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.