     prosecuting attorney is the city attorney or an assistant or deputy

3-24     city attorney.

3-25           [(b)]  The [county court and a county court at law of] Ector

3-26     County courts at law shall be initial courts of review for

3-27     appellate review of cases from a municipal court of record and

3-28     shall hear all appeals except in cases in which the county courts

3-29     do not have jurisdiction of an appeal [appeals from a municipal

3-30     court of record.  The county court's jurisdiction under this

3-31     subsection is limited to the jurisdiction it has of appeals] from a

3-32     justice court, in which case the appeal shall be heard by the court

3-33     that has jurisdiction of an appeal from the justice court.

3-34           (b)  The appellate court shall determine each appeal from a

3-35     municipal court of record conviction on the basis of the errors

3-36     that are set forth in the defendant's motion for new trial and that

3-37     are presented in the transcript and statement of facts prepared

3-38     from the proceedings leading to the conviction.  An appeal from a

3-39     municipal court of record may not be by trial de novo.

3-40           [(c)  Appeals from convictions of the municipal courts that

3-41     are not of record are de novo.  This subchapter does not affect the

3-42     procedure for an appeal from a municipal court that is not of

3-43     record.]

3-44           SECTION 10.  Section 30.362, Government Code, is amended to

3-45     read as follows:

3-46           Sec. 30.362.  APPEAL BOND [ON RECORD].  (a)  The defendant

3-47     may not take an appeal until the defendant files an appeal bond

3-48     with the municipal court of record.  The bond must be approved by

3-49     the court and must be filed not later than the 10th day after the

3-50     date on which the motion for new trial is overruled.

3-51           (b)  The appeal bond must be in the amount of $50 or double

3-52     the amount of fines and costs adjudged against the defendant,

3-53     whichever is greater.  The bond must be payable to the state for

3-54     the use and benefit of the city and must be conditioned on the

3-55     defendant's immediate and personal appearance in the court to which

3-56     the appeal is taken  [An appeal from a municipal court of record

3-57     conviction is determined by the appellate court solely on the basis

3-58     of errors presented in the transcript and statement of facts

3-59     prepared from the municipal court of record proceedings].

3-60           SECTION 11.  Section 30.363, Government Code, is amended to

3-61     read as follows:

3-62           Sec. 30.363.  PERFECTING APPEAL.  (a)  To perfect an appeal,

3-63     the defendant or state must file a motion for new trial not later

3-64     than the 10th day after the date on which the judgment and sentence

3-65     are rendered [give notice of the appeal].  The motion constitutes

3-66     the assignments of error on appeal.  A ground or error not set

3-67     forth in the motion is waived.  If the court does not act on the

3-68     motion before the expiration of 30 days after it is filed with the

3-69     clerk, the motion is overruled by operation of law [The notice of

 4-1     appeal may be given orally in open court, or it may be given in

 4-2     writing and filed with the municipal court of record.  The notice

 4-3     is sufficient if it shows the desire of the defendant to appeal

 4-4     from the municipal court of record conviction].

 4-5           (b)  After an order overruling a motion for new trial, the

 4-6     defendant or state shall give written notice of appeal and pay the

 4-7     transcript preparation fee not later than the 10th day after the

 4-8     date on which the motion is overruled.  The governing body by

 4-9     ordinance may provide for a reasonable transcript preparation fee

4-10     not to exceed $25.  The clerk shall note the payment of the fee on

4-11     the docket of the court  [Notice of appeal must be given or filed:]

4-12                 [(1)  not later than the 10th day after the date on

4-13     which a motion for new trial is overruled, if a motion is made; or]

4-14                 [(2)  not later than the 10th day after the date on

4-15     which judgment is rendered, whether or not the punishment is

4-16     suspended by an order of probation].

4-17           (c)  The city attorney or the assistant or deputy city

4-18     attorney shall prosecute all appeals from the municipal courts of

4-19     record [A motion for new trial must be made not later than the

4-20     fifth day after the date on which judgment is rendered.  If no

4-21     ruling is made, the motion is overruled by operation of law at the

4-22     expiration of the 10th day after its filing date].

