1-1 By: Goodman, Thompson, Combs H.B. No. 418
1-2 (Senate Sponsor - Harris)
1-3 (In the Senate - Received from the House May 4, 1995;
1-4 May 5, 1995, read first time and referred to Committee on
1-5 Jurisprudence; May 17, 1995, reported adversely, with favorable
1-6 Committee Substitute by the following vote: Yeas 7, Nays 0;
1-7 May 17, 1995, sent to printer.)
1-8 COMMITTEE SUBSTITUTE FOR H.B. No. 418 By: Harris
1-9 A BILL TO BE ENTITLED
1-10 AN ACT
1-11 relating to protective orders for family violence; providing
1-12 penalties.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Subchapter C, Chapter 3, Family Code, is amended
1-15 by adding Section 3.522 to read as follows:
1-16 Sec. 3.522. PROTECTIVE ORDERS. (a) The petition in a suit
1-17 for divorce or annulment must state whether a protective order
1-18 under Chapter 71 or Section 3.581 is in effect or if an application
1-19 for a protective order is pending with regard to the parties to the
1-20 suit.
1-21 (b) The petitioner in a suit for divorce or annulment shall
1-22 attach to the petition a copy of each protective order issued under
1-23 Chapter 71 or Section 3.581 in which one of the parties to the suit
1-24 was the applicant and the other party was the respondent without
1-25 regard to the date on which the order was entered. If a copy of
1-26 the protective order is not available at the time of filing, the
1-27 petition must state that a copy of the order will be filed with the
1-28 court before any hearing.
1-29 SECTION 2. Section 3.581, Family Code, is amended to read as
1-30 follows:
1-31 Sec. 3.581. PROTECTIVE ORDERS. <(a)> On the motion of any
1-32 party to a suit for divorce or annulment or to declare a marriage
1-33 void, or on the application of a prosecuting attorney, the court
1-34 may issue a protective order as provided by Chapter 71 <Sections
1-35 71.10(a), 71.10(b), 71.10(c)(1) and (3), 71.11(b) and (c), 71.111,
1-36 71.14, and 71.16 of this code>.
1-37 <(b) An order may be made under this section only after
1-38 notice to the party alleged to have committed family violence and a
1-39 hearing.>
1-40 <(c) An order made under this section is valid for one year
1-41 or the earliest of:>
1-42 <(1) the end of a period of less than one year
1-43 specified in the order by the court;>
1-44 <(2) the date the order is vacated by the court; or>
1-45 <(3) the date the suit is dismissed.>
1-46 <(d) A spouse who has applied for a protective order under
1-47 this section is entitled to a temporary ex parte order directed
1-48 against the other spouse for the relief provided by and under the
1-49 conditions established in Section 71.15 of this code.>
1-50 <(e) The date of expiration of an order made under this
1-51 section must appear on the order.>
1-52 <(f) An order made under this section must be a separate
1-53 document entitled "PROTECTIVE ORDER.">
1-54 SECTION 3. Sections 71.01(b)(1), (2), (4), (5), and (6),
1-55 Family Code, are amended to read as follows:
1-56 (1) "Court" means the district court, court of
1-57 domestic relations, juvenile court having the jurisdiction of a
1-58 district court, or other court expressly given jurisdiction of a
1-59 suit under this subtitle or a statutory county court.
1-60 (2) "Family violence" means:
1-61 (A) an act by a member of a family or household
1-62 against another member of the family or household that is intended
1-63 to result in physical harm, bodily injury, <or> assault, or sexual
1-64 assault or that is a threat that reasonably places the member in
1-65 fear of imminent physical harm, bodily injury, <or> assault, or
1-66 sexual assault, but does not include defensive measures to protect
1-67 oneself <excluding the reasonable discipline of a child by a person
1-68 having that duty>; or
2-1 (B) abuse, as that term is defined by Sections
2-2 34.012(1)(C), (E), and (G) of this code, by a member of a family or
2-3 household toward a child of the family or household.
2-4 (4) <"Former member of a household" means a person who
2-5 previously lived in a household.>
2-6 <(5)> "Household" means a unit composed of persons
2-7 living together in the same dwelling, whether or not they are
2-8 related to each other.
2-9 (5) <(6)> "Member of a household" includes a person
2-10 who previously lived in <former member of> a household.
2-11 SECTION 4. Section 71.04(b), Family Code, is amended to read
2-12 as follows:
2-13 (b) An application may be filed by:
2-14 (1) an adult member of a family or household for the
2-15 protection of the applicant or for any other member of the family
2-16 or household;
2-17 (2) any adult for the protection of a child member of
2-18 a family or household; <or>
2-19 (3) any prosecuting attorney who represents the state
2-20 in a district or statutory county court in the county in which
2-21 venue of the application is proper for the protection of any person
2-22 alleged to be a victim of family violence; or
2-23 (4) the Department of Protective and Regulatory
2-24 Services for the protection of a member of a family or household.
