By: Cain, Ratliff, Nixon S.B. No. 173
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the creation of municipal courts of record in Tyler.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Chapter 30, Government Code, is amended by adding
1-4 Subchapter NN to read as follows:
1-5 SUBCHAPTER NN. TYLER
1-6 Sec. 30.01511. APPLICATION. This subchapter applies to the
1-7 City of Tyler.
1-8 Sec. 30.01512. CREATION. The governing body of the city may
1-9 by ordinance create a municipal court of record if it determines
1-10 that the formation of the court is necessary to provide a more
1-11 efficient disposition of appeals arising from the municipal court.
1-12 The municipal court of record shall be known as the "City of Tyler
1-13 Municipal Court." The governing body may determine and establish
1-14 the number of municipal courts of record that are required to
1-15 dispose of the cases arising in the city.
1-16 Sec. 30.01513. APPLICATION OF OTHER LAWS. The general law
1-17 regarding municipal courts, the general law regarding justice
1-18 courts on matters not covered by the law regarding municipal
1-19 courts, and any charter provision or ordinance of the city relating
1-20 to the municipal court apply to a municipal court of record unless
1-21 the law, charter provision, or ordinance is in conflict or
1-22 inconsistent with this subchapter.
1-23 Sec. 30.01514. JUDGE. (a) A municipal court of record is
1-24 presided over by a municipal judge appointed to office by the city
2-1 manager in the manner provided by the city charter.
2-2 (b) A municipal judge must be a licensed attorney in good
2-3 standing in this state. The judge must be a citizen of the United
2-4 States and a resident of this state. The judge is not required to
2-5 be a resident of the city.
2-6 (c) A municipal judge shall:
2-7 (1) devote as much time to the office as is necessary;
2-8 and
2-9 (2) take judicial notice of the city ordinances.
2-10 (d) If the city manager appoints more than one municipal
2-11 judge under Subsection (a), the city manager shall appoint one of
2-12 the municipal judges as the presiding municipal judge.
2-13 (e) A municipal judge may exchange benches and may sit and
2-14 act for another municipal judge in any proceeding pending in a
2-15 municipal court. An act performed by a municipal judge sitting for
2-16 another municipal judge is binding on all parties to the
2-17 proceeding.
2-18 (f) A municipal judge is entitled to a salary from the city
2-19 the amount of which is determined by the city manager. A municipal
2-20 judge's salary may not be based directly or indirectly on fines,
2-21 fees, or costs collected by the court.
2-22 (g) A municipal judge shall take judicial notice of state
2-23 law, city ordinances, and the corporate limits of the city in a
2-24 case tried before a municipal court of record. A municipal judge
2-25 may grant writs of mandamus, injunction, and attachment and other
2-26 writs necessary to the enforcement of the jurisdiction of the court
3-1 and may issue writs of habeas corpus in cases in which the offense
3-2 charged is within the jurisdiction of the court.
3-3 Sec. 30.01515. CLERK; OTHER PERSONNEL. (a) The city
3-4 manager shall provide a clerk of the municipal courts of record.
3-5 The clerk shall keep the records of the municipal courts of record,
3-6 issue process, and generally perform the duties for the courts that
3-7 a clerk of a county court at law exercising criminal jurisdiction
3-8 performs for that court.
3-9 (b) The city manager shall provide deputy clerks, warrant
3-10 officers, and other personnel as needed for the proper operation of
3-11 the municipal courts of record.
3-12 (c) The clerk and other court personnel shall perform their
3-13 duties under the direction and control of the city manager.
3-14 Sec. 30.01516. RECORDING AND TRANSCRIPTION. (a) The city
3-15 shall provide recording and transcription services for the purpose
3-16 of preserving the record in a case tried before the municipal court
3-17 of record. A record may be preserved through written notes,
3-18 transcribing equipment, recording equipment, or a combination of
3-19 those methods. Except as provided by Subsection (b), testimony is
3-20 not required to be preserved if a record is not demanded in writing
3-21 by the defendant or prosecutor before the trial.
3-22 (b) A record must be preserved if a record is demanded by
3-23 the judge.
3-24 (c) The clerk of the municipal court of record shall keep a
3-25 record in a case until the 20th day after the date of the
3-26 conclusion of the judicial proceedings or trial or until the date
4-1 that a motion for new trial is denied, whichever date occurs later.
