By: Zaffirini S.B. No. 1903
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the creation of a municipal court of record in Live
1-2 Oak.
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 SS to read as follows:
1-6 SUBCHAPTER SS. LIVE OAK
1-7 Sec. 30.01721. APPLICATION. This subchapter applies to the
1-8 city of Live Oak.
1-9 Sec. 30.01722. CREATION. (a) The governing body of the
1-10 city may by ordinance create a municipal court of record if it
1-11 determines that the formation of the court is necessary to provide
1-12 a more efficient disposition of cases arising in the city. The
1-13 governing body may by ordinance determine the number of municipal
1-14 courts of record that are required to dispose of the cases and may
1-15 establish as many as are needed. The ordinance establishing the
1-16 courts shall give each court a numerical designation, beginning
1-17 with "Municipal Court of Record No. 1."
1-18 (b) A municipal court of record may not exist concurrently
1-19 with municipal courts that are not courts of record in the city.
1-20 (c) A municipal court of record has no terms and may sit at
1-21 any time for the transaction of the business of the court.
1-22 Sec. 30.01723. APPLICATION OF OTHER LAWS. The general law
1-23 regarding municipal courts, the general law regarding justice
1-24 courts on matters not covered by the law regarding municipal
2-1 courts, and any charter provision or ordinance of the city relating
2-2 to the municipal court apply to a municipal court of record unless
2-3 the law, charter provision, or ordinance is in conflict or
2-4 inconsistent with this subchapter.
2-5 Sec. 30.01724. JUDGE. (a) A municipal court of record is
2-6 presided over by a municipal judge.
2-7 (b) If there is more than one municipal judge in the city,
2-8 the governing body of the city shall appoint one of the judges to
2-9 be the chief judge.
2-10 (c) A municipal judge, including the chief judge, is
2-11 appointed by the governing body of the city for a term of two
2-12 years.
2-13 (d) A municipal judge must be a licensed attorney in good
2-14 standing in this state and must have at least two years of
2-15 experience in the practice of law in this state. The judge must be
2-16 a citizen of the United States and of this state. The judge shall
2-17 devote as much time to the office as it requires.
2-18 (e) If there is more than one municipal court of record in
2-19 the city, the judges may exchange benches and may sit and act for
2-20 each other in any proceeding pending in the courts. An act
2-21 performed by any of the judges is binding on all parties to the
2-22 proceeding.
2-23 (f) A municipal judge is entitled to a salary from the city,
2-24 the amount of which is determined by the governing body of the city
2-25 and may not be diminished during the judge's term of office. The
2-26 salary may not be based directly or indirectly on fines, fees, or
3-1 costs collected by the court.
3-2 (g) A municipal judge may be removed from office by the
3-3 governing body of the city at any time for incompetence,
3-4 misconduct, malfeasance, or disability.
3-5 (h) A municipal judge shall take judicial notice of the city
3-6 ordinances and the corporate limits of the city in a case tried
3-7 before a municipal court of record. A municipal judge may grant
3-8 writs of mandamus, injunction, and attachment and other writs
3-9 necessary to the enforcement of the jurisdiction of the court and
3-10 may issue writs of habeas corpus in cases in which the offense
3-11 charged is within the jurisdiction of the court.
3-12 (i) The governing body of the city shall appoint a qualified
3-13 person to fill a vacancy in the office of municipal judge.
3-14 (j) The governing body may appoint one or more qualified
3-15 persons to be available to serve for a municipal judge who is
3-16 temporarily absent due to illness, family death, or continuing
3-17 legal or judicial education programs or for any other reason. The
3-18 chief judge, or the municipal judge if there is no chief judge,
3-19 shall select one of the persons appointed by the governing body to
3-20 serve during an absence. An alternate judge, while serving, has
3-21 all the powers and shall discharge all the duties of a municipal
3-22 judge. An alternate judge must have the same qualifications as a
3-23 municipal judge.
3-24 Sec. 30.01725. CLERK; OTHER PERSONNEL. The city secretary
3-25 shall be, ex officio, the clerk of the municipal court of record
3-26 and may hire, direct, and remove the personnel authorized in the
4-1 city's annual budget for the clerk's office. The clerk or the
4-2 clerk's deputies shall keep the records of the municipal courts of
4-3 record, issue process, and generally perform the duties for the
4-4 courts that a clerk of the county court exercising criminal
4-5 jurisdiction is required by law to perform for that court. The
4-6 clerk shall perform the duties in accordance with statutes, the
4-7 city charter, and city ordinances.
