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 * * * * *