BILL ANALYSIS
C.S.S.B. 866
By: Whitmire
Criminal Justice
4-11-95
Committee Report (Substituted)
BACKGROUND
The Texas Constitution currently forbids wage garnishment except
for the enforcement of court-ordered child support payments.
Currently, the only legal mechanism permitting effective
enforcement of court-ordered restitution to victims of crime and to
the crime victims' compensation fund requires a victim to file an
additional and separate motion to execute on the judgment.
PURPOSE
As proposed, C.S.S.B. 866 authorizes the garnishment of wages to
enforce court-ordered restitution to crime victims and to the crime
victims' compensation fund.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is granted
to the attorney general in SECTION 1 (Articles 56.116 and 56.135,
Code of Criminal Procedure) and to the General Services Commission
in SECTION 1 (Article 56.135, Code of Criminal Procedure) of this
bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 56, Code of Criminal Procedure, by adding
Subchapters C, D, and E, as follows:
SUBCHAPTER C. DELINQUENT PAYMENT OF RESTITUTION OR REIMBURSEMENT
Art. 56.81. DEFINITION. Defines "fund."
Art. 56.82. INTEREST. (a) Provides that a defendant is
liable for interest that accrues on delinquent restitution
payments to a victim of the defendant's offense ordered to be
paid by the defendant, or delinquent reimbursement payments to
the Compensation to victims of crime fund (fund) for any
amounts paid from the fund to a victim of the defendant's
offense ordered to be paid by the defendant.
(b) Provides that the interest accrues at the rate of
interest established under Section 2, Article 5069-1.05,
V.T.C.S., from the date the payment is delinquent until the
date the restitution or reimbursement is paid, regardless of
whether the amount of the payments in arrears has been
reduced to judgment by the court.
(c) Requires a court that confirms the amount of payments
in arrears to include all prior arrears and the amount of
interest owed in the total amount confirmed.
Art. 56.83. DATE OF DELINQUENCY. (a) Provides that a payment
of restitution or reimbursement is delinquent if the payment
is not received by the specified person (person) before the
31st day after the payment date stated in the order.
(b) Provides that the restitution or reimbursement payment
is delinquent if it is not received by the specified person
on the date that an amount equal to the restitution or
reimbursement payable for one month becomes delinquent, if
a payment date is not stated in the payment order or
judgment.
Art. 56.84. COLLECTION. (a) Provides that the accrued
interest is part of the restitution obligation. Authorizes
the accrued interest to be collected by any means provided for
collection of debt, judgment, and court-ordered child support.
(b) Provides that an amount collected in excess of current
restitution or reimbursement is first applied to interest
and delinquent payments that have been reduced to judgment.
Art. 56.85. BOND OR SECURITY DEPOSIT. Provides that the bond
or security on forfeiture is payable to the person specified
in the payment order, if a defendant who has been ordered to
pay restitution to a victim or reimburse a fund seeks to
execute a bond or post security pending a hearing by or a
proceeding in an appellate court relating to enforcement of
the payments.
Art. 56.86. DISCRETIONARY ORDER TO EXECUTE BOND OR DEPOSIT
SECURITY. (a) Authorizes the court to order the defendant to
execute a bond, subject to approval of the court, or to
deposit security with the court, if the defendant who has been
ordered to pay restitution to the victim or reimburse the fund
is employed by an employer not subject to the court's
jurisdiction or is a person to whom the application of this
subchapter is unworkable or inappropriate.
(b) Provides that the amount of the bond or security deposit
(bond) is to be set by the court and conditioned on the
payment of delinquent and future payments of restitution or
repayment.
(c) Provides that the bond is payable to the person
specified in the payment order.
Art. 56.87. MOTION AND HEARING ON BOND OR SECURITY DEPOSIT
FORFEITURE. Authorizes the court, on the motion of a person
for whose benefit a bond has been executed, after notice and
hearing, to forfeit all or part of the bond for any amount of
restitution or reimbursement payments that are due upon proof
that one or more such payments are unpaid.
Art. 56.88. COLLECTION OF FORFEITED BOND OR SECURITY DEPOSIT.