4-8 Sec. 30.01726. COURT REPORTER. (a) The city shall provide
4-9 a court reporter for the purpose of preserving a record in cases
4-10 tried before the municipal court of record. The clerk of the court
4-11 shall appoint the court reporter, who must meet the qualifications
4-12 provided by law for official court reporters. The reporter shall
4-13 be compensated by the city in the manner determined by the
4-14 governing body of the city.
4-15 (b) The court reporter may use written notes, transcribing
4-16 equipment, video or audio recording equipment, or a combination of
4-17 those methods to record the proceedings of the court. The court
4-18 reporter shall keep the record for the 20-day period beginning the
4-19 date after the last day of the court proceeding, trial, or denial
4-20 of motion for new trial, whichever occurs last.
4-21 (c) The court reporter is not required to record testimony
4-22 in a case unless the judge or one of the parties requests a record.
4-23 A party's request for a record must be in writing and be filed with
4-24 the court before trial.
4-25 (d) The governing body may provide that in lieu of providing
4-26 a court reporter at trial, proceedings in a municipal court of
5-1 record may be recorded by a good quality electronic recording
5-2 device. If the governing body authorizes the electronic recording,
5-3 the court reporter need not be present at trial to certify the
5-4 statement of facts. The recording shall be kept and stored for the
5-5 20-day period beginning the day after the last day of the
5-6 proceeding, trial, or denial of motion for new trial, whichever
5-7 occurs last. The proceedings that are appealed shall be
5-8 transcribed from the recording by an official court reporter.
5-9 Sec. 30.01727. PROSECUTIONS BY CITY ATTORNEY. All
5-10 prosecutions in the municipal court of record must be conducted by
5-11 the city attorney or an assistant or deputy city attorney.
5-12 Sec. 30.01728. JURY. (a) A person who is brought before a
5-13 municipal court of record and who is charged with an offense is
5-14 entitled to be tried by a jury of six persons unless that right is
5-15 waived according to law. The jury shall decide all questions of
5-16 fact or credibility of witnesses. The court shall determine all
5-17 matters of law and shall charge the jury on the law.
5-18 (b) A juror who serves in the municipal court of record must
5-19 meet the qualifications provided by Chapter 62.
5-20 Sec. 30.01729. APPEAL. (a) A defendant has the right of
5-21 appeal from a judgment or conviction in a municipal court of record
5-22 as provided by this subchapter. The county courts at law of Bexar
5-23 County have jurisdiction over an appeal. The state has no right to
5-24 an appeal or to a new trial.
5-25 (b) The appellate court shall determine each appeal from a
5-26 municipal court of record conviction on the basis of the errors
6-1 that are set forth in the defendant's motion for new trial and that
6-2 are presented in the transcript and statement of facts prepared
6-3 from the proceedings leading to the conviction. An appeal from the
6-4 municipal court of record may not be by trial de novo.
6-5 (c) To perfect an appeal the defendant must file with the
6-6 municipal court clerk a written motion for new trial not later than
6-7 the 10th day after the date on which judgment is rendered. The
6-8 motion must set forth the points of error of which the defendant
6-9 complains. The motion or amended motion may be amended by leave of
6-10 court at any time before action on the motion is taken but not
6-11 later than the 20th day after the date on which the original or
6-12 amended motion is filed. The court may for good cause extend the
6-13 time for filing or amending, but the extension may not exceed 90
6-14 days from the original filing deadline. If the court does not act
6-15 on the motion before the expiration of the 30 days allowed for
6-16 determination of the motion, the original or amended motion is
6-17 overruled by operation of law.
6-18 (d) To perfect an appeal the defendant must also give notice
6-19 of the appeal. If the defendant requests a hearing on the motion
6-20 for new trial, the defendant may give the notice of appeal orally
6-21 in open court on the overruling of the motion. If there is no
6-22 hearing, the defendant must give written notice of appeal and must
6-23 file the notice with the court not later than the 10th day after
6-24 the date on which the motion is overruled. The court may for good
6-25 cause extend that time period, but the extension may not exceed 90
6-26 days from the original filing deadline.
