By: Moncrief, West S.B. No. 129
Shapiro, Zaffirini
A BILL TO BE ENTITLED
AN ACT
1-1 relating to magistrate's orders for emergency protection for
1-2 victims of family violence or the offense of stalking and to the
1-3 offense of violation of a protective order or magistrate's order
1-4 for emergency protection.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 17, Code of Criminal Procedure, is
1-7 amended by adding Article 17.292 to read as follows:
1-8 Art. 17.292. MAGISTRATE'S ORDER FOR EMERGENCY PROTECTION.
1-9 (a) At a defendant's appearance before a magistrate after arrest
1-10 for an offense involving family violence or an offense under
1-11 Section 42.07(a)(7), Penal Code, the magistrate may issue an order
1-12 for emergency protection on the magistrate's own motion or on the
1-13 request of:
1-14 (1) the victim of the offense;
1-15 (2) the guardian of the victim;
1-16 (3) a peace officer; or
1-17 (4) the attorney representing the state.
1-18 (b) The magistrate in the order for emergency protection may
1-19 prohibit the arrested party from:
1-20 (1) committing:
1-21 (A) family violence; or
1-22 (B) an act in furtherance of an offense under
1-23 Section 42.07(a)(7), Penal Code;
1-24 (2) communicating:
2-1 (A) directly with a member of the family or
2-2 household in a threatening or harassing manner; or
2-3 (B) a threat through any person to a member of
2-4 the family or household; or
2-5 (3) going to or near:
2-6 (A) the residence, place of employment, or
2-7 business of a member of the family or household; or
2-8 (B) the residence, child care facility, or
2-9 school where a child protected under the order resides or attends.
2-10 (c) In the order for emergency protection the magistrate
2-11 shall specifically describe the prohibited locations and the
2-12 minimum distances, if any, that the party must maintain, unless the
2-13 magistrate determines for the safety of the person or persons
2-14 protected by the order that specific descriptions of the locations
2-15 should be omitted.
2-16 (d) To the extent that a condition imposed by an order for
2-17 emergency protection issued under this article conflicts with an
2-18 existing court order granting possession of or access to a child,
2-19 the condition imposed under this article prevails for the duration
2-20 of the order for emergency protection.
2-21 (e) An order for emergency protection issued under this
2-22 article must contain the following statements printed in bold-face
2-23 type or in capital letters:
2-24 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
2-25 BY THE ORDER MAY BE A FELONY PUNISHABLE BY A FINE OF AS MUCH AS
2-26 $10,000 OR BY IMPRISONMENT IN PRISON FOR AS LONG AS 10 YEARS OR BY
2-27 BOTH. FURTHER VIOLATIONS OF THIS ORDER MAY BE PUNISHABLE BY
3-1 IMPRISONMENT IN PRISON FOR AS LONG AS 99 YEARS. AN ACT THAT
3-2 RESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSE MAY BE PROSECUTED
3-3 AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS
3-4 PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY
3-5 CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS.
3-6 "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
3-7 ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
3-8 PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
3-9 VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
3-10 UNLESS A COURT CHANGES THE ORDER."
3-11 (f) The magistrate issuing an order for emergency protection
3-12 under this article shall send a copy of the order to the chief of
3-13 police in the municipality where the member of the family or
3-14 household or individual protected by the order resides, if the
3-15 person resides in a municipality, or to the sheriff of the county
3-16 where the person resides, if the person does not reside in a
3-17 municipality.
3-18 (g) If an order for emergency protection issued under this
3-19 article prohibits a person from going to or near a child care
3-20 facility or school, the magistrate shall send a copy of the order
3-21 to the child care facility or school.
3-22 (h) An order for emergency protection issued under this
3-23 article is effective on issuance, and the defendant shall be served
3-24 a copy of the order in open court. An order for emergency
3-25 protection issued under this article remains in effect until the
3-26 31st day after the date of issuance.
3-27 (i) To ensure that an officer responding to a call is aware
4-1 of the existence and terms of an order for emergency protection
4-2 issued under this article, each municipal police department and
4-3 sheriff shall establish a procedure within the department or office
4-4 to provide adequate information or access to information for peace
4-5 officers of the names of persons protected by an order for
4-6 emergency protection issued under this article and of persons to
4-7 whom the order is directed. The police department or sheriff may
4-8 enter an order for emergency protection issued under this article
4-9 in the department's or office's record of outstanding warrants as
4-10 notice that the order has been issued and is in effect.
4-11 (j) In this article, "family," "family violence," and
4-12 "household" have the meanings assigned by Section 71.01, Family
4-13 Code.
4-14 SECTION 2. Subsections (a), (d), (e), (f), and (g), Section
4-15 25.07, Penal Code, are amended to read as follows:
4-16 (a) A person commits an offense if, in violation of an order
4-17 issued under Section 3.581, <Section> 71.11, or <Section> 71.12,
4-18 Family Code, or under Article 17.292, Code of Criminal Procedure,
4-19 the person knowingly or intentionally:
4-20 (1) commits family violence or an act in furtherance
4-21 of an offense under Section 42.07(a)(7);
4-22 (2) directly communicates with a protected individual
4-23 or a member of the family or household in a threatening or
4-24 harassing manner, communicates a threat through any person to a
4-25 protected individual or a member of the family or household, and,
4-26 if the order prohibits any communication with a protected
4-27 individual or a member of the family or household, communicates in
5-1 any manner with the protected individual or the member of the
5-2 family or household except through the person's attorney or a
5-3 person appointed by the court; or
5-4 (3) goes to or near any of the following places as
5-5 specifically described in the <protective> order:
5-6 (A) the residence or place of employment or
5-7 business of a protected individual or a member of the family or
5-8 household; or
5-9 (B) any child care facility, residence, or
5-10 school where a child protected by the <protective> order normally
5-11 resides or attends.
5-12 (d) Reconciliatory actions or agreements made by persons
5-13 affected by an <a protective> order do not affect the validity of
5-14 the order or the duty of a peace officer to enforce this section.
5-15 (e) A peace officer investigating conduct that may
5-16 constitute an offense under this section for a violation of an <a
5-17 protective> order may not arrest a person protected by that order
5-18 for a violation of that order.
5-19 (f) It is not a defense to prosecution under this section
5-20 that certain information has been excluded, as provided by Section
5-21 71.111, Family Code, or Article 17.292, Code of Criminal Procedure,
5-22 from an order to which this section applies.
5-23 (g) An offense under this section is a Class A misdemeanor
5-24 unless it is shown on the trial of the offense that the defendant
5-25 has previously been convicted under this section two or more times,
5-26 in which event the offense is a state jail felony.
5-27 SECTION 3. The section heading to Section 25.07, Penal Code,
6-1 is amended to read as follows:
6-2 Sec. 25.07. VIOLATION OF <A> PROTECTIVE ORDER OR
6-3 MAGISTRATE'S ORDER.
6-4 SECTION 4. This Act takes effect September 1, 1995.
6-5 SECTION 5. The importance of this legislation and the
6-6 crowded condition of the calendars in both houses create an
6-7 emergency and an imperative public necessity that the
6-8 constitutional rule requiring bills to be read on three several
6-9 days in each house be suspended, and this rule is hereby suspended.