By:  Ellis                                            S.B. No. 1253

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to protective orders for family violence.

 1-2           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-3           SECTION 1.  Subsection (b), Section 71.04, Family Code, is

 1-4     amended to read as follows:

 1-5           (b)  An application may be filed by:

 1-6                 (1)  an adult member of a family or household for the

 1-7     protection of the applicant or for any other member of the family

 1-8     or household;

 1-9                 (2)  any adult for the protection of a child [member of

1-10     a family or household];

1-11                 (3)  any prosecuting attorney who represents the state

1-12     in a district or statutory county court in the county in which

1-13     venue of the application is proper for the protection of any person

1-14     alleged to be a victim of family violence; or

1-15                 (4)  the Department of Protective and Regulatory

1-16     Services for the protection of a member of a family or household.

1-17           SECTION 2.  Section 71.041, Family Code, is amended to read

1-18     as follows:

1-19           Sec. 71.041.  FEES AND COSTS.  (a)  An applicant or an

1-20     attorney representing an applicant for a protective order may not

1-21     be assessed any fee, cost, charge, or expense by a district or

1-22     county clerk of the court or a sheriff, constable, or other

1-23     [another] public official or employee in connection with the

 2-1     filing, serving, or entering of the protective order or for any

 2-2     other service described by this subsection, including:

 2-3                 (1)  a[.  A] fee [may not be charged to an applicant]

 2-4     to dismiss, modify, or withdraw a protective order;

 2-5                 (2)  a fee for certifying copies;

 2-6                 (3)  a fee for comparing copies to originals;

 2-7                 (4)  a court reporter fee;

 2-8                 (5)  a judicial fund fee; or

 2-9                 (6)  a fee for any other service related to a

2-10     protective order.

2-11           (b)  Except on a showing of indigency or good cause by the

2-12     respondent, a court shall require in a protective order that the

2-13     respondent against whom an order is rendered pay the protective

2-14     order fee of $16, the standard fees charged by the clerk of the

2-15     court as in a general civil proceeding for the cost of service of

2-16     the order, the costs of court, and all other fees, charges, or

2-17     expenses incurred in connection with the protective order.

2-18           (c)  A respondent who is ordered to pay costs who does not

2-19     pay the costs before the [60th day after the] date specified by the

2-20     court for payment of costs [order was rendered] may be punished for

2-21     contempt of court as provided by Section 21.002, Government Code.

2-22     If a date is not specified by the court, payment of costs is

2-23     required before the 60th day after the date the order was rendered.

2-24           (d)  The court may require that the respondent against whom a

2-25     protective order is ordered pay [assess] a reasonable attorney's

 3-1     fee as compensation for the services of a private or prosecuting

 3-2     attorney or an attorney employed by the Department of Protective

 3-3     and Regulatory Services representing an applicant against the

 3-4     respondent [party who is found to have committed family violence].

 3-5     In setting the amount of the fee, the court shall consider the

 3-6     income and ability to pay of the person against whom the fee is

 3-7     assessed.  The amount of fees collected under this subsection as

 3-8     compensation for the fees of a prosecuting attorney shall be paid

 3-9     to the credit of the county fund from which the salaries of

3-10     employees of the prosecuting attorney are paid or supplemented and

3-11     the fees collected under this subsection as compensation for an

3-12     attorney employed by the Department of Protective and Regulatory

3-13     Services shall be deposited in the general revenue fund to the

3-14     credit of the Department of Protective and Regulatory Services.

3-15     The fees collected under this subsection as compensation for a

3-16     private attorney shall be paid to the private attorney, who may

3-17     enforce the order in the attorney's own name.

3-18           SECTION 3.  Subsections (a) and (b), Section 71.06, Family

3-19     Code, are amended to read as follows:

3-20           (a)  A person who is a party to a pending suit for the

3-21     dissolution of a marriage and who wishes to apply for a protective

3-22     order involving the relationship between the spouses or their

3-23     respective rights, duties, or powers must file an application for

3-24     the order in the court in which the suit is pending [under Section

3-25     3.581 of this code].

 4-1           (b)  A court may not dismiss or delay a hearing on an

 4-2     application filed under this chapter [solely] on the grounds that a

 4-3     suit for dissolution of a marriage is filed after the date of the

 4-4     application [unless the court hearing the suit for dissolution has

 4-5     rendered a temporary order, including a protective order, on behalf

 4-6     of the applicant under this chapter, in response to an application

 4-7     filed with that court or has denied the application on its merits.

