By Wise                                         H.B. No. 2496

      75R5169 JMC-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the prosecution of, the punishment for, and venue in

 1-3     the prosecution of the offenses of interference with child custody,

 1-4     agreement to abduct from custody, and enticing a child.

 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-6           SECTION 1.  Chapter 13, Code of Criminal Procedure, is

 1-7     amended  by adding Article 13.26 to read as follows:

 1-8           Art. 13.26.  OFFENSES INVOLVING CHILD CUSTODY.  An offense

 1-9     under Section 25.03, 25.031, or 25.04, Penal Code, may be

1-10     prosecuted in the county in which:

1-11                 (1)  the offense was committed;

1-12                 (2)  the child was found;

1-13                 (3)  the parent, guardian, or other person having

1-14     lawful custody or physical possession of the child resides; or

1-15                 (4)  the governmental agency having custody or physical

1-16     possession of the child under court order is located.

1-17           SECTION 2.  Chapter 42, Code of Criminal Procedure, is

1-18     amended by adding Article 42.0371 to read as follows:

1-19           Art. 42.0371.  MANDATORY RESTITUTION FOR OFFENSES INVOLVING

1-20     CHILD CUSTODY.  (a)  The court shall order a defendant convicted of

1-21     an offense under Section 25.03, 25.031, or 25.04, Penal Code, to

1-22     pay restitution:

1-23                 (1)  to the victim of the offense in an amount equal

1-24     to:

 2-1                       (A)  the cost of necessary rehabilitation for the

 2-2     victim, including medical, psychiatric, and psychological care and

 2-3     treatment;

 2-4                       (B)  the cost incurred in returning the victim to

 2-5     the parent, guardian, or other person having lawful custody or

 2-6     physical possession of the victim; and

 2-7                       (C)  any other cost reasonably incurred by the

 2-8     victim as a result of the defendant committing the offense; and

 2-9                 (2)  to a private entity that provided uncompensated

2-10     victim assistance services to the victim in an amount equal to the

2-11     reasonable cost of those services.

2-12           (b)  The court shall, after considering the financial

2-13     circumstances of the defendant, specify in a restitution order

2-14     issued under Subsection (a) the manner in which the defendant is

2-15     required to pay the restitution.

2-16           (c)  A restitution order issued under Subsection (a) may be

2-17     enforced by the state or a victim named in the order to receive the

2-18     restitution in the same manner as a judgment in a civil action.

2-19           (d)  The court may hold a hearing, make findings of fact, and

2-20     amend a restitution order issued under Subsection (a) if the

2-21     defendant fails to pay the victim named in the order in the manner

2-22     specified by the court.

2-23           SECTION 3.  Sections 25.03(c) and (d), Penal Code, are

2-24     amended to read as follows:

2-25           (c)  [It is a defense to prosecution under Subsection (a)(2)

2-26     that the actor returned the child to the geographic area of the

2-27     counties composing the judicial district if the court is a district

 3-1     court or the county if the court is a statutory county court,

 3-2     within three days after the date of the commission of the offense.]

 3-3           [(d)]  An offense under this section is a [state jail] felony

 3-4     of the third degree.

 3-5           SECTION 4.  Section 25.031(b), Penal Code, is amended to read

 3-6     as follows:

 3-7           (b)  An offense under this section is a [state jail] felony

 3-8     of the third degree.

 3-9           SECTION 5.  Section 25.04(b), Penal Code, is amended to read

3-10     as follows:

3-11           (b)  An offense under this section is a state jail felony

3-12     [Class B misdemeanor].

3-13           SECTION 6.  Chapter 25, Penal Code, is amended by adding

3-14     Sections 25.09 and 25.10 to read as follows:

3-15           Sec. 25.09.  SUBSEQUENT CUSTODY OR VISITATION ORDER NO

3-16     DEFENSE.  Except as provided by Section 25.10, it is not a defense

3-17     to prosecution under Section 25.03, 25.031, or 25.04 that the

3-18     actor, after committing the offense, is awarded custody or

3-19     visitation of the child by a court of competent jurisdiction.

3-20           Sec. 25.10.  NECESSITY DEFENSE FOR OFFENSES INVOLVING CHILD

3-21     CUSTODY.  (a)  It is a defense to prosecution under Section 25.03,

3-22     25.031, or 25.04, that the actor:

3-23                 (1)  believed in good faith that the actor's conduct

3-24     was immediately necessary to avoid imminent harm to the child; and

3-25                 (2)  filed, not later than 72 hours after committing

3-26     the offense, a suit for modification of the child's custody or

3-27     possession order in the court with continuing, exclusive

 4-1     jurisdiction.

 4-2           (b)  A petition requesting modification of a custody or

 4-3     possession order under Subsection (a)(2) must include documentation

 4-4     of the harm that the actor sought to avoid by committing the

 4-5     offense.

 4-6           SECTION 7.  (a)  The change in law made by this Act applies

 4-7     only to an offense, or the venue for the trial of an offense,

 4-8     committed on or after the effective date of this Act.  For purposes

 4-9     of this section, an offense is committed  before the effective date

4-10     of this Act if any element of the offense occurs before that date.

4-11           (b)  An offense, or the venue for the trial of an offense,

4-12     committed before the effective date of this Act is covered by the

4-13     law in effect when the offense was committed, and the former law is

4-14     continued in effect for that purpose.

4-15           SECTION 8.  This Act takes effect September 1, 1997.

4-16           SECTION 9.  The importance of this legislation and the

4-17     crowded condition of the calendars in both houses create an

4-18     emergency and an imperative public necessity that the

4-19     constitutional rule requiring bills to be read on three several

4-20     days in each house be suspended, and this rule is hereby suspended.