H.B. No. 418
1-1 AN ACT
1-2 relating to protective orders for family violence; providing
1-3 penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter C, Chapter 3, Family Code, is amended
1-6 by adding Section 3.522 to read as follows:
1-7 Sec. 3.522. PROTECTIVE ORDERS. (a) The petition in a suit
1-8 for divorce or annulment must state whether a protective order
1-9 under Chapter 71 or Section 3.581 is in effect or if an application
1-10 for a protective order is pending with regard to the parties to the
1-11 suit.
1-12 (b) The petitioner in a suit for divorce or annulment shall
1-13 attach to the petition a copy of each protective order issued under
1-14 Chapter 71 or Section 3.581 in which one of the parties to the suit
1-15 was the applicant and the other party was the respondent without
1-16 regard to the date on which the order was entered. If a copy of
1-17 the protective order is not available at the time of filing, the
1-18 petition must state that a copy of the order will be filed with the
1-19 court before any hearing.
1-20 SECTION 2. Section 3.581, Family Code, is amended to read as
1-21 follows:
1-22 Sec. 3.581. Protective Orders. <(a)> On the motion of any
1-23 party to a suit for divorce or annulment or to declare a marriage
1-24 void, the court may issue a protective order as provided by Section
2-1 71.06 <Sections 71.10(a), 71.10(b), 71.10(c)(1) and (3), 71.11(b)
2-2 and (c), 71.111, 71.14, and 71.16 of this code>.
2-3 <(b) An order may be made under this section only after
2-4 notice to the party alleged to have committed family violence and a
2-5 hearing.>
2-6 <(c) An order made under this section is valid for one year
2-7 or the earliest of:>
2-8 <(1) the end of a period of less than one year
2-9 specified in the order by the court;>
2-10 <(2) the date the order is vacated by the court; or>
2-11 <(3) the date the suit is dismissed.>
2-12 <(d) A spouse who has applied for a protective order under
2-13 this section is entitled to a temporary ex parte order directed
2-14 against the other spouse for the relief provided by and under the
2-15 conditions established in Section 71.15 of this code.>
2-16 <(e) The date of expiration of an order made under this
2-17 section must appear on the order.>
2-18 <(f) An order made under this section must be a separate
2-19 document entitled "PROTECTIVE ORDER.">
2-20 SECTION 3. Sections 71.01(b)(1)-(6), Family Code, are
2-21 amended to read as follows:
2-22 (1) "Court" means the district court, court of
2-23 domestic relations, juvenile court having the jurisdiction of a
2-24 district court, or other court expressly given jurisdiction of a
2-25 suit under this subtitle or a statutory county court.
2-26 (2) "Family violence" means:
2-27 (A) an act by a member of a family or household
3-1 against another member of the family or household that is intended
3-2 to result in physical harm, bodily injury, <or> assault, or sexual
3-3 assault or that is a threat that reasonably places the member in
3-4 fear of imminent physical harm, bodily injury, <or> assault, or
3-5 sexual assault, but does not include defensive measures to protect
3-6 oneself <excluding the reasonable discipline of a child by a person
3-7 having that duty>; or
3-8 (B) abuse, as that term is defined by Sections
3-9 34.012(1)(C), (E), and (G) of this code, by a member of a family or
3-10 household toward a child of the family or household.
3-11 (3) "Family" includes individuals related by
3-12 consanguinity or affinity, as determined under Sections 573.022 and
3-13 573.024, Government Code <Article 5996h, Revised Statutes>,
3-14 individuals who are former spouses of each other, individuals who
3-15 are the biological parents of the same child, without regard to
3-16 marriage, and a foster child and foster parent, whether or not
3-17 those individuals reside together.
3-18 (4) <"Former member of a household" means a person who
3-19 previously lived in a household.>
3-20 <(5)> "Household" means a unit composed of persons
3-21 living together in the same dwelling, whether or not they are
3-22 related to each other.
3-23 (5) <(6)> "Member of a household" includes a person
3-24 who previously lived in <former member of> a household.
3-25 SECTION 4. Sections 71.04(b) and (c), Family Code, are
3-26 amended to read as follows:
3-27 (b) An application may be filed by:
4-1 (1) an adult member of a family or household for the
4-2 protection of the applicant or for any other member of the family
4-3 or household;
4-4 (2) any adult for the protection of a child member of
4-5 a family or household; <or>
4-6 (3) any prosecuting attorney who represents the state
4-7 in a district or statutory county court in the county in which
4-8 venue of the application is proper for the protection of any person
4-9 alleged to be a victim of family violence; or
4-10 (4) the Department of Protective and Regulatory
4-11 Services for the protection of a member of a family or household.
