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.