BILL ANALYSIS
C.S.H.B. 418
By: Goodman (Harris)
Jurisprudence
5-18-95
Senate Committee Report (Substituted)
BACKGROUND
Several recommendations were made to the Joint Interim Committee on
the Family Code regarding revisions to Title 4 of the Family Code.
Title 4 was enacted in 1979 to address the issue of family
violence. Some problems exist in the application of Title 4 by the
courts and in the enforcement of protective orders.
PURPOSE
As proposed, C.S.H.B. 418 sets forth regulations regarding the
application for and issuance of protective orders, including
setting forth circumstances under which a court may dismiss an
application, requiring certain notice to be contained within the
order, and setting fees for the application and issuance of the
order; provides a penalty.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is granted
to the Department of Protective and Regulatory Services under
SECTION 23 (Section 54.001, Human Resources Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 3C, Family Code, by adding Section 3.522,
as follows:
Sec. 3.522. PROTECTIVE ORDERS. (a) Requires the petition in
a suit for divorce or annulment to state whether a protective
order under Chapter 71 or Section 3.581 is in effect or if an
application for a protective order is pending with regard to
the parties to the suit.
(b) Requires the petitioner in a suit for divorce or
annulment to attach to the petition a copy of each
protective order issued under Chapter 71 or Section 3.581 in
which one of the parties to the suit was the applicant and
the other party was the respondent without regard to the
date on which the order was entered. Requires the petition,
if a copy of the protective order is not available at the
time of filing, to state that a copy of the order will be
filed with the court before any hearing.
SECTION 2. Amends Section 3.581, Family Code, to require the court,
on application of a prosecuting attorney, to issue a protective
order (order) as provided by Chapter 71. Deletes existing
Subsections (b)-(f) and provisions authorizing the issuance of an
order under all sections except Chapter 71.
SECTION 3. Amends Sections 71.01(b)(1)-(2) and (4)-(6), Family
Code, to redefine "court," "family violence," and "member of a
household." Deletes the definition of "former member of a
household." Makes conforming changes.
SECTION 4. Amends Section 71.04(b), Family Code, to include the
Department of Protective and Regulatory Services (department) for
the protection of a member of a family or household in the list of
entities authorized to file an application.
SECTION 5. Amends Section 71.04(c), Family Code, to require the
prosecuting attorney responsible for filing an application under
this chapter to provide notice of that responsibility to all law
enforcement agencies within the jurisdiction if the prosecuting
attorney.
SECTION 6. Amends Section 71, Family Code, by adding Section
71.041, as follows:
Sec. 71.041. FEES AND COSTS. (a) Prohibits an applicant for
an order from being assessed any fees by a court clerk or
another public official in connection with the order.
(b) Requires a court to require in an order that the
respondent against whom an order is rendered pay certain
fees in connection with the order, with an exception.
(c) Authorizes a respondent who is ordered to pay costs and
does not do so before the 60th day after the date the order
was rendered to be punished for contempt of court.
(d) Authorizes the court to assess an attorney's fee as
compensation for the services of a private or prosecuting
attorney or an attorney employed by the department
representing an applicant against the party who is found to
have committed family violence. Requires the court to
consider the income and ability to pay of the person against
whom the fee is assessed in setting the fees. Requires the
fees collected for compensation for prosecuting attorney
fees to be paid to the credit of the county fund from which
the salaries of employees of the prosecuting attorney are
paid or supplemented. Requires all fees collected under
this subsection as compensation for an attorney employed by
the department to be deposited in the general revenue fund
to the department's credit. Requires fees collected under
this subsection as compensation for a private attorney to be
paid to the private attorney, who may enforce the order in
the attorney's own name.
SECTION 7. Amends Sections 71.05(b)-(g), Family Code, to delete
existing Subsection (b) requiring an application to state that no
suit for dissolution is pending if an application requests an order
and alleges that the other spouse has committed family violence.
Redesignates existing Subsections (c)-(g) as Subsections (b)-(f).
SECTION 8. Amends Section 71.06, Family Code, as follows:
Sec. 71.06. APPLICATION FILED DURING SUIT FOR DISSOLUTION OF
MARRIAGE. (a) Authorizes, rather than requires, a certain
person who is a party to a pending suit for the dissolution of
a marriage to file an application for the order under Section
3.581 as a motion in the suit or as a separate application
under this chapter.
(b) Prohibits an applicant denied a protective order filed
as a motion in a suit for dissolution of a marriage from
applying for an order in another court based on the
identical facts as the previous application.