4-12 (c) The county attorney or the criminal district attorney is
4-13 the prosecuting attorney responsible for filing applications under
4-14 this chapter unless the<. The> district attorney assumes <may
4-15 assume> the responsibility by giving notice of that assumption to
4-16 the county attorney. The prosecuting attorney responsible for
4-17 filing an application under this chapter shall provide notice of
4-18 that responsibility to all law enforcement agencies within the
4-19 jurisdiction of the prosecuting attorney. The application is to be
4-20 filed as provided by Article 5.06, Code of Criminal Procedure.
4-21 SECTION 5. Chapter 71, Family Code, is amended by adding
4-22 Section 71.041 to read as follows:
4-23 Sec. 71.041. FEES AND COSTS. (a) An applicant for a
4-24 protective order may not be assessed any fee, cost, charge, or
4-25 expense by a clerk of the court or another public official in
4-26 connection with the filing, serving, or entering of the protective
4-27 order. A fee may not be charged to an applicant to dismiss,
5-1 modify, or withdraw a protective order.
5-2 (b) Except on a showing of indigency by the respondent, a
5-3 court shall require in a protective order that the respondent
5-4 against whom an order is rendered pay the protective order fee of
5-5 $16, the standard fees charged by the clerk of the court as in a
5-6 general civil proceeding for the cost of service of the order, the
5-7 costs of court, and all other fees, charges, or expenses incurred
5-8 in connection with the protective order.
5-9 (c) A respondent who is ordered to pay costs who does not
5-10 pay the costs before the 60th day after the date the order was
5-11 rendered may be punished for contempt of court as provided by
5-12 Section 21.002, Government Code.
5-13 (d) The court may assess a reasonable attorney's fee as
5-14 compensation for the services of a private or prosecuting attorney
5-15 or an attorney employed by the Department of Protective and
5-16 Regulatory Services representing an applicant against the party who
5-17 is found to have committed family violence. In setting the amount
5-18 of the fee, the court shall consider the income and ability to pay
5-19 of the person against whom the fee is assessed. The amount of fees
5-20 collected under this subsection as compensation for the fees of a
5-21 prosecuting attorney shall be paid to the credit of the county fund
5-22 from which the salaries of employees of the prosecuting attorney
5-23 are paid or supplemented and the fees collected under this
5-24 subsection as compensation for an attorney employed by the
5-25 Department of Protective and Regulatory Services shall be deposited
5-26 in the general revenue fund to the credit of the Department of
5-27 Protective and Regulatory Services. The fees collected under this
6-1 subsection as compensation for a private attorney shall be paid to
6-2 the private attorney, who may enforce the order in the attorney's
6-3 own name.
6-4 SECTION 6. Sections 71.05(b)-(g), Family Code, are amended
6-5 to read as follows:
6-6 (b) <If an application requests a protective order for a
6-7 spouse and alleges that the other spouse has committed family
6-8 violence, the application must state that no suit for the
6-9 dissolution of the marriage of the spouses is pending.>
6-10 <(c)> If an applicant is a former spouse of an individual
6-11 alleged to have committed family violence:
6-12 (1) a copy of the decree dissolving the marriage must
6-13 be attached to the application; or
6-14 (2) the application must state that the decree is
6-15 unavailable to the applicant and that a copy of the decree will be
6-16 filed with the court before the hearing on the application.
6-17 (c) <(d)> If an application requests a protective order for
6-18 a child who is subject to the continuing jurisdiction of a court
6-19 under Subtitle A, Title 2, of this code or alleges that a child who
6-20 is subject to the continuing jurisdiction of a court under Subtitle
6-21 A, Title 2, of this code has committed family violence:
6-22 (1) a copy of the court orders affecting the
6-23 conservatorship, possession, and support of or the access to the
6-24 child must be filed with the application; or
6-25 (2) the application must state that the orders
6-26 affecting the child are unavailable to the applicant and that a
6-27 copy of the orders will be filed with the court before the hearing
7-1 on the application.
7-2 (d) <(e)> If the application requests the issuance of a
7-3 temporary ex parte order under Section 71.15 of this code, the
7-4 application must:
7-5 (1) contain a detailed description of the facts and
7-6 circumstances concerning the alleged family violence and the need
7-7 for immediate protective orders; and
7-8 (2) be signed by each applicant under an oath that the
7-9 facts and circumstances contained in the application are true to
7-10 the best knowledge and belief of each applicant.
7-11 (e) <(f)> If an application requests a protective order and
7-12 alleges that the respondent has violated a former protective order
7-13 protecting the applicant by committing an act prohibited by the
7-14 former order under Section 71.11(b) of this code and that the
7-15 former protective order has expired since the alleged violation
7-16 occurred, the application for the protective order must include:
7-17 (1) a copy of the former protective order attached to
7-18 the application or a statement that the order is unavailable to the
7-19 applicant and that a copy of the order will be filed with the court
7-20 before the hearing on the application;
7-21 (2) a description of the violation of the former
7-22 protective order; and
7-23 (3) a statement that the violation of the former order
7-24 described in the application has not been grounds for any other
7-25 order protecting the applicant that has been issued or requested
7-26 under this section.
