SRC-CDH C.S.S.B. 550 75(R)BILL ANALYSIS


Senate Research CenterC.S.S.B. 550
By: Moncrief
Criminal Justice
4-9-97
Committee Report (Substituted)


DIGEST 

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

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

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, rather than
$10,000, or by confinement in jail, rather than imprisonment in prison,
for as long as one year, rather than 10 years, or by both."  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.   

SUMMARY OF COMMITTEE CHANGES

SECTION 1.

Amends Article 17.292, Code of Criminal Procedure, to change all
references to Section 42.071 of the Penal Code to Section 42.072, in line
with recent passage of S.B. 97, the new stalking law.  Provides that the
victim of the offense need not be present in court when the order for
emergency protection is issued.  Sets forth the terms by which the
magistrate issuing the order is required to order a peace officer to
notify the victim if the victim is not present when the order is issued.  

SECTION 2. 

Amends Article 5.04(c), Code of Criminal Procedure, to change the contents
of the "NOTICE TO ADULT VICTIMS OF FAMILY VIOLENCE,"  by adding
information regarding an order for emergency protection. 

Redesignates former SECTIONS 2 and 3 as SECTIONS 3 and 4.