AEZ S.B. 550 75(R)BILL ANALYSIS


CRIMINAL JURISPRUDENCE
S.B. 550
By: Moncrief (McCall)
5-14-97
Committee Report (Unamended)


BACKGROUND 

The present statute regarding magistrate's orders for emergency protection
was passed last session as a result of the Senate Interim Committee on
Domestic Violence and enabled victims of domestic violence and stalking to
seek an emergency order from a magistrate when the perpetrator was
arrested.  While the new statute has received much praise, various groups
have offered suggestions for fine-tuning and clean-up.  

This legislation would grant magistrates protective authority to prohibit
the arrested party from committing an assault on, communicating with, or
going to or near, the person protected under the order.  This bill would
also lessen the penalties for violation of an emergency protective order
to provide for not more than a $4,000 fine, jail for as long as a year, or
both; and would delete the provision regarding punishment for further
violations.  In addition, S.B. 50 would ensure that victims need not be
present in court when the order for emergency protection is issued, but
would require a good faith effort to notify the victim that the order has
been issued by calling the victim's residence and workplace within 24
hours, in an effort to better avail victims of the protection the order
offers. Finally, this bill amends the notice to adult victims of family
violence so that victims are made aware of the availability of the
emergency protective order, and that they need not be present when it is
issued.   

PURPOSE

As proposed, S.B. 550 establishes the content of an emergency protective
order, and provides the penalties for violations of the order.    

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Article 17.292, Code of Criminal Procedure, to
authorize a magistrate, in an order for emergency protection, to prohibit
the arrested party from committing an assault on, communicating directly
with, communicating a threat to, or going to or near  the person protected
under the order.  Provides that the victim of the offense need not be
present in court when the order for emergency protection is issued.
Requires an order for emergency protection issued under this article to
contain the following statements printed in bold-face type or in capital
letters:  "A violation of this order by commission of an act prohibited by
the order may be punishable by a fine of as much as $4,000, or by
confinement in jail, for as long as one year, or by both.  An act that
results in family violence or a stalking offense may be prosecuted as a
separate misdemeanor  or felony offense.  If the act is prosecuted as a
separate felony offense, it is punishable by confinement in prison for at
least two years.  No person, including a person who is protected by this
order, may give permission to anyone to ignore or violate any provision of
this order.  During the time in which this order is valid, every provision
of this order is in full force and effect unless a court changes the
order." Deletes the provision in the order authorizing further violations
of the order to be punishable by as many as 99 years in prison.  Requires
the magistrate issuing the order, if the victim of the offense is not
present when the order is issued, to order an appropriate peace officer to
make a good faith effort to notify, within 24 hours, the victim that the
order has been issued by calling the victim's  residence and place of
employment. Requires the clerk of the court to send a copy of the order to
the victim.  Makes conforming changes.   

SECTION 2. Amends Article 5.04(c), Code of Criminal Procedure, to provide
that a written notice required by Subsection (b) of this article is
sufficient if it is in a certain form with the following required
information inserted in the notice, "If a family or household member
assaults you and is arrested, you may request that a magistrate's order
for emergency protection be issued.  Please inform the investigating
officer if you want an order for emergency protection.  You need not be
present when the order is issued." 

SECTION 3.  Effective date:  September 1, 1997.

SECTION 4.  Emergency clause.