1-1 By: Harris S.B. No. 797 1-2 (In the Senate - Filed February 26, 1997; March 4, 1997, read 1-3 first time and referred to Committee on Jurisprudence; 1-4 March 26, 1997, reported favorably by the following vote: Yeas 7, 1-5 Nays 0; March 26, 1997, sent to printer.) 1-6 A BILL TO BE ENTITLED 1-7 AN ACT 1-8 relating to the recodification of statutes relating to protective 1-9 orders and family violence. 1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-11 SECTION 1. The Family Code is recodified by reenacting Title 1-12 4 to read as follows: 1-13 TITLE 4. PROTECTIVE ORDERS AND 1-14 FAMILY VIOLENCE 1-15 SUBTITLE A. GENERAL PROVISIONS 1-16 CHAPTER 71. DEFINITIONS 1-17 Sec. 71.001. APPLICABILITY OF DEFINITIONS. (a) Definitions 1-18 in this chapter apply to this title. 1-19 (b) If, in another part of this title, a term defined by 1-20 this chapter has a meaning different from the meaning provided by 1-21 this chapter, the meaning of that other provision prevails. 1-22 (c) Except as provided by this chapter, the definitions in 1-23 Chapter 101 apply to terms used in this title. 1-24 Sec. 71.002. COURT. "Court" means the district court, court 1-25 of domestic relations, juvenile court having the jurisdiction of a 1-26 district court, statutory county court, or other court expressly 1-27 given jurisdiction under this title. 1-28 Sec. 71.003. FAMILY. "Family" includes individuals related 1-29 by consanguinity or affinity, as determined under Sections 573.022 1-30 and 573.024, Government Code, individuals who are former spouses of 1-31 each other, individuals who are the biological parents of the same 1-32 child, without regard to marriage, and a foster child and foster 1-33 parent, without regard to whether those individuals reside 1-34 together. 1-35 Sec. 71.004. FAMILY VIOLENCE. "Family violence" means: 1-36 (1) an act by a member of a family or household 1-37 against another member of the family or household that is intended 1-38 to result in physical harm, bodily injury, assault, or sexual 1-39 assault or that is a threat that reasonably places the member in 1-40 fear of imminent physical harm, bodily injury, assault, or sexual 1-41 assault, but does not include defensive measures to protect 1-42 oneself; or 1-43 (2) abuse, as that term is defined by Sections 1-44 261.001(1)(C), (E), and (G) by a member of a family or household 1-45 toward a child of the family or household. 1-46 Sec. 71.005. HOUSEHOLD. "Household" means a unit composed 1-47 of persons living together in the same dwelling, without regard to 1-48 whether they are related to each other. 1-49 Sec. 71.006. MEMBER OF A HOUSEHOLD. "Member of a household" 1-50 includes a person who previously lived in a household. 1-51 Sec. 71.007. PROSECUTING ATTORNEY. "Prosecuting attorney" 1-52 means the attorney, determined as provided in this title, who 1-53 represents the state in a district or statutory county court in the 1-54 county in which venue of the application for a protective order is 1-55 proper. 1-56 SUBTITLE B. PROTECTIVE ORDERS 1-57 CHAPTER 81. GENERAL PROVISIONS 1-58 Sec. 81.001. ENTITLEMENT TO PROTECTIVE ORDER. A court shall 1-59 render a protective order as provided by Section 85.001(b) if the 1-60 court finds that family violence has occurred and is likely to 1-61 occur in the future. 1-62 Sec. 81.002. NO FEE FOR APPLICANT. (a) An applicant for a 1-63 protective order may not be assessed a fee, cost, charge, or 1-64 expense by a clerk of the court or other public official in 2-1 connection with the filing, servicing, or entering of a protective 2-2 order. 2-3 (b) A fee may not be charged to an applicant to dismiss, 2-4 modify, or withdraw a protective order. 2-5 Sec. 81.003. FEES AND COSTS PAID BY RESPONDENT. Except on a 2-6 showing of the indigence of the respondent by the respondent, the 2-7 court shall require in a protective order that the respondent 2-8 against whom the order is rendered pay the $16 protective order 2-9 fee, the standard fees charged by the clerk of the court in a 2-10 general civil proceeding for the cost of serving the order, the 2-11 costs of court, and all other fees, charges, or expenses incurred 2-12 in connection with the protective order. 2-13 Sec. 81.004. CONTEMPT FOR NONPAYMENT OF FEE. A respondent 2-14 who is ordered to pay fees and costs and who does not pay before 2-15 the 60th day after the date the order was rendered may be punished 2-16 for contempt of court as provided by Section 21.002, Government 2-17 Code. 2-18 Sec. 81.005. ATTORNEY'S FEES. (a) The court may assess 2-19 reasonable attorney's fees against the party found to have 2-20 committed family violence as compensation for the services of a 2-21 private or prosecuting attorney or an attorney employed by the 2-22 Department of Protective and Regulatory Services. 2-23 (b) In setting the amount of attorney's fees, the court 2-24 shall consider the income and ability to pay of the person against 2-25 whom the fee is assessed. 2-26 Sec. 81.006. PAYMENT OF ATTORNEY'S FEES. The amount of fees 2-27 collected under this chapter as compensation for the fees: 2-28 (1) of a private attorney shall be paid to the private 2-29 attorney who may enforce the order for fees in the attorney's own 2-30 name; 2-31 (2) of a prosecuting attorney shall be paid to the 2-32 credit of the county fund from which the salaries of the employees 2-33 of the prosecuting attorney are paid or supplemented; and 2-34 (3) of an attorney employed by the Department of 2-35 Protective and Regulatory Services shall be deposited in the 2-36 general revenue fund to the credit of the Department of Protective 2-37 and Regulatory Services. 