7-1 Sec. 30.01730. APPEAL BOND. (a) If the defendant is not in
7-2 custody, the defendant may not take an appeal until the defendant
7-3 files an appeal bond with the municipal court of record. The bond
7-4 must be approved by the court and must be filed not later than the
7-5 10th day after the date on which the motion for new trial is
7-6 overruled. If the defendant is in custody, the defendant shall be
7-7 committed to jail unless the defendant posts the appeal bond.
7-8 (b) The appeal bond must be in the amount of $50 or double
7-9 the amount of the fine and costs adjudged against the defendant,
7-10 whichever is greater. The bond must state that the defendant was
7-11 convicted in the case and has appealed, must be payable to the
7-12 state for the use and benefit of the city, and must be conditioned
7-13 on the defendant's appearance in the court to which the appeal is
7-14 taken.
7-15 Sec. 30.01731. RECORD ON APPEAL. The record on appeal
7-16 consists of a transcript and, if necessary to the appeal, a
7-17 statement of facts. The court reporter shall prepare the record
7-18 from the reporter's record or mechanical or video recordings of the
7-19 proceedings. The defendant shall pay for the cost of the
7-20 transcription. If the court finds that the defendant is unable to
7-21 pay or give security for the record on appeal after a hearing in
7-22 response to an affidavit by the defendant, the court shall order
7-23 the reporter to prepare the record without charge to the defendant.
7-24 If the case is reversed on appeal, the court shall promptly refund
7-25 the cost to the defendant.
7-26 Sec. 30.01732. TRANSCRIPT. (a) On the written request of
8-1 the defendant or the defendant's attorney, the municipal court
8-2 clerk shall prepare under the clerk's hand and seal a transcript of
8-3 the municipal court of record proceedings. The transcript must
8-4 include copies of:
8-5 (1) the complaint;
8-6 (2) material docket entries made by the court;
8-7 (3) the jury charge and verdict in a jury trial;
8-8 (4) the judgment;
8-9 (5) the motion for new trial;
8-10 (6) the notice of appeal;
8-11 (7) written motions and pleas;
8-12 (8) written orders of the court;
8-13 (9) any bills of exception filed with the court;
8-14 (10) the appeal bond; and
8-15 (11) exhibits admitted into evidence.
8-16 (b) The clerk may include in the transcript additional
8-17 portions of the proceedings in the court prepared from mechanical
8-18 or video recordings.
8-19 Sec. 30.01733. BILLS OF EXCEPTION. Either party may include
8-20 bills of exception in the transcript subject to the applicable
8-21 provisions of the Texas Rules of Appellate Procedure. The bills of
8-22 exception must be filed with the municipal court clerk not later
8-23 than the 60th day after the date on which the notice of appeal is
8-24 given or filed.
8-25 Sec. 30.01734. STATEMENTS OF FACTS. A statement of facts
8-26 included in the record on appeal must contain:
9-1 (1) a transcript of all or part of the municipal court
9-2 of record proceedings that are shown by the notes of the court
9-3 reporter to have occurred before, during, or after the trial if the
9-4 transcript is requested by the defendant;
9-5 (2) a brief statement of the facts of the case proven
9-6 at trial as agreed to by the defendant and the prosecuting
9-7 attorney;
9-8 (3) a partial transcript and the agreed statement of
9-9 the facts of the case; or
9-10 (4) a transcript of all or part of the municipal court
9-11 of record proceedings in the case that is prepared from mechanical
9-12 or video recordings of the proceedings.
9-13 Sec. 30.01735. COMPLETION, APPROVAL, AND TRANSFER OF RECORD.
9-14 (a) Not later than the 60th day after the date on which the notice
9-15 of appeal is given or filed, the parties must file with the
9-16 municipal court clerk:
9-17 (1) the statement of facts;
9-18 (2) a written description of material to be included
9-19 in the transcript in addition to the required material; and
9-20 (3) any material to be included in the transcript that
9-21 is not in the custody of the clerk.
9-22 (b) On completion of the record, the municipal judge shall
9-23 approve the record in the manner provided for record completion,
9-24 approval, and notification in the court of appeals.
9-25 (c) After the court approves the record the clerk shall
9-26 promptly send it to the appellate court clerk for filing. The
10-1 appellate court clerk shall notify the defendant and the
10-2 prosecuting attorney that the record has been filed.