 4-8     On rendition of a temporary order, including a protective order, on

 4-9     behalf of the applicant under this chapter, or denial of an

4-10     application for a protective order by the court hearing the suit

4-11     for dissolution, a court may dismiss an application filed under

4-12     this chapter].

4-13           SECTION 4.  Subsection (d), Section 71.07, Family Code, is

4-14     amended to read as follows:

4-15           (d)  A notice of an application for a protective order shall:

4-16                 (1)  be styled "The State of Texas";

4-17                 (2)  be signed by the clerk under seal of court;

4-18                 (3)  contain the name and location of the court;

4-19                 (4)  show the date of filing of the application;

4-20                 (5)  show the date of issuance of the notice of the

4-21     application for a protective order;

4-22                 (6)  show the date, time, and place of the hearing;

4-23                 (7)  show the file number;

4-24                 (8)  show the names of the applicant and each person

4-25     alleged to have committed family violence;

 5-1                 (9)  be directed to each person alleged to have

 5-2     committed family violence;

 5-3                 (10)  show the name and address of the attorney for the

 5-4     applicant or the mailing address of the applicant if the applicant

 5-5     is not represented by an attorney; and

 5-6                 (11)  contain the address of the clerk.

 5-7           SECTION 5.  Subsection (d), Section 71.09, Family Code, is

 5-8     amended to read as follows:

 5-9           (d)  In [A prosecuting attorney in] a county with a

5-10     population of more than 1.5 million, the court shall set a date and

5-11     time for [may request that] a hearing on the application [under

5-12     Subsection (a) of this section take place] not later than 20 days

5-13     after the date the application is filed and set [or that] a hearing

5-14     rescheduled under Subsection (c) to [of this section] take place

5-15     not later than 20 days after the date on which the request is made.

5-16     [The prosecuting attorney may make a request under this subsection

5-17     on a case-by-case basis or to all the courts in the county for all

5-18     cases under this chapter.  A court shall grant the request of a

5-19     prosecuting attorney under this subsection.]

5-20           SECTION 6.  Subsection (c), Section 71.10, Family Code, is

5-21     amended to read as follows:

5-22           (c)  If the court finds that a respondent violated a [former]

5-23     protective order made under this chapter by committing an act

5-24     prohibited by the [former] order under Section 71.11(b), that [of

5-25     this code while] the [former] order was in effect at the time of

 6-1     the violation, and that the former order is not currently in

 6-2     effect, the court, without finding whether family violence has

 6-3     occurred or whether family violence is likely to occur again in the

 6-4     future, shall issue a protective order under Section 71.11(b)

 6-5     applying only to the respondent and may enter a protective order

 6-6     authorized under Section 71.11(a) applying to both the respondent

 6-7     and the applicant that is in the best interest of the applicant,

 6-8     the family or household, or a member of the family or household.

 6-9           SECTION 7.  Subsections (a) and (e), Section 71.11, Family

6-10     Code, are amended to read as follows:

6-11           (a)  In a protective order the court may:

6-12                 (1)  prohibit a party from:

6-13                       (A)  removing a child member of the family or

6-14     household from the possession of a person named in the court order

6-15     or from the jurisdiction of the court; or

6-16                       (B)  transferring, encumbering, or otherwise

6-17     disposing of property mutually owned or leased by the parties,

6-18     except when in the ordinary course of business;

6-19                 (2)  grant exclusive possession of a residence to a

6-20     party and, if appropriate, direct one or more other parties to

6-21     vacate the residence if:

6-22                       (A)  the residence is jointly owned or leased by

6-23     the party receiving exclusive possession and by some other party

6-24     denied possession;

6-25                       (B)  the residence is owned or leased by the

 7-1     party retaining possession; or

 7-2                       (C)  the residence is owned or leased by the

 7-3     party denied possession but only if that party has an obligation to

 7-4     support the party granted possession of the residence or a child of

 7-5     the party granted possession;

 7-6                 (3)  provide for possession of and access to a child of

 7-7     a party if the person receiving possession of or access to the

 7-8     child is a parent, as that term is defined by Section 101.024

 7-9     [11.01 of this code], of the child;

7-10                 (4)  require the payment of support for a party or for

7-11     a child of a party if the person required to make the payment has

7-12     an obligation to support the other party or the child;

7-13                 (5)  require the person found to have committed family

7-14     violence to complete a battering intervention and prevention

7-15     [batterer's treatment] program described by Article 42.141, Code of

7-16     Criminal Procedure, that meets the guidelines adopted by the

7-17     community justice assistance division of the Texas Department of

7-18     Criminal Justice if a program is available or, if a program is not

7-19     available, to counsel with a social worker, family service agency,

7-20     physician, psychologist, licensed therapist, or licensed

7-21     professional counselor;

7-22                 (6)  award to a party use and possession of specified

7-23     property that is community property or jointly owned or leased; or

7-24                 (7)  prohibit the person found to have committed family

7-25     violence from doing specified acts or require the person found to

 8-1     have committed family violence to do specified acts necessary or

 8-2     appropriate to prevent or reduce the likelihood of family violence.