4-23           SECTION 12.  Section 30.364, Government Code, is amended to

4-24     read as follows:

4-25           Sec. 30.364.  RECORD ON APPEAL.  The record on appeal

4-26     consists of a transcript and, if necessary to the appeal, a

4-27     statement of facts.  The court reporter shall prepare the record

4-28     from the reporter's record or mechanical recordings of the

4-29     proceedings.  The appellant shall pay for the cost of the

4-30     transcription.  If the appellant is the defendant and the case is

4-31     reversed on appeal, the court shall promptly refund the cost to the

4-32     defendant.

4-33           SECTION 13.  Section 30.365, Government Code, is amended to

4-34     read as follows:

4-35           Sec. 30.365.  [CONTENTS OF] TRANSCRIPT.  (a)  The [On written

4-36     instructions from the defendant or the defendant's attorney, the

4-37     municipal] clerk of the municipal court of record shall prepare

4-38     under the clerk's [his] hand and seal of the court a transcript of

4-39     the municipal court of record proceedings after payment of the

4-40     transcript preparation fee required by Section 30.363.  The clerk

4-41     shall prepare the transcript under written instructions from the

4-42     appellant or appellant's attorney.  Unless otherwise agreed by the

4-43     parties in writing, the [The] transcript must include copies 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 appellant or appellant's attorney shall file a copy

4-63     of the written instructions with the clerk and shall deliver a copy

4-64     to the appellee or appellee's attorney.

4-65           (c)  The appellee or appellee's attorney shall file a written

4-66     direction to the [The] clerk if [may include in the transcript]

4-67     additional portions of the trial proceedings in the transcript are

4-68     to be included [court if so instructed in writing by either party].

4-69           SECTION 14.  Section 30.367(a), Government Code, is amended

 5-1     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 OF RECORD; FEE [FILING OF RECORD].

5-18     The parties must file the transcript and the statement of facts

5-19     with the clerk of the municipal court of record not [(a)  Not]

5-20     later than the 60th day after the date on which the transcript

5-21     preparation fee was paid.  The clerk shall promptly forward them to

5-22     the appellate court clerk [the notice of appeal is given or filed,

5-23     the parties must file with the clerk of the municipal court of

5-24     record:]

5-25                 [(1)  the statement of facts;]

5-26                 [(2)  a written designation of material to be included

5-27     in the transcript in addition to the material required under

5-28     Section 30.365(a); and]

5-29                 [(3)  any matter to be included in the transcript that

5-30     is not in the custody of the clerk.]

5-31           [(b)  The municipal judge may for good cause extend the time

5-32     for filing.]

5-33           [(c)  On completion of the record, the clerk shall notify the

5-34     parties and the municipal judge shall approve the record in the

5-35     manner provided by the Code of Criminal Procedure, 1965, for record

5-36     completion notification and approval in the court of appeals.]

5-37           [(d)  After the court approves the record, the clerk shall

5-38     promptly send it to the appellate court clerk for filing].

5-39           SECTION 16.  Section 30.369, Government Code, is amended to

5-40     read as follows:

5-41           Sec. 30.369.  BRIEF ON APPEAL.  (a)  [A defendant's brief on

5-42     appeal from a municipal court of record must present points of

5-43     error in the manner required by the Code of Criminal Procedure,

5-44     1965, for a brief on appeal to the court of criminal appeals.]

5-45           [(b)]  The appellant [defendant] must file a [the] brief on

5-46     appeal with the appellate court clerk not later than the 30th

5-47     [15th] day after the date on which the transcript and statement of

5-48     facts are filed with that [the appellate court] clerk.

5-49           (b) [(c)]  The appellee [prosecuting attorney] must file the

5-50     appellee's brief with the appellate court clerk not later than the

5-51     30th [15th] day after the date on which the appellant's [defendant

5-52     files his] brief is filed [with the clerk].

5-53           (c)  To avoid unnecessary delay, the record and briefs on

5-54     appeal shall be limited as far as possible to the questions relied

5-55     on for reversal.