2-38 Sec. 81.007. PROSECUTING ATTORNEY. (a) The county attorney 2-39 or the criminal district attorney is the prosecuting attorney 2-40 responsible for filing applications under this subtitle unless the 2-41 district attorney assumes the responsibility by giving notice of 2-42 that assumption to the county attorney. 2-43 (b) The prosecuting attorney responsible for filing an 2-44 application under this subtitle shall provide notice of that 2-45 responsibility to all law enforcement agencies in the jurisdiction 2-46 of the prosecuting attorney. 2-47 (c) The prosecuting attorney shall comply with Article 5.06, 2-48 Code of Criminal Procedure, in filing an application under this 2-49 subtitle. 2-50 Sec. 81.008. RELIEF CUMULATIVE. Except as provided by this 2-51 subtitle, the relief and remedies provided by this subtitle are 2-52 cumulative of other relief and remedies provided by law. 2-53 CHAPTER 82. APPLYING FOR PROTECTIVE ORDER 2-54 SUBCHAPTER A. APPLICATION FOR PROTECTIVE ORDER 2-55 Sec. 82.001. APPLICATION. A proceeding under this subtitle 2-56 is begun by filing "An Application for a Protective Order" with the 2-57 clerk of the court. 2-58 Sec. 82.002. WHO MAY FILE APPLICATION. (a) An application 2-59 for a protective order to protect the applicant or any other member 2-60 of the applicant's family or household may be filed by: 2-61 (1) an adult member of the family or household; or 2-62 (2) any adult for the protection of a child member of 2-63 the family or household. 2-64 (b) In addition, an application may be filed for the 2-65 protection of any person alleged to be a victim of family violence 2-66 by: 2-67 (1) a prosecuting attorney; or 2-68 (2) the Department of Protective and Regulatory 2-69 Services. 3-1 (c) The person alleged to be the victim of family violence 3-2 in an application filed under Subsection (b) is considered to be 3-3 the applicant for a protective order under this subtitle. 3-4 Sec. 82.003. VENUE. An application may be filed in: 3-5 (1) the county in which the applicant resides; or 3-6 (2) the county in which the respondent resides. 3-7 Sec. 82.004. CONTENTS OF APPLICATION. An application must 3-8 state: 3-9 (1) the name and county of residence of each 3-10 applicant; 3-11 (2) the name, address, and county of residence of each 3-12 individual alleged to have committed family violence; 3-13 (3) the relationships between the applicants and the 3-14 individual alleged to have committed family violence; and 3-15 (4) a request for one or more protective orders. 3-16 Sec. 82.005. APPLICATION FILED DURING SUIT FOR DISSOLUTION 3-17 OF MARRIAGE. (a) A person who wishes to apply for a protective 3-18 order with respect to the person's spouse and who is a party to a 3-19 suit for the dissolution of a marriage that is pending in a court 3-20 must file the application as a motion in that suit. 3-21 (b) An applicant denied a protective order filed as a motion 3-22 in a suit for dissolution of a marriage may not apply for a 3-23 protective order in another court based on facts identical to the 3-24 facts stated in the previous application. 3-25 Sec. 82.006. APPLICATION FILED AFTER DISSOLUTION OF 3-26 MARRIAGE. If an applicant for a protective order is a former 3-27 spouse of the individual alleged to have committed family violence, 3-28 the application must include: 3-29 (1) a copy of the decree dissolving the marriage; or 3-30 (2) a statement that the decree is unavailable to the 3-31 applicant and that a copy of the decree will be filed with the 3-32 court before the hearing on the application. 3-33 Sec. 82.007. APPLICATION FILED FOR CHILD SUBJECT TO 3-34 CONTINUING JURISDICTION. An application that requests a protective 3-35 order for a child who is subject to the continuing exclusive 3-36 jurisdiction of a court under Title 5 or alleges that a child who 3-37 is subject to the continuing exclusive jurisdiction of a court 3-38 under Title 5 has committed family violence must include: 3-39 (1) a copy of each court order affecting the 3-40 conservatorship, support, and possession of or access to the child; 3-41 or 3-42 (2) a statement that the orders affecting the child 3-43 are unavailable to the applicant and that a copy of the orders will 3-44 be filed with the court before the hearing on the application. 3-45 Sec. 82.008. APPLICATION FILED AFTER EXPIRATION OF FORMER 3-46 PROTECTIVE ORDER. (a) If an application for a protective order 3-47 alleges that the respondent has violated a previously rendered 3-48 protective order by committing an act prohibited by the order and 3-49 that the protective order has expired after the date that the 3-50 violation occurred, the application for the new protective order 3-51 must include: 3-52 (1) a copy of the expired protective order attached to 3-53 the application or, if a copy of the expired protective order is 3-54 unavailable, a statement that the order is unavailable to the 3-55 applicant and that a copy of the order will be filed with the court 3-56 before the hearing on the application; 3-57 (2) a description of the violation of the expired 3-58 protective order; and 3-59 (3) a statement that the violation of the expired 3-60 order has not been grounds for any other order protecting the 3-61 applicant that has been issued or requested under this subtitle. 3-62 (b) The procedural requirements for an original application 3-63 for a protective order apply to a protective order requested under 3-64 this section. 