By: Bomer H.B. No. 642
73R8 DRH-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to garnishment of wages for court ordered restitution.
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 RESTITUTION.
4-3 (a) Except for good cause shown, a court that orders a person
4-4 charged with or convicted of a criminal offense to make restitution
4-5 to the victim of the offense shall order that income be withheld
4-6 from the disposable earnings of the person for restitution and be
4-7 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 parole 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 pay restitution to withhold from the
4-20 person's disposable earnings all or a portion of the amount of the
4-21 restitution specified in the order, but not more than 50 percent of
4-22 the person's disposable earnings. The order must state:
4-23 (1) the style, docket number, and the court assessing
4-24 punishment;
4-25 (2) the name, address, and, if available, the social
4-26 security number of the person;
4-27 (3) the amount of the restitution;
5-1 (4) the name and address of the person or agency to
5-2 whom payments shall be made; and
5-3 (5) any other matter necessary to effect the order.
5-4 (d) The person whose income is subject to a withholding
5-5 order or the prosecuting attorney for the offense may request the
5-6 clerk of the court making the order to deliver a certified copy of
5-7 the income withholding order to any employer of the person. The
5-8 request must include the name and address of the employer. The
5-9 clerk shall issue a certified copy of the order and make a copy of
5-10 this article for each employer of the person whose income is the
5-11 subject of the order not later than the second working day after
5-12 the date the order is signed by the court or a request under this
5-13 subsection is filed, whichever is later. The clerk may charge a
5-14 reasonable fee of not more than $5 to the person whose income is
5-15 subject to a withholding order for mailing a copy of the order to
5-16 an employer.
5-17 (e) The employer shall begin to withhold income in
5-18 accordance with an order issued under this article not later than
5-19 the first pay period that occurs 14 days after the date on which
5-20 the order is delivered to the employer and shall continue to
5-21 withhold income as long as the person whose income is subject to
5-22 the order is employed by the employer. The order and a copy of
5-23 this article shall be delivered to the employer by certified or
5-24 registered mail, return receipt requested, to the person authorized
5-25 to receive service of process in civil cases generally, or to a
5-26 person designated by the employer to receive notices of delinquency
5-27 by written notice to the clerk of the appropriate court, or by the
6-1 service of citation as provided by the Texas Rules of Civil
6-2 Procedure. The clerk may charge the person whose income is subject
6-3 to withholding a reasonable fee of not more than $5 for each copy
6-4 of the order mailed by the clerk. The amount to be withheld shall
6-5 be remitted to the person or office named in the order on each
6-6 regular due date or pay date. The employer may deduct an
6-7 administrative fee of not more than $5 each month from the person's
6-8 disposable earnings in addition to the amount to be withheld as
6-9 restitution.
6-10 (f) Not later than the 20th day after receipt of an income
6-11 withholding order, the employer may make a motion to the court that
6-12 made the order for hearing on the applicability of the order to
6-13 the employer. The hearing shall be held within 15 days after the
6-14 date of the filing of the motion. The order remains binding and
6-15 the employer shall continue to make the payments pending further
6-16 order of the court.
6-17 (g) An employer receiving an order under this article who
6-18 complies with the order is not liable to the person whose income is
6-19 subject to the order for the amount of income withheld and paid as
6-20 provided in the order. An employer who receives an income
6-21 withholding order and who does not comply with the order is liable
6-22 for the amount not paid in compliance with the order. The amount
6-23 and reasonable attorney's fees and court costs may be collected by
6-24 the prosecuting attorney or by the victim for whose benefit the
6-25 withholding is to be made. An employer who receives an income
6-26 withholding order and who does not comply with the order is liable
6-27 to the person whose income is subject to the order for any amount
7-1 withheld but not paid and for reasonable attorney's fees and court
7-2 costs.
7-3 (h) An employer receiving more than one order on the same
7-4 person shall comply with every order to the maximum extent
7-5 possible. If the total amount in the orders exceeds the maximum
7-6 amount allowable to be withheld, the employer shall pay an equal
7-7 amount toward each order until each order is individually complied
7-8 with. An employer who is ordered to withhold from more than one
7-9 person may combine the amounts withheld and make a single payment
7-10 to each appropriate agency requesting withholding if the employer
7-11 separately identifies the amount of the payment that is
7-12 attributable to each person.
7-13 (i) An employer may not use an order authorized by this
7-14 article as grounds in whole or part for the termination of
7-15 employment or for any other disciplinary action against an
7-16 employee. An employer may not refuse to hire an employee because
7-17 of an order withholding income. If an employer intentionally
7-18 discharges an employee in violation of this subsection, the
7-19 employer is liable to the employee for continuing wages and other
7-20 benefits and for reasonable attorney's fees and court costs
7-21 incurred by the employee in enforcing the employee's rights under
7-22 this subsection. An action under this subsection may be brought
7-23 only by the employee.
7-24 (j) In addition to the civil remedies provided by
7-25 Subsections (g) and (i) of this article or to any other remedy
7-26 provided by law, an employer who knowingly violates the provisions
7-27 of those subsections is subject to a fine not to exceed $50 for
8-1 each occurrence in which the employer fails to withhold. The
8-2 amount of a fine recovered under this subsection shall be paid to
8-3 the entity that withholding is required to be paid and credited
8-4 against the amount of restitution ordered.
8-5 (k) When the employment of a person whose income is withheld
8-6 by the employer under an income withholding order is terminated,
8-7 both the person and the employer shall notify the court of that
8-8 fact within seven days after the termination of employment and
8-9 shall provide the person's last known address and the name and
8-10 address of the person's new employer, if known. The person has a
8-11 continuing duty to inform each subsequent employer of the income
8-12 withholding order after obtaining employment. The person shall
8-13 promptly notify the court of any other change in the person's
8-14 status that may affect the income withholding order.
8-15 (l) A payment received by a community supervision and
8-16 corrections department, the pardons and parole division of the
8-17 Texas Department of Criminal Justice, or the registry of a court
8-18 under an income withholding order shall be accounted for and
8-19 distributed in the same manner as a payment received directly from
8-20 the person required to pay the restitution.
8-21 SECTION 3. (a) The change in law made by Section 2 of this
8-22 Act applies only to restitution for an offense committed on or
8-23 after the effective date of this Act. For purposes of this
8-24 section, an offense is committed before the effective date of this
8-25 Act if any element of the offense occurs before the effective date.
8-26 (b) Restitution for an offense committed before the
8-27 effective date of this Act is covered by the law in effect when the
9-1 offense was committed, and the former law is continued in effect
9-2 for that purpose.
9-3 SECTION 4. This Act takes effect January 1, 1994, only if
9-4 the constitutional amendment proposed by the 73rd Legislature,
9-5 Regular Session, 1993, relating to garnishment of wages for court
9-6 ordered restitution, is approved by the voters. If that
9-7 constitutional amendment is not approved, this Act has no effect.
9-8 SECTION 5. The importance of this legislation and the
9-9 crowded condition of the calendars in both houses create an
9-10 emergency and an imperative public necessity that the
9-11 constitutional rule requiring bills to be read on three several
9-12 days in each house be suspended, and this rule is hereby suspended.