7-27 (f) <(g)> The procedural requirements relating to a
8-1 protective order under this chapter, including the application
8-2 under Section 71.04 of this code and service under Section 71.07 of
8-3 this code, apply to a protective order under Subsection (e) <(f)>
8-4 of this section.
8-5 SECTION 7. Section 71.06, Family Code, is amended by
8-6 amending Subsection (b) and adding Subsections (c)-(f) to read as
8-7 follows:
8-8 (b) A court may not <shall> dismiss an application filed
8-9 under this chapter solely on the grounds that a suit for
8-10 dissolution of a marriage is filed unless the court hearing the
8-11 suit for dissolution has rendered a temporary order, including a
8-12 protective order, on behalf of the applicant under this chapter, in
8-13 response to an application filed with that court or has denied the
8-14 application on its merits. On rendition of a temporary order,
8-15 including a protective order, on behalf of the applicant under this
8-16 chapter, or denial of an application for a protective order by the
8-17 court hearing the suit for dissolution, a court may dismiss an
8-18 application filed under this chapter <by a party to a pending suit
8-19 for dissolution of marriage and shall advise the applicant that the
8-20 applicant may file an application under Section 3.581 of this
8-21 code>.
8-22 (c) A protective order rendered under this chapter is valid
8-23 and enforceable, pending further action by the court that rendered
8-24 the order, until it is properly superseded by another court with
8-25 jurisdiction over the order.
8-26 (d) An applicant denied a protective order filed as a motion
8-27 in a suit for dissolution of a marriage may not apply for a
9-1 protective order in another court based on the identical facts as
9-2 the previous application.
9-3 (e) The requirements of service of notice under Section
9-4 71.07 do not apply if the application is filed as a motion in a
9-5 suit for the dissolution of a marriage. Notice is given in the
9-6 same manner as in any other motion in a suit for the dissolution of
9-7 a marriage.
9-8 (f) A protective order entered as an order in a suit for
9-9 dissolution of a marriage must be in a document separate from other
9-10 orders or temporary orders and shall be entitled "PROTECTIVE
9-11 ORDER."
9-12 SECTION 8. Section 71.08, Family Code, is amended to read as
9-13 follows:
9-14 Sec. 71.08. Answer. A respondent <An individual> served
9-15 with notice of an application for a protective order may but is not
9-16 required to file a written answer to the application. The answer
9-17 may be filed at any time before the hearing.
9-18 SECTION 9. Sections 71.09(b), (c), and (e), Family Code, are
9-19 amended to read as follows:
9-20 (b) If a respondent <person> entitled to service of a notice
9-21 of application for a protective order receives the service within
9-22 48 hours before the time set for the hearing, the court, on a
9-23 request from the respondent <person>, shall reschedule the hearing
9-24 for a date not later than 14 days after the date set for the
9-25 hearing. The respondent <person> is not entitled to additional
9-26 service for the rescheduled hearing.
9-27 (c) If a hearing set under Subsection (a) of this section is
10-1 not held because of the failure of a respondent <party> to receive
10-2 service of a notice of application for a protective order, the
10-3 applicant may request the court to reschedule the hearing. Except
10-4 as provided by Subsection (d) of this section, the date for a
10-5 rescheduled hearing under this subsection must be not later than 14
10-6 days after the date on which the request is made.
10-7 (e) A court may issue an order relating to an application
10-8 for a protective order that is binding on a respondent <party> who
10-9 does not attend a hearing under this section if the absent
10-10 respondent <party> received notice of the application. This
10-11 subsection applies to a respondent <party> who receives notice
10-12 within 48 hours before the time set for a hearing if the respondent
10-13 <party> does not request that the hearing be rescheduled.
10-14 SECTION 10. Section 71.10, Family Code, is amended to read
10-15 as follows:
10-16 Sec. 71.10. FINDINGS AND ORDERS. (a) At the close of a
10-17 hearing on an application, the court shall find whether or not
10-18 family violence has occurred and whether or not family violence is
10-19 likely to occur again in the <foreseeable> future.
10-20 (b) If the court finds that family violence has occurred and
10-21 that family violence is likely to occur again in the <foreseeable>
10-22 future, the court shall issue a <may make any> protective order
10-23 under Section 71.11(b) applying only to a person found to have
10-24 committed family violence and may enter a protective order
10-25 authorized under Section 71.11(a) applying to both parties <by this
10-26 chapter> that is in the best interest of the family or household,
10-27 or a member of the family or household.
