By: Nelson S.B. No. 1899
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the creation of municipal courts of record in the Town
1-2 of Flower Mound.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 30, Government Code, is amended by adding
1-5 Subchapter PP to read as follows:
1-6 SUBCHAPTER PP. FLOWER MOUND
1-7 Sec. 30.01611. APPLICATION. This subchapter applies to the
1-8 Town of Flower Mound.
1-9 Sec. 30.01612. CREATION. The governing body of the town may
1-10 by ordinance create a municipal court of record if it determines
1-11 that the formation of the court is necessary to provide a more
1-12 efficient disposition of the cases arising in the town. The
1-13 municipal court of record shall be known as the "Town of Flower
1-14 Mound Municipal Court of Record." The governing body by ordinance
1-15 may determine and establish the number of municipal courts of
1-16 record that are required to dispose of the cases arising in the
1-17 town and shall give each a numerical designation, beginning with
1-18 "Municipal Court of Record No. 1."
1-19 Sec. 30.01613. APPLICATION OF OTHER LAWS. The general law
1-20 regarding municipal courts, the general law regarding justice
1-21 courts on matters not covered by the law regarding municipal
1-22 courts, and any charter provision or ordinance of the town relating
1-23 to the municipal court apply to a municipal court of record unless
1-24 the law, charter provision, or ordinance is in conflict or
2-1 inconsistent with this subchapter.
2-2 Sec. 30.01614. JUDGE. (a) A municipal court of record is
2-3 presided over by a municipal judge appointed by the mayor with the
2-4 concurrence of the town council. The judge shall serve at the
2-5 discretion of the council.
2-6 (b) A municipal judge must be an attorney licensed to
2-7 practice and in good standing in this state and have two or more
2-8 years of experience in the practice of law in this state. The
2-9 judge must be a citizen of the United States and a resident of this
2-10 state. The judge is not required to be a resident of the town.
2-11 (c) A municipal judge shall:
2-12 (1) devote as much time to the office as is necessary;
2-13 and
2-14 (2) take judicial notice of state law, town
2-15 ordinances, and the corporate limits of the municipality.
2-16 (d) If the mayor appoints more than one municipal judge
2-17 under Subsection (a), the mayor shall appoint one of the municipal
2-18 judges as the presiding municipal judge.
2-19 (e) A municipal judge may exchange benches and may sit and
2-20 act for another municipal judge in any proceeding pending in a
2-21 municipal court. An act performed by a municipal judge sitting for
2-22 another municipal judge is binding on all parties to the
2-23 proceeding.
2-24 (f) A municipal judge is entitled to receive a salary from
2-25 the town, the amount of which is determined by the town council. A
2-26 municipal judge's salary may not be based directly or indirectly on
3-1 fines, fees, or costs collected by the court.
3-2 (g) The judge of a municipal court of record created under
3-3 this subchapter may grant writs of mandamus, injunction, and
3-4 attachment and other writs necessary to the enforcement of the
3-5 jurisdiction of the court and may issue writs of habeas corpus in
3-6 cases in which the offense charged is within the jurisdiction of
3-7 the court.
3-8 Sec. 30.01615. CLERK; OTHER PERSONNEL. (a) The town
3-9 manager shall appoint a clerk of the municipal courts of record.
3-10 The clerk shall keep the records of the municipal courts of record,
3-11 issue process, and generally perform the duties for the courts that
3-12 a clerk of a county court at law exercising criminal jurisdiction
3-13 performs for that court.
3-14 (b) The town manager shall provide deputy clerks, warrant
3-15 officers, and other personnel as needed for the proper operation of
3-16 the municipal courts of record.
3-17 (c) The clerk and other court personnel shall perform their
3-18 duties under the direction and control of the town manager.
3-19 Sec. 30.01616. COURT REPORTER. (a) The town shall provide
3-20 a court reporter for the purpose of preserving the record in cases
3-21 tried before the municipal courts of record. The municipal court
3-22 clerk shall appoint the court reporter. A court reporter appointed
3-23 under this subsection must meet the qualifications provided by law
3-24 for official court reporters. The town manager shall set the
3-25 compensation of the court reporter.
