Office of House Bill AnalysisS.B. 173
By: Cain
Judicial Affairs


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.  


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 1.  Amends Chapter 30, Government Code, by adding Subchapter NN, as


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

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

(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,

(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. 

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

(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. 

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.