By: Eckels H.B. No. 1650
73R5025 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to protective orders for family violence.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 3.581, Family Code, is amended by adding
1-5 Subsection (g) to read as follows:
1-6 (g) An order entered under this section shall be served in
1-7 the same manner that a subpoena is served under Chapter 24, Code of
1-8 Criminal Procedure.
1-9 SECTION 2. Section 71.01(b)(2), Family Code, is amended to
1-10 read as follows:
1-11 (2) "Family violence" means:
1-12 (A) an act by a member of a family or household
1-13 against another member of the family or household that is intended
1-14 to result in physical harm, bodily injury, <or> assault, or sexual
1-15 assault or that is a threat that reasonably places the member in
1-16 fear of imminent physical harm, bodily injury, <or> assault, or
1-17 sexual assault, excluding the reasonable discipline of a child by a
1-18 person having that duty; or
1-19 (B) abuse, as that term is defined by Sections
1-20 34.012(1)(C), (E), and (G) of this code, by a member of a family or
1-21 household toward a child of the family or household.
1-22 SECTION 3. Sections 71.04(e) and (f), Family Code, are
1-23 amended to read as follows:
1-24 (e) <The fee for filing an application is $16 and is to be
2-1 paid to the clerk of the court in which the application is filed.
2-2 Except as provided in Section 71.07 of this code, the applicant may
2-3 not be assessed any other fees, costs, charges, or expenses by the
2-4 clerk of the court or any other public official in connection with
2-5 the application. The total fees relating to the filing of and
2-6 service of notice of an application for a protective order,
2-7 including fees under Section 71.07 of this code, may not exceed $36
2-8 under any circumstances. An applicant who is unable to pay the
2-9 filing fee and other costs as provided in Section 71.07 of this
2-10 code may file with the court an affidavit of inability to pay under
2-11 the procedures, to the extent that they apply, provided by the
2-12 Texas Rules of Civil Procedure.>
2-13 <(f)> The court may assess a reasonable attorney's fee as
2-14 compensation for the services of a private or prosecuting attorney
2-15 representing an applicant against any party who is found to have
2-16 committed family violence. In setting the amount of the fee, the
2-17 court shall consider the income and ability to pay of the person
2-18 against whom the fee is assessed. The amount of fees collected
2-19 under this section as compensation for the services of a
2-20 prosecuting attorney shall be paid to the credit of the county fund
2-21 from which the salaries of employees of the prosecuting attorney
2-22 are paid or supplemented.
2-23 SECTION 4. Chapter 71, Family Code, is amended by adding
2-24 Section 71.041 to read as follows:
2-25 Sec. 71.041. FEES. (a) The fee for filing an application
2-26 for a protective order is $16 and is payable to the clerk of the
2-27 court in which the application is filed.
3-1 (b) The fee for service of notice of an application of a
3-2 protective order under Section 71.07 of this code may not be more
3-3 than:
3-4 (1) $20 if the notice is served in person; or
3-5 (2) the cost of postage if the service is by
3-6 registered or certified mail.
3-7 (c) An applicant for a protective order may not be assessed
3-8 a fee, cost, charge, or expense by a clerk of the court or another
3-9 public official in connection with the protective order other than
3-10 the fees provided by Subsections (a) and (b) of this section. The
3-11 total amount of the fees permitted under this section and under
3-12 this chapter may not exceed $36.
3-13 (d) An applicant who is unable to pay the filing fee and
3-14 other costs as provided by this section may file with the court an
3-15 affidavit of inability to pay under the procedures, to the extent
3-16 that they apply, provided by the Texas Rules of Civil Procedure.
3-17 (e) This section does not apply to attorney's fees or court
3-18 costs assessed by the court as provided by this chapter.
3-19 SECTION 5. Section 71.06(b), Family Code, is amended to read
3-20 as follows:
3-21 (b) A court may not <shall> dismiss an application filed
3-22 under this chapter by a party to a pending suit for dissolution of
3-23 marriage if the application was filed before the date the suit for
3-24 dissolution of marriage was filed. If the application was filed
3-25 after the date the suit for dissolution of marriage was filed, the
3-26 court shall dismiss the application and <shall> advise the
3-27 applicant that the applicant may file an application under Section
4-1 3.581 of this code.
4-2 SECTION 6. Section 71.11, Family Code, is amended by
4-3 amending Subsection (a) and adding Subsection (k) to read as
4-4 follows:
4-5 (a) In a protective order the court may:
4-6 (1) prohibit a party from:
4-7 (A) removing a child member of the family or
4-8 household from the possession of a person named in the court order
4-9 or from the jurisdiction of the court; or
4-10 (B) transferring, encumbering, or otherwise
4-11 disposing of property mutually owned or leased by the parties,
4-12 except when in the ordinary course of business;
4-13 (2) grant exclusive possession of a residence to a
4-14 party and, if appropriate, direct one or more other parties to
4-15 vacate the residence if:
4-16 (A) the residence is jointly owned or leased by
4-17 the party receiving exclusive possession and by some other party
4-18 denied possession;
4-19 (B) the residence is owned or leased by the
4-20 party retaining possession; or
4-21 (C) the residence is owned or leased by the
4-22 party denied possession but only if that party has an obligation to
4-23 support the party granted possession of the residence or a child of
4-24 the party granted possession;
4-25 (3) provide for possession of and access to a child of
4-26 a party if the person receiving possession of or access to the
4-27 child is a parent, as that term is defined by Section 11.01 of this
5-1 code, of the child;
5-2 (4) require the payment of support for a party or for
5-3 a child of a party if the person required to make the payment has
5-4 an obligation to support the other party or the child;
5-5 (5) require one or more parties to counsel with a
5-6 social worker, family service agency, physician, psychologist, or
5-7 licensed professional counselor, or to complete a batterer's
5-8 treatment program;
5-9 (6) award to a party use and possession of specified
5-10 property that is community property or jointly owned or leased;
5-11 <or>
5-12 (7) prohibit a party from doing specified acts or
5-13 require a party to do specified acts necessary or appropriate to
5-14 prevent or reduce the likelihood of family violence; or
5-15 (8) order a party to surrender each firearm, as
5-16 defined by Section 46.01(3), Penal Code, in the possession of the
5-17 party to a designated law enforcement agency to hold for the party
5-18 during the time the protective order remains in effect.
5-19 (k) An order entered under this section shall be served in
5-20 the same manner that a subpoena is served under Chapter 24, Code of
5-21 Criminal Procedure.
5-22 SECTION 7. Section 71.121(c), Family Code, is amended to
5-23 read as follows:
5-24 (c) A court may not delay a hearing on an applicant's
5-25 application for a protective order beyond the time provided by
5-26 Section 71.09 of this code under any circumstances <in order to
5-27 consolidate it with a hearing on a respondent's application for a
6-1 protective order against the applicant>.
6-2 SECTION 8. Section 71.07(i), Family Code, is repealed.
6-3 SECTION 9. This Act takes effect September 1, 1993, and
6-4 applies only to an application for a protective order made on or
6-5 after that date. An application for a protective order made before
6-6 the effective date of this Act is governed by the law in effect at
6-7 the time the application was made, and the former law is continued
6-8 in effect for that purpose.
6-9 SECTION 10. The importance of this legislation and the
6-10 crowded condition of the calendars in both houses create an
6-11 emergency and an imperative public necessity that the
6-12 constitutional rule requiring bills to be read on three several
6-13 days in each house be suspended, and this rule is hereby suspended.