2-25 SECTION 5. Section 71.04(c), Family Code, is amended to read
2-26 as follows:
2-27 (c) The county attorney or the criminal district attorney is
2-28 the prosecuting attorney responsible for filing applications under
2-29 this chapter unless the<. The> district attorney assumes <may
2-30 assume> the responsibility by giving notice of that assumption to
2-31 the county attorney. The prosecuting attorney responsible for
2-32 filing an application under this chapter shall provide notice of
2-33 that responsibility to all law enforcement agencies within the
2-34 jurisdiction of the prosecuting attorney. The application is to be
2-35 filed as provided by Article 5.06, Code of Criminal Procedure.
2-36 SECTION 6. Chapter 71, Family Code, is amended by adding
2-37 Section 71.041 to read as follows:
2-38 Sec. 71.041. FEES AND COSTS. (a) An applicant for a
2-39 protective order may not be assessed any fee, cost, charge, or
2-40 expense by a clerk of the court or another public official in
2-41 connection with the filing, serving, or entering of the protective
2-42 order. A fee may not be charged to an applicant to dismiss,
2-43 modify, or withdraw a protective order.
2-44 (b) Except on a showing of indigency by the respondent, a
2-45 court shall require in a protective order that the respondent
2-46 against whom an order is rendered pay the protective order fee of
2-47 $16, the standard fees charged by the clerk of the court as in a
2-48 general civil proceeding for the cost of service of the order, the
2-49 costs of court, and all other fees, charges, or expenses incurred
2-50 in connection with the protective order.
2-51 (c) A respondent who is ordered to pay costs who does not
2-52 pay the costs before the 60th day after the date the order was
2-53 rendered may be punished for contempt of court as provided by
2-54 Section 21.002, Government Code.
2-55 (d) The court may assess a reasonable attorney's fee as
2-56 compensation for the services of a private or prosecuting attorney
2-57 or an attorney employed by the Department of Protective and
2-58 Regulatory Services representing an applicant against the party who
2-59 is found to have committed family violence. In setting the amount
2-60 of the fee, the court shall consider the income and ability to pay
2-61 of the person against whom the fee is assessed. The amount of fees
2-62 collected under this subsection as compensation for the fees of a
2-63 prosecuting attorney shall be paid to the credit of the county fund
2-64 from which the salaries of employees of the prosecuting attorney
2-65 are paid or supplemented and the fees collected under this
2-66 subsection as compensation for an attorney employed by the
2-67 Department of Protective and Regulatory Services shall be deposited
2-68 in the general revenue fund to the credit of the Department of
2-69 Protective and Regulatory Services. The fees collected under this
2-70 subsection as compensation for a private attorney shall be paid to
3-1 the private attorney, who may enforce the order in the attorney's
3-2 own name.
3-3 SECTION 7. Sections 71.05(b)-(g), Family Code, are amended
3-4 to read as follows:
3-5 (b) <If an application requests a protective order for a
3-6 spouse and alleges that the other spouse has committed family
3-7 violence, the application must state that no suit for the
3-8 dissolution of the marriage of the spouses is pending.>
3-9 <(c)> If an applicant is a former spouse of an individual
3-10 alleged to have committed family violence:
3-11 (1) a copy of the decree dissolving the marriage must
3-12 be attached to the application; or
3-13 (2) the application must state that the decree is
3-14 unavailable to the applicant and that a copy of the decree will be
3-15 filed with the court before the hearing on the application.
3-16 (c) <(d)> If an application requests a protective order for
3-17 a child who is subject to the continuing jurisdiction of a court
3-18 under Subtitle A, Title 2, of this code or alleges that a child who
3-19 is subject to the continuing jurisdiction of a court under Subtitle
3-20 A, Title 2, of this code has committed family violence:
3-21 (1) a copy of the court orders affecting the
3-22 conservatorship, possession, and support of or the access to the
3-23 child must be filed with the application; or
3-24 (2) the application must state that the orders
3-25 affecting the child are unavailable to the applicant and that a
3-26 copy of the orders will be filed with the court before the hearing
3-27 on the application.
3-28 (d) <(e)> If the application requests the issuance of a
3-29 temporary ex parte order under Section 71.15 of this code, the
3-30 application must:
3-31 (1) contain a detailed description of the facts and
3-32 circumstances concerning the alleged family violence and the need
3-33 for immediate protective orders; and
3-34 (2) be signed by each applicant under an oath that the
3-35 facts and circumstances contained in the application are true to
3-36 the best knowledge and belief of each applicant.