4-2 Sec. 30.01517. WAIVER OF RIGHT TO APPEAL; WARNING. A
4-3 defendant waives the right to appeal a judgment or conviction in a
4-4 municipal court of record if a record is not preserved in the case
4-5 as provided by Section 30.01516. The municipal judge shall inform
4-6 the defendant of the waiver of the right to appeal as provided by
4-7 this section.
4-8 Sec. 30.01518. PROSECUTIONS BY CITY ATTORNEY OR SPECIAL
4-9 PROSECUTOR. All prosecutions in the municipal courts of record
4-10 must be conducted by the city attorney, an assistant or deputy city
4-11 attorney, or an attorney designated as a special prosecutor by the
4-12 city attorney.
4-13 Sec. 30.01519. JURY. (a) A person who is brought before a
4-14 municipal court of record and who is charged with an offense is
4-15 entitled to be tried by a jury of six persons unless that right is
4-16 waived according to law.
4-17 (b) A juror for the municipal court must have the
4-18 qualifications required of jurors by law and must be a resident of
4-19 the municipality.
4-20 (c) The clerk of the municipal court of record shall
4-21 establish a fair, impartial, and objective juror selection process
4-22 subject to approval by the presiding municipal judge.
4-23 Sec. 30.01520. APPEAL. (a) Except as provided by Section
4-24 30.01517, a defendant has the right to appeal a judgment or
4-25 conviction in a municipal court of record as provided by this
4-26 subchapter. The County Court of Smith County has jurisdiction over
5-1 an appeal. The city attorney or the city attorney's designee shall
5-2 prosecute an appeal.
5-3 (b) The appellate court shall determine each appeal from a
5-4 municipal court of record judgment or conviction according to the
5-5 errors set forth in the defendant's motion for new trial and
5-6 presented in the transcript and statement of facts prepared from
5-7 the municipal court of record proceedings. An appeal from a
5-8 municipal court of record may not be by trial de novo.
5-9 (c) To perfect an appeal, the defendant must file with the
5-10 clerk of the municipal court of record a written motion for new
5-11 trial not later than the 10th day after the date judgment is
5-12 rendered. The motion must set forth the points of error on which
5-13 the defendant complains. A point of error that is not set forth in
5-14 the motion or an amended motion is waived. The motion or an
5-15 amended motion may be amended by leave of court at any time before
5-16 the court acts on the motion, except that an amendment may not be
5-17 made later than the 20th day after the date the original motion for
5-18 new trial is filed. The court may for good cause extend the time
5-19 for filing or amending an original or amended motion to a date not
5-20 later than the 40th day after the date judgment is rendered. If
5-21 the court does not act on the motion before the 60th day after the
5-22 date the original motion is filed, the original or amended motion
5-23 is overruled by operation of law.
5-24 (d) To perfect an appeal, the defendant must also give
5-25 notice of the appeal. The defendant shall:
5-26 (1) if the defendant requests a hearing on the motion,
6-1 give the notice of appeal orally in open court on the overruling of
6-2 the motion; or
6-3 (2) give a written notice of appeal and file the
6-4 notice with the court not later than the 10th day after the date
6-5 the motion is overruled.
6-6 Sec. 30.01521. APPEAL BOND; RECORD ON APPEAL. (a) If the
6-7 defendant is not in custody, the defendant may appeal a municipal
6-8 court of record conviction only if the defendant files an appeal
6-9 bond with the municipal court of record. The bond must be approved
6-10 by the court and filed not later than the 10th day after the date
6-11 the motion for new trial is overruled. If the defendant is in
6-12 custody, the defendant must be committed to jail unless the
6-13 defendant posts an appeal bond with the municipal court of record.
6-14 (b) The appeal bond must be in the amount of $100 or in an
6-15 amount that is twice the amount of fines and costs adjudged against
6-16 the defendant, whichever amount is greater. The bond must:
6-17 (1) state that the defendant was convicted in the case
6-18 and has appealed; and
6-19 (2) be conditioned on the defendant's immediate and
6-20 daily personal appearance in the court in which the defendant has
6-21 appealed.
6-22 (c) The record on appeal consists of a transcript and, if
6-23 necessary to the appeal, a statement of facts.
