1-1     By:  Driver (Senate Sponsor - Carona)                 H.B. No. 3542

 1-2           (In the Senate - Received from the House May 8, 1997;

 1-3     May 9, 1997, read first time and referred to Committee on

 1-4     Jurisprudence; May 15, 1997, reported favorably by the following

 1-5     vote:  Yeas 6, Nays 0; May 15, 1997, sent to printer.)

 1-6                            A BILL TO BE ENTITLED

 1-7                                   AN ACT

 1-8     relating to the creation of municipal courts of record for the City

 1-9     of Rowlett.

1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-11           SECTION 1.  Chapter 30, Government Code, is amended by adding

1-12     Subchapter HH to read as follows:

1-13                           SUBCHAPTER HH.  ROWLETT

1-14           Sec. 30.01291.  APPLICATION.  This subchapter applies to the

1-15     City of Rowlett.

1-16           Sec. 30.01292.  CREATION.  (a)  The governing body of the

1-17     city may by ordinance create a municipal court of record if it

1-18     determines that the formation of the court is necessary to provide

1-19     a more efficient disposition of cases arising in the city.  The

1-20     governing body may by ordinance determine the number of municipal

1-21     courts of record that are required to dispose of the cases and may

1-22     establish as many as are needed.  The ordinance establishing the

1-23     courts shall give each court a numerical designation, beginning

1-24     with "Municipal Court of Record No. 1."

1-25           (b)  A municipal court of record may not exist concurrently

1-26     with municipal courts that are not courts of record in the city.

1-27           (c)  A municipal court of record has no terms and may sit at

1-28     any time for the transaction of the business of the court.

1-29           Sec. 30.01293.  APPLICATION OF OTHER LAWS.  The general law

1-30     regarding municipal courts, the general law regarding justice

1-31     courts on matters not covered by the law regarding municipal

1-32     courts, and any charter provision or ordinance of the city relating

1-33     to the municipal court apply to a municipal court of record unless

1-34     the law, charter provision, or ordinance is in conflict or

1-35     inconsistent with this subchapter.

1-36           Sec. 30.01294.  JUDGE.  (a)  A municipal court of record is

1-37     presided over by a municipal judge.

1-38           (b)  If there is more than one municipal judge in the city,

1-39     the governing body of the city shall appoint one of the judges to

1-40     be the chief judge.

1-41           (c)  A municipal judge, including the chief judge, is

1-42     appointed by the governing body of the city for a term of two

1-43     years.

1-44           (d)  A municipal judge must be a licensed attorney in good

1-45     standing in this state and must have two or more years of

1-46     experience in the practice of law in this state.  The judge must be

1-47     a citizen of the United States and of this state.  The judge shall

1-48     devote as much time to the office as it requires.

1-49           (e)  If there is more than one municipal court of record in

1-50     the city, the judges may exchange benches and may sit and act for

1-51     each other in any proceeding pending in the courts.  An act

1-52     performed by any of the judges is binding on all parties to the

1-53     proceeding.

1-54           (f)  A municipal judge is entitled to a salary from the city,

1-55     the amount of which is determined by the governing body of the city

1-56     and may not be diminished during the judge's term of office.  The

1-57     salary may not be based directly or indirectly on fines, fees, or

1-58     costs collected by the court.

1-59           (g)  A municipal judge may be removed from office by the

1-60     governing body of the city at any time for incompetence,

1-61     misconduct, malfeasance, or disability.

1-62           (h)  A municipal judge shall take judicial notice of the city

1-63     ordinances and the corporate limits of the city in a case tried

1-64     before a municipal court of record.  A municipal judge may grant

 2-1     writs of mandamus, injunction, and attachment and other writs

 2-2     necessary to the enforcement of the jurisdiction of the court and

 2-3     may issue writs of habeas corpus in cases in which the offense

 2-4     charged is within the jurisdiction of the court.

 2-5           (i)  The governing body of the city shall appoint a qualified

 2-6     person to fill a vacancy in the office of municipal judge.

 2-7           (j)  The governing body of the city may appoint one or more

 2-8     qualified persons to be available to serve for a municipal judge

 2-9     who is temporarily absent due to illness, family death, or

2-10     continuing legal or judicial education programs or for any other

2-11     reason.  The chief judge or the municipal judge if there is no

2-12     chief judge shall select one of the persons appointed by the

2-13     governing body of the city to serve during an absence.  An

2-14     alternate judge, while serving, has all the powers and shall

2-15     discharge all the duties of a municipal judge.  An alternate judge

2-16     must have the same qualifications as a municipal judge.

