SRC-JFA S.B. 1726 75(R)   BILL ANALYSIS


Senate Research Center   S.B. 1726
By: West
Jurisprudence
4-9-97
As Filed


DIGEST 

Currently, federal law requires all states to enact, at the earliest
opportunity, a state full faith and credit provision for the enforcement
of foreign protective orders.  The Violence Against Women Act specifies
that in order to qualify to receive federal funding, states must provide
for the enforcement of a protective order which has been issued by another
state, a military court, a tribal court, or a territorial court; and must
provide for registration of such a protective order on the existing
statewide computer registry.  This bill would enact provisions to comply
with the Violence Against Women Act.   

PURPOSE

As proposed, S.B. 1726 sets forth provisions complying with federal law,
the Violence Against Women Act.  This bill provides for the enforcement of
a protective order which has been issued by another state, a military
court, a tribal court, or a territorial court; and provides for
registration of such an order with the statewide data system operated by
the Department of Public Safety.     

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 Section 25.07, Penal Code, to provide that a person
commits an offense if, in violation of an order issued by a military
court, court of another state, tribe or territory as provided in Section
25.071, Penal Code, among other orders, the person knowingly or
intentionally performs certain actions.  Provides that an offense under
this section is a Class  A misdemeanor unless it is shown on the trial of
the offense that the defendant has been previously convicted under this
section two or more times, violated the protective order by committing an
assault, or violated the protective order by committing the offense of
stalking, in which even the offense is a third degree, rather than a state
jail, felony. 

SECTION 2. Amends Chapter 25, Penal Code, by adding Section 25.071, as
follows:   

Sec. 25.071.  FULL FAITH AND CREDIT OF VALID FOREIGN PROTECTIVE ORDERS.
(a)  Requires any valid protective order related to domestic or family
violence issued by a military court, court of another state, tribe or
territorial court to be accorded full faith and credit by the courts of
the state and enforced as if it were issued in this state.  

(b)  Requires a protective order issued by a military court, court of
another state, tribunal or territorial court related to domestic or family
violence to be deemed valid if the issuing court had jurisdiction over the
parties and matter under the law of the military, state, tribe or
territory.  Requires there to be a presumption in favor of validity where
an order appears authentic on its face.   

(c)  Requires a respondent to be given reasonable notice and the
opportunity to be heard before the order of the military court, court of
another state, tribe or territory was issued, provided, in the case of ex
parte order, notice and opportunity to be heard was given as soon as
possible after the order was issued, consistent with due process.   
 
(d)  Requires failure to prove reasonable notice and opportunity to be
heard to be an affirmative defense to any charge or process filed seeking
enforcement of a foreign protective order.   

(e)  Prohibits a protective order against both the applicant and
respondent from being enforceable against the applicant in a foreign
jurisdiction unless certain conditions exist. 

(f)  Authorizes the person protected by a valid protective order obtained
in a military court, court of another state, tribe or territory to file
that order by presenting a certified copy of the foreign order to a clerk
of the court in the judicial district where the applicant believes
enforcement may be necessary.   

(g)  Requires filing to be without fee or cost. 

(h)  Requires a clerk of the court to forward a copy of the foreign
protective order to the local law enforcement office and the Department of
Public Safety (DPS) upon application of an  applicant seeking enforcement.

(i)  Requires the clerk to provide the plaintiff with a copy bearing proof
of filing with the court and entry into the criminal history record system
maintained by DPS.   

(j)  Prohibits the filing and entry of the foreign order in the statewide
data system from being prerequisites for enforcement of the foreign
protective order.  

(k)  Authorizes a peace officer to rely upon a copy of a foreign
protective order which has been provided to the officer by any source and
to rely upon the statement of any person protected by a foreign order that
the order remains in effect.  Requires a peace officer acting in good
faith to be immune from civil and criminal liability in any action arising
in connection with a court's finding that the foreign order was not
enforceable.  

SECTION 3. Amends Section 71.18, Family Code, to make a conforming change. 

SECTION 4. Amends Article 5.04, Code of Criminal Procedure, to provide
that the primary duties of a peace officer who investigates a family
violence allegation or who responds to a disturbance call that may involve
family violence are to protect any potential victim of family violence,
enforce the law of this state or any valid protective order related to
domestic or family violence, issued by a military court, court of another
state, tribe, or territory as provided in Section 25.071, Penal Code, and
make lawful arrests of violators.  

SECTION 5. Effective date: September 1, 1997.

SECTION 6. Emergency clause.