1-1 By: Moncrief S.B. No. 550
1-2 (In the Senate - Filed February 12, 1997; February 17, 1997,
1-3 read first time and referred to Committee on Criminal Justice;
1-4 April 10, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; April 10, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 550 By: West
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to emergency protective orders.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Article 17.292, Code of Criminal Procedure, is
1-13 amended to read as follows:
1-14 Art. 17.292. MAGISTRATE'S ORDER FOR EMERGENCY PROTECTION.
1-15 (a) At a defendant's appearance before a magistrate after arrest
1-16 for an offense involving family violence or an offense under
1-17 Section 42.072, Penal Code, the magistrate may issue an order for
1-18 emergency protection on the magistrate's own motion or on the
1-19 request of:
1-20 (1) the victim of the offense;
1-21 (2) the guardian of the victim;
1-22 (3) a peace officer; or
1-23 (4) the attorney representing the state.
1-24 (b) The magistrate in the order for emergency protection may
1-25 prohibit the arrested party from:
1-26 (1) committing:
1-27 (A) family violence or an assault on the person
1-28 protected under the order; or
1-29 (B) an act in furtherance of an offense under
1-30 Section 42.072, Penal Code;
1-31 (2) communicating:
1-32 (A) directly with a member of the family or
1-33 household or with the person protected under the order in a
1-34 threatening or harassing manner; or
1-35 (B) a threat through any person to a member of
1-36 the family or household or to the person protected under the order;
1-37 or
1-38 (3) going to or near:
1-39 (A) the residence, place of employment, or
1-40 business of a member of the family or household or of the person
1-41 protected under the order; or
1-42 (B) the residence, child care facility, or
1-43 school where a child protected under the order resides or attends.
1-44 (c) The victim of the offense need not be present in court
1-45 when the order for emergency protection is issued.
1-46 (d) In the order for emergency protection the magistrate
1-47 shall specifically describe the prohibited locations and the
1-48 minimum distances, if any, that the party must maintain, unless the
1-49 magistrate determines for the safety of the person or persons
1-50 protected by the order that specific descriptions of the locations
1-51 should be omitted.
1-52 (e) [(d)] To the extent that a condition imposed by an order
1-53 for emergency protection issued under this article conflicts with
1-54 an existing court order granting possession of or access to a
1-55 child, the condition imposed under this article prevails for the
1-56 duration of the order for emergency protection.
1-57 (f) [(e)] An order for emergency protection issued under
1-58 this article must contain the following statements printed in
1-59 bold-face type or in capital letters:
1-60 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
1-61 BY THE ORDER MAY BE [A FELONY] PUNISHABLE BY A FINE OF AS MUCH AS
1-62 $4,000 [$10,000] OR BY CONFINEMENT IN JAIL [IMPRISONMENT IN PRISON]
1-63 FOR AS LONG AS ONE YEAR [10 YEARS] OR BY BOTH. [FURTHER VIOLATIONS
1-64 OF THIS ORDER MAY BE PUNISHABLE BY IMPRISONMENT IN PRISON FOR AS
2-1 LONG AS 99 YEARS.] AN ACT THAT RESULTS IN FAMILY VIOLENCE OR A
2-2 STALKING OFFENSE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR
2-3 FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY
2-4 OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO
2-5 YEARS.
2-6 "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
2-7 ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
2-8 PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
2-9 VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
2-10 UNLESS A COURT CHANGES THE ORDER."
2-11 (g) [(f)] The magistrate issuing an order for emergency
2-12 protection under this article shall send a copy of the order to the
2-13 chief of police in the municipality where the member of the family
2-14 or household or individual protected by the order resides, if the
2-15 person resides in a municipality, or to the sheriff of the county
2-16 where the person resides, if the person does not reside in a
2-17 municipality. If the victim of the offense is not present when the
2-18 order is issued, the magistrate issuing the order shall order an
2-19 appropriate peace officer to make a good faith effort to notify,
2-20 within 24 hours, the victim that the order has been issued by
2-21 calling the victim's residence and place of employment. The clerk
2-22 of the court shall send a copy of the order to the victim.
