1-1     By:  Cain, Ratliff, Nixon                              S.B. No. 173
 1-2           (In the Senate - Filed January 19, 1999; January 28, 1999,
 1-3     read first time and referred to Committee on Intergovernmental
 1-4     Relations; April 6, 1999, reported adversely, with favorable
 1-5     Committee Substitute by the following vote:  Yeas 5, Nays 0;
 1-6     April 6, 1999, sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 173                    By:  Nixon
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the creation of municipal courts of record in Tyler.
1-11           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12           SECTION 1.  Chapter 30, Government Code, is amended by adding
1-13     Subchapter NN to read as follows:
1-14                            SUBCHAPTER NN.  TYLER
1-15           Sec. 30.01511.  APPLICATION.  This subchapter applies to the
1-16     City of Tyler.
1-17           Sec. 30.01512.  CREATION.  The governing body of the city may
1-18     by ordinance create a municipal court of record if it determines
1-19     that the formation of the court is necessary to provide a more
1-20     efficient disposition of appeals arising from the municipal court.
1-21     The municipal court of record shall be known as the "City of Tyler
1-22     Municipal Court."   The governing body may determine and establish
1-23     the number of municipal courts of record that are required to
1-24     dispose of the cases arising in the city.
1-25           Sec. 30.01513.  APPLICATION OF OTHER LAWS.  The general law
1-26     regarding municipal courts, the general law regarding justice
1-27     courts on matters not covered by the law regarding municipal
1-28     courts, and any charter provision or ordinance of the city relating
1-29     to the municipal court apply to a municipal court of record unless
1-30     the law, charter provision, or ordinance is in conflict or
1-31     inconsistent with this subchapter.
1-32           Sec. 30.01514.  JUDGE.  (a)  A municipal court of record is
1-33     presided over by a municipal judge appointed to office by the city
1-34     manager in the manner provided by the city charter.
1-35           (b)  A municipal judge must be a licensed attorney in good
1-36     standing in this state.  The judge must be a citizen of the United
1-37     States and a resident of this state.  The judge is not required to
1-38     be a resident of the city.
1-39           (c)  A municipal judge shall:
1-40                 (1)  devote as much time to the office as is necessary;
1-41     and
1-42                 (2)  take judicial notice of the city ordinances.
1-43           (d)  If the city manager appoints more than one municipal
1-44     judge under Subsection (a), the city manager shall appoint one of
1-45     the municipal judges as the presiding municipal judge.
1-46           (e)  A municipal judge may exchange benches and may sit and
1-47     act for another municipal judge in any proceeding pending in a
1-48     municipal court.  An act performed by a municipal judge sitting for
1-49     another municipal judge is binding on all parties to the
1-50     proceeding.
1-51           (f)  A municipal judge is entitled to a salary from the city
1-52     the amount of which is determined by the city manager.  A municipal
1-53     judge's salary may not be based directly or indirectly on fines,
1-54     fees, or costs collected by the court.
1-55           (g)  A municipal judge shall take judicial notice of state
1-56     law, city ordinances, and the corporate limits of the city in a
1-57     case tried before a municipal court of record.  A municipal judge
1-58     may grant writs of mandamus, injunction, and attachment and other
1-59     writs necessary to the enforcement of the jurisdiction of the court
1-60     and may issue writs of habeas corpus in cases in which the offense
1-61     charged is within the jurisdiction of the court.
1-62           Sec. 30.01515.  CLERK; OTHER PERSONNEL.  (a)  The city
1-63     manager shall provide a clerk of the municipal courts of record.
1-64     The clerk shall keep the records of the municipal courts of record,
 2-1     issue process, and generally perform the duties for the courts that
 2-2     a clerk of a county court at law exercising criminal jurisdiction
 2-3     performs for that court.
 2-4           (b)  The city manager shall provide deputy clerks, warrant
 2-5     officers, and other personnel as needed for the proper operation of
 2-6     the municipal courts of record.
 2-7           (c)  The clerk and other court personnel shall perform their
 2-8     duties under the direction and control of the city manager.
 2-9           Sec. 30.01516.  RECORDING AND TRANSCRIPTION.  (a) The city
2-10     shall provide recording and transcription services for the purpose
2-11     of preserving the record in a case tried before the municipal court
2-12     of record.  A record may be preserved through written notes,
2-13     transcribing equipment, recording equipment, or a combination of
2-14     those methods.  Except as provided by Subsection (b), testimony is
2-15     not required to be preserved if a record is not demanded in writing
2-16     by the defendant or prosecutor before the trial.