Requires funds collected from a forfeited bond to be paid to
the person to be applied to the outstanding restitution and
reimbursement arrearages of the defendant.
Art. 56.89. JOINDER OF PROCEEDINGS. Authorizes proceedings
to revoke, amend, modify, or continue community supervision,
parole, or mandatory supervision to be joined with a
proceeding to enforce a delinquent restitution or
reimbursement or a proceeding to forfeit a bond payable to the
person.
Art. 56.90. DEFENSE TO REVOCATION PROCEEDING. Provides that
the application of funds from a forfeited bond to any
delinquent restitution or reimbursement payments is not a
defense to a proceeding to revoke, amend, modify, or continue
a defendant's term of community supervision.
Art. 56.91. DISPOSITION OF EXCESS FORFEITED MONEY.
Authorizes the court to order that all or a portion of any
excess amount be applied to certain expenses of obligation if
the proceeds of the forfeited bond or security deposit exceed
the amount of any delinquent payment of restitution or
reimbursement.
SUBCHAPTER D. INCOME WITHHOLDING FOR PAYMENT OF
RESTITUTION OR REIMBURSEMENT
Art. 56.101. DEFINITION. Defines "fund."
Art. 56.102. WITHHOLDING OF INCOME. (a) Authorizes the
court to order the withholding of income from the disposable
earnings of a defendant to pay restitution to a victim of the
defendant's offense or reimburse the fund for the amount paid
from the fund to a victim of the defendant's offense.
(b) Requires the court to require that money withheld for
restitution of a victim to be paid to the victim through
TDCJ or reimbursement of the fund be paid to the fund
through the attorney general, unless good cause is found to
require otherwise.
Art. 56.103. ARREARAGES. (a)(1) Authorizes the attorney
representing the state to file a motion requesting withholding
of income from the disposable earnings of a defendant for
restitution to a victim of the defendant's offense or to the
fund if the payment is a condition of community supervision
and if at the time the motion is filed the defendant is shown
to have been in arrears for at least 30 days for some portion
of the amount due and is currently in arrears for an amount
equal to or greater than that due for a 30-day period.
(2) Authorizes the attorney general to file a motion
requesting withholding of income from the disposable
earnings of a defendant for restitution to a victim or
reimbursement of the fund if the payment is a condition of
parole or mandatory supervision and if at the time the
motion is filed the defendant is shown to have been in
arrears for at least 30 days for some portion of the
amount due and is currently in arrears for an amount equal
to or greater than that due for a 30-day period.
(b) Authorizes a court to order the withholding of income
from the disposable earnings of a defendant for the arrears
in payments of restitution to a victim or reimbursement of
the fund.
(c) Provides that subject to the maximum amount authorized
to be withheld under Article 56.105, the additional amount
to be withheld monthly and to be applied towards arrears is
the greater of the amount that will discharge the arrears in
two years or add 20 percent to the current monthly payment
amount.
(d) Requires the court, subject to the maximum amount
authorized to be withheld, to order the monthly withholding
of the defendant's income to pay the arrears, including
interest, in an amount to fully discharge the arrears in not
more than two years.
(e) Authorizes the court to extend the period of
withholding for a reasonable length of time if the court
finds that the amount withheld under Subsection (d) would
cause the defendant or the defendant's family to suffer
unreasonable hardship.
Art. 56.104. ORDER OF WITHHOLDING. (a) Sets forth the
required contents of an order to withhold income.
(b) Requires the court to order the defendant to notify the
court promptly of changes affecting the order and the amount
to be paid.
Art. 56.105. AMOUNT WITHHELD FROM INCOME. Requires the court
to enter an order directing an employer of the defendant to
withhold from the defendant's disposable earnings the amount
specified in the order, up to a maximum amount of 50 percent
of the defendant's disposable earnings.
Art. 56.106. ISSUANCE OF ORDER. (a)(1) Requires the clerk
of the court to cause a certified copy of the order
withholding income from earnings to be delivered to the
defendant's current employer or to any subsequent employer of
the defendant on request of the attorney representing the
state if the payment is a condition of community supervision.