11-1 (c) If the court finds that a respondent <person> violated a
11-2 former protective order made under this chapter by committing an
11-3 act prohibited by the former order under Section 71.11(b) of this
11-4 code while the former order was in effect and that the former order
11-5 is not currently in effect, the court, without finding whether
11-6 family violence has occurred or whether family violence is likely
11-7 to occur again in the <foreseeable> future, shall issue a
11-8 protective order under Section 71.11(b) applying only to the
11-9 respondent and may enter a protective order authorized under
11-10 Section 71.11(a) applying to both the respondent and the applicant
11-11 that is in the best interest of the applicant, the family or
11-12 household, or a member of the family or household.
11-13 (d) If the court approves an agreement between the parties
11-14 as authorized under Section 71.12, the court shall issue a
11-15 protective order under this section that is in the best interest of
11-16 the applicant, the family or household, or a member of the family
11-17 or household. <A protective order may apply only to a party to the
11-18 proceeding who:>
11-19 <(1) the court finds has committed family violence and
11-20 is likely to commit family violence in the foreseeable future;>
11-21 <(2) the court finds has violated a former protective
11-22 order;>
11-23 <(3) has agreed to the order under Section 71.12(a) of
11-24 this code; or>
11-25 <(4) is a respondent and has agreed to the order under
11-26 Section 71.12(b) of this code.>
11-27 SECTION 11. Sections 71.11(a), (b), and (e)-(j), Family
12-1 Code, are amended to read as follows:
12-2 (a) In a protective order the court may:
12-3 (1) prohibit a party from:
12-4 (A) removing a child member of the family or
12-5 household from the possession of a person named in the court order
12-6 or from the jurisdiction of the court; or
12-7 (B) transferring, encumbering, or otherwise
12-8 disposing of property mutually owned or leased by the parties,
12-9 except when in the ordinary course of business;
12-10 (2) grant exclusive possession of a residence to a
12-11 party and, if appropriate, direct one or more other parties to
12-12 vacate the residence if:
12-13 (A) the residence is jointly owned or leased by
12-14 the party receiving exclusive possession and by some other party
12-15 denied possession;
12-16 (B) the residence is owned or leased by the
12-17 party retaining possession; or
12-18 (C) the residence is owned or leased by the
12-19 party denied possession but only if that party has an obligation to
12-20 support the party granted possession of the residence or a child of
12-21 the party granted possession;
12-22 (3) provide for possession of and access to a child of
12-23 a party if the person receiving possession of or access to the
12-24 child is a parent, as that term is defined by Section 11.01 of this
12-25 code, of the child;
12-26 (4) require the payment of support for a party or for
12-27 a child of a party if the person required to make the payment has
13-1 an obligation to support the other party or the child;
13-2 (5) require the person found to have committed family
13-3 violence to complete a batterer's treatment program if a program is
13-4 available or if a program is not available <one or more parties> to
13-5 counsel with a social worker, family service agency, physician,
13-6 psychologist, licensed therapist, or licensed professional
13-7 counselor<, or to complete a batterer's treatment program>;
13-8 (6) award to a party use and possession of specified
13-9 property that is community property or jointly owned or leased; or
13-10 (7) prohibit the person found to have committed family
13-11 violence <a party> from doing specified acts or require the person
13-12 found to have committed family violence <a party> to do specified
13-13 acts necessary or appropriate to prevent or reduce the likelihood
13-14 of family violence.
13-15 (b) In a protective order the court may prohibit the person
13-16 found to have committed family violence <a party> from:
13-17 (1) committing family violence;
13-18 (2) communicating:
13-19 (A) directly with a member of the family or
13-20 household in a threatening or harassing manner;
13-21 (B) a threat through any person to a member of
13-22 the family or household; and
13-23 (C) on a finding of good cause, in any manner
13-24 with a member of the family or household except through the party's
13-25 attorney or a person appointed by the court;
13-26 (3) going to or near the residence or place of
13-27 employment or business of a member of the family or household;
14-1 <and>
14-2 (4) going to or near the residence, child care
14-3 facility, or school where a child protected under the order
14-4 normally resides or attends; and
14-5 (5) engaging in conduct directed specifically toward a
14-6 person who is a member of the family or household, including
14-7 following the person, that is reasonably likely to harass, annoy,
14-8 alarm, abuse, torment, or embarrass that person.
