CJ S.B. 797 75(R)BILL ANALYSIS


JUVENILE JUSTICE & FAMILY ISSUES
S.B. 797
By: HARRIS (GOODMAN)
4-11-97
Committee Report (Amended)


BACKGROUND 

Currently, the Texas Family Code is under criticism based on its
overcrowded and disorganized condition.  In its final report to the 74th
Texas Legislature, the Joint Interim Committee on the Family Code
recommended a total reorganization of the code based on its cumbersome
structure. In response to the code's condition, several committees were
assembled in the fall of 1993 to oversee a recodification effort,
including the Family Law Council and the joint committee.  The Family Law
Council focused on nonsubstantive recodification while the joint committee
investigated substantive changes.  Ultimately, the joint committee
integrated all of the  recommendations, incorporating its own improvements
to the Family Code as well.  S.B. 797 recodifies Title 4, regarding
protective orders and family violence, in an effort to create a more
organized and coherent code. 

PURPOSE

As proposed, S.B. 797 recodifies Family Code statutes relating to
protective orders and family violence.   

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. Recodifies the Family Code, by reenacting Title 4, as follows:

TITLE 4.  PROTECTIVE ORDERS AND FAMILY VIOLENCE  

SUBTITLE A.  GENERAL PROVISIONS

CHAPTER 71.  DEFINITIONS

Sec. 71.001. APPLICABILITY OF DEFINITIONS.  Establishes the applicability
of definitions in this chapter.   

Sec. 71.002.   COURT.  Defines "court."

Sec. 71.003.   FAMILY.  Defines "family." 

Sec. 71.004.   FAMILY VIOLENCE.  Defines "family violence."  

Sec. 71.005.   HOUSEHOLD.  Defines "household."

Sec. 71.006.   MEMBER OF A HOUSEHOLD.  Defines "member of a household."

Sec. 71.007.   PROSECUTING ATTORNEY.  Defines "prosecuting attorney."  

SUBTITLE B.  PROTECTIVE ORDERS

 CHAPTER 81.  GENERAL PROVISIONS

Sec. 81.001.   ENTITLEMENT TO PROTECTIVE ORDER.  Requires a court to
render a protective order as provided by Section 85.001(b) if the court
finds that family violence has occurred and is likely to occur in the
future.   

Sec. 81.002.   NO FEE FOR APPLICANT.  Prohibits an applicant for a
protective order from being assessed a fee, cost, charge, or expense by a
clerk of court or other public official in connection with filing,
servicing, or entering a protective order.  Prohibits a fee from being
charged to dismiss, modify, or withdraw a protective order.   

Sec. 81.003.   FEES AND COSTS PAID BY RESPONDENT.  Sets forth the terms by
which the court is required to require that the respondent against whom
the order is rendered pay certain fees.   

Sec. 81.004.   CONTEMPT FOR NONPAYMENT OF FEE.  Sets forth the punishment
for a respondent who is ordered to pay fees and costs and does not pay
before the 60th day after the date the order was rendered.   

Sec. 81.005.   ATTORNEY'S FEES.  Sets forth the terms by which the court
is authorized to assess attorney's fees against a party found to have
committed family violence.   

Sec. 81.006.   PAYMENT OF ATTORNEY'S FEES.  Sets forth the terms by which
the amount of fees collected as compensation for the fees of a private
attorney, prosecuting attorney, and attorney employed by the Department of
Protective and Regulatory Services are required to be paid or deposited. 

Sec. 81.007.   PROSECUTING ATTORNEY.  Establishes the terms under which
the county or criminal district attorney is the prosecuting attorney
responsible for filing applications, unless the district attorney assumes
the responsibility.  Requires the prosecuting attorney to provide notice
of that responsibility to all appropriate law enforcement agencies. Sets
forth the procedure for filing an application. 

Sec. 81.008.   RELIEF CUMULATIVE.  Provides that, except as provided by
this subtitle, the relief and remedies provided by this subtitle are
cumulative of other relief and remedies provided by law.   

CHAPTER 82.  APPLYING FOR PROTECTIVE ORDER

SUBCHAPTER A.  APPLICATION FOR PROTECTIVE ORDER

Sec. 82.001.   APPLICATION.  Provides that a proceeding under this
subtitle is begun by filing "An Application for a Protective Order" with
the clerk of court. 