2-17           (b)  A record must be preserved if a record is demanded by
2-18     the judge.
2-19           (c)  The clerk of the municipal court of record shall keep a
2-20     record in a case until the 20th day after the date of the
2-21     conclusion of the judicial proceedings or trial or until the date
2-22     that a motion for new trial is denied, whichever date occurs later.
2-23           Sec. 30.01517.  WAIVER OF RIGHT TO APPEAL; WARNING.  A
2-24     defendant waives the right to appeal a judgment or conviction in a
2-25     municipal court of record if a record is not preserved in the case
2-26     as provided by Section 30.01516.  The municipal judge shall inform
2-27     the defendant of the waiver of the right to appeal as provided by
2-28     this section.
2-29           Sec. 30.01518.  PROSECUTIONS BY CITY ATTORNEY OR SPECIAL
2-30     PROSECUTOR.  All prosecutions in the municipal courts of record
2-31     must be conducted by the city attorney, an assistant or deputy city
2-32     attorney, or an attorney designated as a special prosecutor by the
2-33     city attorney.
2-34           Sec. 30.01519.  JURY.  (a)  A person who is brought before a
2-35     municipal court of record and who is charged with an offense is
2-36     entitled to be tried by a jury of six persons unless that right is
2-37     waived according to law.
2-38           (b)  A juror for the municipal court must have the
2-39     qualifications required of jurors by law and must be a resident of
2-40     the municipality.
2-41           (c)  The clerk of the municipal court of record shall
2-42     establish a fair, impartial, and objective juror selection process
2-43     subject to approval by the presiding municipal judge.
2-44           Sec. 30.01520.  APPEAL.  (a)  Except as provided by Section
2-45     30.01517, a defendant has the right to appeal a judgment or
2-46     conviction in a municipal court of record as provided by this
2-47     subchapter.  The County Court of Smith County has jurisdiction over
2-48     an appeal.  The city attorney or the city attorney's designee shall
2-49     prosecute an appeal.
2-50           (b)  The appellate court shall determine each appeal from a
2-51     municipal court of record judgment or conviction according to the
2-52     errors set forth in the defendant's motion for new trial and
2-53     presented in the transcript and statement of facts prepared from
2-54     the municipal court of record proceedings.  An appeal from a
2-55     municipal court of record may not be by trial de novo.
2-56           (c)  To perfect an appeal, the defendant must file with the
2-57     clerk of the municipal court of record a written motion for new
2-58     trial not later than the 10th day after the date judgment is
2-59     rendered.  The motion must set forth the points of error on which
2-60     the defendant complains.  A point of error that is not set forth in
2-61     the motion or an amended motion is waived.  The motion or an
2-62     amended motion may be amended by leave of court at any time before
2-63     the court acts on the motion, except that an amendment may not be
2-64     made later than the 20th day after the date the original motion for
2-65     new trial is filed.  The court may for good cause extend the time
2-66     for filing or amending an original or amended motion to a date not
2-67     later than the 40th day after the date judgment is rendered.  If
2-68     the court does not act on the motion before the 60th day after the
2-69     date the original motion is filed, the original or amended motion
 3-1     is overruled by operation of law.
 3-2           (d)  To perfect an appeal, the defendant must also give
 3-3     notice of the appeal.  The defendant shall:
 3-4                 (1)  if the defendant requests a hearing on the motion,
 3-5     give the notice of appeal orally in open court on the overruling of
 3-6     the motion; or
 3-7                 (2)  give a written notice of appeal and file the
 3-8     notice with the court not later than the 10th day after the date
 3-9     the motion is overruled.
3-10           Sec. 30.01521.  APPEAL BOND; RECORD ON APPEAL.  (a)  If the
3-11     defendant is not in custody, the defendant may appeal a municipal
3-12     court of record conviction only if the defendant files an appeal
3-13     bond with the municipal court of record.  The bond must be approved
3-14     by the court and filed not later than the 10th day after the date
3-15     the motion for new trial is overruled.  If the defendant is in
3-16     custody, the defendant must be committed to jail unless the
3-17     defendant posts an appeal bond with the municipal court of record.
3-18           (b)  The appeal bond must be in the amount of $100 or in an
3-19     amount that is twice the amount of fines and costs adjudged against
3-20     the defendant, whichever amount is greater.  The bond must:
3-21                 (1)  state that the defendant was convicted in the case
3-22     and has appealed; and
3-23                 (2)  be conditioned on the defendant's immediate and
3-24     daily personal appearance in the court in which the defendant has
3-25     appealed.