5-56           (d)  On filing, each party shall deliver a copy of the brief

5-57     to the [opposing party or the] opposing party's attorney.

5-58           [(e)  The appellate court may in its discretion extend the

5-59     times for filing briefs.]

5-60           SECTION 17.  Section 30.370, Government Code, is amended to

5-61     read as follows:

5-62           Sec. 30.370.  PROCEDURE ON APPEAL.  [(a)]  The appellate

5-63     court shall hear [and determine] an appeal from a municipal court

5-64     of record at the earliest possible time with due regard to the

5-65     rights of parties and the proper administration of justice.  [The

5-66     court may not affirm or reverse a case based on mere technicalities

5-67     or on technical errors in the presentation and filing of the record

5-68     on appeal.]  The court may determine the rules for oral argument.

5-69     The parties may submit the case on the records and briefs without

 6-1     oral arguments.

 6-2           [(b)  The appellate court shall review all grounds of error

 6-3     and arguments urged in the defendant's brief on appeal and may

 6-4     review any unassigned error in the interest of justice.]

 6-5           SECTION 18.  Section 30.371(c), Government Code, is amended

 6-6     to read as follows:

 6-7           (c)  In each case decided by the appellate court, the court

 6-8     shall deliver a written opinion or order [either] sustaining or

 6-9     overruling each assignment of error presented.  If an assignment of

6-10     error is overruled, no reason need be given by the appellate court,

6-11     but cases relied upon by the court may be cited.  If an assignment

6-12     of error is sustained, the appellate court shall set forth the

6-13     reasons for the decision.  The appellate court clerk shall mail

6-14     copies of the appellate court decision to the parties and to the

6-15     municipal judge as soon as the decision is rendered.

6-16           SECTION 19.  Section 30.372, Government Code, is amended to

6-17     read as follows:

6-18           Sec. 30.372.  CERTIFICATE OF APPELLATE PROCEEDINGS.  When the

6-19     judgment of the appellate court becomes final, the clerk of that

6-20     court shall certify the proceedings and the judgment and shall mail

6-21     the certificate to the clerk of the municipal court of record.

6-22     When the clerk of the municipal court of record receives the

6-23     record, the [The municipal] clerk shall file the record and

6-24     certificate with the papers [records] in the case and note the

6-25     filing [certificate] on the docket.  If the municipal court of

6-26     record's judgment is affirmed, further action to enforce the

6-27     judgment is not necessary except to:

6-28                 (1)  forfeit the bond of the defendant; [or]

6-29                 (2)  issue a writ of capias for the defendant; or

6-30                 (3)  issue an execution against the defendant's

6-31     property.

6-32           SECTION 20.  Section 30.374, Government Code, is amended to

6-33     read as follows:

6-34           Sec. 30.374.  APPEALS TO COURT OF APPEALS.  An appeal of a

6-35     [Appeals to the court of appeals from the] decision of the

6-36     appellate court to the court of appeals is[, if permitted by law,

6-37     are] governed by the [provisions of the] Code of Criminal

6-38     Procedure, [1965, relating to direct appeals from a county or a

6-39     district court to the court of appeals,] except that[:]

6-40                 [(1)]  the transcript, [record and] briefs, and

6-41     statement of facts filed [on appeal] in the appellate court

6-42     constitute the transcript, [record and] briefs, and statement of

6-43     facts on appeal to the court of appeals unless the rules of the

6-44     court of criminal appeals provide otherwise[; and]

6-45                 [(2)  the record and briefs shall be filed directly

6-46     with the court of appeals].

6-47           SECTION 21.  Sections 30.352(c) and 30.366, Government Code,

6-48     are repealed.

6-49           SECTION 22.  This Act takes effect September 1, 1997.

6-50           SECTION 23.  The importance of this legislation and the

6-51     crowded condition of the calendars in both houses create an

6-52     emergency and an imperative public necessity that the

6-53     constitutional rule requiring bills to be read on three several

6-54     days in each house be suspended, and this rule is hereby suspended.

6-55                                  * * * * *