14-9 (e) <A protective order made under this section that
14-10 conflicts with any other court order made under Subtitle A, Title
14-11 2, of this code is to the extent of the conflict invalid and
14-12 unenforceable.>
14-13 <(f) Except on a showing of indigency by a person against
14-14 whom a protective order is directed, the order shall require that
14-15 the person:>
14-16 <(1) pay the cost of service of the order, the actual
14-17 costs of court, the costs incurred by the clerk not paid by the
14-18 applicant pursuant to Section 71.07, Family Code, and any other
14-19 fees, charges, or expenses incurred in connection with the
14-20 protective order; and>
14-21 <(2) reimburse the applicant for any fees paid by the
14-22 applicant under this chapter by paying that amount to the clerk of
14-23 the court.>
14-24 <(g) The clerk of a court who receives money according to a
14-25 protective order from a person against whom the order is directed
14-26 shall reimburse the applicant for any fees paid by the applicant
14-27 under this chapter.>
15-1 <(h) A person who is ordered to pay costs or reimburse an
15-2 applicant under Subsection (f) of this section who does not pay the
15-3 costs or reimburse the applicant before the 60th day after the date
15-4 the order was rendered may be punished for contempt of court by a
15-5 fine in an amount not to exceed $500, or by confinement in jail for
15-6 a term not to exceed six months, or both.>
15-7 <(i)> A person found to have engaged in family violence
15-8 <party> for whom counseling or a batterer's treatment program is
15-9 ordered under Subsection (a)(5) of this section and who does not
15-10 provide to the court before the 60th day after the date the order
15-11 was rendered an affidavit that the person <party> has started the
15-12 counseling or the program or that the counseling or the program is
15-13 not available within a reasonable distance of the person's
15-14 <party's> residence may be punished for contempt of court as
15-15 provided by Section 21.002, Government Code <by a fine in an amount
15-16 not to exceed $500, or by confinement in jail for a term not to
15-17 exceed six months, or both>. The order shall specifically advise
15-18 the person <party> of this requirement and the possible punishment
15-19 for failure to comply.
15-20 <(j) Any interested person may contest an affidavit of
15-21 indigency filed under Subsection (f) of this section.>
15-22 SECTION 12. Sections 71.12(c) and (d), Family Code, are
15-23 amended to read as follows:
15-24 (c) If all or part of an agreement under Subsection (a) or
15-25 (b) of this section is approved by the court, the part of the
15-26 agreement approved shall be attached to the protective order and
15-27 become a part of the order of the court.
16-1 (d) <If all or part of an agreement by the respondent under
16-2 Subsection (b) of this section is approved by the court, the part
16-3 of the agreement approved shall be attached to the protective order
16-4 and become a part of the order of the court. The court may approve
16-5 an agreement or part of an agreement under this subsection only if
16-6 the agreement requires the respondent to do or refrain from doing
16-7 an act under Section 71.11(b) of this code.> The court may not
16-8 approve an agreement or part of an agreement <under this
16-9 subsection> that requires the applicant to do or refrain from doing
16-10 an act under Section 71.11(b) of this code even if the applicant
16-11 consents in the agreement to do or refrain from doing the act.
16-12 SECTION 13. Section 71.121, Family Code, is amended to read
16-13 as follows:
16-14 Sec. 71.121. Request by Respondent for Protective Order.
16-15 (a) <A court may not enter a single protective order that applies
16-16 to both the respondent and the applicant unless the order embodies
16-17 an agreement of the parties under Section 71.12(a) of this code.>
16-18 <(b)> To apply for a protective order against an applicant,
16-19 a respondent must file a separate application under this chapter.
16-20 (b) <(c)> A court may not delay a hearing on an applicant's
16-21 application for a protective order beyond the time provided by
16-22 Section 71.09 of this code in order to consolidate it with a
16-23 hearing on a subsequently filed <respondent's> application for a
16-24 protective order <against the applicant>.
16-25 (c) A court may not enter a protective order that requires
16-26 both the respondent and the applicant to do or refrain from doing
16-27 an act under Section 71.11(b).
17-1 (d) A protective order that requires the first applicant to
17-2 do or refrain from doing an act under Section 71.11(b) shall
17-3 include a finding that the first applicant has committed family
17-4 violence and is likely to commit family violence in the future.
17-5 (e) A court that enters separate protective orders under
17-6 this section that apply to both parties and require both parties to
17-7 do or refrain from doing an act under Section 71.11(b) shall issue
17-8 two distinct and independent protective orders that reflect the
17-9 appropriate conditions for each of the parties.
17-10 (f) A court that enters protective orders under this section
17-11 that apply to both the respondent and the applicant and that
17-12 require the respondent to do or refrain from doing an act under
17-13 Section 71.11(b) shall issue the protective orders in two separate
17-14 documents. The court shall provide one of the documents to the
17-15 applicant and the other to the respondent.
17-16 SECTION 14. Section 71.14, Family Code, is amended by adding
17-17 Subsection (c) to read as follows:
17-18 (c) Notice of a motion to modify under this section is
17-19 sufficient if delivery of the motion is attempted on the
17-20 respondent's last known address by registered or certified mail as
17-21 provided by Rule 21a, Texas Rules of Civil Procedure.