3-65 Sec. 82.009. APPLICATION FOR TEMPORARY EX PARTE ORDER. An 3-66 application that requests the issuance of a temporary ex parte 3-67 order under Chapter 83 must: 3-68 (1) contain a detailed description of the facts and 3-69 circumstances concerning the alleged family violence and the need 4-1 for the immediate protective order; and 4-2 (2) be signed by each applicant under an oath that the 4-3 facts and circumstances contained in the application are true to 4-4 the best knowledge and belief of each applicant. 4-5 (Sections 82.010-82.020 reserved for expansion) 4-6 SUBCHAPTER B. PLEADINGS BY RESPONDENT 4-7 Sec. 82.021. ANSWER. A respondent to an application for a 4-8 protective order who is served with notice of an application for a 4-9 protective order may file an answer at any time before the hearing. 4-10 A respondent is not required to file an answer to the application. 4-11 Sec. 82.022. REQUEST BY RESPONDENT FOR PROTECTIVE ORDER. To 4-12 apply for a protective order, a respondent to an application for a 4-13 protective order must file a separate application. 4-14 (Sections 82.023-82.040 reserved for expansion) 4-15 SUBCHAPTER C. NOTICE OF APPLICATION FOR PROTECTIVE ORDER 4-16 Sec. 82.041. CONTENTS OF NOTICE OF APPLICATION. (a) A 4-17 notice of an application for a protective order must: 4-18 (1) be styled "The State of Texas"; 4-19 (2) be signed by the clerk of the court under the 4-20 court's seal; 4-21 (3) contain the name and location of the court; 4-22 (4) show the date the application was filed; 4-23 (5) show the date notice of the application for a 4-24 protective order was issued; 4-25 (6) show the date, time, and place of the hearing; 4-26 (7) show the file number; 4-27 (8) show the name of each applicant and each person 4-28 alleged to have committed family violence; 4-29 (9) be directed to each person alleged to have 4-30 committed family violence; 4-31 (10) show the name and address of the attorney for the 4-32 applicant or the address of the applicant; and 4-33 (11) contain the address of the clerk of the court. 4-34 (b) The notice of an application for a protective order must 4-35 state: "An application for a protective order has been filed in 4-36 the court stated in this notice alleging that you have committed 4-37 family violence. You may employ an attorney to defend you against 4-38 this allegation. You or your attorney may, but are not required 4-39 to, file a written answer to the application. Any answer must be 4-40 filed before the hearing on the application. If you receive this 4-41 notice within 48 hours before the time set for the hearing, you may 4-42 request the court to reschedule the hearing not later than 14 days 4-43 after the date set for the hearing. If you do not attend the 4-44 hearing, a default judgment may be taken and a protective order may 4-45 be issued against you." 4-46 Sec. 82.042. ISSUANCE OF NOTICE OF APPLICATION. (a) On the 4-47 filing of an application, the clerk of the court shall issue a 4-48 notice of an application for a protective order and deliver the 4-49 notice as directed by the applicant. 4-50 (b) On request by the applicant, the clerk of the court 4-51 shall issue a separate or additional notice of an application for a 4-52 protective order. 4-53 Sec. 82.043. SERVICE OF NOTICE OF APPLICATION. (a) Each 4-54 respondent to an application for a protective order is entitled to 4-55 service of notice of an application for a protective order. 4-56 (b) An applicant for a protective order shall furnish the 4-57 clerk with a sufficient number of copies of the application for 4-58 service on each respondent. 4-59 (c) Notice of an application for a protective order must be 4-60 served in the same manner as citation under the Texas Rules of 4-61 Civil Procedure, except that service by publication is not 4-62 authorized. 4-63 (d) Service of notice of an application for a protective 4-64 order is not required before the issuance of a temporary ex parte 4-65 order under Chapter 83. 4-66 (e) The requirements of service of notice under this 4-67 subchapter do not apply if the application is filed as a motion in 4-68 a suit for dissolution of a marriage. Notice for the motion is 4-69 given in the same manner as any other motion in a suit for 5-1 dissolution of a marriage. 5-2 CHAPTER 83. TEMPORARY EX PARTE ORDERS 5-3 Sec. 83.001. REQUIREMENTS FOR TEMPORARY EX PARTE ORDER. 5-4 (a) If the court finds from the information contained in an 5-5 application for a protective order that there is a clear and 5-6 present danger of family violence, the court, without further 5-7 notice to any other member of the family or household and without a 5-8 hearing, may enter a temporary ex parte order for the protection of 5-9 the applicant or any other member of the family or household of the 5-10 applicant. 5-11 (b) In a temporary ex parte order, the court may direct a 5-12 respondent to do or refrain from doing specified acts. 5-13 Sec. 83.002. DURATION OF ORDER; EXTENSION. (a) A temporary 5-14 ex parte order is valid for the period specified in the order, not 5-15 to exceed 20 days. 5-16 (b) On the request of an applicant or on the court's own 5-17 motion, a temporary ex parte order may be extended for additional 5-18 20-day periods. 5-19 Sec. 83.003. BOND NOT REQUIRED. The court, at the court's 5-20 discretion, may dispense with the necessity of a bond for a 5-21 temporary ex parte order. 5-22 Sec. 83.004. MOTION TO VACATE. Any member of the family or 5-23 household affected by a temporary ex parte order may file a motion 5-24 at any time to vacate the order. On the filing of the motion to 5-25 vacate, the court shall set a date for hearing the motion as soon 5-26 as possible. 