HBA-JRA H.B. 404 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 404
By: Palmer
Judicial Affairs
2/10/1999
Introduced



BACKGROUND AND PURPOSE 

Currently, an appeal from a municipal court consists of a trial de novo in
the county courthouse.  The prosecutor must retry the case again and the
defendant has a second chance to be found not guilty. Multiple trials for
the same offense are time consuming and inefficient.  A municipal court of
record is able to try a case one time, and if a conviction ensues, the
defendant has the right to appeal through traditional appellate review
rather than through a trial de novo before another fact finder.  H.B. 404
creates a municipal court of record in Sansom Park.  Any appeal from that
court would then be based upon standard legal appellate standards and would
not be a trial de novo.  Additionally, this bill provides authorization for
the city to contract with other municipalities to establish a joint
municipal court of record. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 30, Government Code, by adding Subchapter OO, as
follows: 

SUBCHAPTER OO.  SANSOM PARK

Sec. 30.01541.  APPLICATION.  Establishes that this subchapter applies to
the City of Sansom Park. 

Sec. 30.01542.  CREATION.  Authorizes the governing body of the city
(governing body) to create a municipal court of record.  Authorizes the
governing body to determine and establish the number of municipal courts of
record needed and requires that each receive a numerical designation,
beginning with "Municipal Court of Record No. 1."  Prohibits a municipal
court of record from existing concurrently with municipal courts that are
not courts of record.  Establishes that a municipal court of record has no
terms and may sit at any time. 

Sec. 30.01543.  APPLICATION OF OTHER LAWS.  Establishes that general law
regarding municipal courts and justice courts and any charter provision or
city ordinance relating to the municipal court apply to a municipal court
of record, unless they conflict with this subchapter. 

Sec. 30.01544.  JUDGE.  Establishes that a municipal judge presides over a
municipal court of record.  Requires the governing body to appoint a chief
judge for a two year term if there is more than one municipal judge in the
city.  Provides that a municipal judge must be a licensed attorney with two
or more years' experience practicing law in Texas, a citizen of the United
States and of Texas.  Requires the judge to devote as much time as
necessary to the office.  Authorizes judges to sit and perform binding acts
in any municipal court of record in the city.  Entitles a municipal judge
to a salary which may not be diminished during the judge's term of office
and may not be based on fines, fees, or costs collected by the court.
Authorizes the governing body to remove a judge for incompetency,
misconduct,  malfeasance, or disability.  Requires a municipal judge to
take judicial notice of the city ordinances and the corporate limits of the
city in a case before the municipal court of record. Authorizes a municipal
judge to grant writs of mandamus, injunction, attachment and other writs
necessary and to issue writs of habeas corpus and administrative search
warrants. Requires the governing body to fill a vacancy in the office of
municipal judge for the remainder of the term.  Authorizes the governing
body to appoint alternate judges.  Requires the chief judge, or municipal
judge if there is no chief judge, to select one of the appointees to serve
for a municipal judge who is temporarily absent.  Establishes that an
alternate judge, while serving, has all the powers and duties of a
municipal judge and must meet the same qualifications. 

Sec. 30.01545.  MAGISTRATES.  Authorizes the governing body to appoint
magistrates in addition to those under Article 2.09, Code of Criminal
Procedure (Who are Magistrates). Establishes that a magistrate does not
have to possess all the qualifications necessary to be a municipal court of
record  judge.  Prohibits a magistrate from presiding over the court or
hearing contested cases.  Authorizes a magistrate to conduct an
arraignment, hold an indigency hearing, accept a plea, sign a judgment, set
the amount of a bond, and perform other functions under Article 15.17, Code
of Criminal Procedure (Duties of Arresting Officer and Magistrate). 

Sec. 30.01546.  CLERK; OTHER PERSONNEL.  Requires the city administrator to
appoint a clerk of the municipal court of record to  hire, direct, and
remove the personnel authorized in the city's annual budget for the clerk's
office.  Requires the clerk to perform the duties that a clerk of the
county court exercising criminal jurisdiction is required by law to
perform, in accordance with statutes, the city charter, and city
ordinances. 