3-26 (b) The court reporter may preserve a record through written
4-1 notes, transcribing equipment, video or audio recording equipment,
4-2 or a combination of those methods. The reporter shall keep the
4-3 record for the 20-day period beginning the day after the last day
4-4 of the proceeding, trial, or denial of motion for new trial or
4-5 until any appeal is final, whichever occurs last. The reporter is
4-6 not required to record testimony if a record is not demanded by the
4-7 defendant, the prosecutor, or the judge.
4-8 (c) Instead of providing a court reporter, the governing
4-9 body may provide that the proceedings be recorded by a good-quality
4-10 electronic recording device. If the governing body authorizes the
4-11 electronic recording, the court reporter is not required to be
4-12 present to certify the statement of facts. The recording shall be
4-13 retained for the 20-day period beginning the day after the last day
4-14 of the court proceeding, trial, or denial of motion for new trial,
4-15 whichever occurs last. If a case is appealed, the proceedings
4-16 shall be transcribed from the recording by an official court
4-17 reporter.
4-18 Sec. 30.01617. JURY. The municipal court clerk shall
4-19 establish a fair, impartial, and objective jury selection process.
4-20 Sec. 30.01618. APPEAL. (a) A defendant has the right to
4-21 appeal a judgment or conviction in a municipal court of record as
4-22 provided by this subchapter. The state has the right to appeal as
4-23 provided by Article 44.01, Code of Criminal Procedure. The
4-24 appropriate county court of Denton County having jurisdiction over
4-25 appeals from municipal courts shall have jurisdiction over any
4-26 appeal. The town attorney or the town attorney's designee shall
5-1 prosecute an appeal.
5-2 (b) The appellate court shall determine each appeal from a
5-3 municipal court of record judgment or conviction and each appeal by
5-4 the state on the basis of the errors set forth in the appellant's
5-5 motion for a new trial and presented in the transcript and
5-6 statement of facts prepared from the municipal court of record
5-7 proceedings. An appeal from a municipal court of record may not be
5-8 by trial de novo.
5-9 (c) To perfect an appeal, the appellant must file a written
5-10 motion for a new trial with the municipal court clerk not later
5-11 than the 10th day after the date on which the judgment is rendered.
5-12 The motion must set forth the points of error of which the
5-13 appellant complains. A point of error that is not set forth in the
5-14 motion is waived. The motion or an amended motion may be amended
5-15 by leave of court at any time before the court acts on the motion,
5-16 except that an amendment may not be made later than the 20th day
5-17 after the date the original or an amended motion is filed. The
5-18 court may for good cause extend the time for filing or amending an
5-19 original or amended motion, but the extension may not exceed 90
5-20 days from the original filing deadline. If the court does not act
5-21 on the motion before the 21st day after the date the original or
5-22 amended motion is filed, the original or amended motion is
5-23 overruled by operation of law.
5-24 (d) To perfect an appeal, the appellant must also give
5-25 notice of the appeal. The appellant shall:
5-26 (1) if the appellant requests a hearing on the motion
6-1 for a new trial, give the notice of appeal orally in open court on
6-2 the overruling of the motion; or
6-3 (2) if there is no hearing, file a written notice of
6-4 appeal with the municipal court clerk not later than the 10th day
6-5 after the date the motion is overruled.
6-6 (e) The municipality shall by ordinance establish a
6-7 transcript preparation fee in the amount of $25. The clerk shall
6-8 note the payment of the fee on the docket of the court. If the
6-9 case is reversed on appeal, the fee shall be refunded to the
6-10 appellant.
6-11 Sec. 30.01619. APPEAL BOND; RECORD ON APPEAL. (a) If the
6-12 defendant is not in custody, the defendant may appeal a municipal
6-13 court of record conviction only if the defendant files an appeal
6-14 bond with the municipal court of record. The bond must be approved
6-15 by the court and filed not later than the 10th day after the date
6-16 the defendant's motion for a new trial is overruled. If the
6-17 defendant is in custody, the defendant must be committed to jail
6-18 unless the defendant posts an appeal bond with the municipal court
6-19 of record.
