HBA-KMH S.B. 173 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 173 By: Cain Judicial Affairs 4/13/1999 Engrossed BACKGROUND AND PURPOSE Currently, there is no municipal court of record in Tyler. Because of this, when a case is heard in municipal court, the defendant may appeal without alleging error. Appeals are heard in the County Court of Smith County. This makes the current municipal court ineffective because anyone who wants an appeal can get one, and a hearing is not necessary to decide whether there are grounds for that appeal. S.B. 173 creates a municipal court of record in Tyler. 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 NN, as follows: SUBCHAPTER NN. TYLER Sec. 30.01511. APPLICATION. Provides that this subchapter applies to the City of Tyler. Sec. 30.01512. CREATION. Authorizes the city, if it determines that the formation of such a court is necessary to provide a more efficient disposition of appeals arising from the municipal court, to create by ordinance a municipal court of record known as "the City of Tyler Municipal Court." Authorizes the governing body to determine and establish the number of courts of record required to dispose of the cases arising in the city. Sec. 30.01513. APPLICATION OF OTHER LAWS. Provides that the general law regarding municipal courts, or the general law regarding justice courts, for matters not covered by the general law regarding municipal courts, and any charter provision or ordinance relating to municipal court, apply to a municipal court of record, unless the law, charter or ordinance is inconsistent with this subchapter. Sec. 30.01514. JUDGE. Provides that a municipal court of record is presided over by a municipal judge appointed by the city manager, and who is a licensed attorney in good standing in this state, a citizen of the United States, and a resident of this state, but not necessarily of the city. Requires the municipal judge to devote as much time as necessary to the office and take judicial notice of the city ordinances. Requires the city manager, if more than one judge is appointed, to appoint a presiding municipal judge. Authorizes a municipal judge to sit and act for another judge in a municipal court proceeding, and provides that an act performed by the sitting judge is binding on all parties to the proceeding. Entitles a municipal judge to a salary from the city determined by the city manager, but the salary may not be based directly or indirectly on fines, fees, or costs collected by the court. Sec. 30.01515. CLERK; OTHER PERSONNEL. Requires the city manager to provide a clerk of the municipal courts of record. Requires the clerk to keep records of the courts, issue process, and perform the duties that a clerk of a county court of law exercising criminal jurisdiction performs. Requires the city manager to provide deputy clerks, warrant officers, and other personnel needed for the proper operation of the courts. Requires the clerk and other court personnel to perform their duties under the direction and control of the city manager. Sec. 30.01516. COURT REPORTER. (a) Requires the city to provide a court reporter for the purpose of preserving the record in a case tried before the municipal court of record. Requires the municipal court clerk to appoint the court reporter. Provides that a court reporter under this subsection must meet the qualifications provided by law for official court reporters. Requires the city manager to set the compensation of the court reporter. (b) Authorizes the court reporter to preserve a record through written notes, transcribing equipment, recording equipment, or a combination of those methods. Provides that the reporter is not required to record testimony if a record is not demanded by the defendant, the prosecutor, or the judge. Sec. 30.01517. JURY. Requires the names of prospective jurors to be drawn from a jury wheel maintained by the district court of Smith County or by the clerk of the municipal court of record with names from Tyler voter registration rolls in Smith County. Sec. 30.01518. APPEAL. (a) Provides that a defendant has the right to appeal a judgment or conviction of the court and that the County Court of Smith County has jurisdiction over an appeal. Requires the city attorney or the city attorney's designee to prosecute an appeal. (b) Requires the appellate court to determine each appeal from judgment or conviction according to the errors set forth in the defendant's motion for new trial and presented in the transcript and statement of facts prepared from court proceedings. Prohibits an appeal from a municipal court of record from being by trial de novo, which is defined as a, "new trial or retrial had in which the whole case is retried as if no trial whatever had been had in the first instance" (Black's Law Dictionary, Fifth Edition, p.1505). (c) Provides that, in order to perfect an appeal, the defendant must file a written motion for new trial not later than the 10th day after the date the judgment is rendered, setting forth the points of error on which the defendant complains. Provides that a point of error not in the motion is waived, and that a motion or amended motion may be amended by leave of the court at any time before the court acts on it, up to 20 days after the motion or amended motion is filed. Authorizes the court, for good cause, to extend the time for filing or amending an original or amended motion. Provides that, if the court does not act before the 21st day after the original or amended motion is filed, it is overruled by operation of law. (d) Requires the defendant, in order to perfect an appeal, to also give notice of the appeal, either by giving notice orally in open court if, at a hearing on the motion for new trial, the court overrules the motion, or by giving written notice of the appeal and filing a notice with the court not later than 10 days after the motion is overruled. Sec. 30.01519. APPEAL BOND; RECORD ON APPEAL. (a) Authorizes the defendant, if not in custody, to appeal a conviction only if an appeal bond is filed with the court, which must be approved by the court and filed not later than the 10th day after the motion for new trial is overruled. Provides that a defendant in custody must be committed to jail unless the defendant posts an appeal bond with the court. (b) Provides that the appeal bond must be $100 or twice the amount of fines and costs adjudged against the defendant, whichever is greater. Provides that the appeal bond must state that the defendant was convicted and has appealed, and be conditioned on the defendant's immediate and daily