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.