 8-3           (e)  A person found to have engaged in family violence for

 8-4     whom counseling or a battering intervention and prevention

 8-5     [batterer's treatment] program described by Article 42.141, Code of

 8-6     Criminal Procedure, is ordered under Subsection (a)(5) shall file

 8-7     with [of this section and who does not provide to] the court before

 8-8     the 60th day after the date the order was rendered an affidavit

 8-9     that the person has started the counseling or the program or that

8-10     the counseling or the program is not available within a reasonable

8-11     distance of the person's residence.  A person who files an

8-12     affidavit that the person has begun the counseling or program shall

8-13     file with the court before the date the protective order expires a

8-14     statement that the person completed the counseling or program not

8-15     later than the 30th day before the expiration date of the

8-16     protective order.  An affidavit under this subsection must be

8-17     accompanied by a letter, notice, or certificate from the counselor

8-18     or program that verifies the person's completion of the program.  A

8-19     person who fails to comply with this subsection may be punished for

8-20     contempt of court as provided by  Section 21.002, Government Code.

8-21     The order shall specifically advise the person of the requirements

8-22     of this subsection [requirement] and the possible punishment for

8-23     failure to comply.

8-24           SECTION 8.  Subsection (f), Section 71.15, Family Code, is

8-25     amended to read as follows:

 9-1           (f)  During the period of its validity, a temporary ex parte

 9-2     order prevails over any other court order made under Title 5 to the

 9-3     extent of any conflict between the orders [Subtitle A, Title 2, of

 9-4     this code, except that on a motion to vacate the temporary ex parte

 9-5     order, the court shall vacate those portions of the temporary order

 9-6     shown to be in conflict with any other court order made under

 9-7     Subtitle A, Title 2, of this code].

 9-8           SECTION 9.  Section 3.581, Family Code, is amended to read as

 9-9     follows:

9-10           Sec. 3.581.  PROTECTIVE ORDERS.  On the motion of any party

9-11     to a suit for divorce or annulment or to declare a marriage void,

9-12     the court may issue a protective order as provided by Chapter 71

9-13     [Section 71.06].

9-14           SECTION 10.  Section 153.131, Family Code, is amended to read

9-15     as follows:

9-16           Sec. 153.131.  PRESUMPTION THAT PARENT TO BE APPOINTED

9-17     MANAGING CONSERVATOR.  (a)  Subject to the prohibition in Section

9-18     153.004, unless [Unless] the court finds that appointment of the

9-19     parent or parents would not be in the best interest of the child

9-20     because the appointment would significantly impair the child's

9-21     physical health or emotional development, a parent shall be

9-22     appointed sole managing conservator or both parents shall be

9-23     appointed as joint managing conservators of the child.

9-24           (b)  It is a rebuttable presumption that the appointment of

9-25     the parents of a child as joint managing conservators is in the

 10-1    best interest of the child.  A finding of a history of family

 10-2    violence involving the parents of a child removes the presumption

 10-3    under this subsection.

 10-4          SECTION 11.  Sections 3.582 and 3.583, Family Code, are

 10-5    repealed.

 10-6          SECTION 12.  (a)  This Act takes effect September 1, 1997.

 10-7          (b)  The changes in law made by Sections 2 and 6 of this Act

 10-8    apply to a pending application for a protective order regardless of

 10-9    whether the application is filed before, on, or after the effective

10-10    date of this Act.

10-11          (c)  Except as provided by Subsection (b) of this section,

10-12    the change in law made by this Act applies only to an application

10-13    for a protective order made on or after the effective date of this

10-14    Act.  An application for a protective order made before the

10-15    effective date of this Act is governed by the law in effect on the

10-16    date the application was made, and the former law is continued in

10-17    effect for that purpose.

10-18          SECTION 13.  The importance of this legislation and the

10-19    crowded condition of the calendars in both houses create an

10-20    emergency and an imperative public necessity that the

10-21    constitutional rule requiring bills to be read on three several

10-22    days in each house be suspended, and this rule is hereby suspended.