3-26           (c)  The record on appeal consists of a transcript and, if
3-27     necessary to the appeal, a statement of facts.
3-28           Sec. 30.01522.  TRANSCRIPT; BILLS OF EXCEPTION.  (a)  On the
3-29     written request of the defendant, the clerk of the municipal court
3-30     of record shall prepare under his hand and the seal of the court
3-31     the transcript of the proceedings in the municipal court of record.
3-32     The transcript must include copies of:
3-33                 (1)  the complaint;
3-34                 (2)  material docket entries made by the court;
3-35                 (3)  the jury charge and verdict in a jury trial;
3-36                 (4)  the judgment;
3-37                 (5)  the motion for new trial;
3-38                 (6)  the notice of appeal;
3-39                 (7)  the appeal bond;
3-40                 (8)  written motions and pleas;
3-41                 (9)  written orders of the court; and
3-42                 (10)  any bills of exception filed with the court.
3-43           (b)  The clerk may include in the transcript additional
3-44     portions of the proceedings in the court if instructed in writing
3-45     by the defendant or the prosecuting attorney.
3-46           (c)  Either party may include bills of exception in the
3-47     transcript subject to the provisions of the Code of Criminal
3-48     Procedure governing the preparation of bills of exception and the
3-49     inclusion of bills of exception in the record on appeal to the
3-50     court of appeals, except that the bills of exception must be filed
3-51     with the clerk not later than the 60th day after the date the
3-52     notice of appeal is given or filed.
3-53           Sec. 30.01523.  STATEMENT OF FACTS.  (a)  A statement of
3-54     facts included in the record on appeal must contain:
3-55                 (1)  if a transcription is requested by the defendant
3-56     under Subsection (b), a transcript of all or part of the municipal
3-57     court of record proceedings that are shown by the record to have
3-58     occurred before, during, or after the trial;
3-59                 (2)  a brief statement of the facts of the case proven
3-60     at trial as agreed to by the defendant and the prosecuting
3-61     attorney; or
3-62                 (3)  a partial transcription and the agreed statement
3-63     of the facts of the case.
3-64           (b)  At the request of the defendant and on receipt of an
3-65     estimate of the cost of transcription, the city shall provide a
3-66     court reporter to transcribe any portion of the record of the court
3-67     proceedings.  The defendant shall pay for the transcription unless
3-68     the court finds, after hearing in response to an affidavit by the
3-69     defendant, that the defendant is unable to pay or give security for
 4-1     the transcription.  If the court makes the finding described by
 4-2     this subsection, the court shall order the court reporter to
 4-3     prepare the transcription without charge for the defendant.  The
 4-4     transcription cost may not exceed the charge imposed by court
 4-5     reporters in the county for similar transcriptions.
 4-6           Sec. 30.01524.  COMPLETION, APPROVAL, AND TRANSFER OF RECORD.
 4-7     (a)  Not later than the 60th day after the date the notice of
 4-8     appeal is given or filed, the parties must file with the clerk of
 4-9     the municipal court of record:
4-10                 (1)  the statement of facts;
4-11                 (2)  a written description of material to be included
4-12     in the transcript in addition to the required material; and
4-13                 (3)  any material to be included in the transcript that
4-14     is not in the custody of the clerk.
4-15           (b)  On completion of the record, the municipal judge shall
4-16     approve the record in the manner provided for record completion
4-17     notification and approval in the court of appeals.
4-18           (c)  After the court approves the record, the clerk shall
4-19     promptly send the record to the appellate court clerk for filing.
4-20     The appellate court clerk shall notify the defendant and the
4-21     prosecuting attorney that the record has been filed.
4-22           Sec. 30.01525.  BRIEF ON APPEAL.  (a)  A defendant's brief on
4-23     appeal from a municipal court of record must present points of
4-24     error in the manner required by law for a brief on appeal to the
4-25     court of appeals, except that the points are confined to those set
4-26     forth in the motion for new trial.
4-27           (b)  The defendant must file the brief with the appellate
4-28     court clerk not later than the 15th day after the date the
4-29     transcript and statement of facts are filed with that clerk.  The
4-30     clerk shall notify the prosecuting attorney of the filing.
4-31           (c)  The prosecuting attorney must file the appellee's brief
4-32     with the appellate court clerk not later than the 15th day after
4-33     the date the defendant's brief is filed.
4-34           (d)  Each party, on filing the party's brief with the
4-35     appellate court clerk, shall deliver a copy of the brief to the
4-36     opposing party.