2-23 (h) [(g)] If an order for emergency protection issued under
2-24 this article prohibits a person from going to or near a child care
2-25 facility or school, the magistrate shall send a copy of the order
2-26 to the child care facility or school.
2-27 (i) [(h)] An order for emergency protection issued under
2-28 this article is effective on issuance, and the defendant shall be
2-29 served a copy of the order in open court. An order for emergency
2-30 protection issued under this article remains in effect until the
2-31 31st day after the date of issuance.
2-32 (j) [(i)] To ensure that an officer responding to a call is
2-33 aware of the existence and terms of an order for emergency
2-34 protection issued under this article, each municipal police
2-35 department and sheriff shall establish a procedure within the
2-36 department or office to provide adequate information or access to
2-37 information for peace officers of the names of persons protected by
2-38 an order for emergency protection issued under this article and of
2-39 persons to whom the order is directed. The police department or
2-40 sheriff may enter an order for emergency protection issued under
2-41 this article in the department's or office's record of outstanding
2-42 warrants as notice that the order has been issued and is in effect.
2-43 (k) [(j)] In this article, "family," "family violence," and
2-44 "household" have the meanings assigned by Section 71.01, Family
2-45 Code.
2-46 SECTION 2. Subsection (c), Article 5.04, Code of Criminal
2-47 Procedure, is amended to read as follows:
2-48 (c) A written notice required by Subsection (b) of this
2-49 article is sufficient if it is in substantially the following form
2-50 with the required information in English and in Spanish inserted in
2-51 the notice:
2-52 "NOTICE TO ADULT VICTIMS OF FAMILY VIOLENCE
2-53 "It is a crime for any person to cause you any physical
2-54 injury or harm EVEN IF THAT PERSON IS A MEMBER OR FORMER MEMBER OF
2-55 YOUR FAMILY OR HOUSEHOLD.
2-56 "Please tell the investigating peace officer:
2-57 "IF you, your child, or any other household resident has been
2-58 injured; or
2-59 "IF you feel you are going to be in danger when the officer
2-60 leaves or later.
2-61 "You have the right to:
2-62 "ASK the local prosecutor to file a criminal complaint
2-63 against the person committing family violence; and
2-64 "APPLY to a court for an order to protect you (you should
2-65 consult a legal aid office, a prosecuting attorney, or a private
2-66 attorney). If a family or household member assaults you and is
2-67 arrested, you may request that a magistrate's order for emergency
2-68 protection be issued. Please inform the investigating officer if
2-69 you want an order for emergency protection. You need not be
3-1 present when the order is issued. You cannot be charged a fee by a
3-2 court in connection with filing, serving, or entering a protective
3-3 order. For example, the court can enter an order that:
3-4 "(1) the abuser not commit further acts of violence;
3-5 "(2) the abuser not threaten, harass, or contact you
3-6 at home;
3-7 "(3) directs the abuser to leave your household; and
3-8 "(4) establishes temporary custody of the children and
3-9 directs the abuser not to interfere with the children or any
3-10 property.
3-11 "A VIOLATION OF CERTAIN PROVISIONS OF COURT-ORDERED
3-12 PROTECTION (such as (1) and (2) above) MAY BE A FELONY.
3-13 "CALL THE FOLLOWING VIOLENCE SHELTERS OR SOCIAL ORGANIZATIONS
3-14 IF YOU NEED PROTECTION:
3-15 "____________________________
3-16 "____________________________."
3-17 SECTION 3. This Act takes effect September 1, 1997.
3-18 SECTION 4. The importance of this legislation and the
3-19 crowded condition of the calendars in both houses create an
3-20 emergency and an imperative public necessity that the
3-21 constitutional rule requiring bills to be read on three several
3-22 days in each house be suspended, and this rule is hereby suspended.
3-23 * * * * *