Sec. 82.002.   WHO MAY FILE APPLICATION.  Sets forth the terms by which an
application for a protective order and for the protection of any person
alleged to be a victim of family violence may be filed.  Provides that the
person alleged to be the victim of family violence in an application filed
under Subsection (b) is considered to be the applicant for a protective
order.   

Sec. 82.003.   VENUE.  Authorizes an application to be filed in the county
in which the applicant or respondent resides.   

Sec. 82.004.  CONTENTS OF APPLICATION.  Sets forth the contents of an
application. 

Sec. 82.005.   APPLICATION FILED DURING SUIT FOR DISSOLUTION OF MARRIAGE.
Sets forth the terms by which a person who is a party to a suit for the
dissolution of a marriage that is pending in court is required to file an
application for a protective order as a motion in that suit.  Prohibits an
applicant denied such a protective  order from applying for a protective
order in another court based on identical facts.   

Sec. 82.006.   APPLICATION FILED AFTER DISSOLUTION OF MARRIAGE.  Sets
forth the contents of an application for a protective order if an
applicant is a former spouse of the individual alleged to have committed
family violence.   

Sec. 82.007.   APPLICATION FILED FOR CHILD SUBJECT TO CONTINUING
JURISDICTION.  Sets forth the contents of an application requesting a
protective order for a child subject to continuing court jurisdiction, or
alleging that a child subject to continuing jurisdiction has committed
family violence.     

Sec. 82.008. APPLICATION FILED AFTER EXPIRATION OF FORMER PROTECTIVE
ORDER.  Sets forth the contents of an application filed after expiration
of the former protective order.  Provides that the procedural requirements
for an original application for a protective order apply to a protective
order requested under this section.   

Sec. 82.009. APPLICATION FOR TEMPORARY EX PARTE ORDER.  Sets forth the
contents of an application requesting the issuance of a temporary ex parte
order. 

SUBCHAPTER B.  PLEADINGS BY RESPONDENT

Sec. 82.021.   ANSWER.  Authorizes a respondent to an application for a
protective order who is served notice of an application to file an answer
at any time before the hearing, but does not require a respondent to file
an answer.   

Sec. 82.022.   REQUEST BY RESPONDENT FOR PROTECTIVE ORDER.  Requires a
respondent to an application, in order to apply for a protective order, to
file a separate application.   

SUBCHAPTER C.  NOTICE OF APPLICATION FOR PROTECTIVE ORDER

Sec. 82.041.   CONTENTS OF NOTICE OF APPLICATION.  Sets forth the contents
of a notice of application for a protective order, and requires the notice
to be directed to each person alleged to have committed family violence. 

Sec. 82.042.   ISSUANCE OF NOTICE OF APPLICATION.  Sets forth the terms by
which the clerk of the court, on the filing of an application, is required
to issue a notice of an application and deliver the notice.   

Sec. 82.043.   SERVICE OF NOTICE OF APPLICATION.  Establishes the
conditions by which each respondent is entitled to service of notice of an
application for a protective order. Provides that the requirements under
this subchapter do not apply if the application is filed as a motion in a
suit for dissolution of a marriage. 

CHAPTER 83.  TEMPORARY EX PARTE ORDERS

Sec. 83.001.   REQUIREMENTS FOR TEMPORARY EX PARTE ORDER.  Sets forth the
terms by which a court is authorized to enter a temporary ex parte order.
Authorizes the court, in such an order, to direct a respondent to do or
refrain from doing specified acts. 

Sec. 83.002.   DURATION OF ORDER; EXTENSION.  Sets forth the duration of,
and extension period for, an order.   

Sec. 83.003.   BOND NOT REQUIRED.  Authorizes the court to dispense with
the necessity of a bond for an order.   

Sec. 83.004.   MOTION TO VACATE.  Sets forth the terms by which any member
of the family or household affected by an order is authorized to file a
motion to vacate the order, and by which the court is required to set a
hearing date. 
 
Sec. 83.005.   CONFLICTING ORDERS.  Sets forth the terms by which an order
prevails over any other court order made under Title 5. 

Sec. 83.006.   EXCLUSION OF PARTY FROM RESIDENCE.  Establishes the
conditions by which a person is authorized to be excluded from the
occupancy of the person's residence by an order.  Requires the court to
establish certain conditions before rendering an order excluding a person
from the person's residence. 