4-37           Sec. 30.01526.  COURT RULES.  (a)  Except as provided by this
4-38     subchapter, the Code of Criminal Procedure governs the trial of
4-39     cases before the municipal courts of record.  The courts may make
4-40     and enforce all rules of practice and procedure necessary to
4-41     expedite the trial of cases before the courts that are not
4-42     inconsistent with general law.
4-43           (b)  The appellate courts may make and enforce all rules of
4-44     practice and procedure that are not inconsistent with general law
4-45     and that are necessary to expedite the dispatch of appeals from the
4-46     municipal courts of record.
4-47           Sec. 30.01527.  PROCEDURE; DISPOSITION.  (a)  The appellate
4-48     court shall hear appeals from the municipal courts of record at the
4-49     earliest possible time with due regard to the rights of the parties
4-50     and the proper administration of justice.
4-51           (b)  The court may not affirm or reverse a case based on a
4-52     technical error, including an error in the preparation and filing
4-53     of the record on appeal.
4-54           (c)  The court may determine the rules for oral argument.
4-55     The parties may submit the case on the record and briefs without
4-56     oral argument.
4-57           (d)  According to the law and the nature of the case, the
4-58     appellate court may:
4-59                 (1)  affirm the judgment of the municipal court of
4-60     record;
4-61                 (2)  reverse and remand for a new trial;
4-62                 (3)  reverse and dismiss the case; or
4-63                 (4)  reform and correct the judgment.
4-64           (e)  Unless the issue was raised in the trial court or it
4-65     affirmatively appears to the contrary from the transcript or the
4-66     statement of facts, the appellate court shall presume that:
4-67                 (1)  venue was proven in the trial court;
4-68                 (2)  the jury, if any, was properly impaneled and
4-69     sworn;
 5-1                 (3)  the defendant was arraigned and pleaded to the
 5-2     complaint; and
 5-3                 (4)  the municipal judge certified the charge before it
 5-4     was read to the jury.
 5-5           (f)  In each case decided by the appellate court, the court
 5-6     shall deliver a written opinion or order sustaining or overruling
 5-7     each assignment of error presented.  The court is not required to
 5-8     give a reason for overruling an assignment of error, except that
 5-9     the court may cite the cases on which it relied.  If an assignment
5-10     of error is sustained, the court shall set forth the reasons for
5-11     the decision.
5-12           (g)  The appellate court clerk shall mail to the parties and
5-13     the municipal judge copies of the appellate court's decision
5-14     immediately after the court renders a decision.
5-15           Sec. 30.01528.  CERTIFICATE OF APPELLATE PROCEEDINGS.  (a)
5-16     When the judgment of the appellate court is final, the appellate
5-17     court clerk shall:
5-18                 (1)  certify the proceedings and the judgment; and
5-19                 (2)  mail the certificates to the clerk of the
5-20     municipal court of record.
5-21           (b)  The municipal clerk shall file the certificate with the
5-22     papers in the case and note the certificate on the case docket.
5-23           (c)  If the municipal court of record judgment is affirmed,
5-24     it is not necessary to take further action to enforce the judgment,
5-25     except to:
5-26                 (1)  forfeit the bond of the defendant;
5-27                 (2)  issue a writ of capias for the defendant; or
5-28                 (3)  issue an execution against the defendant's
5-29     property.
5-30           Sec. 30.01529.  EFFECT OF ORDER OF NEW TRIAL.  If the
5-31     appellate court awards a new trial to the defendant, the case
5-32     stands as if a new trial had been granted by the municipal court of
5-33     record.
5-34           Sec. 30.01530.  APPEAL TO COURT OF APPEALS.  The defendant
5-35     has the right to appeal to the court of appeals if the fine
5-36     assessed against the defendant exceeds $100 and the judgment is
5-37     affirmed by the appellate court.  The provisions of the Code of
5-38     Criminal Procedure relating to direct appeals from a county or
5-39     district court to the court of appeals apply to the appeal, except
5-40     that:
5-41                 (1)  the record and briefs on appeal in the appellate
5-42     court and the transcript of proceedings in the appellate court
5-43     constitute the record and briefs on appeal to the court of appeals
5-44     unless the rules of the court of criminal appeals provide
5-45     otherwise; and
5-46                 (2)  the record and briefs shall be filed directly with
5-47     the court of appeals.
5-48           SECTION 2.  This Act takes effect September 1, 1999.
5-49           SECTION 3.  The importance of this legislation and the
5-50     crowded condition of the calendars in both houses create an
5-51     emergency and an imperative public necessity that the
5-52     constitutional rule requiring bills to be read on three several
5-53     days in each house be suspended, and this rule is hereby suspended.
5-54                                  * * * * *