73R5027 DRH-F
By Bomer H.B. No. 642
Substitute the following for H.B. No. 642:
By De La Garza C.S.H.B. No. 642
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to garnishment of wages for court-ordered payment.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 1, Article 42.01, Code of Criminal
1-5 Procedure, is amended to read as follows:
1-6 Sec. 1. A judgment is the written declaration of the court
1-7 signed by the trial judge and entered of record showing the
1-8 conviction or acquittal of the defendant. The sentence served
1-9 shall be based on the information contained in the judgment. The
1-10 judgment should reflect:
1-11 1. The title and number of the case;
1-12 2. That the case was called and the parties appeared,
1-13 naming the attorney for the state, the defendant, and the attorney
1-14 for the defendant, or, where a defendant is not represented by
1-15 counsel, that the defendant knowingly, intelligently, and
1-16 voluntarily waived the right to representation by counsel;
1-17 3. The plea or pleas of the defendant to the offense
1-18 charged;
1-19 4. Whether the case was tried before a jury or a jury
1-20 was waived;
1-21 5. The submission of the evidence, if any;
1-22 6. In cases tried before a jury that the jury was
1-23 charged by the court;
1-24 7. The verdict or verdicts of the jury or the finding
2-1 or findings of the court;
2-2 8. In the event of a conviction that the defendant is
2-3 adjudged guilty of the offense as found by the verdict of the jury
2-4 or the finding of the court, and that the defendant be punished in
2-5 accordance with the jury's verdict or the court's finding as to the
2-6 proper punishment;
2-7 9. In the event of conviction where death or any
2-8 nonprobated punishment is assessed that the defendant be sentenced
2-9 to death, a term of imprisonment, or to pay a fine, as the case may
2-10 be;
2-11 10. In the event of conviction where any probated
2-12 punishment is assessed that the imposition of sentence is suspended
2-13 and the defendant is placed on probation, setting forth the
2-14 punishment assessed, the length of probation, and the probationary
2-15 terms and conditions;
2-16 11. In the event of acquittal that the defendant be
2-17 discharged;
2-18 12. The county and court in which the case was tried
2-19 and, if there was a change of venue in the case, the name of the
2-20 county in which the prosecution was originated;
2-21 13. The offense or offenses for which the defendant
2-22 was convicted;
2-23 14. The date of the offense or offenses and degree of
2-24 offense for which the defendant was convicted;
2-25 15. The term of sentence;
2-26 16. The date judgment is entered;
2-27 17. The date sentence is imposed;
3-1 18. The date sentence is to commence and any credit
3-2 for time served;
3-3 19. The terms of any order entered pursuant to Article
3-4 42.08 of this code that the defendant's sentence is to run
3-5 cumulatively or concurrently with another sentence or sentences;
3-6 20. The terms of any plea bargain;
3-7 21. Affirmative findings entered pursuant to
3-8 Subdivision (2) of Subsection (a) of Section 3g of Article 42.12 of
3-9 this code;
3-10 22. The terms of any fee payment ordered under
3-11 Articles 37.072 and 42.151 of this code;
3-12 23. The defendant's thumbprint taken in accordance
3-13 with Article 38.33 of this code;
3-14 24. In the event that the judge orders the defendant
3-15 to repay a reward or part of a reward under Articles 37.073 and
3-16 42.152 of this code, a statement of the amount of the payment or
3-17 payments required to be made; and
3-18 25. In the event that the court orders restitution to
3-19 be paid to a <the> victim <of a felony>, a statement of the amount
3-20 of restitution ordered and:
3-21 (A) the name of the victim and the permanent
3-22 mailing address of the victim at the time of the judgment; or
3-23 (B) if the court determines that the inclusion
3-24 of the victim's name and address in the judgment is not in the best
3-25 interest of the victim, the name and address of a person or agency
3-26 that will accept and forward restitution payments to the victim.
