CJ S.B. 1253 75(R)BILL ANALYSIS JUVENILE JUSTICE & FAMILY ISSUES C.S.S.B. 1253 By: Ellis (Naishtat) 5-9-97 Committee Report (Substituted) BACKGROUND Currently, some sections of Title IV, Family Code, which cover protective orders and family violence, are in need of clarification and modification to ensure protection of family violence victims. This bill amends the Family Code to provide that victims are not charged fees for protective orders and gives judges greater latitude in assessing fees against respondents; clarifies where a protective order is to be filed where the divorce is filed first or, a protective order is filed before a divorce petition, that there be no delay in issuing program requirements for individuals who commit acts of domestic violence; and provides that a joint managing conservatorship is not presumed if there is a history of family violence. PURPOSE As proposed, S.B. 1253 amends the Family Code to provide that victims are not charged fees for protective orders and gives judges greater latitude in assessing fees against respondents; clarify situations where a protective order is filed and a divorce is filed or, if a protective order is filed before a divorce petition, that there be no delay in issuing program requirements for individuals who commit acts of domestic violence; and provides that a joint managing conservatorship is not presumed if there is a history of 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. Amends Section 6.504, Family Code, to make a conforming change because of the recodification of Title 4 of the Family Code. SECTION 2. Amends Section 81.002, Family Code, to prohibit an attorney representing an applicant from being assessed a charge by a district or county clerk, sheriff, constable, or other employee in connection with the filing, serving, or entering of a protective order for any other service described by this subsection, including certain fees. SECTION 3. Amends Sections 81.003, Family Code, to require the party found to have committed family violence to pay the fee for the order, unless they show good cause or indigence. The court may also order the party against whom an agreed order is rendered to pay the fee for the order. SECTION 4. Amends Section 81.004, Family Code to provide that if a date is not specified by the court, payment of costs is required before the 60th day after the date the order was rendered. SECTION 5. Amends Section 81.005(a) to allow the court to assess attorney's fees be paid by the person against whom an agreed protective order is rendered. SECTION 6. Amends Section 81.0075, Family Code, to: (a)clarify that the interests represented by prosecuting attorneys or Dept. of Protective & Regulatory services' attorneys are to represent the state and not any other party. (b) the attorney shall inform the applicant that the attorney does not provide legal representation to the applicant. (c) the attorney is not an applicant under this title. SECTION 7. Amends Section 82.002, Family Code, to delete a provision authorizing an application for a protective order to be filed by a member of the family or household an add for clarification that the alleged victim is considered the applicant for applications filed under subsection (b). SECTION 8. Amends Section 82.005, Family Code, to extend the application of the section to suits affecting the parent-child relationship. Makes conforming change. SECTION 9. Amends Section 82.041 (a), Family Code, to require notice of an application for protective order to show the mailing address of the applicant if the applicant is not represented by an attorney. SECTION 10. Amends Section 83.005, Family Code, to provide that a temporary ex parte order prevails over any other court order made under Title 5 to the extent of any conflict between the orders. Deletes a provision relating to a temporary ex parte order. SECTION 11. Amends Section 84.001(a), Family Code, to require a court to set a date and time for a hearing on the application not later than 20 days after the date the application is filed and deleted the exception. SECTION 12. Amends Section 84.003 to make a conforming change. SECTION 13. Amends Section 85.002, Family Code, to provide an exception to making findings in Sec.85.001(a), on an expired protective order if the order was in effect at the time of the violation. SECTION 14. Amends Section 85.022(a), Family Code, to require a person found to have committed family violence to complete a battery intervention and prevention program as provided by Article 42.141, Code of Criminal Procedure. SECTION 15. Amends Section 85.024(a), to set forth requirements for a person who must file an affidavit that the person has begun counseling. SECTION 16. Amends Chapter 85, Family Code, to add Subchapter D to set up a process to clarify the relationship between the protective order and a divorce proceeding and a suit affecting the parentchild relationship. Sec 85.061. Courts may not dismiss an application for a protective order when a divorce or suit affecting the parent-child relationship is later filed. Sec 85.062. After a divorce or suit affecting the parent -child relationship is filed, an application for a protective order must be filed in that court and any other court shall dismiss the application. Sec. 85.063. If there is a final order in a divorce or suit affecting the parent-child relationship, an application for a protective order filed in the same county where the final order was rendered shall be filed in that court. If an application is filed in another county after the final order is rendered, it must be filed in a court having jurisdiction to render a protective order and it is subject to transfer. Sec. 85.064. Outlines the transfer procedures for protective orders. SECTION 17. Adds Section 87.004, Family Code, to outline the process for changing, the non confidential, addresses and telephone numbers of persons protected by protective orders. It authorizes the clerk to record and forward the information. It also states that any change in this information does not invalidate the order. SECTION 18. Amends 153.131, Family Code, to provide that Subsection (a) is subject to the prohibition in Section 153.004. Provides that a finding of a history of family violence involving the parents of a child removes the presumption under this subsection. Makes a conforming change. SECTION 19. Repealer: Sections 84.002 and 85.008, Family Code. SECTION 20.(a) Effective date: September 1, 1997. (b) Makes application of SECTIONS 2--5 and 13 retroactive. (c) Makes application of this Act prospective, except as provided in Subsection (b). SECTION 21. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute uses the new code numbers contained in SB 334 which recodified Title 4 of the Family Code and by SB 797 which recodified Title 1 of the Family Code. New Sections of the Substitute: Sections: 6, 11, 12, part of 16, and 17. Deletions: Section: 5(bracketing language) and 6.