5-27 Sec. 83.005. CONFLICTING ORDERS. During the time the order 5-28 is valid, a temporary ex parte order prevails over any other court 5-29 order made under Title 5, except that on a motion to vacate the 5-30 temporary ex parte order, the court shall vacate the portions of 5-31 the order shown to be in conflict with the other court order. 5-32 Sec. 83.006. EXCLUSION OF PARTY FROM RESIDENCE. 5-33 (a) Subject to the limitations of Section 85.021(2), a person may 5-34 only be excluded from the occupancy of the person's residence by a 5-35 temporary ex parte order under this chapter if the applicant: 5-36 (1) files a sworn affidavit that provides a detailed 5-37 description of the facts and circumstances requiring the exclusion 5-38 of the person from the residence; and 5-39 (2) appears in person to testify at a temporary ex 5-40 parte hearing to justify the issuance of the order without notice. 5-41 (b) Before the court may render a temporary ex parte order 5-42 excluding a person from the person's residence, the court must find 5-43 from the required affidavit and testimony that: 5-44 (1) the applicant requesting the excluding order 5-45 either resides on the premises or has resided there within 30 days 5-46 before the date the application was filed; 5-47 (2) the person to be excluded has within the 30 days 5-48 before the date the application was filed committed family violence 5-49 against a member of the household; and 5-50 (3) there is a clear and present danger that the 5-51 person to be excluded is likely to commit family violence against a 5-52 member of the household. 5-53 Sec. 83.007. RECESS OF HEARING TO CONTACT RESPONDENT. The 5-54 court may recess the hearing on a temporary ex parte order to 5-55 contact the respondent by telephone and provide the respondent the 5-56 opportunity to be present when the court resumes the hearing. 5-57 Without regard to whether the respondent is able to be present at 5-58 the hearing, the court shall resume the hearing before the end of 5-59 the working day. 5-60 CHAPTER 84. HEARING 5-61 Sec. 84.001. TIME SET FOR HEARING. (a) On the filing of an 5-62 application for a protective order, the court shall set a date and 5-63 time for the hearing unless a later date is requested by the 5-64 applicant. Except as provided by Section 84.002, the court may not 5-65 set a date later than the 14th day after the date the application 5-66 is filed. 5-67 (b) The court may not delay a hearing on an application in 5-68 order to consolidate it with a hearing on a subsequently filed 5-69 application. 6-1 Sec. 84.002. EXTENDED TIME FOR HEARING IN CERTAIN COUNTIES. 6-2 (a) On the request of the prosecuting attorney in a county with a 6-3 population of more than 1.5 million, the court shall set the 6-4 hearing on a date and time not later than 20 days after the date 6-5 the application is filed or 20 days after the date a request is 6-6 made to reschedule a hearing under Section 84.003. 6-7 (b) The court shall grant the request of the prosecuting 6-8 attorney for an extended time in which to hold a hearing on a 6-9 protective order either on a case-by-case basis or for all cases 6-10 filed under this subtitle. 6-11 Sec. 84.003. HEARING RESCHEDULED FOR FAILURE OF SERVICE. 6-12 (a) If a hearing set under this chapter is not held because of the 6-13 failure of a respondent to receive service of notice of an 6-14 application for a protective order, the applicant may request the 6-15 court to reschedule the hearing. 6-16 (b) Except as provided by Section 84.002, the date for a 6-17 rescheduled hearing shall be not later than 14 days after the date 6-18 the request is made. 6-19 Sec. 84.004. HEARING RESCHEDULED FOR INSUFFICIENT NOTICE. 6-20 (a) If a respondent receives service of notice of an application 6-21 for a protective order within 48 hours before the time set for the 6-22 hearing, on request by the respondent, the court shall reschedule 6-23 the hearing for a date not later than 14 days after the date set 6-24 for the hearing. 6-25 (b) The respondent is not entitled to additional service for 6-26 a hearing rescheduled under this section. 6-27 CHAPTER 85. ISSUANCE OF PROTECTIVE ORDER 6-28 SUBCHAPTER A. FINDINGS AND ORDERS 6-29 Sec. 85.001. REQUIRED FINDINGS AND ORDERS. (a) At the 6-30 close of a hearing on an application for a protective order, the 6-31 court shall find whether: 6-32 (1) family violence has occurred; and 6-33 (2) family violence is likely to occur in the future. 6-34 (b) If the court finds that family violence has occurred and 6-35 that family violence is likely to occur in the future, the court: 6-36 (1) shall render a protective order as provided by 6-37 Section 85.022 applying only to a person found to have committed 6-38 family violence; and 6-39 (2) may render a protective order as provided by 6-40 Section 85.021 applying to both parties that is in the best 6-41 interest of the family or household or member of the family or 6-42 household. 6-43 (c) A protective order that requires the first applicant to 6-44 do or refrain from doing an act under Section 85.022 shall include 6-45 a finding that the first applicant has committed family violence 6-46 and is likely to commit family violence in the future. 6-47 Sec. 85.002. EXCEPTION FOR VIOLATION OF EXPIRED PROTECTIVE 6-48 ORDER. If the court finds that a respondent violated a protective 6-49 order by committing an act prohibited by the order as provided by 6-50 Section 85.022 and that the order has expired after the date that 6-51 the violation occurred, the court, without the necessity of making 6-52 the findings described by Section 85.001(a), shall render a 6-53 protective order as provided by Section 85.022 applying only to the 6-54 respondent and may render a protective order as provided by Section 6-55 85.021. 