personal appearance in the court of the appeal. (c) Provides that the record on appeal consists of a transcript and, if necessary, a statement of facts. Sec. 30.01520. TRANSCRIPT; BILLS OF EXCEPTION. Requires the clerk of the court to prepare, on written request of the defendant, the transcript of the proceedings, which must include: the complaint; material docket entries made by the court; the jury charge and verdict in a jury trial; the judgment; the motion for new trial; the notice of appeal; the appeal bond; written motions and pleas; written orders of the court; and any bills of exception filed by the court. Authorizes the clerk to include additional portions of the proceeding, if instructed in writing by the defendant or the prosecuting attorney. Authorizes either party to include bills of exception in the transcript, subject to the Code of Criminal Procedure, except that they must be filed within 60 days of the date the notice of appeal is given or filed. Sec. 30.01521. STATEMENT OF FACTS. (a) Provides that a statement of facts included in the record on appeal must contain: a transcription, if the defendant requests it, of all or part of the proceedings that occurred before, during, or after the trial; a brief statement of the facts of the case proven at trial and agreed to by the defendant and the prosecuting attorney; or a partial transcription and the agreed statement of facts of the case. (b) Requires the court reporter to transcribe any portion of the notes of the court proceeding at the request of the defendant. Requires the defendant to pay for the transcription unless the court finds, after hearing in response to an affidavit by the defendant, that the defendant is unable to pay or give security for the transcription. Requires that the transcription be prepared without cost to the defendant if such a finding is made. Prohibits the transcription from exceeding the charge by court reporters in the county for similar transcriptions. Sec. 30.01522. COMPLETION, APPROVAL, AND TRANSFER OF RECORD. Provides that the parties must file with the clerk of the court, not later than 60 days after the notice of appeal is given or filed the statement of facts, any materials not in the custody of the clerk, and a description of materials in addition to those required, to be included in the transcript. Requires the municipal judge to approve the record, upon its completion, in a manner provided in the court of appeals. Requires the clerk, after approval of the record by the court, to promptly send it to the appellate court clerk for filing, and for that clerk to notify the defendant and the prosecuting attorney of its filing. Sec. 30.01523. BRIEF ON APPEAL. Provides that a defendant's brief on appeal must present the points of error in a manner required by the court of appeal, except that the points are confined to those set forth in the motion for new trial. Provides that the defendant must file the brief not later than 15 days after filing the transcript and statement of fact with the clerk of the appellate court, who is required to notify the prosecuting attorney of the filing. Provides that the prosecuting attorney must file the appellee's brief with the clerk not later than 15 days after the defendant's brief is filed. Requires each party, on filing a brief with the clerk of the appellate court, to deliver to the opposing party a copy of their brief. Sec. 30.01524. PROCEDURE; DISPOSITION. (a) Requires the appellate court to hear appeals from the municipal court of record at the earliest possible time with due regard to the rights of the parties and the administration of justice. (b) Prohibits the court from affirming or reversing a case based on a technical error, including an error in the preparation or filing of the record on appeal. (c) Authorizes the court to determine the rules of oral argument, and the parties to submit the case on record and briefs without oral argument. (d) Authorizes the appellate court, according to the law and nature of the case, 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. (e) Requires the appellate court, unless the issue was raised in the trial court or it affirmatively appears to the contrary from the transcript or the statement of facts, to presume that: the venue was proven in the trial court; the jury, if any, was properly impaneled; the defendant was arraigned and pleaded to the complaint; and the municipal judge certified the charge before it was read to the jury. (f) Requires the appellate court, in each case it decides, to deliver a written opinion or order sustaining or overruling each assignment of error presented. Authorizes the court to cite the cases on which it relied, does not require it to give a reason for overruling an assignment of error. Requires the court, if an assignment of error is sustained, to set forth the reasons for the decision. (g) Requires the appellate court clerk to mail to the parties and the municipal judge copies of the appellate court's decision immediately after the court renders a decision. Sec. 30.01525. CERTIFICATE OF APPELLATE PROCEEDINGS. Requires the appellate court clerk, when the judgment is final, to certify the proceedings and the judgment, and mail the certificates to the clerk of the municipal court of record. Requires the municipal clerk to file the certificate with the papers in the case and note it on the case docket. Provides that it is not necessary, if the municipal court judgment is affirmed, to take further action to enforce the judgment except to forfeit the bond of the defendant, issue a writ of capias for the defendant or issue an execution against the defendant's property. Writ of capias is defined as, "the general name for several species of writs, the common characteristic of which is that they require the officer to take a named defendant into custody" (Black's Law Dictionary, Fifth Edition, p. 208). Sec. 30.01526. EFFECT OF ORDER OF NEW TRIAL. Provides that, if the appellate court awards a new trial to the defendant, the case stands as if a new trial had been granted by the municipal court of record. Sec. 30.01527. APPEAL TO COURT OF APPEALS. Grants the defendant the 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 Code of Criminal Procedure relating to direct appeals from county or district court to the court of appeals apply, except that the record, briefs on appeal and the transcript of proceedings 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. Requires the record and briefs to be filed directly with the court of appeals. SECTION 2. Effective date: September 1, 1999. SECTION 3. Emergency clause.