2-17           Sec. 30.01295.  CLERK; OTHER PERSONNEL.  The city manager of

2-18     the city shall appoint a clerk of the municipal court of record who

2-19     may hire, direct, and remove the personnel authorized in the city's

2-20     annual budget for the clerk's office.  The clerk or the clerk's

2-21     deputies shall keep the records of the municipal courts of record,

2-22     issue process, and generally perform the duties for the courts that

2-23     a clerk of the county court exercising criminal jurisdiction is

2-24     required by law to perform for that court.  The clerk shall perform

2-25     the duties in accordance with statutes, the city charter, and city

2-26     ordinances.

2-27           Sec. 30.01296.  COURT REPORTER.  (a)  Instead of being

2-28     recorded by a court reporter, trial proceedings in a municipal

2-29     court of record, when requested as provided by this section, shall

2-30     be recorded by a good quality electronic audio recording device or

2-31     videotape recording device.

2-32           (b)  A municipal court of record is not required to record

2-33     testimony in a case unless the judge or one of the parties requests

2-34     a record.  A party's request for a record must be in writing and be

2-35     filed with the court at least three days before trial.

2-36           (c)  The recording shall be kept and stored for a 20-day

2-37     period beginning the day after the last day of the proceeding,

2-38     trial, or denial of motion for new trial, whichever occurs last.

2-39     The proceedings that are appealed shall be transcribed from the

2-40     recording by a court reporter provided by the city.

2-41           (d)  All fees for preparation of a record for purposes of

2-42     appeal shall be paid before the preparation of the record by the

2-43     court reporter.  An extension of time for the appeal may not be

2-44     granted due to a party's failure to timely pay the fees.

2-45           Sec. 30.01297.  PROSECUTIONS BY CITY ATTORNEY.  All

2-46     prosecutions in a municipal court of record must be conducted by

2-47     the city attorney or an assistant or deputy city attorney.

2-48           Sec. 30.01298.  JURY.  (a)  A person who is brought before a

2-49     municipal court of record and who is charged with an offense is

2-50     entitled to be tried by a jury of six persons unless that right is

2-51     waived according to law.  The jury shall decide all questions of

2-52     fact or credibility of witnesses.  The court shall determine all

2-53     matters of law and shall charge the jury on the law.

2-54           (b)  A juror who serves in a municipal court of record must

2-55     meet the qualifications provided by Chapter 62.

2-56           Sec. 30.01299.  APPEAL.  (a)  A defendant has the right of

2-57     appeal from a judgment or conviction in a municipal court of record

2-58     as provided by this subchapter.  The county criminal courts of

2-59     Dallas County have jurisdiction over an appeal.  The state has no

2-60     right to an appeal or to a new trial.

2-61           (b)  The appellate court shall determine each appeal from a

2-62     municipal court of record conviction on the basis of the errors

2-63     that are set forth in the defendant's motion for new trial and that

2-64     are presented in the transcript and statement of facts prepared

2-65     from the proceedings leading to the conviction.  An appeal from the

2-66     municipal court of record may not be by trial de novo.

2-67           (c)  To perfect an appeal, the defendant must file with the

2-68     municipal court clerk a written motion for new trial not later than

2-69     the 10th day after the date on which judgment is rendered. The

 3-1     motion must set forth the points of error of which the defendant

 3-2     complains.  The motion or an amended motion may be amended by leave

 3-3     of court at any time before action on the motion is taken, but not

 3-4     later than the 20th day after the date on which the original or

 3-5     amended motion is filed.  The court may for good cause extend the

 3-6     time for filing or amending, but the extension may not exceed 90

 3-7     days from the original filing deadline.  If the court does not act

 3-8     on the motion before the expiration of the 30 days allowed for

 3-9     determination of the motion, the original or amended motion is

3-10     overruled by operation of law.

3-11           (d)  To perfect an appeal, the defendant must also give

3-12     notice of the appeal.  If the defendant requests a hearing on the

3-13     motion for new trial, the defendant may give the notice of appeal

3-14     orally in open court on the overruling of the motion.  If there is

3-15     no hearing, the defendant must give written notice of appeal and

3-16     must file the notice with the court not later than the 10th day

3-17     after the date on which the motion is overruled.  The court may for

3-18     good cause extend that time period, but the extension may not

3-19     exceed 90 days from the original filing deadline.