Sec. 83.007.   RECESS OF HEARING TO CONTACT RESPONDENT.  Sets forth the
terms by which a court is authorized to recess the hearing on an order. 

CHAPTER 84.  HEARING

Sec. 84.001.   TIME SET FOR HEARING.  Sets forth the terms by which a
court is required to set a date and time for a hearing. 

Sec. 84.002.   EXTENDED TIME FOR HEARING IN CERTAIN COUNTIES.  Sets forth
the conditions by which a court is required to set an extended time for a
hearing in certain counties.   

Sec. 84.003.   HEARING RESCHEDULED FOR FAILURE OF SERVICE.  Sets forth the
conditions by which an applicant is authorized to request the court to
reschedule a hearing based on the failure of a respondent to receive
service of notice of an application for a protective order.   

Sec. 84.004.   HEARING RESCHEDULED FOR INSUFFICIENT NOTICE.  Establishes
the conditions by which a court is required to reschedule a hearing if a
respondent receives service of notice within 48 hours before the time set
for the hearing.   

CHAPTER 85.  ISSUANCE OF PROTECTIVE ORDER

SUBCHAPTER A.  FINDINGS AND ORDERS

Sec. 85.001.   REQUIRED FINDINGS AND ORDERS.  Requires the court, at the
close of a hearing, to find whether family violence occurred and is likely
to occur in the future. Sets forth the terms by which the court is
required and authorized, if the court finds that family violence has
occurred or is likely to occur, to render a protective order.      

Sec. 85.002.   EXCEPTION FOR VIOLATION OF EXPIRED PROTECTIVE ORDER.
Provides an exception if the court finds that a respondent violated a
protective order that expired after the date the violation occurred.   

Sec. 85.003.   SEPARATE PROTECTIVE ORDER REQUIRED.  Sets forth the terms
by which a court is required to render separate protective orders.   

Sec. 85.004.   PROTECTIVE ORDER IN SUIT FOR DISSOLUTION OF MARRIAGE.
Requires a protective order in a suit for dissolution of a marriage to be
in a separate document entitled, "PROTECTIVE ORDER." 

Sec. 85.005.   AGREED ORDER.  Sets forth the terms by which the parties to
a proceeding and a respondent are authorized to agree to the terms of a
protective order.   

Sec. 85.006.   DEFAULT ORDER.  Authorizes a court to render a protective
order on a respondent who does not attend a hearing.  Authorizes a
protective order to be rendered if the respondent does not attend a
rescheduled hearing.   

Sec. 85.007.   CONFIDENTIALITY OF CERTAIN INFORMATION.  Sets forth the
conditions under which a court is authorized to exclude the addresses and
telephone numbers  of certain persons or entities from a protective order.

Sec. 85.008.   DISMISSAL OF APPLICATION PROHIBITED IF DIVORCE FILED;
EXCEPTION.  Prohibits a court from dismissing an application on grounds
that a divorce suit is filed, and provides an exception.   

Sec. 85.009.   ORDER VALID UNTIL SUPERSEDED.  Establishes the conditions
under which a protective order is valid and enforceable until the order is
superseded.  

SUBCHAPTER B.  CONTENTS OF PROTECTIVE ORDER

Sec. 85.021.   REQUIREMENTS OF ORDER APPLYING TO ANY PARTY.  Sets forth
the requirements and prohibitions which a court is authorized to apply to
any party in a protective order.  

Sec. 85.022. REQUIREMENTS OF ORDER APPLYING TO PERSON WHO COMMITTED FAMILY
VIOLENCE.  Sets forth the requirements and prohibitions which a court is
authorized to apply to a person found to have committed family violence.

Sec. 85.023.   EFFECT ON PROPERTY RIGHTS.  Provides that a protective
order or an agreement approved by the court does not affect the title to
real property. 

Sec. 85.024.   ENFORCEMENT OF COUNSELING REQUIREMENT.  Sets forth the
terms by which a person who fails to comply with the counseling
requirement may be punished for contempt of court.  Requires a protective
order to advise the person subject to the order of the requirement of this
section and the punishment for failure to comply. 

Sec. 85.025.   DURATION OF PROTECTIVE ORDER.  Establishes the effective
period and expiration date of a protective order. 