Sec. 30.01547.  COURT REPORTER.   Requires the city to provide and
compensate a qualified court reporter to be appointed by the clerk.
Authorizes the court reporter to use written notes, transcribing equipment,
video, or audio recording equipment.  Requires the record to be kept for 20
days after the court proceeding, trial, or denial of motion for new trial,
whichever occurs last.  Establishes that a record is required only if the
judge or one of the parties files a written request.  Authorizes the
governing body to record the proceedings by an electronic recording device
instead of a court reporter.  Requires appealed proceedings to be recorded
by an official court reporter. 

Sec. 30.01548.  PROSECUTIONS BY CITY ATTORNEY.  Provides that prosecutions
in the municipal court of record must be conducted by the city attorney or
an assistant or deputy city attorney. 

Sec. 30.01549.  JURY.  Entitles a person brought before the municipal court
of record to be tried by a jury of six persons, unless the right is waived.
Requires the jury to decide all questions of fact or credibility of
witnesses.  Requires the court to determine matters of law and charge the
jury on the law.  Provides that a juror must meet the qualifications
provided by Chapter 62, Government Code (Petit Juries). 

Sec. 30.01550.  APPEAL.  Provides that a defendant has the right of appeal
from a municipal court of record judgment or conviction and that the county
criminal courts of Tarrant County have jurisdiction over such appeals.
Provides that the state has no right to an appeal or new trial.  Requires
the appellate court to determine each appeal on the basis of errors set
forth in the defendant's motion for new trial and presented in the
transcript and statement of facts. Prohibits an appeal from being a trial
de novo (Black's Law Dictionary, Abridged Sixth Edition:  a trial of the
whole case anew).  Provides that the defendant must file a written motion
for new trial setting forth the points of error within 10 days of the
rendering of the judgment in order to perfect the appeal.  Authorizes the
motion to be amended by leave of the court at any time before action on the
motion is taken, but within 20 days after the original or amended motion is
filed.  Authorizes the court to extend the time for filing or amending, but
prohibits the extension from exceeding 90 days from the original filing
deadline.  Establishes that the original or amended motion is overruled by
operation of law if the court does not act on it within 30 days.  Requires
the defendant to give notice of an  appeal, orally or written, as
appropriate.  Provides that the defendant must give written notice within
10 days of the overruling of the motion.  Authorizes the court to extend
that deadline, but prohibits the extension from exceeding 90 days from the
original filing deadline. 

Sec. 30.01551.  APPEAL BOND.  Prohibits a defendant from taking an appeal
unless an appeal bond approved by the court is filed within 10 days of the
motion for new trial being overruled.  Requires a defendant already in
custody to be committed to jail unless an appeal bond is posted.
Establishes that the appeal bond must be $50 or double the amount of the
fine and costs, whichever is greater, and sets forth specific conditions. 

Sec. 30.01552.  RECORD ON APPEAL.  Establishes that the record on appeal
consists of a transcript and, if necessary, a statement of facts.  Requires
the defendant to pay for the cost of transcription if possible, to be
refunded by the court if the case is reversed on appeal. 

Sec. 30.01553.  TRANSCRIPT.  Requires the clerk to prepare a  transcript of
the municipal court of record's proceedings upon written request of the
defendant. Sets forth the necessary contents of a transcript. 

Sec. 30.01554.  BILLS OF EXCEPTION.  Authorizes either party to file bills
of exception in the transcript subject to the Texas Rules of Appellate
Procedure withing 60 days of filing or giving the notice of  appeal. 

Sec. 30.01555.  STATEMENTS OF FACTS.  Provides that a statement of facts
must contain a transcript of all or part of the proceedings or a brief
statement of the facts of the case proven at trial as agreed to by the
defendant and the prosecuting attorney or a combination of the two. 

Sec. 30.01556.  COMPLETION, APPROVAL, AND TRANSFER OF RECORD.  Provides
that the parties must file with the municipal court clerk, within 60 days
of filing the notice of appeal, a statement of facts, a description of
additional material to be included in the transcript, and any material to
be included that is not in the clerk's custody.  Requires the judge to
approve the record and the clerk to send it to the appellate court clerk
for filing. Requires the appellate court clerk to notify the defendant and
the prosecuting attorney of the filing. 

