So You Want to Be a Court of Record?

6/22/2018

SO YOU WANT TO BE A COURT OF RECORD?

RYAN HENRY 1380 PANTHEON WAY, SUITE 110 SAN ANTONIO, TEXAS 78232 WWW.RSHLAWFIRM.COM 210-257-6357

WHY GOD?! WHY WOULD THE COUNCIL DO SUCH A THING?!

REASONS FOR GOING TO COURT OF RECORD

• Reduce Appeals (no longer de novo) • Increase Jurisdiction • Change Enforcement Burdens • Better Manage Administrative Law Role • Increase Number of Courts

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PERSONAL EXPERIENCE: MAIN REASONS FOR CHANGE OVER

• Enforcing City Ordinances through Civil Tools • Nuisance Abatement • Administrative Investigation • Administrative Alternatives

ILLEGAL SIGNS

ZONING

Illegal Strip Club in Residential Zone

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SOMETIMES IT MAY GET A LITTLE EXTREME

PERSONAL EXPERIENCE: WHAT NORMALLY HAPPENS

• If judge is a lawyer, he/she is fine with the change; • If judge is a non-lawyer, they start looking for another job; • City Attorney is normally fine with change; • City Clerk………. FREAKS OUT!!!

COMMON CLERK ISSUES

• SPARSE MATERIALS AND CHECKLISTS • ORDINANCES SPECIFIC TO EACH CITY • MULTI-PARTY SUITS • CHANGING HABITS

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BASICS ON STRUCTURE

• Court of Non-Record • Controlled by Chapter 29 of Tex. Gov’t Code • Controlled by Article 45 of CCP • Court of Record • Controlled by Chapters 29 and 30 of Tex. Gov’t Code • Controlled by Article 45 of CCP • Influenced by various state statutes, but mainly Chapter 54 of Tex. Loc. Gov’t Code

QUALIFICATIONS FOR COURT OF RECORD • City Must Pass Ordinance • Lawyer Judge (2 or more years in practice)

• Terms of 2 or 4 years. Tex. Gov't Code Ann. § 30.00006 • Ability to Record Proceedings • Clerk Reports to Judge

CHAPTER 30

• City Council must pass ordinance creating the court of record. Tex.Gov't Code Ann. § 30.00003; • Court of Non-Record can not exist simultaneously; • Any additional courts must be numbered;

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INCORPORATION JURISDICTION (RYAN’S FANCY WORD)

• Incorporates all powers of courts of non-record; • Incorporates all powers under ordinance; • Incorporates all powers concurrent with district court for civil jurisdiction (Subchapter A, Chapter 214, Local Government Code [buildings], or Subchapter E, Chapter 683,Transportation Code [junk vehicles]); • Incorporates all powers concurrent with district court for Subchapter B, Chapter 54, Local Government Code (ordinance & nuisance enforcement).

WARRANTS

• Search warrants for a health and safety or nuisance abatement ordinance violations; and • Seizure warrants for the purpose of securing, removing, or demolishing the offending property and removing the debris from the premises.

• Tex. Gov't Code Ann. § 30.00005

POWERS OF JUDGE

• The judge may grant writs of mandamus, attachment, and other writs necessary for the enforcement of the jurisdiction. • May issue writs of habeas corpus in cases in which the offense charged is within the jurisdiction of the court. • A municipal judge is a magistrate and may issue administrative search warrants.

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WARNING!!!

• “A person may not serve as a municipal judge if the person is employed by the same municipality. A municipal judge who accepts employment with the municipality vacates the judicial office.”Tex. Gov't Code Ann. § 30.00006(g) • MOUs are acceptable for hosting

CLERKS

• Hiring and duties spelled out by ordinances and Chapter 30. Tex. Gov't Code Ann. § 30.00009; • Clerks have duties and powers required of County Courts at Law clerks.

COURT REPORTER

• Not necessary unless judge or party requests a record. Tex. Gov't Code Ann. § 30.000010; or • City may provide, instead, that the proceedings be recorded by a good quality electronic recording device. • The recording shall be kept for the 20-day period beginning the day after the last day of the court proceeding, trial, or denial of motion for new trial, whichever occurs last. If a case is appealed, the proceedings shall be transcribed from the recording by an official court reporter

Tex. Gov't Code Ann. § 30.00010

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DIFFERENCES IN CONDUCTING A COURT OF RECORD - CRIMINAL

• Complaints and pleadings must substantially conform to the relevant provisions of Chapters 27 and 45, Code of Criminal Procedure. Tex. Gov't Code Ann. § 30.000126; • Criminal nuisance up to 5,000 feet outside city limits; • If requested, must record proceedings; • Must keep recordings and records under schedule.

DIFFERENCES IN CONDUCTING A COURT OF RECORD - CIVIL

• Just like civil lawsuit in district court; • Must issue “citation” instead of a “citation”; • In name of the City instead of in the name of the State; • More work for City Attorney to get matters prepared.