6-24 Sec. 30.01522. TRANSCRIPT; BILLS OF EXCEPTION. (a) On the
6-25 written request of the defendant, the clerk of the municipal court
6-26 of record shall prepare under his hand and the seal of the court
7-1 the transcript of the proceedings in the municipal court of record.
7-2 The transcript must include copies of:
7-3 (1) the complaint;
7-4 (2) material docket entries made by the court;
7-5 (3) the jury charge and verdict in a jury trial;
7-6 (4) the judgment;
7-7 (5) the motion for new trial;
7-8 (6) the notice of appeal;
7-9 (7) the appeal bond;
7-10 (8) written motions and pleas;
7-11 (9) written orders of the court; and
7-12 (10) any bills of exception filed with the court.
7-13 (b) The clerk may include in the transcript additional
7-14 portions of the proceedings in the court if instructed in writing
7-15 by the defendant or the prosecuting attorney.
7-16 (c) Either party may include bills of exception in the
7-17 transcript subject to the provisions of the Code of Criminal
7-18 Procedure governing the preparation of bills of exception and the
7-19 inclusion of bills of exception in the record on appeal to the
7-20 court of appeals, except that the bills of exception must be filed
7-21 with the clerk not later than the 60th day after the date the
7-22 notice of appeal is given or filed.
7-23 Sec. 30.01523. STATEMENT OF FACTS. (a) A statement of
7-24 facts included in the record on appeal must contain:
7-25 (1) if a transcription is requested by the defendant
7-26 under Subsection (b), a transcript of all or part of the municipal
8-1 court of record proceedings that are shown by the record to have
8-2 occurred before, during, or after the trial;
8-3 (2) a brief statement of the facts of the case proven
8-4 at trial as agreed to by the defendant and the prosecuting
8-5 attorney; or
8-6 (3) a partial transcription and the agreed statement
8-7 of the facts of the case.
8-8 (b) At the request of the defendant and on receipt of an
8-9 estimate of the cost of transcription, the city shall provide a
8-10 court reporter to transcribe any portion of the record of the court
8-11 proceedings. The defendant shall pay for the transcription unless
8-12 the court finds, after hearing in response to an affidavit by the
8-13 defendant, that the defendant is unable to pay or give security for
8-14 the transcription. If the court makes the finding described by
8-15 this subsection, the court shall order the court reporter to
8-16 prepare the transcription without charge for the defendant. The
8-17 transcription cost may not exceed the charge imposed by court
8-18 reporters in the county for similar transcriptions.
8-19 Sec. 30.01524. COMPLETION, APPROVAL, AND TRANSFER OF RECORD.
8-20 (a) Not later than the 60th day after the date the notice of
8-21 appeal is given or filed, the parties must file with the clerk of
8-22 the municipal court of record:
8-23 (1) the statement of facts;
8-24 (2) a written description of material to be included
8-25 in the transcript in addition to the required material; and
8-26 (3) any material to be included in the transcript that
9-1 is not in the custody of the clerk.
9-2 (b) On completion of the record, the municipal judge shall
9-3 approve the record in the manner provided for record completion
9-4 notification and approval in the court of appeals.
9-5 (c) After the court approves the record, the clerk shall
9-6 promptly send the record to the appellate court clerk for filing.
9-7 The appellate court clerk shall notify the defendant and the
9-8 prosecuting attorney that the record has been filed.
9-9 Sec. 30.01525. BRIEF ON APPEAL. (a) A defendant's brief on
9-10 appeal from a municipal court of record must present points of
9-11 error in the manner required by law for a brief on appeal to the
9-12 court of appeals, except that the points are confined to those set
9-13 forth in the motion for new trial.
9-14 (b) The defendant must file the brief with the appellate
9-15 court clerk not later than the 15th day after the date the
9-16 transcript and statement of facts are filed with that clerk. The
9-17 clerk shall notify the prosecuting attorney of the filing.
9-18 (c) The prosecuting attorney must file the appellee's brief
9-19 with the appellate court clerk not later than the 15th day after
9-20 the date the defendant's brief is filed.
9-21 (d) Each party, on filing the party's brief with the
9-22 appellate court clerk, shall deliver a copy of the brief to the
9-23 opposing party.
9-24 Sec. 30.01526. COURT RULES. (a) Except as provided by this
9-25 subchapter, the Code of Criminal Procedure governs the trial of
9-26 cases before the municipal courts of record. The courts may make
10-1 and enforce all rules of practice and procedure necessary to
10-2 expedite the trial of cases before the courts that are not
10-3 inconsistent with general law.