17-22 SECTION 15. Sections 71.15(h), (i), and (j), Family Code,
17-23 are amended to read as follows:
17-24 (h) In order for an ex parte order excluding a person from
17-25 the person's residence to be granted, the court must find from the
17-26 required affidavit and testimony that:
17-27 (1) the applicant requesting the exclusion order
18-1 either resides on the premises or has resided there within 30 days
18-2 before the filing of the application;
18-3 (2) the person to be excluded has within the 30-day
18-4 period preceding the filing of the application committed family
18-5 violence against a member of the household; and
18-6 (3) there is a clear and present danger that the
18-7 person to be excluded is likely to commit family violence against a
18-8 member of the household <in the foreseeable future>.
18-9 (i) <On the request of a person obtaining an order that
18-10 excludes another person from the other person's residence, the
18-11 court that granted the order may order the sheriff or chief of
18-12 police to provide a law enforcement officer from the department of
18-13 the sheriff or the chief of police:>
18-14 <(1) to accompany the person obtaining the order to
18-15 the residence covered by the order;>
18-16 <(2) to protect the person obtaining the order while
18-17 the person takes possession of the residence; and>
18-18 <(3) if the person obtaining the order is unable to
18-19 take possession of the residence because the person being excluded
18-20 occupies the residence, to inform the person being excluded that
18-21 the court has ordered the person excluded from the residence.>
18-22 <(j)> The court may stop the hearing to contact the
18-23 respondent by telephone and provide the respondent an opportunity
18-24 to be present when the court resumes the hearing. Without regard
18-25 to whether the respondent is able to be present at the hearing, the
18-26 court shall resume the hearing before the end of the working day.
18-27 SECTION 16. Section 71.16(b), Family Code, is amended to
19-1 read as follows:
19-2 (b) Each protective order issued under this chapter, except
19-3 a temporary ex parte order, shall have the following statement
19-4 printed in bold-faced type or in capital letters:
19-5 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
19-6 BY THE ORDER MAY BE <A FELONY> PUNISHABLE BY A FINE OF AS MUCH AS
19-7 $4,000 <$10,000> OR BY CONFINEMENT IN JAIL <PRISON> FOR AS LONG AS
19-8 ONE YEAR <10 YEARS>, OR BOTH. <FURTHER VIOLATIONS OF THIS ORDER
19-9 MAY BE PUNISHABLE BY CONFINEMENT IN PRISON FOR AS LONG AS 99
19-10 YEARS.> AN ACT THAT RESULTS IN FAMILY VIOLENCE MAY BE PROSECUTED
19-11 AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS
19-12 PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY
19-13 CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS."
19-14 SECTION 17. Section 71.17, Family Code, is amended to read
19-15 as follows:
19-16 Sec. 71.17. COPIES OF ORDERS. (a) A protective order made
19-17 under this chapter shall be delivered to the respondent <person to
19-18 whom the order applies in open court at the close of the hearing,
19-19 or served by registered or certified mail,> in accordance with Rule
19-20 21a, Texas Rules of Civil Procedure, <or> served in the same manner
19-21 as a writ of injunction, or served in open court at the close of
19-22 the hearing as provided by Subsections (b)-(d).
19-23 (b) If the order is served in open court, the order shall be
19-24 served as provided by this subsection. If the respondent is
19-25 present at the hearing and the order has been reduced to writing,
19-26 the judge or master shall sign the order and give a copy of the
19-27 order to the respondent. A certified copy of the signed order
20-1 shall be given to the applicant at the time the order is given to
20-2 the respondent. If the applicant is not in court at the conclusion
20-3 of the hearing, the clerk of the court shall mail a certified copy
20-4 of the order to the applicant not later than the third business day
20-5 after the date the hearing is concluded.
20-6 (c) If the respondent is present at the hearing but the
20-7 order has not been reduced to writing, the judge or master shall
20-8 give notice orally to the respondent of the part of the order that
20-9 contains prohibitions under Section 71.11(b) or any other part of
20-10 the order that contains provisions necessary to prevent further
20-11 family violence. The clerk of the court shall mail a copy of the
20-12 order to the respondent and a certified copy of the order to the
20-13 applicant not later than the third business day after the date the
20-14 hearing is concluded.
20-15 (d) If the respondent is not present at the hearing and the
20-16 order has been reduced to writing at the conclusion of the hearing,
20-17 the clerk of the court shall immediately provide a certified copy
20-18 of the order to the applicant and mail a copy of the order to the
20-19 respondent not later than the third business day after the date the
20-20 hearing is concluded.
20-21 (e) <(b)> The clerk of the court issuing an original or
20-22 modified protective order under this chapter shall send a copy of
20-23 the order to the chief of police of the city where the member of
20-24 the family or household protected by the order resides, if the
20-25 person resides in a city, or to the sheriff of the county where the
20-26 person resides, if the person does not reside in a city.