Except as modified by Chapter 30, the Code of Criminal Procedure and the Texas Rules of Appellate Procedure govern the trial of cases before the municipal courts of record. Tex. Gov't Code Ann. § 30.00023

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DIFFERENCES IN CONDUCTING A COURT OF RECORD – ADMINISTRATIVE LAW

Judge sits as administrative hearing official, not as a judge.

DIFFERENCES IN OPERATION

•OCA reporting, including civil judgments (TAC § 171.8(b)(2); •Civil vs Criminal vs Admin Ordinance Hearing; •No clear guidelines.

NEW AND SCARY THINGS…. BUT NOT REALLY

•JunkVehicles – Civil/Administrative Hearings •Dangerous Dogs – Civil Hearings •Dangerous Structures – Administrative Hearing or Civil Hearing

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CHAPTER 54!!!!!!

• A municipality may bring a civil action for the enforcement of an ordinance. Tex. Loc. Gov’t Code §54.012 • Declaratory Judgment Powers • Injunction Powers • Enforcement Powers • Abatement Powers

CONCURRENT JURISDICTION

Municipal Court has concurrent jurisdiction with district and county courts for: • Subchapter B, Chapter 54, Local Government Code inside city and parts of ETJ (Ordinance Compliance) • Nuisance • Health, safety, zoning

TYPES OF SUITS

• Zoning compliance; • Structural standards; • Health and fire; • Subdivision; • Animals.

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CIVIL PENALTIES

• If Defendant is provided notice and fails to come into compliance, city ordinance can assess civil penalties; • These are NOT criminal penalties and do not entail court costs; • But must keep records for OCA on all civil judgments.

APPEALS

•Appeals on the record, not de novo; •Defendant must file motion for new trial; •Defendant appealing pays for record going to appellant court.

IN CONCLUSION •Don’t stress out! •Meant to better address matters •In the end, it’s not that different 

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TO BE CONTINUED…..

General Limitations of Court of Non-Record

No. Limitation Law

1. Only has Criminal Jurisdiction for fine only offenses. Tex. Gov’t Code §29.003

Must prove all offenses beyond a reasonable doubt.

Can only fine defendant. May order restitution as part of punishment. If no immediate threat to public health or safety is evident, no other penalties imposed. Can incentivize compliance, but not require it.

2. No civil power over dangerous structures. Must go to Tex. Gov’t Code Subchapter District Court. B of Chapter 54.

3. No civil power over junked vehicles. Must go to Tex. Transp. Code Chapter District Court. 683

4. No civil power over zoning violations. Tex. Gov’t Code Ch. 211.

5. Search warrants limited to administrative search Tex. Crim. Proc. Code art. warrants. Cannot be used in criminal procedures. 18.02

6. Judge only removed within ninety-one (91) days of Tex. Gov’t Code §29.005 mayor being sworn in for term of two (2) years or due to official misconduct

7. Appeals are de novo – Complete “do overs” with a new Tex. Crim. Proc. Code art. jury trial at the county court level. 44.17

Additional Powers of Court of Record

No. Power Use Law

1. All powers of non-record court Can hear the same Tex. Gov’t Code criminal claims §30.00005(a) & (b)

2. Civil power over junk vehicles Can remove junk Tex. Gov’t Code vehicles defined §30.00005 and under state law. Chapter 683 of Texas Transportation Code

3. Civil power over dangerous structures Substandard building Tex. Gov’t Code control without §30.00005 and relying on nuisance Chapter 214 of the laws. Can obtain Tex. Local repair orders. Can Government Code obtain demolition orders.

4. Can enact civil penalties by ordinance Several codes Tex. Gov’t Code for different health, safety and nuisance included. civil §30.00005, offenses. City Attorney must only penalties and fines Subchapter B of prove it is more likely than not the create faster Chapter 54 of Texas violation occurred. Not required to responses with less Local Government prove “beyond a reasonable doubt.” circumstantial Code and §217.002 of evidence needed. the Texas Local Government Code.

5. Can abate civil ordinance non- City must develop an Tex. Gov’t Code compliance by order or abatement ordinance for civil §30.00005 and Tex. authorization. compliance for health Loc. Gov’t Code and safety violations. §54.002 & §217.002. 6. Can seize and sell property to recover A power, but not one Tex. Loc. Gov’t Code expenses with liens unpaid for more which will typically §214.004. than 180 days for structural standards be used. determinations.

7. Appeals are only for errors of law. Reduces appeals. Tex. Crim. Proc. Code art. 44.17 and Tex. Gov’t Code §30.00014

8. Court has writ powers Writs of mandamus, Tex. Gov’t Code attachment, and other §30.00006 writs necessary to the enforcement of the jurisdiction of the court and may issue writs of habeas corpus