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.