6-56 Sec. 85.003. SEPARATE PROTECTIVE ORDERS REQUIRED. (a) A 6-57 court that renders separate protective orders that apply to both 6-58 parties and require both parties to do or refrain from doing acts 6-59 under Section 85.022 shall render two distinct and separate 6-60 protective orders in two separate documents that reflect the 6-61 appropriate conditions for each party. 6-62 (b) A court that renders protective orders that apply to 6-63 both parties and require both parties to do or refrain from doing 6-64 acts under Section 85.022 shall render the protective orders in two 6-65 separate documents. The court shall provide one of the documents 6-66 to the applicant and the other document to the respondent. 6-67 (c) A court may not render one protective order under 6-68 Section 85.022 that applies to both parties. 6-69 Sec. 85.004. PROTECTIVE ORDER IN SUIT FOR DISSOLUTION OF 7-1 MARRIAGE. A protective order in a suit for dissolution of a 7-2 marriage must be in a separate document entitled "PROTECTIVE 7-3 ORDER." 7-4 Sec. 85.005. AGREED ORDER. (a) To facilitate settlement, 7-5 the parties to a proceeding may agree in writing to the terms of a 7-6 protective order as provided by Section 85.021. An agreement under 7-7 this subsection is subject to the approval of the court. 7-8 (b) To facilitate settlement, a respondent may agree in 7-9 writing to the terms of a protective order as provided by Section 7-10 85.022, subject to the approval of the court. The court may not 7-11 approve an agreement that requires the applicant to do or refrain 7-12 from doing an act under Section 85.022. 7-13 (c) If the court approves an agreement between the parties, 7-14 the court shall render an agreed protective order that is in the 7-15 best interest of the applicant, the family or household, or a 7-16 member of the family or household. 7-17 (d) An agreed protective order is not enforceable as a 7-18 contract. 7-19 (e) An agreed protective order expires on the date the court 7-20 order expires. 7-21 Sec. 85.006. DEFAULT ORDER. (a) A court may render a 7-22 protective order that is binding on a respondent who does not 7-23 attend a hearing if the respondent received service of the 7-24 application and notice of the hearing. 7-25 (b) If the court reschedules the hearing under Chapter 84, a 7-26 protective order may be rendered if the respondent does not attend 7-27 the rescheduled hearing. 7-28 Sec. 85.007. CONFIDENTIALITY OF CERTAIN INFORMATION. 7-29 (a) On request by a member of a family or household, the court may 7-30 exclude from a protective order the address and telephone number 7-31 of: 7-32 (1) a person protected by the order, in which case the 7-33 order shall state the county in which the person resides; 7-34 (2) the place of employment or business of a person 7-35 protected by the order; or 7-36 (3) the child-care facility or school a child 7-37 protected by the order attends or in which the child resides. 7-38 (b) On granting a request for confidentiality under this 7-39 section, the court shall order the clerk to: 7-40 (1) strike the information described by Subsection (a) 7-41 from the public records of the court; and 7-42 (2) maintain a confidential record of the information 7-43 for use only by the court. 7-44 Sec. 85.008. DISMISSAL OF APPLICATION PROHIBITED IF DIVORCE 7-45 FILED; EXCEPTION. (a) A court may not dismiss an application for 7-46 a protective order on the grounds that a suit for dissolution of a 7-47 marriage is filed. 7-48 (b) A court may dismiss an application for a protective 7-49 order under this chapter if the court in which a suit for 7-50 dissolution of a marriage is pending has rendered a protective 7-51 order or denied on its merits an application for a protective order 7-52 filed in the court by the same applicant. 7-53 Sec. 85.009. ORDER VALID UNTIL SUPERSEDED. A protective 7-54 order rendered under this chapter is valid and enforceable pending 7-55 further action by the court that rendered the order until the order 7-56 is properly superseded by another court with jurisdiction over the 7-57 order. 7-58 (Sections 85.010-85.020 reserved for expansion) 7-59 SUBCHAPTER B. CONTENTS OF PROTECTIVE ORDER 7-60 Sec. 85.021. REQUIREMENTS OF ORDER APPLYING TO ANY PARTY. 7-61 In a protective order, the court may: 7-62 (1) prohibit a party from: 7-63 (A) removing a child who is a member of the 7-64 family or household from: 7-65 (i) the possession of a person named in 7-66 the order; or 7-67 (ii) the jurisdiction of the court; or 7-68 (B) transferring, encumbering, or otherwise 7-69 disposing of property, other than in the ordinary course of 8-1 business, that is mutually owned or leased by the parties; 8-2 (2) grant exclusive possession of a residence to a 8-3 party and, if appropriate, direct one or more parties to vacate the 8-4 residence if the residence: 8-5 (A) is jointly owned or leased by the party 8-6 receiving exclusive possession and a party being denied possession; 8-7 (B) is owned or leased by the party retaining 8-8 possession; or 8-9 (C) is owned or leased by the party being denied 8-10 possession and that party has an obligation to support the party or 8-11 a child of the party granted possession of the residence; 8-12 (3) provide for the possession of and access to a 8-13 child of a party if the person receiving possession of or access to 8-14 the child is a parent of the child; 8-15 (4) require the payment of support for a party or for 8-16 a child of a party if the person required to make the payment has 8-17 an obligation to support the other party or the child; or 8-18 (5) award to a party the use and possession of 8-19 specified property that is community property or jointly owned or 8-20 leased property. 