BILL ANALYSIS C.S.H.B. 1632 By: Thompson 05-01-95 Committee Report (Substituted) BACKGROUND Under Current Chapters 3 and 71, Family Code, there is confusion about the process for filing a protective order and about how a person can apply for a protective order if there is a divorce proceeding pending. We must also do some clean up language to assure our state is eligible to receive the federal Violence Against Women Act funds, specifically, deleting the fees charged to an applicant in connection with a court ordered Protective Order. PURPOSE This bill would provide that the protective order application will be filed under Chapter 71, Family Code; requires a divorce or annulment petition to state if a protective order is in effect or an application for a protective order is pending; puts the provisions for a protective order when a divorce is pending in chapter 71, Family Code, instead of Chapter 3; prohibits mutual protective orders; deletes the fees charged to applicants in the filing and serving of protective orders; streamlines the manner in which the order is served; corrects the notice that is issued to all respondents of a protective order; defines duties of the Department of Protective and Regulatory Services under this chapter; and reclarifies the role of law enforcement in the protective order process. RULEMAKING AUTHORITY This bill delegates rulemaking authority to the Department of Protective and Regulatory Services to develop rules for the filing of protective orders as required by Section 22. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subchapter C, Chapter 3, 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 is in effect or 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 in which one of the parties to the suit was the applicant and the other party the respondent without regard to the date when the order was entered. Further requires that if a copy of the order is not available at the time of filing that a statement that a copy will be filed be attached. SECTION 2. Amends Section 3.581, Family Code, as follows: Sec. 3.581. PROTECTIVE ORDERS. Authorizes the court to issue a protection order as provided by Section 71.06 on the motion of any party to a suit for divorce or annulment or to declare a marriage void. Deletes references to several other sections formerly applicable. Deletes Subsections (b) - (f). SECTION 3. Amends Section 71.01(b)(2), (4), (5) and (6), Family Code, to define "family violence", "household", and "member of a household". SECTION 4. Amends Section 71.03, Family Code, by changing (a) and adding (b). The venue instructions are clarified to instruct applicants of a protective order who have a suit to dissolve their marriage to the person alleged to have committed family violence and who reside 100 miles or less from the county where the suit is pending, to apply for the protective order in the county where the dissolution of marriage is pending. SECTION 5. Amends Section 71.04(b), Family Code, to allow the Department of Protective and Regulatory Services to apply for protective orders against abusers on behalf of a member of the family or household. SECTION 6. Amends Chapter 71, Family Code, by adding Section 71.041, as follows: Sec. 71.041 FEES AND COSTS. (a) An applicant for a protective order may not be assessed a fee, cost, charge or expense by a clerk of the court or another public official in connection with the filing, serving, or entering of the protective order. (b) Provides that except on a showing of indigency by the respondent, a court shall require in a protective order that the respondent against whom an order is rendered make certain payments. (c) Authorizes punishment to a person who is ordered to pay costs or reimburse an applicant who does not pay the costs or reimburse the applicant within 60 days after the date the order was rendered. (d) Authorizes the court to assess a reasonable attorney's fee as compensation for the services of a private or prosecuting attorney representing an applicant against any 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. Requires the fees collected as compensation for a prosecuting attorney to be paid to the credit of the county fund for which the salaries of employees of the prosecuting attorney are paid or supplemented. SECTION 7. Amends Sections 71.05(b) - (g), Family Code, to delete existing Subsection (b) relating to requesting protective orders for a spouse. Makes conforming changes. SECTION 8. Amends Section 71.06, Family Code, as follows: Sec. 71.06. APPLICATION FILED DURING SUIT FOR DISSOLUTION OF MARRIAGE. (a) Provides that a person who is a party to a pending suit for the dissolution of a marriage and who wishes to apply for a protective order involving the relationship between the spouses or their respective rights, duties, or powers may file an application for the order as a motion in the suit or as a separate application under Section 71.04 and 71.05. (b) Provides that the applicant who has been denied a protective order filed as a motion to a divorce may not apply for a protective order in another court based on the identical facts. (c) Provides that the requirements of service under Section 71.07 do not apply if the application is filed in a motion of a suit for the dissolution of a marriage and that notice is given in the same manner as any other motion in the suit. (d) Provides that a protective order entered as an order in a suit for the dissolution of a marriage must be in a document separate from other orders and shall be entitled "PROTECTIVE ORDER." SECTION 9. Amends Section 71.08, Family Code, by specifically referring to a "respondent" rather than to an "individual" relating to this section. SECTION 10. Amends Sections 71.09(b), (c), and (e), Family Code, by specifically referring to "respondent" rather than to a "person" or "party" relating to this section. SECTION 11. Amends Section 71.10, Family Code, as follows: Sec. 71.10. FINDINGS AND ORDERS. (a) Deletes "foreseeable" when referring to the future. (b) Requires the court to enter a protective order under Section 71.11(b) applying only to the respondent and is authorized to enter a protective order authorized under Section 71.11(a) applying to both the respondent and the applicant, if the court finds that it is in the best interest of the applicant or household or family member. (c) If the court finds the respondent has violated a previous protective order by committing an act prohibited in the previous order the court shall issue a protective order under Sec. 71.11(b) applying only to the respondent and may enter a protective order under Sec. 71.11(a) applying to both parties that is in the best interest of the applicant, family or household, or a member of the family or household. (d) If the court approves an agreement between the parties as authorized in Sec. 71.12 the court shall issue a protective order under this section that is in the best interest of the applicant, the family or household, or a member of the family or household. Deletes (1) - (4) under letter (d). SECTION 12. Amends Sections 71.11, Family Code, by amending Subsections (a),(b), and (f) -(j) as follows: (a) Makes conforming changes. Adds licensed marriage and family therapist to groups the respondent may be required to retain. (b) Makes a conforming change and allows the court to prohibit the respondent from engaging in specific conduct directed toward a member of the family or household. (f) Deletes existing Subsections (f) - (h). Subsection (i) makes conforming changes. Deletes existing Subsection (j). SECTION 13. Amends Sections 71.12(c) and (d), Family Code, as follows: (c) Includes referral to Subsections (b) as well as Subsection (a) in application of this section. (d) Makes conforming changes. SECTION 14. Amends Section 71.121, Family Code, as follows: Sec. 71.121. REQUEST BY RESPONDENT FOR PROTECTIVE ORDER.