By Danburg H.B. No. 2823
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to stalking and a magistrate's protective order.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 7, Code of Criminal Procedure, is amended
1-5 to read as follows:
1-6 CCP CHAPTER. 7. PROCEEDINGS BEFORE
1-7 MAGISTRATES TO PREVENT OFFENSES
1-8 CCP Art. 7.01. SHALL ISSUE WARRANT. Whenever a magistrate
1-9 is informed upon oath that an offense is about to be committed
1-10 against the person or property of the informant, or of another, or
1-11 that any person has threatened to commit an offense, or that a
1-12 person engaged or threaten to engage in conduct that is reasonably
1-13 likely to harass, annoy, alarm, abuse, torment, or embarrass
1-14 another, the magistrate shall immediately issue a warrant for the
1-15 arrest of the accused; or summon the accused that he may be brought
1-16 before such Magistrate or before some other named in the warrant or
1-17 summons.
1-18 CCP Art. 7.02. APPEARANCE BOND PENDING PEACE BOND AND
1-19 MAGISTRATE'S PROTECTIVE ORDER HEARING. In proceedings under this
1-20 Chapter, the accused shall have the right to make an appearance
1-21 bond: such bond shall be conditioned as appearance bonds in other
1-22 cases, and shall be further conditioned that the accused, pending
1-23 the hearing, will not commit such offense and that he will keep the
2-1 peace toward the person threatened or about to be injured or will
2-2 not violate the conditions of a Magistrate's Protective Order, and
2-3 toward all others, pending the hearing. Should the accused enter
2-4 into such appearance bond, such fact shall not constitute any
2-5 evidence of the accusation brought against him at the hearing on
2-6 the merits before the magistrate.
2-7 CCP Art. 7.03. ACCUSED BROUGHT BEFORE MAGISTRATE. When the
2-8 accused has been brought before the magistrate, he shall hear proof
2-9 as to the accusation, or application for a magistrate's protective
2-10 order and if he be satisfied that there is just reason to apprehend
2-11 that the offense was intended to be committed, or that the threat
2-12 was seriously made, or if he reasonably finds that the conduct is
2-13 harassing, annoying, alarming, abusive, tormenting, or embarrassing
2-14 to the applicant or another he shall make an order that the accused
2-15 enter into bond in such sum as he may in his discretion require,
2-16 conditioned that he will not commit such offense, and that he will
2-17 keep the peace toward the person threatened or about to be injured,
2-18 and toward all others named in the bond and not violate the
2-19 Magistrate's Protective Order for any period of time, not to exceed
2-20 one year from the date of the bond. The magistrate may determine a
2-21 peace bond is not necessary. Nevertheless the magistrate may issue
2-22 a Magistrate's Protective Order to the accused giving notice that
2-23 further similar acts may constitute a criminal offense including
2-24 violations of Texas Penal Code Section 42.07 Harassment Section
2-25 42.071 Stalking and Section 2507 Violation of Protective Order.
3-1 CCP Art. 7.04. FORM OF PEACE BOND. Such bond shall be
3-2 sufficient if it be payable to the State of Texas, conditioned as
3-3 required in said order of the magistrate, be for some certain sum,
3-4 and be signed by the defendant and his surety or sureties and
3-5 dated, and the provisions of Article 17.02 permitting the deposit
3-6 of current United States money in lieu of sureties is applicable to
3-7 this bond. No error of form shall vitiate such bond, and no error
3-8 in the proceedings prior to the execution of the bond shall be a
3-9 defense in a suit thereon.
3-10 CCP Art. 7.05. OATH OF SURETY; BOND FILED. The officer
3-11 taking such bond shall require the sureties of the accused to make
3-12 oath as to the value of their property as pointed out with regard
3-13 to bail bonds. Such officer shall forthwith deposit such bond and
3-14 oaths in the office of the clerk of the county where such bond is
3-15 taken.
3-16 CCP Art. 7.06. AMOUNT OF BAIL. The magistrate, in fixing
3-17 the amount of such bonds, shall be governed by the pecuniary
3-18 circumstances of the accused and the nature of the offense
3-19 threatened or about to be committed.
3-20 CCP Art. 7.07. SURETY MAY EXONERATE HIMSELF. A surety upon
3-21 any such bond may, at any time before a breach thereof, exonerate
3-22 himself from the obligations of the same by delivering to any
3-23 magistrate of the county where such bond was taken, the person of
3-24 the defendant: and such magistrate shall in that case again require
3-25 of the defendant bond, with other security in the same amount as
4-1 the first bond: and the same proceeding shall be had as in the
4-2 first instance, but the one year's time shall commence to run from
4-3 the date of the first order.