3-27 SECTION 2. Chapter 42, Code of Criminal Procedure, is
4-1 amended by adding Article 42.20 to read as follows:
4-2 Art. 42.20. WITHHOLDING FROM EARNINGS FOR COURT-ORDERED
4-3 PAYMENTS. (a) Except for good cause shown, a court that in the
4-4 judgment in a criminal case orders a person charged with or
4-5 convicted of a criminal offense to make a payment to any individual
4-6 or entity shall order that income be withheld from the disposable
4-7 earnings of the person for the payment and be paid to:
4-8 (1) the community supervision and corrections
4-9 department supervising the person if the person is on probation;
4-10 (2) the pardons and paroles division of the Texas
4-11 Department of Criminal Justice if the person is on parole or
4-12 release on mandatory supervision; or
4-13 (3) the court's registry if the person is not on
4-14 probation, parole, or release on mandatory supervision.
4-15 (b) The court has continuing jurisdiction of a person whose
4-16 income is the subject of an income withholding order to administer
4-17 and enforce the order.
4-18 (c) An income withholding order must direct any employer of
4-19 the person obligated to make a court-ordered payment to withhold
4-20 from the person's disposable earnings all or a portion of the
4-21 amount of the payment specified in the order. The amount withheld
4-22 may not exceed:
4-23 (1) 20 percent of the person's disposable earnings, if
4-24 the person's earnings are not subject to a garnishment for child
4-25 support payments; or
4-26 (2) 10 percent of the person's disposable earnings, if
4-27 the person's earnings are subject to a garnishment for child
5-1 support payments.
5-2 (d) The order must state:
5-3 (1) the style, docket number, and the court assessing
5-4 punishment;
5-5 (2) the name, address, and, if available, the social
5-6 security number of the person;
5-7 (3) that the order is for a court-ordered payment
5-8 stated in the judgment in a criminal case;
5-9 (4) the total amount of the court-ordered payments;
5-10 (5) the name and address of the person or agency to
5-11 whom payments shall be made;
5-12 (6) the apportionment and disposition of the payments
5-13 by the person or agency receiving the payments, if the
5-14 court-ordered payments are to be distributed to more than one
5-15 entity; and
5-16 (7) any other matter necessary to effect the order.
5-17 (e) The person whose income is subject to a withholding
5-18 order or the prosecuting attorney for the offense may request the
5-19 clerk of the court making the order to deliver a certified copy of
5-20 the income withholding order to any employer of the person. The
5-21 request must include the name and address of the employer. The
5-22 clerk shall issue a certified copy of the order and make a copy of
5-23 this article for each employer of the person whose income is the
5-24 subject of the order not later than the second working day after
5-25 the date the order is signed by the court or a request under this
5-26 subsection is filed, whichever is later. The clerk may charge a
5-27 reasonable fee of not more than $5 to the person whose income is
6-1 subject to a withholding order for mailing a copy of the order to
6-2 an employer.
6-3 (f) The employer shall begin to withhold income in
6-4 accordance with an order issued under this article not later than
6-5 the first pay period that occurs 14 days after the date on which
6-6 the order is delivered to the employer and shall continue to
6-7 withhold income as long as the person whose income is subject to
6-8 the order is employed by the employer. The order and a copy of
6-9 this article shall be delivered to the employer by certified or
6-10 registered mail, return receipt requested, to the person authorized
6-11 to receive service of process in civil cases generally, or to a
6-12 person designated by the employer to receive notices of delinquency
6-13 by written notice to the clerk of the appropriate court, or by the
6-14 service of citation as provided by the Texas Rules of Civil
6-15 Procedure. The clerk may charge the person whose income is subject
6-16 to withholding a reasonable fee of not more than $5 for each copy
6-17 of the order mailed by the clerk. The amount to be withheld shall
6-18 be remitted to the person or office named in the order on each
6-19 regular due date or pay date. The employer may deduct an
6-20 administrative fee of not more than $5 each month from the person's
6-21 disposable earnings in addition to the amount to be withheld as a
6-22 court-ordered payment.
6-23 (g) Not later than the 20th day after receipt of an income
6-24 withholding order, the employer may make a motion to the court that
6-25 made the order for hearing on the applicability of the order to
6-26 the employer. The hearing shall be held within 15 days after the
6-27 date of the filing of the motion. The order remains binding and
7-1 the employer shall continue to make the payments pending further
7-2 order of the court.