(a) Requires respondents to file a separate application to apply for a protective order. (b) Prohibits a court from delaying a hearing on a application for a protective order in order to consolidate it with a hearing on respondent's application. (c) Prohibits a court from entering an order that requires a party to do or refrain from doing an act under Section 71.11(b). (d) Provides that a protective order that applies to the first applicant shall 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 protective orders under this section that requires both parties to do or to refrain from certain acts to issue two distinct and independent protective orders that reflect the appropriate conditions for both parties. (f) Requires a court that enters a protective order that applies to both respondent and applicant to issue two separate documents and provide one to the applicant and one to the respondent. SECTION 15. Amends Sec. 71.14, Family Code, by adding Subsection (c) to provide that notice of a motion to modify the protective order is sufficient if delivery is attempted on the respondents last known address by registered or certified mail. SECTION 16. Amends Section 71.15(h), (i), and (j), Family Code, as follows: (h) Makes a conforming change. Deletes existing Subsection (i). Existing Subsection (j) changed to Subsection (i). SECTION 17. Amends Section 71.16(b), Family Code, to provide a statement to be printed on each protective order issued under this chapter. SECTION 18. Amends Section 71.17, Family Code, by amending Subsection (a), adding new Subsections (b) -(d), and renumbering existing Subsections (b)-(d). (a) - (d) instruct the court on how and when to serve the protective orders to the respondent and the applicant. (f) Makes a conforming change. Requires the clerk of the court to send a copy of the order to the child care facility or school if a child is involved. SECTION 19. Amends Section 71.18, Family Code, by adding Subsections (c) and (d) as follows: (c) Requires the court that granted the temporary order to provide a written order to the sheriff or chief of police, on the request of an applicant obtaining a temporary order that excludes the respondent from the respondent's residence, to provide a law enforcement officer from the department of the sheriff or chief of police to perform certain duties. (d) Requires the court that granted the final order to provide a written order to the sheriff or chief of police, on the request of an applicant obtaining a final order that excludes the respondent from the respondent's residence, to provide a law enforcement officer from the department of the sheriff or chief of police to perform certain duties. 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 a protective order . SECTION 21. Amends Section 51.303, Government Code, by adding Subsection (f) to require a district clerk to accept applications for protective orders 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 for protective orders under Chapter 71, Family Code, to accept those applications. SECTION 23. Amends Subtitle E, Title 2, Human Resources Code, by adding Chapter 54 as follows: CHAPTER 54. PROTECTIVE ORDER SOUGHT BY DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES Sec 54.001. Requires the Department of Protective and Regulatory Services to adopt rules to provide procedures for the filing of protective orders as provided by 71.04, Family Code. Sec. 54.002. Requires the Department of Protective and Regulatory Services to provide notice to a nonabusive parent or adult member of the household of the department's intent to file an application for a protective order for a child or an older person and to request the assistance of that person in developing a safety plan for the person for whom the order was sought. SECTION 24. Amends Section 25.07(a), Penal Code, to make conforming changes. SECTION 25. Amends Article 5.04(c), Code of Criminal Procedure, to require notice to be given to the adult victim of family violence that the court may not charge a fee in the connection with filing, serving, or entering a protective order. SECTION 26. Repeals Sections 3.582, 3.583, 71.04(d), (e), and (f), 71.07(i), and 71.13(b) and (c), Family Code. SECTION 27. Effective date: September 1, 1993. Makes application of this Act prospective. SECTION 28. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE Substitute language adds venue clarifications to assure applicant files for a protective order in the court where the divorce is pending, if within 100 miles of her residence. Substitute language deletes all references to respondents named in a protective order being required to relinquish their firearms at the magistrates request. Substitute deletes the requirement for respondents to notify the court clerk when their residence or address changes. Substitute deletes the fees charged to applicant connected to the filing, entering or serving of protective orders. Substitute deletes the requirement for DPRS to provide services to persons applying or named in a protective order. Substitute deletes subsections from the filed version of Sec.71.06 referring to jurisdiction in protective orders granted when a divorce is pending. SUMMARY OF COMMITTEE ACTION H.B. 1632 was considered in a public hearing on March 29, 1995. The following persons testified in favor of the bill: Bree Buchanan, Legal Aid Society of Central Texas and Texas Legal Services; Georgie Rasco, representing himself. The following persons testified against the bill: Robert L. Green Jr., representing himself, Primary Nurturing Fathers of Texas, Texas Fathers Alliance. The following persons testified neutrally on the bill: Vicki Isaacks, representing Dallas County District Attorney. The chair offered a complete substitute which was left pending in committee. H.B. 1632 was considered in a formal meeting on April 25, 1995, and was left pending in committee. On April 26, 1995, in a public hearing, the committee considered a complete substitute which was adopted without objection. H.B. 1632 was reported favorably as substituted with the recommendation that it do pass and be printed by a record vote of 8 ayes, 0 nays, 0 pnv, and 1 absent.