1-1 By: Moncrief S.B. No. 129
1-2 (In the Senate - Filed December 6, 1994; January 16, 1995,
1-3 read first time and referred to Committee on Criminal Justice;
1-4 January 31, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0;
1-6 January 31, 1995, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 129 By: Moncrief
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to magistrate's orders for emergency protection for
1-11 victims of family violence or the offense of stalking and to the
1-12 offense of violation of a protective order or magistrate's order
1-13 for emergency protection.
1-14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-15 SECTION 1. Chapter 17, Code of Criminal Procedure, is
1-16 amended by adding Article 17.292 to read as follows:
1-17 Art. 17.292. MAGISTRATE'S ORDER FOR EMERGENCY PROTECTION.
1-18 (a) At a defendant's appearance before a magistrate after arrest
1-19 for an offense involving family violence or an offense under
1-20 Section 42.07(a)(7), Penal Code, the magistrate may issue an order
1-21 for emergency protection on the magistrate's own motion or on the
1-22 request of:
1-23 (1) the victim of the offense;
1-24 (2) the guardian of the victim;
1-25 (3) a peace officer; or
1-26 (4) the attorney representing the state.
1-27 (b) The magistrate in the order for emergency protection may
1-28 prohibit the arrested party from:
1-29 (1) committing:
1-30 (A) family violence; or
1-31 (B) an act in furtherance of an offense under
1-32 Section 42.07(a)(7), Penal Code;
1-33 (2) communicating:
1-34 (A) directly with a member of the family or
1-35 household in a threatening or harassing manner; or
1-36 (B) a threat through any person to a member of
1-37 the family or household; or
1-38 (3) going to or near:
1-39 (A) the residence, place of employment, or
1-40 business of a member of the family or household; or
1-41 (B) the residence, child care facility, or
1-42 school where a child protected under the order resides or attends.
1-43 (c) In the order for emergency protection the magistrate
1-44 shall specifically describe the prohibited locations and the
1-45 minimum distances, if any, that the party must maintain, unless the
1-46 magistrate determines for the safety of the person or persons
1-47 protected by the order that specific descriptions of the locations
1-48 should be omitted.
1-49 (d) To the extent that a condition imposed by an order for
1-50 emergency protection issued under this article conflicts with an
1-51 existing court order granting possession of or access to a child,
1-52 the condition imposed under this article prevails for the duration
1-53 of the order for emergency protection.
1-54 (e) An order for emergency protection issued under this
1-55 article must contain the following statements printed in bold-face
1-56 type or in capital letters:
1-57 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
1-58 BY THE ORDER MAY BE A FELONY PUNISHABLE BY A FINE OF AS MUCH AS
1-59 $10,000 OR BY IMPRISONMENT IN PRISON FOR AS LONG AS 10 YEARS OR BY
1-60 BOTH. FURTHER VIOLATIONS OF THIS ORDER MAY BE PUNISHABLE BY
1-61 IMPRISONMENT IN PRISON FOR AS LONG AS 99 YEARS. AN ACT THAT
1-62 RESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSE MAY BE PROSECUTED
1-63 AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS
1-64 PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY
1-65 CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS.
1-66 "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
1-67 ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
1-68 PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
2-1 VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
2-2 UNLESS A COURT CHANGES THE ORDER."
2-3 (f) The magistrate issuing an order for emergency protection
2-4 under this article shall send a copy of the order to the chief of
2-5 police in the municipality where the member of the family or
2-6 household or individual protected by the order resides, if the
2-7 person resides in a municipality, or to the sheriff of the county
2-8 where the person resides, if the person does not reside in a
2-9 municipality.
2-10 (g) If an order for emergency protection issued under this
2-11 article prohibits a person from going to or near a child care
2-12 facility or school, the magistrate shall send a copy of the order
2-13 to the child care facility or school.
2-14 (h) An order for emergency protection issued under this
2-15 article is effective on issuance, and the defendant shall be served
2-16 a copy of the order in open court. An order for emergency
2-17 protection issued under this article remains in effect until the
2-18 31st day after the date of issuance.
2-19 (i) To ensure that an officer responding to a call is aware
2-20 of the existence and terms of an order for emergency protection
2-21 issued under this article, each municipal police department and
2-22 sheriff shall establish a procedure within the department or office
2-23 to provide adequate information or access to information for peace
2-24 officers of the names of persons protected by an order for
2-25 emergency protection issued under this article and of persons to
2-26 whom the order is directed. The police department or sheriff may
2-27 enter an order for emergency protection issued under this article
2-28 in the department's or office's record of outstanding warrants as
2-29 notice that the order has been issued and is in effect.
2-30 (j) In this article, "family," "family violence," and
2-31 "household" have the meanings assigned by Section 71.01, Family
2-32 Code.
2-33 SECTION 2. Subsections (a), (d), (e), (f), and (g), Section
2-34 25.07, Penal Code, are amended to read as follows:
2-35 (a) A person commits an offense if, in violation of an order
2-36 issued under Section 3.581, <Section> 71.11, or <Section> 71.12,
2-37 Family Code, or under Article 17.292, Code of Criminal Procedure,
2-38 the person knowingly or intentionally:
2-39 (1) commits family violence or an act in furtherance
2-40 of an offense under Section 42.07(a)(7);
2-41 (2) directly communicates with a protected individual
2-42 or a member of the family or household in a threatening or
2-43 harassing manner, communicates a threat through any person to a
2-44 protected individual or a member of the family or household, and,
2-45 if the order prohibits any communication with a protected
2-46 individual or a member of the family or household, communicates in
2-47 any manner with the protected individual or the member of the
2-48 family or household except through the person's attorney or a
2-49 person appointed by the court; or
2-50 (3) goes to or near any of the following places as
2-51 specifically described in the <protective> order:
2-52 (A) the residence or place of employment or
2-53 business of a protected individual or a member of the family or
2-54 household; or
2-55 (B) any child care facility, residence, or
2-56 school where a child protected by the <protective> order normally
2-57 resides or attends.
2-58 (d) Reconciliatory actions or agreements made by persons
2-59 affected by an <a protective> order do not affect the validity of
2-60 the order or the duty of a peace officer to enforce this section.
2-61 (e) A peace officer investigating conduct that may
2-62 constitute an offense under this section for a violation of an <a
2-63 protective> order may not arrest a person protected by that order
2-64 for a violation of that order.
2-65 (f) It is not a defense to prosecution under this section
2-66 that certain information has been excluded, as provided by Section
2-67 71.111, Family Code, or Article 17.292, Code of Criminal Procedure,
2-68 from an order to which this section applies.
2-69 (g) An offense under this section is a Class A misdemeanor
2-70 unless it is shown on the trial of the offense that the defendant
3-1 has previously been convicted under this section two or more times,
3-2 in which event the offense is a felony of the third degree.
3-3 SECTION 3. The section heading to Section 25.07, Penal Code,
3-4 is amended to read as follows:
3-5 Sec. 25.07. VIOLATION OF <A> PROTECTIVE ORDER OR
3-6 MAGISTRATE'S ORDER.
3-7 SECTION 4. This Act takes effect September 1, 1995.
3-8 SECTION 5. The importance of this legislation and the
3-9 crowded condition of the calendars in both houses create an
3-10 emergency and an imperative public necessity that the
3-11 constitutional rule requiring bills to be read on three several
3-12 days in each house be suspended, and this rule is hereby suspended.
3-13 * * * * *