7-3 (h) An employer receiving an order under this article who
7-4 complies with the order is not liable to the person whose income is
7-5 subject to the order for the amount of income withheld and paid as
7-6 provided in the order. An employer who receives an income
7-7 withholding order and who does not comply with the order is liable
7-8 for the amount not paid in compliance with the order. The amount
7-9 and reasonable attorney's fees and court costs may be collected by
7-10 the prosecuting attorney or by the victim for whose benefit the
7-11 withholding is to be made. An employer who receives an income
7-12 withholding order and who does not comply with the order is liable
7-13 to the person whose income is subject to the order for any amount
7-14 withheld but not paid and for reasonable attorney's fees and court
7-15 costs.
7-16 (i) An employer receiving more than one order on the same
7-17 person shall comply with every order to the maximum extent
7-18 possible. If the total amount in the orders exceeds the maximum
7-19 amount allowable to be withheld, the employer shall pay an equal
7-20 amount toward each order until each order is individually complied
7-21 with. An employer who is ordered to withhold from more than one
7-22 person may combine the amounts withheld and make a single payment
7-23 to each appropriate agency requesting withholding if the employer
7-24 separately identifies the amount of the payment that is
7-25 attributable to each person. If the employer receives an order or
7-26 writ of withholding for child support and an order under this
7-27 article, the employer shall first withhold income for child support
8-1 up to the amount required by that order and then withhold income in
8-2 an amount authorized by this article.
8-3 (j) An employer may not use an order authorized by this
8-4 article as grounds in whole or part for the termination of
8-5 employment or for any other disciplinary action against an
8-6 employee. An employer may not refuse to hire an employee because
8-7 of an order withholding income. If an employer intentionally
8-8 discharges an employee in violation of this subsection, the
8-9 employer is liable to the employee for continuing wages and other
8-10 benefits and for reasonable attorney's fees and court costs
8-11 incurred by the employee in enforcing the employee's rights under
8-12 this subsection. An action under this subsection may be brought
8-13 only by the employee.
8-14 (k) In addition to the civil remedies provided by
8-15 Subsections (h) and (j) of this article or to any other remedy
8-16 provided by law, an employer who knowingly violates the provisions
8-17 of those subsections is subject to a fine not to exceed $50 for
8-18 each occurrence in which the employer fails to withhold. The
8-19 amount of a fine recovered under this subsection shall be paid to
8-20 the entity that withholding is required to be paid and credited
8-21 against the amount of the court-ordered payment.
8-22 (l) When the employment of a person whose income is withheld
8-23 by the employer under an income withholding order is terminated,
8-24 both the person and the employer shall notify the court of that
8-25 fact within seven days after the termination of employment and
8-26 shall provide the person's last known address and the name and
8-27 address of the person's new employer, if known. The person has a
9-1 continuing duty to inform each subsequent employer of the income
9-2 withholding order after obtaining employment. The person shall
9-3 promptly notify the court of any other change in the person's
9-4 status that may affect the income withholding order.
9-5 (m) Subject to the court order in Subsection (d) of this
9-6 article, a payment received by a community supervision and
9-7 corrections department, the pardons and paroles division of the
9-8 Texas Department of Criminal Justice, or the registry of a court
9-9 under an income withholding order shall be accounted for and
9-10 distributed in the same manner as a payment received directly from
9-11 the person required to make a court-ordered payment.
9-12 SECTION 3. (a) The change in law made by Section 2 of this
9-13 Act applies only to a court-ordered payment in a judgment in a
9-14 criminal case for an offense committed on or after the effective
9-15 date of this Act. For purposes of this section, an offense is
9-16 committed before the effective date of this Act if any element of
9-17 the offense occurs before the effective date.
9-18 (b) A court-ordered payment for an offense committed before
9-19 the effective date of this Act is covered by the law in effect when
9-20 the offense was committed, and the former law is continued in
9-21 effect for that purpose.
9-22 SECTION 4. This Act takes effect January 1, 1994, only if
9-23 the constitutional amendment proposed by H.J.R. 54, 73rd
9-24 Legislature, Regular Session, 1993, relating to garnishment of
9-25 wages for court-ordered payments in a criminal case is approved by
9-26 the voters. If that constitutional amendment is not approved, this
9-27 Act has no effect.
10-1 SECTION 5. The importance of this legislation and the
10-2 crowded condition of the calendars in both houses create an
10-3 emergency and an imperative public necessity that the
10-4 constitutional rule requiring bills to be read on three several
10-5 days in each house be suspended, and this rule is hereby suspended.