10-4 (b) The appellate courts may make and enforce all rules of
10-5 practice and procedure that are not inconsistent with general law
10-6 and that are necessary to expedite the dispatch of appeals from the
10-7 municipal courts of record.
10-8 Sec. 30.01527. PROCEDURE; DISPOSITION. (a) The appellate
10-9 court shall hear appeals from the municipal courts of record at the
10-10 earliest possible time with due regard to the rights of the parties
10-11 and the proper administration of justice.
10-12 (b) The court may not affirm or reverse a case based on a
10-13 technical error, including an error in the preparation and filing
10-14 of the record on appeal.
10-15 (c) The court may determine the rules for oral argument.
10-16 The parties may submit the case on the record and briefs without
10-17 oral argument.
10-18 (d) According to the law and the nature of the case, the
10-19 appellate court may:
10-20 (1) affirm the judgment of the municipal court of
10-21 record;
10-22 (2) reverse and remand for a new trial;
10-23 (3) reverse and dismiss the case; or
10-24 (4) reform and correct the judgment.
10-25 (e) Unless the issue was raised in the trial court or it
10-26 affirmatively appears to the contrary from the transcript or the
11-1 statement of facts, the appellate court shall presume that:
11-2 (1) venue was proven in the trial court;
11-3 (2) the jury, if any, was properly impaneled and
11-4 sworn;
11-5 (3) the defendant was arraigned and pleaded to the
11-6 complaint; and
11-7 (4) the municipal judge certified the charge before it
11-8 was read to the jury.
11-9 (f) In each case decided by the appellate court, the court
11-10 shall deliver a written opinion or order sustaining or overruling
11-11 each assignment of error presented. The court is not required to
11-12 give a reason for overruling an assignment of error, except that
11-13 the court may cite the cases on which it relied. If an assignment
11-14 of error is sustained, the court shall set forth the reasons for
11-15 the decision.
11-16 (g) The appellate court clerk shall mail to the parties and
11-17 the municipal judge copies of the appellate court's decision
11-18 immediately after the court renders a decision.
11-19 Sec. 30.01528. CERTIFICATE OF APPELLATE PROCEEDINGS. (a)
11-20 When the judgment of the appellate court is final, the appellate
11-21 court clerk shall:
11-22 (1) certify the proceedings and the judgment; and
11-23 (2) mail the certificates to the clerk of the
11-24 municipal court of record.
11-25 (b) The municipal clerk shall file the certificate with the
11-26 papers in the case and note the certificate on the case docket.
12-1 (c) If the municipal court of record judgment is affirmed,
12-2 it is not necessary to take further action to enforce the judgment,
12-3 except to:
12-4 (1) forfeit the bond of the defendant;
12-5 (2) issue a writ of capias for the defendant; or
12-6 (3) issue an execution against the defendant's
12-7 property.
12-8 Sec. 30.01529. EFFECT OF ORDER OF NEW TRIAL. If the
12-9 appellate court awards a new trial to the defendant, the case
12-10 stands as if a new trial had been granted by the municipal court of
12-11 record.
12-12 Sec. 30.01530. APPEAL TO COURT OF APPEALS. The defendant
12-13 has the right to appeal to the court of appeals if the fine
12-14 assessed against the defendant exceeds $100 and the judgment is
12-15 affirmed by the appellate court. The provisions of the Code of
12-16 Criminal Procedure relating to direct appeals from a county or
12-17 district court to the court of appeals apply to the appeal, except
12-18 that:
12-19 (1) the record and briefs on appeal in the appellate
12-20 court and the transcript of proceedings in the appellate court
12-21 constitute the record and briefs on appeal to the court of appeals
12-22 unless the rules of the court of criminal appeals provide
12-23 otherwise; and
12-24 (2) the record and briefs shall be filed directly with
12-25 the court of appeals.
12-26 SECTION 2. This Act takes effect September 1, 1999.
13-1 SECTION 3. The importance of this legislation and the
13-2 crowded condition of the calendars in both houses create an
13-3 emergency and an imperative public necessity that the
13-4 constitutional rule requiring bills to be read on three several
13-5 days in each house be suspended, and this rule is hereby suspended.