4-4 CCP Art. 7.08. FAILURE TO GIVE BOND. If the defendant fail
4-5 to give bond, he shall be committed to jail for one year from the
4-6 date of the first order requiring such bond.
4-7 CCP Art. 7.09. DISCHARGE OF DEFENDANT. A defendant
4-8 committed for failing to give bond shall be discharged by the
4-9 officer having him in custody, upon giving the required bond, or at
4-10 the expiration of the time for which he has been committed.
4-11 CCP Art. 7.10. MAY DISCHARGE DEFENDANT. If the magistrate
4-12 believes from the evidence that there is no good reason to
4-13 apprehend that the offense was intended or will be committed or
4-14 that no serious threat was made by the defendant, or he did not
4-15 engage or threaten to engage in conduct that is harassing,
4-16 annoying, alarming, abusive, tormenting, or embarrassing he shall
4-17 discharge the accused, and may in his discretion, tax the cost of
4-18 the proceeding against the party making the complaint or filing the
4-19 application for a Magistrate's Protective Order.
4-20 CCP Art. 7.11. WHEN THE DEFENDANT HAS COMMITTED A CRIME. If
4-21 it appears from the evidence before the magistrate that the
4-22 defendant has committed a criminal offense, the same proceedings
4-23 shall be had as in other cases where parties are charged with
4-24 crime.
4-25 CCP Art. 7.12. COSTS. If the accused is found subject to
5-1 the charge and required to give bond, or if a Magistrate's
5-2 Protective Order is to be issued the costs of the proceedings shall
5-3 be adjudged against him.
5-4 CCP Art. 7.13. MAY ORDER PROTECTION. When, from the nature
5-5 of the case and the proof offered to the magistrate, it may appear
5-6 necessary and proper, he shall have a right to
5-7 (a) order any peace officer to protect the person or
5-8 property of any individual threatened; and such peace officer shall
5-9 have the right to summon aid by requiring any number of citizens of
5-10 his county to assist in giving the protection, or
5-11 (b) Issue a Magistrate's Protective Order as described in
5-12 this chapter.
5-13 CCP Art. 7.14. SUIT ON BOND. A suit to forfeit any bond
5-14 taken under the provisions of this Chapter shall be brought in the
5-15 name of the State by the district or county attorney in the county
5-16 where the bond was taken.
5-17 CCP Art. 7.15. LIMITATION AND PROCEDURE. Suits upon such
5-18 bonds shall be commenced within two years from the breach of the
5-19 same, and not thereafter, and shall be governed by the same rules
5-20 as civil actions, except that the sureties may be sued without
5-21 joining the principal. To entitle the State to recover, it shall
5-22 only be necessary to prove that the accused violated any condition
5-23 of said bond. The full amount of such bond may be recovered of the
5-24 accused and the sureties.
5-25 CCP Art 7.16. APPLICATION FOR A MAGISTRATE'S PROTECTIVE
6-1 ORDER An application for a Magistrate's Protective Order must be
6-2 sworn by the applicant that the facts and circumstances contained
6-3 in the application are true to his best knowledge and belief and
6-4 contain:
6-5 (1) the name and county of residence of the applicant
6-6 and the name, address, and county of residence of the accused.
6-7 (2) a detailed description of the facts and
6-8 circumstances concerning the alleged acts that are harassing,
6-9 annoying, alarming, abusive, tormenting, or embarrassing to the
6-10 applicant and the need for a Magistrate's Protective Order.
6-11 (3) A copy of any court orders affecting or governing
6-12 the relationship of the parties.
6-13 CCP Art. 7.17. THE MAGISTRATE'S PROTECTIVE ORDER If the
6-14 magistrate finds reason to believe that the accused has engaged in
6-15 conduct that is harassing, annoying, alarming, abusive, tormenting,
6-16 or embarrassing he shall issue a Magistrate's Protective Order
6-17 prohibiting the accused from engaging in those or similar acts.
6-18 (1) the order shall be in writing and
6-19 (2) shall state the accused is prohibited from:
6-20 (a) committing violence against any person
6-21 protected by the order;
6-22 (b) communicating with, or otherwise engaging in
6-23 conduct directed toward any person protected by the order in a
6-24 harassing, annoying, alarming, abusive, tormenting, or embarrassing
6-25 manner,
7-1 (c) threatening any person protected by the
7-2 order or through any other persons;
7-3 (d) going to or near the residence, or place of
7-4 employment of any person protected by the order;
7-5 (e) the order shall specifically describe the
7-6 prohibited locations and the minimum distances that the accused
7-7 must maintain, unless the magistrate determines for the safety of
7-8 any person protected by the order that the specific descriptions of
7-9 the locations should be omitted.
