1-1 By: Nelson S.B. No. 400 1-2 (In the Senate - Filed January 30, 1997; February 4, 1997, 1-3 read first time and referred to Committee on Jurisprudence; 1-4 February 25, 1997, reported favorably by the following vote: Yeas 1-5 6, Nays 0; February 25, 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 in the City 1-9 of Lewisville. 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 II to read as follows: 1-13 SUBCHAPTER II. LEWISVILLE 1-14 Sec. 30.01321. APPLICATION. This subchapter applies to the 1-15 City of Lewisville. 1-16 Sec. 30.01322. 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) On creation of the initial municipal court of record, 1-26 the governing body of the city shall determine the method of 1-27 selecting the judge of a municipal court of record by: 1-28 (1) adopting an ordinance that provides for the 1-29 appointment of a municipal judge by the governing body of the city; 1-30 (2) adopting an ordinance that provides for the 1-31 election of a municipal judge by the qualified voters of the city; 1-32 or 1-33 (3) ordering an election in which the qualified voters 1-34 of the city determine whether a municipal judge is appointed by the 1-35 governing body of the city or elected. 1-36 (c) A municipal court of record may not exist concurrently 1-37 with municipal courts that are not courts of record in the city. 1-38 (d) A municipal court of record has no terms and may sit at 1-39 any time for the transaction of the business of the court. 1-40 Sec. 30.01323. JURISDICTION. (a) A municipal court of 1-41 record created under this subchapter has jurisdiction within the 1-42 territorial limits of the city in all criminal cases arising under 1-43 the ordinances of the city. 1-44 (b) The court has concurrent jurisdiction with a justice of 1-45 the peace in any precinct in which the city is located in criminal 1-46 cases within the justice court jurisdiction that: 1-47 (1) arise within the territorial limits of the city; 1-48 and 1-49 (2) are punishable by fine only. 1-50 (c) The court has jurisdiction over cases arising outside 1-51 the territorial limits of the city under ordinances authorized by 1-52 Section 215.072, 217.042, 341.903, or 401.002, Local Government 1-53 Code. 1-54 Sec. 30.01324. WRIT POWER. The judge of a municipal court 1-55 of record created under this subchapter may grant writs of 1-56 mandamus, injunction, attachment, and other writs necessary to the 1-57 enforcement of the jurisdiction of the court and may issue writs of 1-58 habeas corpus in cases in which the offense charged is within the 1-59 jurisdiction of the court. A municipal judge may issue 1-60 administrative search warrants. 1-61 Sec. 30.01325. APPLICATION OF OTHER LAWS. The general law 1-62 regarding municipal courts, the general law regarding justice 1-63 courts on matters not covered by the law regarding municipal 1-64 courts, and any charter provision or ordinance of the city relating 2-1 to the municipal court apply to a municipal court of record unless 2-2 the law, charter provision, or ordinance is in conflict or 2-3 inconsistent with this subchapter. 2-4 Sec. 30.01326. JUDGE. (a) A municipal court of record is 2-5 presided over by a municipal judge. 2-6 (b) If more than one municipal judge is elected or appointed 2-7 in the city, the governing body of the city shall appoint one of 2-8 the judges to be the chief judge. 2-9 (c) A municipal judge, including the chief judge, is 2-10 appointed or elected for a term of two years. 2-11 (d) A municipal judge must be a licensed attorney in good 2-12 standing in this state and must have two or more years of 2-13 experience in the practice of law in this state. The judge must be 2-14 a citizen of the United States and of this state. The judge shall 2-15 devote as much time to the office as it requires. 2-16 (e) If more than one municipal court of record is created, 2-17 the judges may exchange benches and may sit and act for each other 2-18 in any proceeding pending in the courts. An act performed by any 2-19 of the judges is binding on all parties to the proceeding. 2-20 (f) A municipal judge is entitled to receive a salary from 2-21 the city, the amount of which is determined by the governing body 2-22 of the city and may not be diminished during the judge's term of 2-23 office. The salary may not be based directly or indirectly on 2-24 fines, fees, or costs collected by the court. 2-25 Sec. 30.01327. VACANCIES; TEMPORARY REPLACEMENT; REMOVAL. 