3-37 (e) <(f)> If an application requests a protective order and
3-38 alleges that the respondent has violated a former protective order
3-39 protecting the applicant by committing an act prohibited by the
3-40 former order under Section 71.11(b) of this code and that the
3-41 former protective order has expired since the alleged violation
3-42 occurred, the application for the protective order must include:
3-43 (1) a copy of the former protective order attached to
3-44 the application or a statement that the order is unavailable to the
3-45 applicant and that a copy of the order will be filed with the court
3-46 before the hearing on the application;
3-47 (2) a description of the violation of the former
3-48 protective order; and
3-49 (3) a statement that the violation of the former order
3-50 described in the application has not been grounds for any other
3-51 order protecting the applicant that has been issued or requested
3-52 under this section.
3-53 (f) <(g)> The procedural requirements relating to a
3-54 protective order under this chapter, including the application
3-55 under Section 71.04 of this code and service under Section 71.07 of
3-56 this code, apply to a protective order under Subsection (e) <(f)>
3-57 of this section.
3-58 SECTION 8. Section 71.06, Family Code, is amended to read as
3-59 follows:
3-60 Sec. 71.06. APPLICATION FILED DURING SUIT FOR DISSOLUTION OF
3-61 MARRIAGE. (a) A person who is a party to a pending suit for the
3-62 dissolution of a marriage and who wishes to apply for a protective
3-63 order involving the relationship between the spouses or their
3-64 respective rights, duties, or powers may <must> file an application
3-65 for the order under Section 3.581 as a motion in the suit or as a
3-66 separate application under this chapter <Section 3.581 of this
3-67 code>.
3-68 (b) An applicant denied a protective order filed as a motion
3-69 in a suit for dissolution of a marriage may not apply for a
3-70 protective order in another court based on the identical facts as
4-1 the previous application.
4-2 (c) The requirements of service of notice under Section
4-3 71.07 do not apply if the application is filed as a motion in a
4-4 suit for the dissolution of a marriage. Notice is given in the
4-5 same manner as in any other motion in a suit for the dissolution of
4-6 a marriage.
4-7 (d) A protective order entered as an order in a suit for
4-8 dissolution of a marriage must be in a document separate from other
4-9 orders or temporary orders and shall be entitled "PROTECTIVE
4-10 ORDER."
4-11 (e) Immediately after entry of a protective order filed as a
4-12 separate application under this chapter by a party to a pending
4-13 suit for the dissolution of a marriage or a prosecuting attorney,
4-14 the court that rendered the order shall transfer the proceeding in
4-15 accordance with procedures provided by Chapter 155:
4-16 (1) to the court of continuing, exclusive
4-17 jurisdiction; or
4-18 (2) if there is no court of continuing jurisdiction,
4-19 to the court having venue of the suit for the dissolution of the
4-20 marriage.
4-21 (f) An order issued under this chapter is valid and
4-22 enforceable until properly superseded by a court with jurisdiction
4-23 to do so. A court to which a proceeding has been transferred under
4-24 Subsection (e) may enforce an order rendered under this chapter in
4-25 the manner provided by this chapter.
4-26 <(b) A court shall dismiss an application filed under this
4-27 chapter by a party to a pending suit for dissolution of marriage
4-28 and shall advise the applicant that the applicant may file an
4-29 application under Section 3.581 of this code.>
4-30 SECTION 9. Section 71.08, Family Code, is amended to read as
4-31 follows:
4-32 Sec. 71.08. ANSWER. A respondent <An individual> served
4-33 with notice of an application for a protective order may but is not
4-34 required to file a written answer to the application. The answer
4-35 may be filed at any time before the hearing.
4-36 SECTION 10. Sections 71.09(b), (c), and (e), Family Code,
4-37 are amended to read as follows:
4-38 (b) If a respondent <person> entitled to service of a notice
4-39 of application for a protective order receives the service within
4-40 48 hours before the time set for the hearing, the court, on a
4-41 request from the respondent <person>, shall reschedule the hearing
4-42 for a date not later than 14 days after the date set for the
4-43 hearing. The respondent <person> is not entitled to additional
4-44 service for the rescheduled hearing.
4-45 (c) If a hearing set under Subsection (a) of this section is
4-46 not held because of the failure of a respondent <party> to receive
4-47 service of a notice of application for a protective order, the
4-48 applicant may request the court to reschedule the hearing. Except
4-49 as provided by Subsection (d) of this section, the date for a
4-50 rescheduled hearing under this subsection must be not later than 14
4-51 days after the date on which the request is made.
4-52 (e) A court may issue an order relating to an application
4-53 for a protective order that is binding on a respondent <party> who
4-54 does not attend a hearing under this section if the absent
4-55 respondent <party> received notice of the application. This
4-56 subsection applies to a respondent <party> who receives notice
4-57 within 48 hours before the time set for a hearing if the respondent
4-58 <party> does not request that the hearing be rescheduled.
4-59 SECTION 11. Section 71.10, Family Code, is amended to read
4-60 as follows:
4-61 Sec. 71.10. FINDINGS AND ORDERS. (a) At the close of a
4-62 hearing on an application, the court shall find whether or not
4-63 family violence has occurred and whether or not family violence is
4-64 likely to occur again in the <foreseeable> future.