(c) Provides that the requirements of service of notice
under Section 71.07 do not apply if the application is filed
as a motion in a suit for the dissolution of a marriage, and
that notice is given in the same manner as in any other
motion in a suit for the dissolution of a marriage.
(d) Requires an order entered as an order in a suit for
dissolution of a marriage to be in a document separate from
other orders or temporary orders and to be entitled
"PROTECTIVE ORDER."
(e) Requires the court that rendered the order, immediately
after entry of an order filed as a separate application
under this chapter by a party to a pending suit for the
dissolution of a marriage or a prosecuting attorney, to
transfer the proceeding to the court of continuing,
exclusive jurisdiction, or, if there is no court of
continuing jurisdiction, to the court having venue of the
suit for the dissolution of the marriage.
(f) Provides that an order issued under this chapter is
valid and enforceable until properly superseded by a court
with jurisdiction to do so. Authorizes a court to which a
proceeding has been transferred under Subsection (e) to
enforce an order rendered under this chapter in the manner
provided by this chapter. Deletes existing Subsection (b)
requiring a court to dismiss certain applications filed
under this chapter.
SECTION 9. Amends Section 71.08, Family Code, to authorize a
respondent, rather than an individual, served with notice of an
application to file a written answer to the application.
SECTION 10. Amends Sections 71.09(b), (c), and (e), Family Code,
to make conforming changes.
SECTION 11. Amends Section 71.10, Family Code, as follows:
sec. 71.10. New heading: FINDINGS AND ORDERS. (a) Requires
the court to find whether or not family violence has occurred
and whether or not family violence is likely to occur again in
the future.
(b) Requires the court, if it finds that family violence is
likely to occur again in the foreseeable future, to issue a
protective order under Section 71.11(b), applying only to a
person found to have committed family violence. Authorizes
the court to enter an order authorized under Section
71.11(a) applying to both parties.
(c) Requires the court, if it finds, among other findings,
that a respondent, rather than a person, violated a former
order under Section 71.11(b) of this code, to issue a
protective order under Section 71.11(b) applying only to the
respondent. Authorizes the court to enter an order
authorized under Section 71.11(a) applying to both the
respondent and the applicant that is in the best interest
of, among others, the applicant. Makes a conforming change.
(d) Requires the court, if it approves an agreement under
Section 71.12, to issue an order under this section that is
in the best interest of the applicant, family or household,
or a member of the family or household. Deletes existing
Subsection (d) setting forth the parties to whom a
protective order may apply.
SECTION 12. Amends Sections 71.11(a), (b), and (e)-(j), Family
Code, to authorize the court in an order to require the person
found to have committed family violence to complete a batterer's
treatment program if a program is available or if a program is not
available to counsel with a licensed therapist, among other
professionals, and to prohibit the person from engaging in conduct
directed specifically toward a person who is a member of the family
or household. Deletes existing Subsections (e)-(h) providing that
to the extent of conflict with any other court order an order under
this section is invalid and unenforceable and setting forth fee
requirements for the respondent. Deletes existing Subsection (j)
authorizing any interested person to contest an affidavit of
indigency. Redesignates existing Subsection (i) as Subsection (f).
Makes conforming changes.
SECTION 13. Amends Sections 71.12(c) and (d), Family Code, to
require a court-approved agreement under Subsection (b) to be
attached to the order and become a part of the order. Deletes a
provision authorizing the court to approve an agreement only if the
agreement requires the respondent to do or refrain from doing
certain acts. Makes conforming changes.
SECTION 14. Amends Section 71.121, Family Code, as follows:
Sec. 71.121. REQUEST BY RESPONDENT FOR PROTECTIVE ORDER. (a)
Deletes existing Subsection (a) prohibiting a court from
entering an order that applies to both the respondent and the
applicant unless the order embodies the agreement.
Redesignates existing Subsection (b).
(b) Redesignates existing Subsection (c). Prohibits a court
from delaying a hearing on an application in order to
consolidate it with a hearing on a subsequently filed
application for an order, rather than a hearing on a
respondent's application for an order against the applicant.
(c) Prohibits a court from entering an order that requires
both the respondent and the applicant to do or refrain from
doing an act.
(d) Requires an order that requires the first applicant to
do or refrain from doing an act to include a finding that
the first applicant has committed family violence and is
likely to commit family violence in the future.