6-20 (b) The appeal bond must be in the amount of $100 or in an
6-21 amount that is twice the amount of fines and costs adjudged against
6-22 the defendant, whichever amount is greater. The bond must:
6-23 (1) state that the defendant was convicted in the case
6-24 and has appealed; and
6-25 (2) be conditioned on the defendant's immediate and
6-26 daily personal appearance in the court in which the defendant has
7-1 appealed.
7-2 (c) The record on appeal consists of a transcript and, if
7-3 necessary to the appeal, a statement of facts.
7-4 Sec. 30.01620. TRANSCRIPT; BILLS OF EXCEPTION. (a) On the
7-5 written request of the appellant, the clerk of the municipal court
7-6 of record shall prepare, under the clerk's hand and the seal of the
7-7 court, the transcript of the proceedings in the municipal court of
7-8 record. The transcript must include copies of:
7-9 (1) the complaint;
7-10 (2) the material docket entries made by the court;
7-11 (3) the jury charge and verdict in a jury trial;
7-12 (4) the judgment;
7-13 (5) the motion for new trial;
7-14 (6) the notice of appeal;
7-15 (7) the appeal bond;
7-16 (8) written motions and pleas;
7-17 (9) written orders of the court; and
7-18 (10) any bills of exception filed with the court.
7-19 (b) The clerk may include in the transcript additional
7-20 portions of the proceedings in the court if instructed in writing
7-21 by the defendant or the prosecuting attorney.
7-22 (c) Either party may include bills of exception in the
7-23 transcript subject to the provisions of the Texas Rules of
7-24 Appellate Procedure and the Code of Criminal Procedure governing
7-25 the preparation of bills of exception and the inclusion of bills of
7-26 exception in the record on appeal to the court of appeals. The
8-1 bills of exception must be filed with the municipal court clerk not
8-2 later than the 60th day after the date the notice of appeal is
8-3 given or filed.
8-4 Sec. 30.01621. STATEMENT OF FACTS. (a) A statement of
8-5 facts included in the record on appeal must contain:
8-6 (1) if a transcription is requested by the defendant,
8-7 a transcript of all or part of the municipal court of record
8-8 proceedings that are shown by the notes of the court reporter to
8-9 have occurred before, during, or after the trial;
8-10 (2) a brief statement of the facts of the case proven
8-11 at trial as agreed to by the defendant and the prosecuting
8-12 attorney; or
8-13 (3) a partial transcript and the agreed statement of
8-14 the facts of the case.
8-15 (b) At the request of the appellant, the court reporter
8-16 shall transcribe any portion of the notes of the court proceedings.
8-17 The appellant shall pay for the transcription unless the court
8-18 finds, after hearing in response to an affidavit by the appellant,
8-19 that the appellant is unable to pay or give security for the
8-20 transcription. If the court makes the finding described by this
8-21 subsection, the court shall order the court reporter to prepare the
8-22 transcription without charge for the appellant. The transcription
8-23 cost may not exceed the charge imposed by court reporters in the
8-24 county for similar transcriptions.
8-25 Sec. 30.01622. COMPLETION, APPROVAL, AND TRANSFER OF RECORD.
8-26 (a) Not later than the 60th day after the date notice of appeal is
9-1 given or filed, the parties must file with the clerk of the
9-2 municipal court of record:
9-3 (1) the statement of facts;
9-4 (2) a written description of materials to be included
9-5 in the transcript in addition to the required material; and
9-6 (3) any material to be included in the transcript that
9-7 is not in the custody of the clerk.
9-8 (b) On completion of the record, the municipal judge shall
9-9 approve the record in the manner provided for record completion,
9-10 approval, and notification in the court of appeals.
9-11 (c) After the court approves the record, the clerk shall
9-12 promptly send the record to the appellate court clerk for filing.
9-13 The appellate court clerk shall notify the defendant and the
9-14 prosecuting attorney that the record has been filed.
9-15 Sec. 30.01623. BRIEF ON APPEAL. (a) An appellant's brief
9-16 on appeal from a municipal court of record must present points of
9-17 error in the manner required by law for a brief on appeal to the
9-18 court of appeals, except that the points are confined to those set
9-19 forth in the motion for new trial.