8-21 Sec. 85.022. REQUIREMENTS OF ORDER APPLYING TO PERSON WHO 8-22 COMMITTED FAMILY VIOLENCE. (a) In a protective order, the court 8-23 may order the person found to have committed family violence to: 8-24 (1) complete a batterer's treatment program if a 8-25 program is available; 8-26 (2) counsel with a social worker, family service 8-27 agency, physician, psychologist, licensed therapist, or licensed 8-28 professional counselor if a program under Subdivision (1) is not 8-29 available; or 8-30 (3) perform acts specified by the court that the court 8-31 determines are necessary or appropriate to prevent or reduce the 8-32 likelihood of family violence. 8-33 (b) In a protective order, the court may prohibit the person 8-34 found to have committed family violence from: 8-35 (1) committing family violence; 8-36 (2) communicating: 8-37 (A) directly with a member of the family or 8-38 household in a threatening or harassing manner; 8-39 (B) a threat through any person to a member of 8-40 the family or household; and 8-41 (C) if the court finds good cause, in any manner 8-42 with a member of the family or household except through the party's 8-43 attorney or a person appointed by the court; 8-44 (3) going to or near the residence or place of 8-45 employment or business of a member of the family or household; 8-46 (4) going to or near the residence, child-care 8-47 facility, or school a child protected under the order normally 8-48 attends or in which the child normally resides; and 8-49 (5) engaging in conduct directed specifically toward a 8-50 person who is a member of the family or household, including 8-51 following the person, that is reasonably likely to harass, annoy, 8-52 alarm, abuse, torment, or embarrass the person. 8-53 (c) In an order under Subsection (b)(3) or (4), the court 8-54 shall specifically describe each prohibited location and the 8-55 minimum distances from the location, if any, that the party must 8-56 maintain. This subsection does not apply to an order in which 8-57 Section 85.007 applies. 8-58 Sec. 85.023. EFFECT ON PROPERTY RIGHTS. A protective order 8-59 or an agreement approved by the court under this subtitle does not 8-60 affect the title to real property. 8-61 Sec. 85.024. ENFORCEMENT OF COUNSELING REQUIREMENT. (a) A 8-62 person found to have engaged in family violence who is ordered to 8-63 attend a program or counseling under Section 85.022(a)(1) or (2) 8-64 and who does not provide to the court an affidavit before the 60th 8-65 day after the date the order was rendered stating either that the 8-66 person has begun the program or counseling or that a program or 8-67 counseling is not available within a reasonable distance from the 8-68 person's residence may be punished for contempt of court under 8-69 Section 21.002, Government Code. 9-1 (b) A protective order under Section 85.022 must 9-2 specifically advise the person subject to the order of the 9-3 requirement of this section and the possible punishment if the 9-4 person fails to comply with the requirement. 9-5 Sec. 85.025. DURATION OF PROTECTIVE ORDER. An order under 9-6 this subtitle is effective for the period stated in the order, not 9-7 to exceed one year. An order that does not specify the period for 9-8 which the order is effective expires on the first anniversary of 9-9 the date the order was issued. 9-10 Sec. 85.026. WARNING ON PROTECTIVE ORDER. (a) Each 9-11 protective order issued under this subtitle, including a temporary 9-12 ex parte order, must contain the following printed statement in 9-13 bold-faced type or capital letters: 9-14 "A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR 9-15 CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500 OR BY CONFINEMENT IN 9-16 JAIL FOR AS LONG AS SIX MONTHS, OR BOTH." 9-17 (b) Each protective order issued under this subtitle, except 9-18 for a temporary ex parte order, must contain the following printed 9-19 statement in bold-faced type or capital letters: 9-20 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED 9-21 BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY 9-22 CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH. AN ACT THAT 9-23 RESULTS IN FAMILY VIOLENCE MAY BE PROSECUTED AS A SEPARATE 9-24 MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A 9-25 SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON 9-26 FOR AT LEAST TWO YEARS." 9-27 (c) Each protective order issued under this subtitle, 9-28 including a temporary ex parte order, must contain the following 9-29 printed statement in bold-faced type or capital letters: 9-30 "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS 9-31 ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY 9-32 PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS 9-33 VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT 9-34 UNLESS A COURT CHANGES THE ORDER." 9-35 (Sections 85.027-85.040 reserved for expansion) 9-36 SUBCHAPTER C. DELIVERY OF PROTECTIVE ORDER 9-37 Sec. 85.041. DELIVERY TO RESPONDENT. (a) A protective 9-38 order rendered under this subtitle shall be: 9-39 (1) delivered to the respondent as provided by Rule 9-40 21a, Texas Rules of Civil Procedure; 9-41 (2) served in the same manner as a writ of injunction; 9-42 or 9-43 (3) served in open court at the close of the hearing 9-44 as provided by this section. 