Sec. 30.01557.  BRIEF ON APPEAL.  Provides that a defendant must file a
brief on appeal with the appellate court clerk, within 15 days of the
filing of the transcript and statement of facts, presenting points of error
and to certify that the brief has been properly mailed to the prosecuting
attorney.  Provides that the prosecuting attorney must file the appellee's
brief within 15 days of the defendant's filing.  Requires each party, on
filing, to deliver a copy of the filed brief to the opposing party and to
the municipal judge. 

Sec. 30.01558.  COURT RULES.  Establishes that the Code of Criminal
Procedure, except as provided by this subchapter, governs the trial of
cases before the municipal court of record.  Authorizes the municipal court
of record to make and enforce all rules of practice and procedure necessary
to expedite the trial of cases.  Provides that a bond must be payable to
the state for the use of the city.  Authorizes a peace officer to serve a
process issued by the municipal court.  Authorizes the appellate courts to
make and enforce all rules of practice and procedure necessary to expedite
appeals from the municipal court of record. 

Sec. 30.01559.  DISPOSITION ON APPEAL.  Authorizes the appellate court to
affirm the judgment of the municipal court of record, reverse and remand
for a new trial, reverse and dismiss the case, or reform and correct the
judgment.  Requires the appellate court, unless otherwise provided, to
assume that venue was proven in the trial court, any jury was properly
impaneled and sworn, the defendant was arraigned and pleaded to the
complaint, and the charge was certified before it was read to the jury.
Requires the appellate court to deliver a written opinion or order
including reasons for its decision and to mail copies to the parties and
the municipal judge as soon as it is rendered. 

 Sec. 30.01560.  CERTIFICATE OF APPELLATE PROCEEDINGS.  Requires the clerk
to certify the proceeding and the judgment and mail the certificate to the
municipal court when the judgment of the appellate court becomes final.
Requires the clerk to file the certificate and note it on the case docket.
Establishes that, if the municipal court judgment is affirmed, further
action to enforce the judgment is not necessary except to forfeit the bond
of the defendant, issue an arrest warrant, or issue an execution against
the defendant's property. 

Sec. 30.01561.  EFFECT OF ORDER OF NEW TRIAL.  Establishes that the
appellate court awarding a new trial has the same effect as if the
municipal court had granted it. 

Sec. 30.01562.  APPEAL TO COURT OF APPEALS.  Establishes the defendant's
right to appeal to the court of appeals if the fine assessed is over $100
and the judgment is affirmed by the appellate court.  Provides that the
provisions of the Texas Rules of Appellate Procedure relating to direct
appeals from a county or a district court to the court of appeals apply to
the appeal, except that the record and briefs on appeal in the appellate
court constitute the record and briefs on appeal to the court of appeals
unless the rules of the court of criminal appeals provide otherwise, and
the records and briefs are required to be filed directly with the court of
appeals. 

Sec. 30.01563.  JOINT COURTS:  CREATION.  Authorizes the governing body of
the city to contract with other municipalities that have municipal courts
of record to establish a joint municipal court, which would replace each
municipality's individual municipal court. 

Sec. 30.01564.  JOINT COURT:  JUDGES.  Establishes that a joint municipal
court of record is presided over by a municipal judge who is appointed by
majority vote of each of the governing bodies for a two-year term and can
be removed for incompetency, misconduct, malfeasance, or inability to
perform the duties required. 

Sec. 30.01565.  JOINT COURTS:  JURISDICTION.  Establishes that the
jurisdiction of a joint municipal court of record is the combined
jurisdiction of the municipal courts of the contracting municipalities.
Provides that an appeal from a joint municipal court is to the county
criminal court.  Provides that the appeal, if that county does not have a
criminal court, is to the county court at law. 

Sec. 30.01566.  JOINT COURT:  PROSECUTING ATTORNEY.  Authorizes a
municipality to contract its own prosecuting attorney or to agree with the
contracting municipalities on the selection of prosecuting attorneys. 

Sec. 30.01567.  JOINT COURT:  APPLICABLE LAW.  Requires the municipalities
to select one of the contracting municipality's enabling statutes as the
source of applicable procedural requirements for the operation of the joint
municipal court.  Provides that the provisions relating to joint courts in
this subchapter control, if there is any conflict.  Requires that any
matter not covered by the contracting municipalities' enabling legislation
or other law be resolved by the contract entered into under Section
30.01563. 

SECTION 2.Emergency clause.
  Effective date: upon passage.