4-65 (b) If the court finds that family violence has occurred and
4-66 that family violence is likely to occur again in the <foreseeable>
4-67 future, the court shall issue a <may make any> protective order
4-68 under Section 71.11(b) applying only to a person found to have
4-69 committed family violence and may enter a protective order
4-70 authorized under Section 71.11(a) applying to both parties <by this
5-1 chapter> that is in the best interest of the family or household,
5-2 or a member of the family or household.
5-3 (c) If the court finds that a respondent <person> violated a
5-4 former protective order made under this chapter by committing an
5-5 act prohibited by the former order under Section 71.11(b) of this
5-6 code while the former order was in effect and that the former order
5-7 is not currently in effect, the court, without finding whether
5-8 family violence has occurred or whether family violence is likely
5-9 to occur again in the <foreseeable> future, shall issue a
5-10 protective order under Section 71.11(b) applying only to the
5-11 respondent and may enter a protective order authorized under
5-12 Section 71.11(a) applying to both the respondent and the applicant
5-13 that is in the best interest of the applicant, the family or
5-14 household, or a member of the family or household.
5-15 (d) If the court approves an agreement between the parties
5-16 as authorized under Section 71.12, the court shall issue a
5-17 protective order under this section that is in the best interest of
5-18 the applicant, the family or household, or a member of the family
5-19 or household. <A protective order may apply only to a party to the
5-20 proceeding who:>
5-21 <(1) the court finds has committed family violence and
5-22 is likely to commit family violence in the foreseeable future;>
5-23 <(2) the court finds has violated a former protective
5-24 order;>
5-25 <(3) has agreed to the order under Section 71.12(a) of
5-26 this code; or>
5-27 <(4) is a respondent and has agreed to the order under
5-28 Section 71.12(b) of this code.>
5-29 SECTION 12. Sections 71.11(a), (b), and (e)-(j), Family
5-30 Code, are amended to read as follows:
5-31 (a) In a protective order the court may:
5-32 (1) prohibit a party from:
5-33 (A) removing a child member of the family or
5-34 household from the possession of a person named in the court order
5-35 or from the jurisdiction of the court; or
5-36 (B) transferring, encumbering, or otherwise
5-37 disposing of property mutually owned or leased by the parties,
5-38 except when in the ordinary course of business;
5-39 (2) grant exclusive possession of a residence to a
5-40 party and, if appropriate, direct one or more other parties to
5-41 vacate the residence if:
5-42 (A) the residence is jointly owned or leased by
5-43 the party receiving exclusive possession and by some other party
5-44 denied possession;
5-45 (B) the residence is owned or leased by the
5-46 party retaining possession; or
5-47 (C) the residence is owned or leased by the
5-48 party denied possession but only if that party has an obligation to
5-49 support the party granted possession of the residence or a child of
5-50 the party granted possession;
5-51 (3) provide for possession of and access to a child of
5-52 a party if the person receiving possession of or access to the
5-53 child is a parent, as that term is defined by Section 11.01 of this
5-54 code, of the child;
5-55 (4) require the payment of support for a party or for
5-56 a child of a party if the person required to make the payment has
5-57 an obligation to support the other party or the child;
5-58 (5) require the person found to have committed family
5-59 violence to complete a batterer's treatment program if a program is
5-60 available or if a program is not available <one or more parties> to
5-61 counsel with a social worker, family service agency, physician,
5-62 psychologist, licensed therapist, or licensed professional
5-63 counselor<, or to complete a batterer's treatment program>;
5-64 (6) award to a party use and possession of specified
5-65 property that is community property or jointly owned or leased; or
5-66 (7) prohibit the person found to have committed family
5-67 violence <a party> from doing specified acts or require the person
5-68 found to have committed family violence <a party> to do specified
5-69 acts necessary or appropriate to prevent or reduce the likelihood
5-70 of family violence.
6-1 (b) In a protective order the court may prohibit the person
6-2 found to have committed family violence <a party> from:
6-3 (1) committing family violence;
6-4 (2) communicating:
6-5 (A) directly with a member of the family or
6-6 household in a threatening or harassing manner;
6-7 (B) a threat through any person to a member of
6-8 the family or household; and
6-9 (C) on a finding of good cause, in any manner
6-10 with a member of the family or household except through the party's
6-11 attorney or a person appointed by the court;
6-12 (3) going to or near the residence or place of
6-13 employment or business of a member of the family or household;
6-14 <and>
6-15 (4) going to or near the residence, child care
6-16 facility, or school where a child protected under the order
6-17 normally resides or attends; and
6-18 (5) engaging in conduct directed specifically toward a
6-19 person who is a member of the family or household, including
6-20 following the person, that is reasonably likely to harass, annoy,
6-21 alarm, abuse, torment, or embarrass that person.