Sec. 85.026.   WARNING ON PROTECTIVE ORDER.  Sets forth the warnings
required to be printed on protective orders. 

SUBCHAPTER C.  DELIVERY OF PROTECTIVE ORDER

Sec. 85.041.   DELIVERY TO RESPONDENT.  Sets forth the terms by which a
protective order or a certified copy of an order rendered under this
subtitle is required to be delivered, served, and mailed to the respondent
and applicant. 

Sec. 85.042.   DELIVERY OF ORDER TO OTHER PERSONS.  Sets forth the
provisions regarding the delivery of a protective order to other persons
and entities. 

CHAPTER 86.  LAW ENFORCEMENT DUTIES RELATING TO PROTECTIVE
ORDERS 

Sec. 86.001.   ADOPTION OF PROCEDURES BY LAW ENFORCEMENT AGENCY. Sets
forth the terms by which each law enforcement agency is required to
establish procedures to provide adequate information or access to
information relating to protective orders.  Establishes the means by which
an agency is authorized to enter an order in its computer records and is
required to remove the order. 

Sec. 86.002.  DUTY TO PROVIDE INFORMATION TO FIREARMS DEALERS. Establishes
the conditions by which a chief law enforcement officer is required to
cooperate with licensed firearms dealers through a record check and
prohibition of certain transfers. 

Sec. 86.003.   COURT ORDER FOR LAW ENFORCEMENT ASSISTANCE UNDER TEMPORARY
ORDER.  Establishes the conditions by which a court granting a temporary
order  that excludes the respondent from the respondent's residence is
required to render a written order to the sheriff or chief of police to
provide law enforcement assistance.   
 
Sec. 86.004.   COURT ORDER FOR LAW ENFORCEMENT ASSISTANCE UNDER FINAL
ORDER.  Establishes the conditions by which a court granting a final
protective order that excludes the respondent from the respondent's
residence is required to render a written order to the sheriff or chief of
police to provide law enforcement assistance. 

CHAPTER 87.  MODIFICATION OF PROTECTIVE ORDERS

Sec. 87.001.   MODIFICATION OF PROTECTIVE ORDER.  Authorizes the court, on
the motion of any party and after notice and hearing, to modify a
protective order to exclude or include any item. 

Sec. 87.002.   MODIFICATION MAY NOT EXTEND DURATION OF ORDER. Prohibits a
protective order from being modified to extend the period of the order's
validity beyond the first anniversary of the date the original order was
rendered.   


Sec. 87.003.   NOTIFICATION OF MOTION TO MODIFY.  Sets forth the terms
under which notice of a motion to modify a protective order is sufficient. 

SUBTITLE C.  REPORTING FAMILY VIOLENCE

CHAPTER 91.  REPORTING FAMILY VIOLENCE

Sec. 91.001.   DEFINITIONS.  Defines "family violence" and "medical
professional." 

Sec. 91.002.   REPORTING BY WITNESSES ENCOURAGED.  Provides that a person
who witnesses family violence is encouraged to report the family violence
to a local law enforcement agency. 

Sec. 91.003.   INFORMATION PROVIDED BY MEDICAL PROFESSIONALS.  Sets forth
the procedure by which a medical professional who treats a person for
injuries that the medical professional has reason to believe were caused
by family violence is required to provide the person with information
regarding the nearest family violence shelter; document certain
information in the person's medical file; and give the person a written
notice in a prescribed format. 

Sec. 91.004.   APPLICATION OF SUBTITLE.  Provides that this subtitle does
not affect a duty to report child abuse under Chapter 261.   

CHAPTER 92.  IMMUNITY

Sec. 92.001.   IMMUNITY.  Sets forth the conditions under which a person
who reports family violence or provides information under Section 91.003
is immune from civil liability. Provides that a person who reports the
person's own conduct or who otherwise reports family violence in bad faith
is not protected for liability. 

SECTION 2. Repealer:  Title 4, Family Code (Protection of the Family).

SECTION 3. Makes application of this Act prospective.
 
SECTION 4. Emergency clause.  
  Effective date:  upon passage.  



EXPLANATION OF AMENDMENTS

The amendment deleted Subsection (c) of Section 82.002, Texas Family Code,
because it was superfluous.  Subsections (a) and (b) of Section 82.002
appropriately recodify existing law.