(e) Requires a court that enters separate orders to apply to
both parties and require both parties to do or refrain from
doing an act to issue two distinct and independent orders
that reflect the appropriate condition for each of the
parties.
(f) Requires a court that enters orders that apply to both
the respondent and the applicant and that require the
respondent to do or refrain from doing an act to issue the
protective orders in two separate documents. Requires the
court to provide a document to the applicant and the other
to the respondent.
SECTION 15. Amends Section 71.14, Family Code, by adding
Subsection (c), to provide that notice of a motion to modify is
sufficient if delivery of the motion is attempted on the
respondent's last known address in a certain manner.
SECTION 16. Amends Sections 71.15(h)-(j), Family Code, to delete
existing Subsection (i) and to make conforming and nonsubstantive
changes.
SECTION 17. Amends Section 71.16(b), Family Code, to amend the
language required to appear on each protective order.
SECTION 18. Amends Section 71.17, Family Code, as follows:
Sec. 71.17. COPIES OF ORDERS. (a) Makes conforming changes.
(b) Requires the order to be served if the order is served
in open court. Requires the judge or master to sign the
order and give a copy of the order to the respondent if the
respondent is present at the hearing and the order has been
reduced to writing. Requires a certified copy of the order
to be given to the applicant and the respondent at the same
time. Requires the clerk to mail a certified copy of the
order to the applicant within a certain period if the
applicant is not in court at the hearing's conclusion.
(c) Requires the judge or master to give notice orally to
the respondent of the part of the order that contains
prohibitions to prevent family violence if the respondent is
present but the order has not been reduced to writing.
Requires the clerk to mail a copy of the order to the
respondent and a certified copy to the applicant within a
certain time period.
(d) Requires the clerk to provide a copy of the order to the
applicant and mail a copy to the respondent within a certain
period if the respondent is not present at the hearing and
the order has been reduced to writing at the hearing's
conclusion.
(e)-(g) Redesignate existing Subsections (b)-(d). Makes
conforming changes.
SECTION 19. Amends Section 71.18, Family Code, by adding
Subsections (c) and (d), to require the court to order a law
enforcement officer to perform certain actions on a request of an
applicant with a temporary or final order that excludes the
respondent from the respondent's residence.
SECTION 20. Amends Section 118.131, Local Government Code, by
adding Subsection (i), to prohibit the commissioners court from
assessing an applicant a fee in connection with filing, serving, or
entering an order. Prohibits a fee from being charged to an
applicant to dismiss, modify, or withdraw a protective order.
SECTION 21. Amends Section 51.303, Government Code, by adding
Subsection (f), to require a district clerk to accept applications
under Chapter 71, Family Code.
SECTION 22. Amends Section 51.402, Government Code, by adding
Subsection (d), to require a county clerk that serves as the clerk
for a court having jurisdiction of applications to accept those
applications.
SECTION 23. Amends Title 2E, Human Resources Code, by adding
Chapter 54, as follows:
CHAPTER 54. PROTECTIVE ORDERS SOUGHT BY DEPARTMENT OF PROTECTIVE
AND REGULATORY SERVICES
Sec. 54.001. PROTECTIVE ORDERS. Requires the department to
adopt rules to provide procedures for the filing of orders for
the protection of a family or household member.
Sec. 54.002. NOTICE TO NONABUSIVE PARENT OR HOUSEHOLD MEMBER.
Requires the department to provide prior notice to a
nonabusive parent or adult member of a household of the
department's intent to file an application for a child or
older person and to request the assistance of the person
receiving the notice in developing a safety plan for household
members and the child of older person for whom the order is
sought. Requires the department to exercise precautions to
protect a nonabusive parent or other household member while
providing notice and requesting assistance under this section.
SECTION 24. Amends Section 25.07(a), Penal Code, to make
conforming and nonsubstantive changes.
SECTION 25. Amends Section 5.04(c), Code of Criminal Procedure,
to make a conforming change.
SECTION 26. Amends Article 5.06, Code of Criminal Procedure, by
adding Subsection (c), to make conforming changes.
SECTION 27. Repealer: Sections 3.582, 3.583, 71.04(d)-(f),
71.07(i), and 71.13(b) and (c), Family Code (Copies of Orders-Duties of Law Enforcement Agencies-relating to Application for
Protective Order-Service of Notice of Application for Protective
Order-relating to Duration of Protective Order).
SECTION 28. Effective date: September 1, 1995.
Makes application of this Act prospective.
SECTION 29. Emergency clause.