3-20           Sec. 30.01300.  APPEAL BOND.  (a)  If the defendant is not in

3-21     custody, the defendant may not take an appeal until the defendant

3-22     files an appeal bond with the municipal court of record.  The bond

3-23     must be approved by the court and must be filed not later than the

3-24     10th day after the date on which the motion for new trial is

3-25     overruled.  If the defendant is in custody, the defendant shall be

3-26     committed to jail unless the defendant posts the appeal bond.

3-27           (b)  The appeal bond must be in the amount of $60 or double

3-28     the amount of the fine and costs adjudged against the defendant,

3-29     whichever is greater. The bond must state that the defendant was

3-30     convicted in the case and has appealed, must be payable to the

3-31     state for the use and benefit of the city, and must be conditioned

3-32     on the defendant's appearance in the court to which the appeal is

3-33     taken.

3-34           Sec. 30.01301.  RECORD ON APPEAL.  The record on appeal

3-35     consists of a transcript and, if necessary to the appeal, a

3-36     statement of facts.  The clerk of the court shall prepare the

3-37     record from the mechanical, audio, or videotape recording of the

3-38     proceedings.  The defendant shall pay for the cost of the

3-39     transcription.  If the court finds that the defendant is unable to

3-40     pay or give security for the record on appeal after a hearing in

3-41     response to an affidavit by the defendant, the court shall order

3-42     the clerk to prepare the record without charge to the defendant.

3-43     If the case is reversed on appeal, the court shall promptly refund

3-44     the cost to the defendant.

3-45           Sec. 30.01302.  TRANSCRIPT.  On the written request of the

3-46     defendant or the defendant's attorney, the municipal court clerk

3-47     shall prepare under the clerk's hand and seal a transcript of the

3-48     municipal court of record proceedings.  The transcript must include

3-49     copies of:

3-50                 (1)  the complaint;

3-51                 (2)  material docket entries made by the court;

3-52                 (3)  the jury charge and verdict in a jury trial;

3-53                 (4)  the judgment;

3-54                 (5)  the motion for new trial;

3-55                 (6)  the notice of appeal;

3-56                 (7)  written motions and pleas;

3-57                 (8)  written orders of the court;

3-58                 (9)  any bills of exception filed with the court;

3-59                 (10)  the appeal bond; and

3-60                 (11)  exhibits admitted into evidence.

3-61           Sec. 30.01303.  BILLS OF EXCEPTION.  Either party may include

3-62     bills of exception in the transcript subject to the applicable

3-63     provisions of the Texas Rules of Appellate Procedure.  The bills of

3-64     exception must be filed with the municipal court clerk not later

3-65     than the 60th day after the date on which the notice of appeal is

3-66     given or filed.

3-67           Sec. 30.01304.  STATEMENTS OF FACTS.  A statement of facts

3-68     included in the record on appeal must contain:

3-69                 (1)  a transcript of all or part of the municipal court

 4-1     of record proceedings that occurred before, during, or after the

 4-2     trial, if the transcript is requested by the defendant;

 4-3                 (2)  a brief statement of the facts of the case proved

 4-4     at trial as agreed to by the defendant and the prosecuting

 4-5     attorney;

 4-6                 (3)  a partial transcript and the agreed statement of

 4-7     the facts of the case; or

 4-8                 (4)  a transcript of all or part of the municipal court

 4-9     of record proceedings in the case that is prepared from videotape

4-10     recordings of the proceedings.

4-11           Sec. 30.01305.  COMPLETION, APPROVAL, AND TRANSFER OF RECORD.

4-12     (a)  Not later than the 60th day after the date on which the notice

4-13     of appeal is given or filed, the parties must file with the

4-14     municipal court clerk:

4-15                 (1)  the statement of facts;

4-16                 (2)  a written description of material to be included

4-17     in the transcript in addition to the required material; and

4-18                 (3)  any material to be included in the transcript that

4-19     is not in the custody of the clerk.

4-20           (b)  On completion of the record, the municipal judge shall

4-21     approve the record in the manner provided for record completion,

4-22     approval, and notification in the court of appeals.

4-23           (c)  After the court approves the record, the clerk shall

4-24     promptly send it to the appellate court clerk for filing.  The

4-25     appellate court clerk shall notify the defendant and the

4-26     prosecuting attorney that the record has been filed.

4-27           Sec. 30.01306.  BRIEF ON APPEAL.  (a)  A defendant's brief on

4-28     appeal from a municipal court of record must present points of

4-29     error in the manner required by law for a brief on appeal to the

4-30     court of appeals.