9-20 (b) The appellant must file the brief with the appellate
9-21 court clerk not later than the 15th day after the date the
9-22 transcript and statement of facts are filed with that clerk. The
9-23 appellant or the appellant's attorney must certify that the brief
9-24 has been properly mailed to the appellee.
9-25 (c) The appellee must file the appellee's brief with the
9-26 appellate court clerk not later than the 15th day after the date
10-1 the appellant's brief is filed.
10-2 (d) Each party, on filing the party's brief with the
10-3 appellate court clerk, shall deliver a copy of the brief to the
10-4 opposing party.
10-5 Sec. 30.01624. PROCEDURE; DISPOSITION. (a) The appellate
10-6 court shall hear appeals from the municipal court of record at the
10-7 earliest possible time with due regard to the rights of the parties
10-8 and the proper administration of justice.
10-9 (b) The court may not affirm or reverse a case based on a
10-10 technical error, including an error in the preparation and filing
10-11 of the record on appeal.
10-12 (c) The court may determine the rules for oral argument.
10-13 The parties may submit the case on the record and briefs without
10-14 oral argument.
10-15 (d) According to the law and the nature of the case, the
10-16 appellate court may:
10-17 (1) affirm the judgment of the municipal court of
10-18 record;
10-19 (2) reverse and remand for a new trial;
10-20 (3) reverse and dismiss the case; or
10-21 (4) reform and correct the judgment.
10-22 (e) Unless the issue was raised in the trial court or it
10-23 affirmatively appears to the contrary from the transcript or the
10-24 statement of facts, the appellate court shall presume that:
10-25 (1) venue was proven in the trial court;
10-26 (2) the jury, if any, was properly impaneled and
11-1 sworn;
11-2 (3) the defendant was arraigned and pleaded to the
11-3 complaint; and
11-4 (4) the municipal judge certified the charge before it
11-5 was read to the jury.
11-6 (f) In each case decided by the appellate court, the court
11-7 shall deliver a written opinion or order sustaining or overruling
11-8 each assignment of error presented. The court is not required to
11-9 give a reason for overruling an assignment of error, except that
11-10 the court may cite the cases on which it relied. If an assignment
11-11 of error is sustained, the court shall set forth the reasons for
11-12 the decision.
11-13 (g) The appellate court clerk shall mail to the parties and
11-14 the municipal judge copies of the appellate court's decision
11-15 immediately after the court renders a decision.
11-16 Sec. 30.01625. CERTIFICATE OF APPELLATE PROCEEDINGS.
11-17 (a) When the judgment of the appellate court is final, the
11-18 appellate court clerk shall:
11-19 (1) certify the proceedings and the judgment; and
11-20 (2) mail the certificate to the clerk of the municipal
11-21 court of record.
11-22 (b) The municipal court clerk shall file the certificate
11-23 with the papers in the case and note the certificate on the case
11-24 docket.
11-25 (c) If the municipal court of record judgment is affirmed,
11-26 further action to enforce the judgment is not necessary, except to:
12-1 (1) forfeit the bond of the defendant;
12-2 (2) issue a writ of capias for the defendant;
12-3 (3) issue an execution against the defendant's
12-4 property;
12-5 (4) order a refund of the defendant's costs and
12-6 attorney's fees; or
12-7 (5) conduct an indigency hearing at the court's
12-8 discretion.
12-9 Sec. 30.01626. EFFECT OF ORDER OF NEW TRIAL. If the
12-10 appellate court awards a new trial to the defendant, the case
12-11 stands as if a new trial had been granted by the municipal court of
12-12 record.
12-13 Sec. 30.01627. APPEAL TO COURT OF APPEALS. The defendant
12-14 has the right to appeal to the court of appeals if the fine
12-15 assessed against the defendant exceeds $100 and the judgment is
12-16 affirmed by the appellate court. The provisions of the Code of
12-17 Criminal Procedure relating to direct appeals from a county or
12-18 district court to the court of appeals apply to the appeal, except
12-19 that:
12-20 (1) the record and briefs on appeal in the appellate
12-21 court and the transcript of proceedings in the appellate court
12-22 constitute the record and briefs on appeal to the court of appeals
12-23 unless the rules of the court of appeals provide 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.