7-10 (f) any order for Magistrate's Protective Order
7-11 issued under this article must contain the following statements
7-12 printed in bold-face type or in capital letters:
7-13 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
7-14 BY THE ORDER MAY BE A VIOLATION OF A PEACE BOND CAUSING FORFEITURE
7-15 OF THE PEACE BOND. AN ACT OR ACTS THAT RESULT IN VIOLENCE,
7-16 HARASSMENT OR STALKING OFFENSES MAY MAYBE PROSECUTED AS SEPARATE
7-17 MISDEMEANOR OR FELONY OFFENSE. IF AN ACT IS PROSECUTED AS SEPARATE
7-18 FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT
7-19 LEAST TWO YEARS.
7-20 "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
7-21 ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
7-22 PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
7-23 VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
7-24 UNLESS A COURT CHANGES THE ORDER."
7-25 (g) the magistrate issuing a Magistrate's
8-1 Protective Order under this article shall send a copy of the order
8-2 to the chief of police in the municipality where the member of the
8-3 family or household or individual protected by the order resides,
8-4 or if the person does not reside in a municipality to the sheriff
8-5 of the county where the person resides. If a court vacates a
8-6 Magistrate's Protective Order issued here under, the clerk of the
8-7 court taking such action shall notify the magistrate who originally
8-8 issued the order and the chief of police or sheriff who received a
8-9 copy of the original or modified order that the order is vacated or
8-10 modified
8-11 (h) a Magistrate's Protective Order issued under
8-12 this article is effective on issuance, and the accused shall be
8-13 served a copy of the order in open court. A Magistrate's
8-14 Protective Order issued under this article remains in effect for
8-15 any period of time determined by the magistrate, not to exceed one
8-16 year from the date of issue.
8-17 (I) in order to insure that officers responding
8-18 to calls are aware of the existence of protective orders issued
8-19 under this chapter, each police department and sheriff shall
8-20 establish procedures within the department or office to provide
8-21 adequate information to law enforcement officers of the names of
8-22 persons protected by the order and of persons to whom protective
8-23 orders are directed, under this chapter. The law enforcement
8-24 agency may enter the protective order into the department or
8-25 sheriff's computer record of outstanding warrants as notice that
9-1 the order is issued and is currently in effect. On notification by
9-2 a court clerk that the court has vacated or dismissed the order the
9-3 law enforcement agency shall remove the order from the computer of
9-4 outstanding warrants
9-5 (j) failure of the court to make a finding shall
9-6 not be deemed a finding that the allegation contained in the
9-7 application for a Magistrate's Protective Order are untrue.
9-8 SECTION 2. Sections 25.07 and 42.07, Penal Code, are amended
9-9 to read as follows:
9-10 PC 25.07. VIOLATION OF A PROTECTIVE ORDER. (a) A person
9-11 commits an offense if, in violation of an order issued under
9-12 Section 3.581, Section 71.11, <or> Section 71.12, Family Code, or
9-13 Chapter 7, Code of Criminal Procedure the person knowingly or
9-14 intentionally:
9-15 (1) commits family violence, or violent acts against
9-16 persons protected by a protective order;
9-17 (2) directly communicates with a member of the family
9-18 or household in a threatening or harassing manner, communicates a
9-19 threat through any person to a member of the family or household,
9-20 and, if the order prohibits any communication with a member of the
9-21 family or household, communicates in any manner with the member of
9-22 the family or household except through the person's attorney or a
9-23 person appointed by the court; or
9-24 (3) goes to or near any of the following places as
9-25 specifically described in the protective order:
10-1 (A) the residence or place of employment or
10-2 business of a member of the family or household of persons named in
10-3 the protective order; or
10-4 (B) any child care facility, residence, or
10-5 school where a child protected by the protective order normally
10-6 resides or attends.
10-7 PC S. 42.07. HARASSMENT. (a) A person commits an offense
10-8 if, with intent to harass, annoy, alarm, abuse, torment, or
10-9 embarrass another, he:
10-10 (1) initiates communication by telephone or in writing
10-11 and in the course of the communication makes a comment, request,
10-12 suggestion, or proposal that is obscene;
10-13 (2) threatens, by telephone or in writing, in a manner
10-14 reasonably likely to alarm the person receiving the threat, to
10-15 inflict bodily injury on the person or to commit a felony against
10-16 the person, a member of his family, or his property;
10-17 (3) conveys, in a manner reasonably likely to alarm
10-18 the person receiving the report, a false, that another person has
10-19 suffered death or serious bodily injury;
10-20 (4) causes the telephone of another to ring repeatedly
10-21 or makes repeated telephone communications anonymously or in a
10-22 manner reasonably likely to harass, annoy, alarm, abuse, torment,
10-23 embarrass, or offend another;
10-24 (5) makes a telephone call and intentionally fails to
10-25 hang up or disengage the connection;
11-1 (6) knowingly permits a telephone under his control to
11-2 be used by a person to commit an offense under this section; or
11-3 (b) for the purposes of this section, "family violence,"
11-4 "family," "household," and "member of a household" have the
11-5 meanings assigned by Section 71.01, Family Code.