2-26 (a) If a vacancy occurs in the office of municipal judge, the 2-27 governing body of the city shall appoint a qualified person to fill 2-28 the office for the remainder of the unexpired term. 2-29 (b) The governing body may appoint one or more qualified 2-30 persons to be available to serve for a municipal judge who is 2-31 temporarily absent due to illness, family death, continuing legal 2-32 or judicial education programs, or any other reason. The chief 2-33 judge, or the municipal judge if there is not a chief judge, shall 2-34 select one of the persons appointed by the governing body to serve 2-35 during an absence. An alternate judge, while serving, has all the 2-36 powers and shall discharge all the duties of a municipal judge. An 2-37 alternate judge must have the same qualifications as a municipal 2-38 judge. 2-39 (c) A municipal judge may be removed from office by the 2-40 governing body of the city at any time for incompetency, 2-41 misconduct, malfeasance, or disability. 2-42 Sec. 30.01328. CLERK; OTHER PERSONNEL. (a) The city 2-43 manager of the city shall appoint a clerk of the municipal court of 2-44 record who shall be known as the "Lewisville Municipal Court 2-45 Clerk." 2-46 (b) The clerk may hire, direct, and remove the personnel 2-47 authorized in the city's annual budget for the clerk's office. 2-48 (c) The clerk or the clerk's deputies shall keep the records 2-49 of the municipal courts of record, issue process, and generally 2-50 perform the duties for the courts that a clerk of the county court 2-51 exercising criminal jurisdiction is required by law to perform for 2-52 that court. The clerk shall perform the duties in accordance with 2-53 statutes, the city charter, and city ordinances. 2-54 Sec. 30.01329. COURT REPORTER. (a) The city shall provide 2-55 a court reporter for the purpose of preserving a record in cases 2-56 tried before the municipal court of record. The clerk of the court 2-57 shall appoint the court reporter, who must meet the qualifications 2-58 provided by law for official court reporters. The reporter shall 2-59 be compensated by the city in the manner determined by the 2-60 governing body of the city. 2-61 (b) The court reporter may use written notes, transcribing 2-62 equipment, video or audio recording equipment, or a combination of 2-63 those methods to record the proceedings of the court. 2-64 (c) The court reporter is not required to record testimony 2-65 in a case unless the judge or one of the parties requests a record. 2-66 A party's request for a record must be in writing and be filed with 2-67 the court before trial or any hearing. 2-68 (d) The governing body of the city may provide that, in lieu 2-69 of the city providing a court reporter at trial, proceedings in a 3-1 municipal court of record may be recorded by a good quality 3-2 electronic recording device. If the governing body authorizes the 3-3 electronic recording, the court reporter need not be present at 3-4 trial to record the proceedings or to certify the statement of 3-5 facts. The recording shall be kept and stored for the 20-day 3-6 period beginning the day after the last day of the proceeding, 3-7 trial, or denial of motion for new trial, whichever occurs last. 3-8 The proceedings that are appealed shall be transcribed from the 3-9 recording by an official court reporter, clerk of court, deputy 3-10 clerk of court, or a notary public. 3-11 (e) The court reporter shall certify the official record. 3-12 Sec. 30.01330. PROSECUTIONS BY CITY ATTORNEY. All 3-13 prosecutions in the municipal court of record must be conducted by 3-14 the city attorney or an assistant or deputy city attorney. 3-15 Sec. 30.01331. COMPLAINT; PLEADING. (a) A proceeding in a 3-16 municipal court of record begins with the filing of a complaint. A 3-17 complaint must begin "In the name and by authority of the State of 3-18 Texas" and must conclude "Against the peace and dignity of the 3-19 State." If the offense is only covered by an ordinance, it may 3-20 also conclude "Contrary to said ordinance." 3-21 (b) Complaints must comply with Article 45.17, Code of 3-22 Criminal Procedure. 3-23 (c) Pleadings must be in writing and must be filed with the 3-24 municipal court clerk. 3-25 Sec. 30.01332. JURY. (a) A person who is brought before a 3-26 municipal court of record and who is charged with an offense is 3-27 entitled to be tried by a jury of six persons unless that right is 3-28 waived according to law. The jury shall decide all questions of 3-29 fact or credibility of witnesses. The court shall determine all 3-30 matters of law and shall charge the jury on the law. 3-31 (b) A juror who serves in a municipal court of record must 3-32 have the qualifications required of jurors by law and must be a 3-33 resident of the city. 3-34 (c) A juror is entitled to receive compensation for each day 3-35 and each fraction of a day in attendance on a municipal court of 3-36 record as provided by Chapter 61. 