6-22 (e) <A protective order made under this section that
6-23 conflicts with any other court order made under Subtitle A, Title
6-24 2, of this code is to the extent of the conflict invalid and
6-25 unenforceable.>
6-26 <(f) Except on a showing of indigency by a person against
6-27 whom a protective order is directed, the order shall require that
6-28 the person:>
6-29 <(1) pay the cost of service of the order, the actual
6-30 costs of court, the costs incurred by the clerk not paid by the
6-31 applicant pursuant to Section 71.07, Family Code, and any other
6-32 fees, charges, or expenses incurred in connection with the
6-33 protective order; and>
6-34 <(2) reimburse the applicant for any fees paid by the
6-35 applicant under this chapter by paying that amount to the clerk of
6-36 the court.>
6-37 <(g) The clerk of a court who receives money according to a
6-38 protective order from a person against whom the order is directed
6-39 shall reimburse the applicant for any fees paid by the applicant
6-40 under this chapter.>
6-41 <(h) A person who is ordered to pay costs or reimburse an
6-42 applicant under Subsection (f) of this section who does not pay the
6-43 costs or reimburse the applicant before the 60th day after the date
6-44 the order was rendered may be punished for contempt of court by a
6-45 fine in an amount not to exceed $500, or by confinement in jail for
6-46 a term not to exceed six months, or both.>
6-47 <(i)> A person found to have engaged in family violence
6-48 <party> for whom counseling or a batterer's treatment program is
6-49 ordered under Subsection (a)(5) of this section and who does not
6-50 provide to the court before the 60th day after the date the order
6-51 was rendered an affidavit that the person <party> has started the
6-52 counseling or the program or that the counseling or the program is
6-53 not available within a reasonable distance of the person's
6-54 <party's> residence may be punished for contempt of court as
6-55 provided by Section 21.002, Government Code <by a fine in an amount
6-56 not to exceed $500, or by confinement in jail for a term not to
6-57 exceed six months, or both>. The order shall specifically advise
6-58 the person <party> of this requirement and the possible punishment
6-59 for failure to comply.
6-60 <(j) Any interested person may contest an affidavit of
6-61 indigency filed under Subsection (f) of this section.>
6-62 SECTION 13. Sections 71.12(c) and (d), Family Code, are
6-63 amended to read as follows:
6-64 (c) If all or part of an agreement under Subsection (a) or
6-65 (b) of this section is approved by the court, the part of the
6-66 agreement approved shall be attached to the protective order and
6-67 become a part of the order of the court.
6-68 (d) <If all or part of an agreement by the respondent under
6-69 Subsection (b) of this section is approved by the court, the part
6-70 of the agreement approved shall be attached to the protective order
7-1 and become a part of the order of the court. The court may approve
7-2 an agreement or part of an agreement under this subsection only if
7-3 the agreement requires the respondent to do or refrain from doing
7-4 an act under Section 71.11(b) of this code.> The court may not
7-5 approve an agreement or part of an agreement <under this
7-6 subsection> that requires the applicant to do or refrain from doing
7-7 an act under Section 71.11(b) of this code even if the applicant
7-8 consents in the agreement to do or refrain from doing the act.
7-9 SECTION 14. Section 71.121, Family Code, is amended to read
7-10 as follows:
7-11 Sec. 71.121. REQUEST BY RESPONDENT FOR PROTECTIVE ORDER.
7-12 (a) <A court may not enter a single protective order that applies
7-13 to both the respondent and the applicant unless the order embodies
7-14 an agreement of the parties under Section 71.12(a) of this code.>
7-15 <(b)> To apply for a protective order against an applicant,
7-16 a respondent must file a separate application under this chapter.
7-17 (b) <(c)> A court may not delay a hearing on an applicant's
7-18 application for a protective order beyond the time provided by
7-19 Section 71.09 of this code in order to consolidate it with a
7-20 hearing on a subsequently filed <respondent's> application for a
7-21 protective order <against the applicant>.
7-22 (c) A court may not enter a protective order that requires
7-23 both the respondent and the applicant to do or refrain from doing
7-24 an act under Section 71.11(b).
7-25 (d) A protective order that requires the first applicant to
7-26 do or refrain from doing an act under Section 71.11(b) shall
7-27 include a finding that the first applicant has committed family
7-28 violence and is likely to commit family violence in the future.
7-29 (e) A court that enters separate protective orders under
7-30 this section that apply to both parties and require both parties to
7-31 do or refrain from doing an act under Section 71.11(b) shall issue
7-32 two distinct and independent protective orders that reflect the
7-33 appropriate conditions for each of the parties.
7-34 (f) A court that enters protective orders under this section
7-35 that apply to both the respondent and the applicant and that
7-36 require the respondent to do or refrain from doing an act under
7-37 Section 71.11(b) shall issue the protective orders in two separate
7-38 documents. The court shall provide one of the documents to the
7-39 applicant and the other to the respondent.