20-27 (f) <(c)> If a protective order made under this chapter
21-1 prohibits a respondent <person> from going to or near a child care
21-2 facility or school under Section 71.11(b) of this code, the clerk
21-3 of the court <party requesting the order> shall send a copy of the
21-4 order to the child care facility or school.
21-5 (g) <(d)> The clerk of a court vacating an original or
21-6 modified protective order under this chapter shall notify the chief
21-7 of police or sheriff who received a copy of the original or
21-8 modified order that the order is vacated.
21-9 SECTION 18. Section 71.18, Family Code, is amended by adding
21-10 Subsections (c) and (d) to read as follows:
21-11 (c) On the request of an applicant obtaining a temporary
21-12 order that excludes the respondent from the respondent's residence,
21-13 the court that granted the temporary order shall provide a written
21-14 order to the sheriff or chief of police to provide a law
21-15 enforcement officer from the department of the sheriff or chief of
21-16 police:
21-17 (1) to accompany the applicant to the residence
21-18 covered by the order;
21-19 (2) to inform the respondent that the court has
21-20 ordered that the respondent be excluded from the residence;
21-21 (3) to protect the applicant while the applicant takes
21-22 possession of the residence; and
21-23 (4) if the respondent refuses to vacate the residence,
21-24 to protect the applicant while the applicant takes possession of
21-25 the applicant's necessary personal property.
21-26 (d) On the request of an applicant obtaining a final order
21-27 that excludes the respondent from the respondent's residence, the
22-1 court that granted the final order shall provide a written order to
22-2 the sheriff or chief of police to provide a law enforcement officer
22-3 from the department of the sheriff or chief of police:
22-4 (1) to accompany the applicant to the residence
22-5 covered by the order;
22-6 (2) to inform the respondent that the court has
22-7 ordered that the respondent be excluded from the residence;
22-8 (3) to protect the applicant while the applicant takes
22-9 possession of the residence and the respondent takes possession of
22-10 the respondent's necessary personal property; and
22-11 (4) if the respondent refuses to vacate the residence:
22-12 (A) to remove the respondent from the residence;
22-13 and
22-14 (B) to arrest the respondent for violating the
22-15 court order.
22-16 SECTION 19. Section 118.131, Local Government Code, is
22-17 amended by adding Subsection (i) to read as follows:
22-18 (i) The commissioners court may not assess an applicant a
22-19 fee in connection with the filing, serving, or entering of a
22-20 protective order. A fee may not be charged to an applicant to
22-21 dismiss, modify, or withdraw a protective order.
22-22 SECTION 20. Section 51.303, Government Code, is amended by
22-23 adding Subsection (f) to read as follows:
22-24 (f) In addition to the other powers and duties of this
22-25 section, a district clerk shall accept applications for protective
22-26 orders under Chapter 71, Family Code.
22-27 SECTION 21. Section 51.402, Government Code, is amended by
23-1 adding Subsection (d) to read as follows:
23-2 (d) In addition to the other powers and duties of this
23-3 section, a county clerk that serves as the clerk for a court having
23-4 jurisdiction of applications for protective orders under Chapter
23-5 71, Family Code, shall accept those applications.
23-6 SECTION 22. Subtitle E, Title 2, Human Resources Code, is
23-7 amended by adding Chapter 54 to read as follows:
23-8 CHAPTER 54. PROTECTIVE ORDERS SOUGHT BY DEPARTMENT OF
23-9 PROTECTIVE AND REGULATORY SERVICES
23-10 Sec. 54.001. PROTECTIVE ORDERS. The Department of
23-11 Protective and Regulatory Services shall adopt rules to provide
23-12 procedures for the filing of protective orders for the protection
23-13 of a member of a family or household as provided by Section 71.04,
23-14 Family Code.
23-15 Sec. 54.002. NOTICE TO NONABUSIVE PARENT OR HOUSEHOLD
23-16 MEMBER. The Department of Protective and Regulatory Services shall
23-17 provide prior notice to a nonabusive parent or adult member of a
23-18 household of the department's intent to file an application for a
23-19 protective order for a child or older person and shall request the
23-20 assistance of the person receiving the notice in developing a
23-21 safety plan for household members and the child or older person for
23-22 whom the order is sought. The department shall exercise reasonable
23-23 safety precautions to protect a nonabusive parent or other member
23-24 of a household while providing notice and requesting assistance
23-25 under this section.