Requires the person making the request to include the name and
address of the employer.
(2) Requires the clerk of the court to cause a certified
copy of the order withholding income from earnings to be
delivered to the defendant's current employer or to any
subsequent employer of the defendant on request of the
attorney general or the victim if the payment is a
condition of community supervision. Requires the person
making the request to include the name and address of the
employer.
(b) Requires the clerk to attach a copy of this article for
the information of the employer.
(c) Requires the clerk to issue and mail the certified copy
of the order not later than the fourth working day after the
date the order is assigned or the request is filed,
whichever is later.
(d) Provides that the requirements of Subsection (c) are
satisfied if the certified copy of the order is transferred
electronically.
Art. 56.107. NOTICE AND EFFECTIVE DATE OF ORDER. (a)
Requires the employer to begin to withhold income in
accordance with an order issued within a specified period and
to continue to withhold income as long as the defendant is
employed by the employer.
(b) Provides that an order issued under this subchapter
that is delivered to an employer that does business in this
state is binding on the employer without regard to whether
the defendant resides or works outside the state.
(c) Requires delivery of the order to the employer to be
remitted to the person or office named in the order on each
pay date. Requires the payment to include the date on which
the withholding occurred.
(d) Requires the amount to be withheld to be remitted to
the person specified in the payment order on each payment
date. Requires the payment to include the date on which the
withholding occurred.
Art. 56.108. FEES. (a) Authorizes the employer to deduct an
administrative fee of not more than $5 per month from the
defendant's disposable earnings in addition to the amount to
be withheld as payment of restitution or reimbursement.
(b) Authorizes the clerk to charge a person who requests an
order a reasonable fee not to exceed $15 for each order
issued and delivered to an employer by mail.
Art. 56.109. HEARING REQUEST BY EMPLOYER. (a) Authorizes
the employer to make a motion for hearing on the applicability
of the order to the employer within a specified period.
(b) Requires the hearing to be held within 15 days of the
filing of the motion.
(c) Requires the payments to continue to be made and the
order remain binding pending further order of the court.
Art. 56.110. PRIORITY OF WITHHOLDING. Provides that an order
made under this subchapter has priority over any garnishment,
attachment, execution, or other assignment or order affecting
disposable earnings, except an order enforcing payment of
child support.
Art. 56.111. LIABILITY OF EMPLOYER FOR PAYMENTS. (a)
Provides that an employer receiving an order under this
subchapter who complies with the order is not liable to the
defendant for the amount of income withheld and paid as
provided in the order.
(b) Provides that an employer who received an order of
withholding and who does not comply is liable to the person
for the amount not paid in compliance with the order or to
the defendant for the amount withheld and not paid and for
reasonable attorney's fees and court costs.
(c) Authorizes reasonable attorney's fees to be assessed,
ordered paid, and collected as any lawful debt based on
actions and efforts of employees of the attorney
representing the victim, the office of the attorney general,
and the community supervision and corrections department.
(d) Requires an employer receiving two or more orders on
any named defendant to comply with every order to the
maximum extent possible. Requires the employer, if the
total amount to be withheld exceeds the maximum amount under
Article 56.105, to pay an equal amount towards the current
restitution or reimbursement amount of all orders until the
employer complies with each order. Requires the employer to
then pay equal amounts, the total amount not exceeding the
amount provided by Article 56.105, on the arrearage portion
of all orders until the employer complies with each order.
(e) Authorizes the employer to combine the withheld amounts
from the defendants' wages and make a single payment to each
appropriate person if the employer identifies the amount of
the payment that is attributable to each defendant.
Art. 56.112. EMPLOYER'S PENALTY FOR DISCRIMINATORY HIRING OR
DISCHARGE. (a) Prohibits an employer from using an order
authorized by this subchapter as grounds in whole or in part
for the termination of employment or for any other
disciplinary action against an employee.
(b) Prohibits an employer from refusing to hire an employee
because of an order withholding income.
(c) Provides that if an employer intentionally discharges
an employee in violation of this article, the employer is
liable to the employee for current and accruing wages and
other benefits and for reasonable attorney's fees and court
costs incurred by the employee in enforcing the employee's
rights under this article.