7-40 SECTION 15. Section 71.14, Family Code, is amended by adding
7-41 Subsection (c) to read as follows:
7-42 (c) Notice of a motion to modify under this section is
7-43 sufficient if delivery of the motion is attempted on the respondent
7-44 at the respondent's last known address by registered or certified
7-45 mail as provided by Rule 21a, Texas Rules of Civil Procedure.
7-46 SECTION 16. Sections 71.15(h), (i), and (j), Family Code,
7-47 are amended to read as follows:
7-48 (h) In order for an ex parte order excluding a person from
7-49 the person's residence to be granted, the court must find from the
7-50 required affidavit and testimony that:
7-51 (1) the applicant requesting the exclusion order
7-52 either resides on the premises or has resided there within 30 days
7-53 before the filing of the application;
7-54 (2) the person to be excluded has within the 30-day
7-55 period preceding the filing of the application committed family
7-56 violence against a member of the household; and
7-57 (3) there is a clear and present danger that the
7-58 person to be excluded is likely to commit family violence against a
7-59 member of the household <in the foreseeable future>.
7-60 (i) <On the request of a person obtaining an order that
7-61 excludes another person from the other person's residence, the
7-62 court that granted the order may order the sheriff or chief of
7-63 police to provide a law enforcement officer from the department of
7-64 the sheriff or the chief of police:>
7-65 <(1) to accompany the person obtaining the order to
7-66 the residence covered by the order;>
7-67 <(2) to protect the person obtaining the order while
7-68 the person takes possession of the residence; and>
7-69 <(3) if the person obtaining the order is unable to
7-70 take possession of the residence because the person being excluded
8-1 occupies the residence, to inform the person being excluded that
8-2 the court has ordered the person excluded from the residence.>
8-3 <(j)> The court may stop the hearing to contact the
8-4 respondent by telephone and provide the respondent an opportunity
8-5 to be present when the court resumes the hearing. Without regard
8-6 to whether the respondent is able to be present at the hearing, the
8-7 court shall resume the hearing before the end of the working day.
8-8 SECTION 17. Section 71.16(b), Family Code, is amended to
8-9 read as follows:
8-10 (b) Each protective order issued under this chapter, except
8-11 a temporary ex parte order, shall have the following statement
8-12 printed in bold-faced type or in capital letters:
8-13 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
8-14 BY THE ORDER MAY BE <A FELONY> PUNISHABLE BY A FINE OF AS MUCH AS
8-15 $4,000 <$10,000> OR BY CONFINEMENT IN JAIL <PRISON> FOR AS LONG AS
8-16 ONE YEAR <10 YEARS>, OR BOTH. <FURTHER VIOLATIONS OF THIS ORDER
8-17 MAY BE PUNISHABLE BY CONFINEMENT IN PRISON FOR AS LONG AS 99
8-18 YEARS.> AN ACT THAT RESULTS IN FAMILY VIOLENCE MAY BE PROSECUTED
8-19 AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS
8-20 PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY
8-21 CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS."
8-22 SECTION 18. Section 71.17, Family Code, is amended to read
8-23 as follows:
8-24 Sec. 71.17. COPIES OF ORDERS. (a) A protective order made
8-25 under this chapter shall be delivered to the respondent <person to
8-26 whom the order applies in open court at the close of the hearing,
8-27 or served by registered or certified mail,> in accordance with Rule
8-28 21a, Texas Rules of Civil Procedure, <or> served in the same manner
8-29 as a writ of injunction, or served in open court at the close of
8-30 the hearing as provided by Subsections (b)-(d).
8-31 (b) If the order is served in open court, the order shall be
8-32 served as provided by this subsection. If the respondent is
8-33 present at the hearing and the order has been reduced to writing,
8-34 the judge or master shall sign the order and give a copy of the
8-35 order to the respondent. A certified copy of the signed order
8-36 shall be given to the applicant at the time the order is given to
8-37 the respondent. If the applicant is not in court at the conclusion
8-38 of the hearing, the clerk of the court shall mail a certified copy
8-39 of the order to the applicant not later than the third business day
8-40 after the date the hearing is concluded.
8-41 (c) If the respondent is present at the hearing but the
8-42 order has not been reduced to writing, the judge or master shall
8-43 give notice orally to the respondent of the part of the order that
8-44 contains prohibitions under Section 71.11(b) or any other part of
8-45 the order that contains provisions necessary to prevent further
8-46 family violence. The clerk of the court shall mail a copy of the
8-47 order to the respondent and a certified copy of the order to the
8-48 applicant not later than the third business day after the date the
8-49 hearing is concluded.
8-50 (d) If the respondent is not present at the hearing and the
8-51 order has been reduced to writing at the conclusion of the hearing,
8-52 the clerk of the court shall immediately provide a certified copy
8-53 of the order to the applicant and mail a copy of the order to the
8-54 respondent not later than the third business day after the date the
8-55 hearing is concluded.
