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.