9-45 (b) The court shall serve an order in open court to a 9-46 respondent who is present at the hearing by giving to the 9-47 respondent a copy of the order, reduced to writing and signed by 9-48 the judge or master. A certified copy of the signed order shall be 9-49 given to the applicant at the time the order is given to the 9-50 respondent. If the applicant is not in court at the conclusion of 9-51 the hearing, the clerk of the court shall mail a certified copy of 9-52 the order to the applicant not later than the third business day 9-53 after the date the hearing is concluded. 9-54 (c) If the order has not been reduced to writing, the court 9-55 shall give notice orally to a respondent who is present at the 9-56 hearing of the part of the order that contains prohibitions under 9-57 Section 85.022 or any other part of the order that contains 9-58 provisions necessary to prevent further family violence. The clerk 9-59 of the court shall mail a copy of the order to the respondent and a 9-60 certified copy of the order to the applicant not later than the 9-61 third business day after the date the hearing is concluded. 9-62 (d) If the respondent is not present at the hearing and the 9-63 order has been reduced to writing at the conclusion of the hearing, 9-64 the clerk of the court shall immediately provide a certified copy 9-65 of the order to the applicant and mail a copy of the order to the 9-66 respondent not later than the third business day after the date the 9-67 hearing is concluded. 9-68 Sec. 85.042. DELIVERY OF ORDER TO OTHER PERSONS. (a) The 9-69 clerk of the court issuing an original or modified protective order 10-1 under this subtitle shall send a copy of the order to the chief of 10-2 police of the municipality in which the member of the family or 10-3 household protected by the order resides, if the person resides in 10-4 a municipality, or to the sheriff of the county in which the person 10-5 resides, if the person does not reside in a municipality. 10-6 (b) If a protective order made under this chapter prohibits 10-7 a respondent from going to or near a child-care facility or school, 10-8 the clerk of the court shall send a copy of the order to the 10-9 child-care facility or school. 10-10 (c) The clerk of a court that vacates an original or 10-11 modified protective order under this subtitle shall notify the 10-12 chief of police or sheriff who received a copy of the original or 10-13 modified order that the order is vacated. 10-14 CHAPTER 86. LAW ENFORCEMENT DUTIES RELATING TO PROTECTIVE ORDERS 10-15 Sec. 86.001. ADOPTION OF PROCEDURES BY LAW ENFORCEMENT 10-16 AGENCY. (a) To ensure that law enforcement officers responding to 10-17 calls are aware of the existence and terms of protective orders 10-18 issued under this subtitle, each law enforcement agency shall 10-19 establish procedures in the agency to provide adequate information 10-20 or access to information for law enforcement officers of the names 10-21 of each person protected by an order issued under this subtitle and 10-22 of each person against whom protective orders are directed. 10-23 (b) A law enforcement agency may enter a protective order in 10-24 the agency's computer records of outstanding warrants as notice 10-25 that the order has been issued and is currently in effect. On 10-26 receipt of notification by a clerk of court that the court has 10-27 vacated or dismissed an order, the law enforcement agency shall 10-28 remove the order from the agency's computer record of outstanding 10-29 warrants. 10-30 Sec. 86.002. DUTY TO PROVIDE INFORMATION TO FIREARMS 10-31 DEALERS. (a) On receipt of a request for a law enforcement 10-32 information system record check of a prospective transferee by a 10-33 licensed firearms dealer under the Brady Handgun Violence 10-34 Prevention Act, 18 U.S.C. Section 922, the chief law enforcement 10-35 officer shall determine whether the Department of Public Safety has 10-36 in the department's law enforcement information system a record 10-37 indicating the existence of an active protective order directed to 10-38 the prospective transferee. 10-39 (b) If the department's law enforcement information system 10-40 indicates the existence of an active protective order directed to 10-41 the prospective transferee, the chief law enforcement officer shall 10-42 immediately advise the dealer that the transfer is prohibited. 10-43 Sec. 86.003. COURT ORDER FOR LAW ENFORCEMENT ASSISTANCE 10-44 UNDER TEMPORARY ORDER. On request by an applicant obtaining a 10-45 temporary ex parte protective order that excludes the respondent 10-46 from the respondent's residence, the court granting the temporary 10-47 order shall render a written order to the sheriff or chief of 10-48 police to provide a law enforcement officer from the department of 10-49 the chief of police or sheriff to: 10-50 (1) accompany the applicant to the residence covered 10-51 by the order; 10-52 (2) inform the respondent that the court has ordered 10-53 that the respondent be excluded from the residence; 10-54 (3) protect the applicant while the applicant takes 10-55 possession of the residence; and 10-56 (4) protect the applicant if the respondent refuses to 10-57 vacate the residence while the applicant takes possession of the 10-58 applicant's necessary personal property. 10-59 Sec. 86.004. COURT ORDER FOR LAW ENFORCEMENT ASSISTANCE 10-60 UNDER FINAL ORDER. On request by an applicant obtaining a final 10-61 protective order that excludes the respondent from the respondent's 10-62 residence, the court granting the final order shall render a 10-63 written order to the sheriff or chief of police to provide a law 10-64 enforcement officer from the department of the chief of police or 10-65 sheriff to: 10-66 (1) accompany the applicant to the residence covered 10-67 by the order; 10-68 (2) inform the respondent that the court has ordered 10-69 that the respondent be excluded from the residence; 11-1 (3) protect the applicant while the applicant takes 11-2 possession of the residence and the respondent takes possession of 11-3 the respondent's necessary personal property; and 11-4 (4) if the respondent refuses to vacate the residence: 11-5 (A) remove the respondent from the residence; 11-6 and 11-7 (B) arrest the respondent for violating the 11-8 court order. 