8-56 (e) <(b)> The clerk of the court issuing an original or
8-57 modified protective order under this chapter shall send a copy of
8-58 the order to the chief of police of the city where the member of
8-59 the family or household protected by the order resides, if the
8-60 person resides in a city, or to the sheriff of the county where the
8-61 person resides, if the person does not reside in a city.
8-62 (f) <(c)> If a protective order made under this chapter
8-63 prohibits a respondent <person> from going to or near a child care
8-64 facility or school under Section 71.11(b) of this code, the clerk
8-65 of the court <party requesting the order> shall send a copy of the
8-66 order to the child care facility or school.
8-67 (g) <(d)> The clerk of a court vacating an original or
8-68 modified protective order under this chapter shall notify the chief
8-69 of police or sheriff who received a copy of the original or
8-70 modified order that the order is vacated.
9-1 SECTION 19. Section 71.18, Family Code, is amended by adding
9-2 Subsections (c) and (d) to read as follows:
9-3 (c) On the request of an applicant obtaining a temporary
9-4 order that excludes the respondent from the respondent's residence,
9-5 the court that granted the temporary order shall provide a written
9-6 order to the sheriff or chief of police to provide a law
9-7 enforcement officer from the department of the sheriff or chief of
9-8 police:
9-9 (1) to accompany the applicant to the residence
9-10 covered by the order;
9-11 (2) to inform the respondent that the court has
9-12 ordered that the respondent be excluded from the residence;
9-13 (3) to protect the applicant while the applicant takes
9-14 possession of the residence; and
9-15 (4) if the respondent refuses to vacate the residence,
9-16 to protect the applicant while the applicant takes possession of
9-17 the applicant's necessary personal property.
9-18 (d) On the request of an applicant obtaining a final order
9-19 that excludes the respondent from the respondent's residence, the
9-20 court that granted the final order shall provide a written order to
9-21 the sheriff or chief of police to provide a law enforcement officer
9-22 from the department of the sheriff or chief of police:
9-23 (1) to accompany the applicant to the residence
9-24 covered by the order;
9-25 (2) to inform the respondent that the court has
9-26 ordered that the respondent be excluded from the residence;
9-27 (3) to protect the applicant while the applicant takes
9-28 possession of the residence and the respondent takes possession of
9-29 the respondent's necessary personal property; and
9-30 (4) if the respondent refuses to vacate the residence:
9-31 (A) to remove the respondent from the residence;
9-32 and
9-33 (B) to arrest the respondent for violating the
9-34 court order.
9-35 SECTION 20. Section 118.131, Local Government Code, is
9-36 amended by adding Subsection (i) to read as follows:
9-37 (i) The commissioners court may not assess an applicant a
9-38 fee in connection with filing, serving, or entering a protective
9-39 order. A fee may not be charged to an applicant to dismiss,
9-40 modify, or withdraw a protective order.
9-41 SECTION 21. Section 51.303, Government Code, is amended by
9-42 adding Subsection (f) to read as follows:
9-43 (f) In addition to the other powers and duties of this
9-44 section, a district clerk shall accept applications for protective
9-45 orders under Chapter 71, Family Code.
9-46 SECTION 22. Section 51.402, Government Code, is amended by
9-47 adding Subsection (d) to read as follows:
9-48 (d) In addition to the other powers and duties of this
9-49 section, a county clerk that serves as the clerk for a court having
9-50 jurisdiction of applications for protective orders under Chapter
9-51 71, Family Code, shall accept those applications.
9-52 SECTION 23. Subtitle E, Title 2, Human Resources Code, is
9-53 amended by adding Chapter 54 to read as follows:
9-54 CHAPTER 54. PROTECTIVE ORDERS SOUGHT BY DEPARTMENT OF
9-55 PROTECTIVE AND REGULATORY SERVICES
9-56 Sec. 54.001. PROTECTIVE ORDERS. The Department of
9-57 Protective and Regulatory Services shall adopt rules to provide
9-58 procedures for the filing of protective orders for the protection
9-59 of a member of a family or household as provided by Section 71.04,
9-60 Family Code.
9-61 Sec. 54.002. NOTICE TO NONABUSIVE PARENT OR HOUSEHOLD
9-62 MEMBER. The Department of Protective and Regulatory Services shall
9-63 provide prior notice to a nonabusive parent or adult member of a
9-64 household of the department's intent to file an application for a
9-65 protective order for a child or older person and shall request the
9-66 assistance of the person receiving the notice in developing a
9-67 safety plan for household members and the child or older person for
9-68 whom the order is sought. The department shall exercise reasonable
9-69 safety precautions to protect a nonabusive parent or other member
9-70 of a household while providing notice and requesting assistance
10-1 under this section.