3-37 (d) The municipal court clerk shall establish a fair, 3-38 impartial, and objective juror selection process. 3-39 Sec. 30.01333. COURT RULES. (a) Except as modified by this 3-40 subchapter, the Code of Criminal Procedure as applied to county 3-41 courts at law governs the trial of cases before municipal courts of 3-42 record. 3-43 (b) Bonds must be payable to the state for the use and 3-44 benefit of the city. The court may not assess court costs other 3-45 than warrant fees, capias fees, and other fees authorized for 3-46 municipal courts. 3-47 (c) A peace officer may serve a process issued by a 3-48 municipal court of record. 3-49 (d) Fines, fees, costs, and bonds shall be paid to the 3-50 municipal court clerk, who shall deposit them in the city general 3-51 fund. 3-52 Sec. 30.01334. APPEAL. (a) A defendant has the right of 3-53 appeal from a judgment or conviction in a municipal court of record 3-54 as provided by this subchapter. The state has the right to an 3-55 appeal as provided by Article 44.01, Code of Criminal Procedure. 3-56 The county court of Denton County that has appellate criminal 3-57 jurisdiction shall hear the appeal. 3-58 (b) The appellate court shall determine each appeal from a 3-59 municipal court of record conviction on the basis of the errors 3-60 that are set forth in the defendant's motion for new trial and that 3-61 are presented in the transcript and statement of facts prepared 3-62 from the proceedings leading to the conviction. An appeal from the 3-63 municipal court of record may not be by trial de novo. 3-64 (c) To perfect an appeal, the defendant must file with the 3-65 municipal court clerk a written motion for new trial not later than 3-66 the 10th day after the date on which the judgment and sentence are 3-67 rendered. The motion must set forth the points of error of which 3-68 the defendant complains. The motion constitutes the assignment of 3-69 the error in appeal. A ground or an error not set forth in the 4-1 motion is waived. If the court does not act on the motion before 4-2 the expiration of 30 days after the judgment and sentence is 4-3 rendered by the court, the motion is overruled by operation of law. 4-4 (d) After an order overruling a motion for new trial, the 4-5 defendant shall give written notice of appeal and pay the 4-6 transcript preparation fee not later than the 10th day after the 4-7 date on which the motion is overruled. The governing body shall 4-8 set a reasonable transcript preparation fee. The clerk shall note 4-9 the payment of the fee on the docket of the court. If the case is 4-10 reversed on appeal, the fee shall be refunded to the defendant. 4-11 (e) The city attorney or the assistant or deputy city 4-12 attorney shall prosecute all appeals from the municipal courts of 4-13 record. 4-14 Sec. 30.01335. APPEAL BOND; RECORD ON APPEAL. (a) If the 4-15 defendant is not in custody, the defendant may not take an appeal 4-16 until the defendant files an appeal bond with the municipal court 4-17 of record. The bond must be approved by the court and must be 4-18 filed not later than the 10th day after the date on which the 4-19 motion for new trial is overruled. If the defendant is in custody, 4-20 the defendant shall be committed to jail unless the defendant posts 4-21 the appeal bond. 4-22 (b) The appeal bond must be in the amount of $50 or double 4-23 the amount of the fine and costs adjudged against the defendant, 4-24 whichever is greater. The bond must: 4-25 (1) state that the defendant was convicted in the case 4-26 and has appealed; 4-27 (2) be payable to the state for the use and benefit of 4-28 the city; and 4-29 (3) be conditioned on the defendant's appearance in 4-30 the court to which the appeal is taken. 4-31 (c) The record on appeal consists of a transcript and, if 4-32 necessary to the appeal, a statement of facts. The court reporter 4-33 shall prepare the record from the reporter's record or mechanical, 4-34 audiotape, or videotape recordings of the proceedings. The 4-35 defendant shall pay for the cost of the transcription and statement 4-36 of facts. If the case is reversed on appeal, the court shall 4-37 promptly refund the cost to the defendant. If the court finds that 4-38 the defendant is unable to pay or give security for the record on 4-39 appeal after a hearing in response to an affidavit by the 4-40 defendant, the court shall order the reporter to prepare the record 4-41 without charge to the defendant. 