10-3 Sec. 30.01736. BRIEF ON APPEAL. (a) A defendant's brief on
10-4 appeal from a municipal court of record must present points of
10-5 error in the manner required by law for a brief on appeal to the
10-6 court of appeals.
10-7 (b) The defendant must file the brief with the appellate
10-8 court clerk not later than the 15th day after the date on which the
10-9 transcript and statement of facts are filed with that clerk. The
10-10 defendant or the defendant's attorney must certify that the brief
10-11 has been properly mailed to the prosecuting attorney.
10-12 (c) The prosecuting attorney must file the appellee's brief
10-13 with the appellate court clerk not later than the 15th day after
10-14 the date on which the defendant's brief is filed.
10-15 (d) On filing, each party shall deliver a copy of the brief
10-16 to the opposing party and to the municipal judge.
10-17 Sec. 30.01737. COURT RULES. (a) Except as modified by this
10-18 subchapter, the Code of Criminal Procedure governs the trial of
10-19 cases before the municipal court of record. The court may make and
10-20 enforce all rules of practice and procedure necessary to expedite
10-21 the trial of cases before the court that are not inconsistent with
10-22 general law.
10-23 (b) The appellate courts may make and enforce all rules of
10-24 practice and procedure that are not inconsistent with general law
10-25 and that are necessary to expedite the dispatch of appeals from the
10-26 municipal court of record.
11-1 Sec. 30.01738. DISPOSITION ON APPEAL. (a) According to law
11-2 and the nature of the case, the appellate court may:
11-3 (1) affirm the judgment of the municipal court of
11-4 record;
11-5 (2) reverse and remand for a new trial;
11-6 (3) reverse and dismiss the case; or
11-7 (4) reform and correct the judgment.
11-8 (b) Unless the matter was made an issue in the trial court
11-9 or it affirmatively appears to the contrary from the transcript or
11-10 the statement of facts, the appellate court shall presume that:
11-11 (1) venue was proven in the trial court;
11-12 (2) the jury, if any, was properly impaneled and
11-13 sworn;
11-14 (3) the defendant was arraigned and pleaded to the
11-15 complaint; and
11-16 (4) the municipal judge certified the charge before it
11-17 was read to the jury.
11-18 (c) In each case decided by the appellate court, the court
11-19 shall deliver a written opinion or order either sustaining or
11-20 overruling each assignment of error presented. The court shall set
11-21 forth the reasons for its decision. The appellate court clerk
11-22 shall mail copies of the decision to the parties and to the
11-23 municipal judge as soon as the decision is rendered.
11-24 Sec. 30.01739. CERTIFICATE OF APPELLATE PROCEEDINGS. When
11-25 the judgment of the appellate court becomes final, the clerk of
11-26 that court shall certify the proceedings and the judgment and shall
12-1 mail the certificate to the municipal court. The municipal court
12-2 clerk shall file the certificate with the papers in the case and
12-3 note the certificate on the case docket. If the municipal court of
12-4 record judgment is affirmed, further action to enforce the judgment
12-5 is not necessary except to:
12-6 (1) forfeit the bond of the defendant;
12-7 (2) issue a writ of capias for the defendant; or
12-8 (3) issue an execution against the defendant's
12-9 property.
12-10 Sec. 30.01740. EFFECT OF ORDER ON NEW TRIAL. If the
12-11 appellate court awards a new trial to the defendant, the case
12-12 stands as if a new trial had been granted by the municipal court of
12-13 record.
12-14 Sec. 30.01741. APPEAL TO COURT OF APPEALS. The defendant
12-15 has the right to appeal to the court of appeals if the fine
12-16 assessed against the defendant exceeds $100 and if the judgment is
12-17 affirmed by the appellate court. The provisions of the Code of
12-18 Criminal Procedure relating to direct appeals from a county or a
12-19 district court to the court of appeals apply to the appeal, except
12-20 that:
12-21 (1) the record and briefs on appeal in the appellate
12-22 court constitute the record and briefs on appeal to the court of
12-23 appeals unless the rules of the court of criminal appeals provide
12-24 otherwise; and
12-25 (2) the record and briefs shall be filed directly with
12-26 the court of appeals.
13-1 SECTION 2. 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,
13-6 and that this Act take effect and be in force from and after its
13-7 passage, and it is so enacted.