10-2 SECTION 24. Section 25.07(a), Penal Code, is amended to read
10-3 as follows:
10-4 (a) A person commits an offense if, in violation of an order
10-5 issued under Section 3.581, Section 71.11, or Section 71.12, Family
10-6 Code, the person knowingly or intentionally:
10-7 (1) commits family violence;
10-8 (2) <directly> communicates:
10-9 (A) directly with a member of the family or
10-10 household in a threatening or harrassing manner;
10-11 (B) <, communicates> a threat through any person
10-12 to a member of the family or household; or
10-13 (C) <, and, if the order prohibits any
10-14 communication with a member of the family or household,
10-15 communicates> in any manner with the member of the family or
10-16 household except through the person's attorney or a person
10-17 appointed by the court; <or>
10-18 (3) goes to or near any of the following places as
10-19 specifically described in the protective order:
10-20 (A) the residence or place of employment or
10-21 business of a member of the family or household; or
10-22 (B) any child care facility, residence, or
10-23 school where a child protected by the protective order normally
10-24 resides or attends; or
10-25 (4) engages in conduct directed specifically toward a
10-26 person who is a member of the family or household, including
10-27 following the person, that is reasonably likely to harass, annoy,
10-28 alarm, abuse, torment, or embarrass that person.
10-29 SECTION 25. Article 5.04(c), Code of Criminal Procedure, is
10-30 amended to read as follows:
10-31 (c) A written notice required by Subsection (b) of this
10-32 article is sufficient if it is in substantially the following form
10-33 with the required information in English and in Spanish inserted in
10-34 the notice:
10-35 "NOTICE TO ADULT VICTIMS OF FAMILY VIOLENCE
10-36 "It is a crime for any person to cause you any physical
10-37 injury or harm EVEN IF THAT PERSON IS A MEMBER OR FORMER MEMBER OF
10-38 YOUR FAMILY OR HOUSEHOLD.
10-39 "Please tell the investigating peace officer:
10-40 "IF you, your child, or any other household resident has been
10-41 injured; or
10-42 "IF you feel you are going to be in danger when the officer
10-43 leaves or later.
10-44 "You have the right to:
10-45 "ASK the local prosecutor to file a criminal complaint
10-46 against the person committing family violence; and
10-47 "APPLY to a court for an order to protect you (you should
10-48 consult a legal aid office, a prosecuting attorney, or a private
10-49 attorney). You cannot be charged a fee by a court in connection
10-50 with filing, serving, or entering a protective order. For example,
10-51 the court can enter an order that:
10-52 "(1) the abuser not commit further acts of violence;
10-53 "(2) the abuser not threaten, harass, or contact you at
10-54 home;
10-55 "(3) directs the abuser to leave your household; and
10-56 "(4) establishes temporary custody of the children and
10-57 directs the abuser not to interfere with the children or any
10-58 property.
10-59 "A VIOLATION OF CERTAIN PROVISIONS OF COURT-ORDERED
10-60 PROTECTION (such as (1) and (2) above) MAY BE A FELONY.
10-61 "CALL THE FOLLOWING VIOLENCE SHELTERS OR SOCIAL ORGANIZATIONS
10-62 IF YOU NEED PROTECTION:
10-63 "____________________
10-64 "____________________."
10-65 SECTION 26. Article 5.06, Code of Criminal Procedure, is
10-66 amended by adding Subsection (c) to read as follows:
10-67 (c) The prosecuting attorney having responsibility under
10-68 Section 71.04(c), Family Code, for filing applications for
10-69 protective orders under Chapter 71, Family Code, shall provide
10-70 notice of those responsibilities to all law enforcement agencies
11-1 within the jurisdiction of the prosecuting attorney for the
11-2 prosecuting attorney.
11-3 SECTION 27. Sections 3.582, 3.583, 71.04(d), (e), and (f),
11-4 71.07(i), and 71.13(b) and (c), Family Code, are repealed.
11-5 SECTION 28. (a) This Act takes effect September 1, 1995.
11-6 (b) The change in law made by this Act applies only to an
11-7 application for a protective order made on or after the effective
11-8 date of this Act. An application for a protective order made
11-9 before the effective date of this Act is governed by the law in
11-10 effect at the time the application was made, and the former law is
11-11 continued in effect for that purpose.
11-12 (c) The change in law made by this Act applies only to an
11-13 offense committed on or after the effective date of this Act. For
11-14 purposes of this section, an offense is committed before the
11-15 effective date of this Act if any element of the offense occurs
11-16 before that date.
11-17 (d) An offense committed before the effective date of this
11-18 Act is covered by the law in effect when the offense was committed,
11-19 and the former law is continued in effect for that purpose.
11-20 SECTION 29. The importance of this legislation and the
11-21 crowded condition of the calendars in both houses create an
11-22 emergency and an imperative public necessity that the
11-23 constitutional rule requiring bills to be read on three several
11-24 days in each house be suspended, and this rule is hereby suspended.
11-25 * * * * *