4-42 Sec. 30.01336. TRANSCRIPT. (a) On the written request of 4-43 the defendant or the defendant's attorney, the municipal court 4-44 clerk shall prepare, under the clerk's hand and seal of the court, 4-45 a transcript of the municipal court of record proceedings, after 4-46 payment of the transcript preparation fee. The clerk shall prepare 4-47 the transcript under written instructions from the defendant or 4-48 defendant's attorney. 4-49 (b) Unless otherwise agreed by the parties in writing, the 4-50 transcript must include a copy of: 4-51 (1) the complaint; 4-52 (2) court orders on any motions or exceptions; 4-53 (3) the judgment; 4-54 (4) the verdict of the jury; 4-55 (5) any findings of fact or conclusions of law made by 4-56 the court; 4-57 (6) the motion for new trial and the order of the 4-58 court on the motion; 4-59 (7) the notice of appeal; 4-60 (8) any statement of the parties regarding material to 4-61 be included in the record; 4-62 (9) the appeal bond; and 4-63 (10) any signed paper designated as material by either 4-64 party. 4-65 (c) The defendant or the defendant's attorney shall file a 4-66 copy of the written instructions with the clerk and shall deliver a 4-67 copy to the city attorney. 4-68 (d) The city attorney shall file a written direction to the 4-69 clerk if additional portions of the trial proceedings in the 5-1 transcript are to be included. 5-2 Sec. 30.01337. BILLS OF EXCEPTION. Either party may include 5-3 bills of exception in the transcript subject to the applicable 5-4 provisions of the Texas Rules of Appellate Procedure. The bills of 5-5 exception must be filed with the municipal court clerk not later 5-6 than the 60th day after the date on which the notice of appeal is 5-7 given or filed. 5-8 Sec. 30.01338. STATEMENT OF FACTS. (a) A statement of 5-9 facts included in the record on appeal must contain: 5-10 (1) a transcript of all or part of the municipal court 5-11 of record proceedings that are shown by the notes of the court 5-12 reporter to have occurred before, during, or after the trial, if 5-13 the transcript is requested by the defendant; 5-14 (2) a brief statement of the facts of the case proven 5-15 at trial as agreed to by the defendant and the prosecuting 5-16 attorney; 5-17 (3) a partial transcript and the agreed statement of 5-18 the facts of the case; or 5-19 (4) a transcript of all or part of the municipal court 5-20 of record proceedings in the case that is prepared from mechanical, 5-21 audiotape, or videotape recordings of the proceedings. 5-22 (b) The court reporter shall transcribe in duplicate any 5-23 portion of the recorded proceedings or the notes of the court 5-24 proceedings in the case at the request of either party or the 5-25 municipal judge. The defendant shall pay for the transcription 5-26 unless the court finds, after hearing in response to an affidavit 5-27 by the defendant, that the defendant is unable to pay or give 5-28 security for the transcription. On certification by the court that 5-29 the court reporter has rendered the service without charge to the 5-30 defendant, the court reporter shall be paid for the services by the 5-31 city. 5-32 Sec. 30.01339. COMPLETION, APPROVAL, AND TRANSFER OF RECORD. 5-33 (a) Not later than the 60th day after the date on which the notice 5-34 of appeal is given or filed, the parties must file with the 5-35 municipal court clerk: 5-36 (1) the statement of facts; 5-37 (2) a written description of material to be included 5-38 in the transcript in addition to the required material; and 5-39 (3) any material to be included in the transcript that 5-40 is not in the custody of the clerk. 5-41 (b) On completion of the record, the municipal judge shall 5-42 approve the record in the manner provided for record completion, 5-43 approval, and notification in the court of appeals. 5-44 (c) After the court approves the record, the clerk shall 5-45 promptly send it to the appellate court clerk for filing. The 5-46 appellate court clerk shall notify the defendant and the 5-47 prosecuting attorney that the record has been filed. 5-48 Sec. 30.01340. BRIEF ON APPEAL. (a) A defendant's brief on 5-49 appeal from a municipal court of record must present points of 5-50 error in the manner required by law for a brief on appeal to the 5-51 court of appeals. 