11-9 CHAPTER 87. MODIFICATION OF PROTECTIVE ORDERS 11-10 Sec. 87.001. MODIFICATION OF PROTECTIVE ORDER. On the 11-11 motion of any party, the court, after notice and hearing, may 11-12 modify an existing protective order to: 11-13 (1) exclude any item included in the order; or 11-14 (2) include any item that could have been included in 11-15 the order. 11-16 Sec. 87.002. MODIFICATION MAY NOT EXTEND DURATION OF ORDER. 11-17 A protective order may not be modified to extend the period of the 11-18 order's validity beyond the first anniversary of the date the 11-19 original order was rendered. 11-20 Sec. 87.003. NOTIFICATION OF MOTION TO MODIFY. Notice of a 11-21 motion to modify a protective order is sufficient if delivery of 11-22 the motion is attempted on the respondent at the respondent's last 11-23 known address by registered or certified mail as provided by Rule 11-24 21a, Texas Rules of Civil Procedure. 11-25 SUBTITLE C. REPORTING FAMILY VIOLENCE 11-26 CHAPTER 91. REPORTING FAMILY VIOLENCE 11-27 Sec. 91.001. DEFINITIONS. In this subtitle: 11-28 (1) "Family violence" has the meaning assigned by 11-29 Section 71.004. 11-30 (2) "Medical professional" means a licensed doctor, 11-31 nurse, physician assistant, or emergency medical technician. 11-32 Sec. 91.002. REPORTING BY WITNESSES ENCOURAGED. A person 11-33 who witnesses family violence is encouraged to report the family 11-34 violence to a local law enforcement agency. 11-35 Sec. 91.003. INFORMATION PROVIDED BY MEDICAL PROFESSIONALS. 11-36 A medical professional who treats a person for injuries that the 11-37 medical professional has reason to believe were caused by family 11-38 violence shall: 11-39 (1) immediately provide the person with information 11-40 regarding the nearest family violence shelter center; 11-41 (2) document in the person's medical file: 11-42 (A) the fact that the person has received the 11-43 information provided under Subdivision (1); and 11-44 (B) the reasons for the medical professional's 11-45 belief that the person's injuries were caused by family violence; 11-46 and 11-47 (3) give the person a written notice in substantially 11-48 the following form, completed with the required information, in 11-49 both English and Spanish: 11-50 "NOTICE TO ADULT VICTIMS OF FAMILY VIOLENCE 11-51 "It is a crime for any person to cause you any physical injury or 11-52 harm even if that person is a member or former member of your 11-53 family or household. 11-54 "You may report family violence to a law enforcement officer by 11-55 calling the following telephone numbers: 11-56 ____________________________________________________. 11-57 "If you, your child, or any other household resident has been 11-58 injured or if you feel you are going to be in danger after a law 11-59 enforcement officer investigating family violence leaves your 11-60 residence or at a later time, you have the right to: 11-61 "Ask the local prosecutor to file a criminal complaint 11-62 against the person committing family violence; and 11-63 "Apply to a court for an order to protect you. You may want 11-64 to consult with a legal aid office, a prosecuting attorney, or a 11-65 private attorney. A court can enter an order that: 11-66 "(1) prohibits the abuser from committing further acts 11-67 of violence; 11-68 "(2) prohibits the abuser from threatening, harassing, 11-69 or contacting you at home; 12-1 "(3) directs the abuser to leave your household; and 12-2 "(4) establishes temporary custody of the children or 12-3 any property. 12-4 "A VIOLATION OF CERTAIN PROVISIONS OF COURT-ORDERED PROTECTION MAY 12-5 BE A FELONY. 12-6 "CALL THE FOLLOWING VIOLENCE SHELTERS OR SOCIAL ORGANIZATIONS IF 12-7 YOU NEED PROTECTION: _________________________________." 12-8 Sec. 91.004. APPLICATION OF SUBTITLE. This subtitle does 12-9 not affect a duty to report child abuse under Chapter 261. 12-10 CHAPTER 92. IMMUNITY 12-11 Sec. 92.001. IMMUNITY. (a) Except as provided by 12-12 Subsection (b), a person who reports family violence under Section 12-13 91.002 or provides information under Section 91.003 is immune from 12-14 civil liability that might otherwise be incurred or imposed. 12-15 (b) A person who reports the person's own conduct or who 12-16 otherwise reports family violence in bad faith is not protected 12-17 from liability under this section. 12-18 SECTION 2. Title 4, Family Code, as that title existed 12-19 before the effective date of this Act, is repealed. 12-20 SECTION 3. The change in law made by this Act does not 12-21 affect a proceeding under the Family Code pending on the effective 12-22 date of this Act. A proceeding pending on the effective date of 12-23 this Act is governed by the law in effect at the time the 12-24 proceeding was commenced, and the former law is continued in effect 12-25 for that purpose. 12-26 SECTION 4. The importance of this legislation and the 12-27 crowded condition of the calendars in both houses create an 12-28 emergency and an imperative public necessity that the 12-29 constitutional rule requiring bills to be read on three several 12-30 days in each house be suspended, and this rule is hereby suspended, 12-31 and that this Act take effect and be in force from and after its 12-32 passage, and it is so enacted. 12-33 * * * * *