11-6 (c) if conduct constituting an offense under this section
11-7 also constitutes an offense under another section of this code, the
11-8 actor may be prosecuted under either section or under both
11-9 sections.
11-10 (d) reconciliatory actions or agreements made by persons
11-11 affected by a protective order do not affect the validity of the
11-12 order or the duty of a peace officer to enforce this section.
11-13 (e) a peace officer investigating conduct that may
11-14 constitute an offense under this section for a violation of a
11-15 protective order may not arrest a person protected by that order
11-16 for a violation of that order.
11-17 (f) it is not a defense to prosecution under this section
11-18 that certain information has been excluded, as provided by Section
11-19 71.111, Family Code, from an order to which this section applies.
11-20 (g) an offense under this section is a Class A misdemeanor.
11-21 <(7)(A) on more than one occasion engages in conduct
11-22 directed specifically toward the other person, including following
11-23 that person, that is reasonably likely to harass, annoy, alarm,
11-24 abuse, torment, or embarrass that person;>
11-25 <(B) on at least one of those occasions by acts
12-1 or words threatens to inflict bodily injury on that person or to
12-2 commit an offense against that person, a member of that person's
12-3 family; or that person's property or engages in conduct in
12-4 violation to the Magistrates Protective Order after such order has
12-5 been duly issued as stated in Chapter 7 of the Texas Code of
12-6 Criminal Procedure.>
12-7 <(C) on at least one of those occasions engages
12-8 in the conduct after the person toward whom the conduct is
12-9 specifically directed has reported to a law enforcement agency the
12-10 conduct described by this subdivision.>
12-11 <(b) For purposes of Subsection (a)(1), "obscene" means
12-12 containing a patently offensive description of or a solicitation to
12-13 commit an ultimate sex act, including sexual intercourse,
12-14 masturbation, cunnilingus, fellatio, or anilingus, or a description
12-15 of an excretory function. In this section, "family" has the
12-16 meaning assigned by Section 71.01, Family Code.>
12-17 (c) An offense under Subsections (a)(1)-(a)(6) is a Class B
12-18 misdemeanor.
12-19 <(d) An offense under Subsections (a)(7) is a Class A
12-20 misdemeanor, except that the offense is a felony of the third
12-21 degree if the actor has previously been convicted under Subsection
12-22 (a)(7).>
12-23 <(e) It is an affirmative defense to prosecution under
12-24 Subsection (a)(7) that the actor was engaged in conduct that
12-25 consisted of activity in support of constitutionally or statutorily
13-1 protected rights.>
13-2 SECTION 3. Chapter 42, Penal Code, is amended by adding
13-3 Section 42.071 to read as follows:
13-4 Sec. 42.071. Stalking. (a) A person commits an offense if,
13-5 with intent to harass, annoy, alarm, abuse, torment, or embarrass
13-6 another, he:
13-7 (1) on more than one occasion engages in conduct
13-8 directed specifically toward the other person, including following
13-9 that person, that is reasonably likely to harass, annoy, alarm,
13-10 abuse, torment, or embarrass that person; and
13-11 (2) on at least one of those occasions by acts or
13-12 words threatens to inflict bodily injury on that person or to
13-13 commit an offense against that person, a member of that person's
13-14 family, or that person's property or engages in conduct in
13-15 violation of a Magistrate's Protective Order after such order has
13-16 been duly issued as provided in Chapter 7 of the Texas Code of
13-17 Criminal Procedure.
13-18 (b) an offense under this section is a Class A misdemeanor,
13-19 except that offense is a felony of the third degree if the actor
13-20 has previously been convicted under this section.
13-21 (c) it is a affirmative defense to prosecution under this
13-22 section that the actor was engaged in conduct that consisted of
13-23 activity in support of constitutionally or statutorily protected
13-24 rights.
13-25 (d) in this section, "family" has the meaning assigned by
14-1 Section 71.01, Family Code.
14-2 SECTION 4. This Act takes effect September 1, 1995.
14-3 SECTION 5. The importance of this legislation and the
14-4 crowded condition of the calendars in both houses create an
14-5 emergency and an imperative public necessity that the
14-6 constitutional rule requiring bills to be read on three several
14-7 days in each house be suspended, and this rule is hereby suspended.