(d) Authorizes an employee to bring an action under this
article.
Art. 56.113. CIVIL PENALTY. Provides that an employer who
knowingly violates a court order to withhold income is subject
to a fine not to exceed $500 for each occurrence in which the
employer fails to withhold income in addition to the remedies
provided by the provisions of Articles 56.111 and 56.112.
(b) Authorizes the attorney general to file a civil action
to collect a civil penalty under this article.
(c) Requires a civil penalty recovered under this article
to be paid to the victim or fund entitled to restitution or
reimbursement and credited against any amounts owed to the
victim or fund by the defendant.
Art. 56.114. NOTICE OF TERMINATION OF EMPLOYMENT AND OF NEW
EMPLOYMENT. (a) Requires both the defendant and the
employer, within seven days after termination, to notify the
court and the person to whom payments are ordered to be made
and to provide the defendant's last known address and the name
and address of the defendant's new employer, if known, if a
defendant terminates employment with an employer who has been
withholding income.
(b) Provides that the defendant has a continuing duty to
inform any subsequent employer of the income withholding
order after obtaining employment.
Art. 56.115. NOTICE OF TERMINATION OR REDUCTION OF
WITHHOLDING. Authorizes any person to deliver to the employer
a certified copy of the order if a court orders the
termination of withholding or reduction of the amount to be
withheld in payment of restitution or reimbursement under this
subchapter.
Art. 56.116. FORM OF ORDER WITHHOLDING INCOME. (a) Requires
the attorney general to adopt, by rule, a form for the order
withholding income under this subchapter.
(b) Provides that an order withholding income entered by a
court is sufficient if the order is substantially the same
as the form.
(c) Authorizes the attorney general to adopt additional
forms to facilitate efficient collection of restitution to
a victim or reimbursement of a fund.
Art. 56.117. TIME LIMITATIONS. Sets forth the time limits to
which a court retains jurisdiction to enter an order.
SUBCHAPTER E. ELIGIBILITY FOR CERTAIN STATE FUNDS
DUE TO DELINQUENT PAYMENT
Art. 56.131. DEFINITION. Defines "fund."
Art. 56.132. INELIGIBILITY TO RECEIVE STATE GRANTS OR LOANS
OR BID ON STATE CONTRACTS. (a) Sets forth the financial
actions to which a defendant ordered to pay restitution is not
eligible to engage.
(b) Prohibits a company whose chief executive is a
delinquent defendant who is ineligible to bid on a state
contract in Subsection (a) from bidding on a state contract
or receiving a state-funded grant or loan.
Art. 56.133 ELIGIBILITY REINSTATED. Provides that a
defendant ordered to pay restitution to a victim or
reimbursement to the fund remains ineligible to submit a bid
or enter into a state contract or apply for a state-funded
grant or loan until all arrearages have been paid or the
defendant is in compliance with a written repayment agreement
or court order as to any existing delinquency.
Art. 56.134. STATEMENT OF ELIGIBILITY REQUIRED. Requires any
bidder for a state contract or applicant for a state-funded
loan or grant to submit a signed statement accompanying any
bid or application or claim affirming that the person is not
more than 30 days delinquent in paying restitution or
reimbursement under a court order or written repayment
agreement.
Art. 56.135. RULES; FORMS. Authorizes the attorney general
and General Services Commission to adopt rules or prescribe
forms to implement any provision of this subchapter.
SECTION 2. Amends Article 56.02(a), Code of Criminal Procedure, to
make conforming changes.
SECTION 3. Amends Section 466.407, Government Code, to require the
director to deduct the amount of a delinquent tax or other money
from the winnings of a person determined to be delinquent in making
restitution payments to a victim as that term is defined in Article
56.32, Code of Criminal Procedure, or in making reimbursement
payments to the compensation to victims of crime fund established
under Article 56.54, Code of Criminal Procedure.
SECTION 4. Effective date: December 1, 1995, but only if the
corresponding constitutional amendment is approved by the voters.
Provides that if that amendment is not approved by the voters, this
Act has no effect.
SECTION 5. Emergency clause.