4-31           (b)  The defendant must file the brief with the appellate

4-32     court clerk not later than the 15th day after the date on which the

4-33     transcript and statement of facts are filed with that clerk.  The

4-34     defendant or the defendant's attorney must certify that the brief

4-35     has been properly mailed to the prosecuting attorney.

4-36           (c)  The prosecuting attorney must file the appellee's brief

4-37     with the appellate court clerk not later than the 15th day after

4-38     the date on which the defendant's brief is filed.

4-39           (d)  On filing, each party shall deliver a copy of the brief

4-40     to the opposing party and to the municipal judge.

4-41           Sec. 30.01307.  COURT RULES.  (a)  Except as modified by this

4-42     subchapter, the Code of Criminal Procedure governs the trial of

4-43     cases before a municipal court of record.  The court may make and

4-44     enforce all rules of practice and procedure necessary to expedite

4-45     the trial of cases before the court that are not inconsistent with

4-46     general law.

4-47           (b)  The appellate courts may make and enforce all rules of

4-48     practice and procedure that are not inconsistent with general law

4-49     and that are necessary to expedite the dispatch of appeals from the

4-50     municipal court of record.

4-51           Sec. 30.01308.  DISPOSITION ON APPEAL.  (a)  According to law

4-52     and the nature of the case, the appellate court may:

4-53                 (1)  affirm the judgment of the municipal court of

4-54     record;

4-55                 (2)  reverse and remand for a new trial;

4-56                 (3)  reverse and dismiss the case; or

4-57                 (4)  reform and correct the judgment.

4-58           (b)  Unless the matter was made an issue in the trial court

4-59     or it affirmatively appears to the contrary from the transcript or

4-60     the statement of facts, the appellate court shall presume that:

4-61                 (1)  venue was proved in the trial court;

4-62                 (2)  the jury, if any, was properly impaneled and

4-63     sworn;

4-64                 (3)  the defendant was arraigned and pleaded to the

4-65     complaint; and

4-66                 (4)  the municipal judge certified the charge before it

4-67     was read to the jury.

4-68           (c)  In each case decided by the appellate court, the court

4-69     shall deliver a written opinion or order either sustaining or

 5-1     overruling each assignment of error presented.  The court shall set

 5-2     forth the reasons for its decision.  The appellate court clerk

 5-3     shall mail copies of the decision to the parties and to the

 5-4     municipal judge as soon as the decision is rendered.

 5-5           Sec. 30.01309.  CERTIFICATE OF APPELLATE PROCEEDINGS.  When

 5-6     the judgment of the appellate court becomes final, the clerk of

 5-7     that court shall certify the proceedings and the judgment and shall

 5-8     mail the certificate to the municipal court of record.  The court

 5-9     clerk shall file the certificate with the papers in the case and

5-10     note the certificate on the case docket.  If the municipal court of

5-11     record judgment is affirmed, further action to enforce the judgment

5-12     is not necessary except to:

5-13                 (1)  forfeit the bond of the defendant;

5-14                 (2)  issue a writ of capias for the defendant; or

5-15                 (3)  issue an execution against the defendant's

5-16     property.

5-17           Sec. 30.01310.  EFFECT OF ORDER OF NEW TRIAL.  If the

5-18     appellate court awards a new trial to the defendant, the case

5-19     stands as if a new trial had been granted by the municipal court of

5-20     record.

5-21           Sec. 30.01311.  APPEAL TO COURT OF APPEALS.  The defendant

5-22     has the right to appeal to the court of appeals if the fine

5-23     assessed against the defendant exceeds $100 and if the judgment is

5-24     affirmed by the appellate court.  The provisions of the Code of

5-25     Criminal Procedure relating to direct appeals from a county or a

5-26     district court to the court of appeals apply to the appeal, except

5-27     that:

5-28                 (1)  the record and briefs on appeal in the appellate

5-29     court constitute the record and briefs on appeal to the court of

5-30     appeals unless the rules of the court of criminal appeals provide

5-31     otherwise; and

5-32                 (2)  the record and briefs shall be filed directly with

5-33     the court of appeals.

5-34           SECTION 2.  The importance of this legislation and the

5-35     crowded condition of the calendars in both houses create an

5-36     emergency and an imperative public necessity that the

5-37     constitutional rule requiring bills to be read on three several

5-38     days in each house be suspended, and this rule is hereby suspended,

5-39     and that this Act take effect and be in force from and after its

5-40     passage, and it is so enacted.

5-41                                  * * * * *