5-52 (b) The defendant must file the brief with the appellate 5-53 court clerk not later than the 15th day after the date on which the 5-54 transcript and statement of facts are filed with that clerk. The 5-55 defendant or the defendant's attorney must certify that the brief 5-56 has been properly mailed to the prosecuting attorney. 5-57 (c) The prosecuting attorney must file the appellate's brief 5-58 with the appellate court clerk not later than the 15th day after 5-59 the date on which the defendant's brief is filed. 5-60 (d) On filing, each party shall deliver a copy of the brief 5-61 to the opposing party and to the municipal judge. 5-62 (e) To avoid unnecessary delay, the record and briefs on 5-63 appeal shall be limited as far as possible to the questions relied 5-64 on for reversal. 5-65 Sec. 30.01341. DISPOSITION ON APPEAL. (a) According to law 5-66 and the nature of the case, the appellate court may: 5-67 (1) affirm the judgment of the municipal court of 5-68 record; 5-69 (2) reverse and remand for a new trial; 6-1 (3) reverse and dismiss the case; or 6-2 (4) reform and correct the judgment. 6-3 (b) Unless the matter was made an issue in the trial court 6-4 or it affirmatively appears to the contrary from the transcript or 6-5 the statement of facts, the appellate court shall presume that: 6-6 (1) venue was proven in the trial court; 6-7 (2) the jury, if any, was properly impaneled and 6-8 sworn; 6-9 (3) the defendant was arraigned and pleaded to the 6-10 complaint; and 6-11 (4) the municipal judge certified the charge and the 6-12 clerk filed the charge before it was read to the jury. 6-13 (c) In each case decided by the appellate court, the court 6-14 shall deliver a written opinion or order either sustaining or 6-15 overruling each assignment of error presented. The court shall 6-16 state the reasons for its decision. The appellate court clerk 6-17 shall mail copies of the decision to the parties and to the 6-18 municipal judge as soon as the decision is rendered. 6-19 Sec. 30.01342. CERTIFICATION OF APPELLATE PROCEEDINGS. When 6-20 the judgment of the appellate court becomes final, the clerk of 6-21 that court shall certify the proceedings and the judgment and shall 6-22 mail the certificate to the municipal court of record. The court 6-23 clerk shall file the certificate with the papers in the case and 6-24 note the certificate on the case docket. If the municipal court of 6-25 record judgment is affirmed, further action to enforce the judgment 6-26 is not necessary except to: 6-27 (1) forfeit the bond of the defendant; 6-28 (2) issue a writ of capias for the defendant; or 6-29 (3) issue an execution against the defendant's 6-30 property. 6-31 Sec. 30.01343. EFFECT OF ORDER OF NEW TRIAL. If the 6-32 appellate court awards a new trial to the defendant, the case 6-33 stands as if a new trial had been granted by the municipal court of 6-34 record. 6-35 Sec. 30.01344. APPEAL TO COURT OF APPEALS. The defendant 6-36 has the right to appeal to the court of appeals if the fine 6-37 assessed against the defendant exceeds $100 and if the judgment is 6-38 affirmed by the appellate court. The provisions of the Code of 6-39 Criminal Procedure relating to direct appeals from a county or a 6-40 district court to the court of appeals apply to the appeal, except 6-41 that: 6-42 (1) the record and briefs on appeal in the appellate 6-43 court constitute the record and briefs on appeal to the court of 6-44 appeals unless the rules of the court of criminal appeals provide 6-45 otherwise; and 6-46 (2) the record and briefs shall be filed directly with 6-47 the court of appeals. 6-48 Sec. 30.01345. SEAL. The governing body of the city shall 6-49 provide each municipal court of record with a seal with a star of 6-50 five points in the center and the words "Municipal Court in 6-51 Lewisville, Texas." The impress of the seal shall be attached to 6-52 all papers, except subpoenas, issued out of the court and shall be 6-53 used by each municipal court judge or the municipal clerk to 6-54 authenticate all official acts of the clerk and the judge. 6-55 SECTION 2. The importance of this legislation and the 6-56 crowded condition of the calendars in both houses create an 6-57 emergency and an imperative public necessity that the 6-58 constitutional rule requiring bills to be read on three several 6-59 days in each house be suspended, and this rule is hereby suspended, 6-60 and that this Act take effect and be in force from and after its 6-61 passage, and it is so enacted. 6-62 * * * * *