23-26 SECTION 23. Section 25.07(a), Penal Code, is amended to read
23-27 as follows:
24-1 (a) A person commits an offense if, in violation of an order
24-2 issued under Section 3.581, Section 71.11, or Section 71.12, Family
24-3 Code, the person knowingly or intentionally:
24-4 (1) commits family violence;
24-5 (2) <directly> communicates:
24-6 (A) directly with a member of the family or
24-7 household in a threatening or harassing manner;
24-8 (B) <, communicates> a threat through any person
24-9 to a member of the family or household;<,> and
24-10 (C) <, if the order prohibits any communication
24-11 with a member of the family or household, communicates> in any
24-12 manner with the member of the family or household except through
24-13 the person's attorney or a person appointed by the court, if the
24-14 order prohibits any communication with a member of the family or
24-15 household; <or>
24-16 (3) goes to or near any of the following places as
24-17 specifically described in the protective order:
24-18 (A) the residence or place of employment or
24-19 business of a member of the family or household; or
24-20 (B) any child care facility, residence, or
24-21 school where a child protected by the protective order normally
24-22 resides or attends; or
24-23 (4) engages in conduct directed specifically toward a
24-24 person who is a member of the family or household, including
24-25 following the person, that is reasonably likely to harass, annoy,
24-26 alarm, abuse, torment, or embarrass that person.
24-27 SECTION 24. Article 5.04(c), Code of Criminal Procedure, is
25-1 amended to read as follows:
25-2 (c) A written notice required by Subsection (b) of this
25-3 article is sufficient if it is in substantially the following form
25-4 with the required information in English and in Spanish inserted in
25-5 the notice:
25-6 "NOTICE TO ADULT VICTIMS OF FAMILY VIOLENCE
25-7 "It is a crime for any person to cause you any physical
25-8 injury or harm EVEN IF THAT PERSON IS A MEMBER OR FORMER MEMBER OF
25-9 YOUR FAMILY OR HOUSEHOLD.
25-10 "Please tell the investigating peace officer:
25-11 "IF you, your child, or any other household resident has been
25-12 injured; or
25-13 "IF you feel you are going to be in danger when the officer
25-14 leaves or later.
25-15 "You have the right to:
25-16 "ASK the local prosecutor to file a criminal complaint
25-17 against the person committing family violence; and
25-18 "APPLY to a court for an order to protect you (you should
25-19 consult a legal aid office, a prosecuting attorney, or a private
25-20 attorney). You cannot be charged a fee by a court in connection
25-21 with filing, serving, or entering a protective order. For example,
25-22 the court can enter an order that:
25-23 "(1) the abuser not commit further acts of violence;
25-24 "(2) the abuser not threaten, harass, or contact you
25-25 at home;
25-26 "(3) directs the abuser to leave your household; and
25-27 "(4) establishes temporary custody of the children and
26-1 directs the abuser not to interfere with the children or any
26-2 property.
26-3 "A VIOLATION OF CERTAIN PROVISIONS OF COURT-ORDERED
26-4 PROTECTION (such as (1) and (2) above) MAY BE A FELONY.
26-5 "CALL THE FOLLOWING VIOLENCE SHELTERS OR SOCIAL ORGANIZATIONS
26-6 IF YOU NEED PROTECTION:
26-7 "____________________________
26-8 "____________________________."
26-9 SECTION 25. Article 5.06, Code of Criminal Procedure, is
26-10 amended by adding Subsection (c) to read as follows:
26-11 (c) The prosecuting attorney having responsibility under
26-12 Section 71.04(c), Family Code, for filing applications for
26-13 protective orders under Chapter 71, Family Code, shall provide
26-14 notice of those responsibilities to all law enforcement agencies
26-15 within the jurisdiction of the prosecuting attorney for the
26-16 prosecuting attorney.
26-17 SECTION 26. Sections 3.582, 3.583, 71.04(d), (e), and (f),
26-18 71.07(i), and 71.13(b) and (c), and Chapter 72, Family Code, are
26-19 repealed.
26-20 SECTION 27. The change in law made by Sections 1, 7, and 16
26-21 of this Act applies to a pending application for a protective order
26-22 regardless of whether the application is filed before, on, or after
26-23 the effective date of this Act.
26-24 SECTION 28. (a) Except as provided by Section 27 of this
26-25 Act, the change in law made by this Act applies only to an
26-26 application for a protective order made on or after the effective
26-27 date of this Act. An application for a protective order made
27-1 before the effective date of this Act is governed by the law in
27-2 effect at the time the application was made, and the former law is
27-3 continued in effect for that purpose.
27-4 (b) The change in law made by this Act applies only to an
27-5 offense committed on or after the effective date of this Act. For
27-6 purposes of this section, an offense is committed before the
27-7 effective date of this Act if any element of the offense occurs
27-8 before that date.
27-9 (c) An offense committed before the effective date of this
27-10 Act is covered by the law in effect when the offense was committed,
27-11 and the former law is continued in effect for that purpose.
27-12 SECTION 29. This Act takes effect September 1, 1995.
27-13 SECTION 30. The importance of this legislation and the
27-14 crowded condition of the calendars in both houses create an
27-15 emergency and an imperative public necessity that the
27-16 constitutional rule requiring bills to be read on three several
27-17 days in each house be suspended, and this rule is hereby suspended.