75R14430 JMM-D                          

         By Ellis                                              S.B. No. 1253

         Substitute the following for S.B. No. 1253:

         By Goodman                                        C.S.S.B. No. 1253

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to protective orders for family violence.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Section 6.504, Family Code, as added by S.B. 334,

 1-5     Acts of the 75th Legislature, Regular Session, 1997, is amended to

 1-6     read as follows:

 1-7           Sec. 6.504.  PROTECTIVE ORDERS.  On the motion of a party to

 1-8     a suit for dissolution of a marriage, the court may render a

 1-9     protective order as provided by Subtitle B, Title 4 [Chapter 71].

1-10           SECTION 2.  Section 81.002, Family Code, as added by S.B.

1-11     797,  Acts of the 75th Legislature, Regular Session, 1997, is

1-12     amended to read as follows:

1-13           Sec. 81.002.  NO FEE FOR APPLICANT.  [(a)]  An applicant for

1-14     a protective order or an attorney representing an applicant may not

1-15     be assessed a fee, cost, charge, or expense by a district or county

1-16     clerk of the court or a sheriff, constable, or other public

1-17     official or employee in connection with the filing, serving

1-18     [servicing], or entering of a protective order or for any other

1-19     service described by this subsection, including:

1-20                 (1)  a[.]

1-21           [(b)  A] fee [may not be charged to an applicant] to dismiss,

1-22     modify, or withdraw a protective order;

1-23                 (2)  a fee for certifying copies;

1-24                 (3)  a fee for comparing copies to originals;

 2-1                 (4)  a court reporter fee;

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

 2-3                 (6)  a fee for any other service related to a

 2-4     protective order.

 2-5           SECTION 3.  Section 81.003, Family Code, as added by S.B.

 2-6     797,  Acts of the 75th Legislature, Regular Session, 1997, is

 2-7     amended to read as follows:

 2-8           Sec. 81.003.  FEES AND COSTS PAID BY PARTY FOUND TO HAVE

 2-9     COMMITTED FAMILY VIOLENCE [RESPONDENT].  (a)  Except on a showing

2-10     of good cause or of the indigence of a party found to have

2-11     committed family violence [the respondent by the respondent], the

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

2-13     [respondent] against whom the order is rendered pay the $16

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

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

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

2-17     incurred in connection with the protective order.

2-18           (b)  The court may order a party against whom an agreed

2-19     protective order is rendered under Section 85.005 to pay the fees

2-20     required in Subsection (a).

2-21           SECTION 4.  Section 81.004, Family Code, as added by S.B.

2-22     797,  Acts of the 75th Legislature, Regular Session, 1997, is

2-23     amended to read as follows:

2-24           Sec. 81.004.  CONTEMPT FOR NONPAYMENT OF FEE.  (a)  A party

2-25     [respondent] who is ordered to pay fees and costs and who does not

2-26     pay before the [60th day after the] date specified by the order

2-27     [was rendered] may be punished for contempt of court as provided by

 3-1     Section 21.002, Government Code.

 3-2           (b)  If a date is not specified by the court under Subsection

 3-3     (a), payment of costs is required before the 60th day after the

 3-4     date the order was rendered.

 3-5           SECTION 5.  Section 81.005(a), Family Code, as added by S.B.

 3-6     797, Acts of the 75th Legislature, Regular Session, 1997, is

 3-7     amended to read as follows:

 3-8           (a)  The court may assess reasonable attorney's fees against

 3-9     the party found to have committed family violence or a party

3-10     against whom an agreed protective order is rendered under Section

3-11     85.005 as compensation for the services of a private or prosecuting

3-12     attorney or an attorney employed by the Department of Protective

3-13     and Regulatory Services.

3-14           SECTION 6.  Chapter 81, Family Code, as added by S.B. 797,

3-15     Acts of the 75th Legislature, Regular Session, 1997, is amended by

3-16     adding Section 81.0075 to read as follows:

3-17           Sec. 81.0075.  INTERESTS REPRESENTED BY CERTAIN PUBLIC

3-18     ATTORNEYS.  (a)  A prosecuting attorney or an attorney employed by

3-19     the Department of Protective and Regulatory Services represents the

3-20     interests of the state and not the interest of any other party.

3-21     The provision of services by the attorney under this subtitle does

3-22     not create an attorney-client relationship between the attorney and

3-23     any other party.

3-24           (b)  At the time an applicant seeks assistance from a

3-25     prosecuting attorney or an attorney employed by the Department of

3-26     Protective and Regulatory Services in obtaining a protective order,

3-27     the attorney shall inform the applicant in writing that the

 4-1     attorney, the agency or political subdivision employing the

 4-2     attorney, or any other attorney employed by the agency or

 4-3     subdivision is not the applicant's attorney and that the attorney

 4-4     does not provide legal representation to the applicant.

 4-5           (c)  A prosecuting attorney or an attorney employed by the

 4-6     Department of Protective and Regulatory Services who applies for a

 4-7     protective order for another person is not the applicant for the

 4-8     protective order as that term is used in this subtitle.

 4-9           SECTION 7.  Section 82.002, Family Code, as added by S.B.

4-10     797,  Acts of the 75th Legislature, Regular Session, 1997, is

4-11     amended by amending Subsection (a) and adding Subsection (c) to

4-12     read as follows:

4-13           (a)  An application for a protective order to protect the

4-14     applicant or any other member of the applicant's family or

4-15     household may be filed by:

4-16                 (1)  an adult member of the family or household; or

4-17                 (2)  any adult for the protection of a child [member of

4-18     the family or household].

4-19           (c)  The person alleged to be the victim of family violence

4-20     in an application filed under Subsection (b) is considered to be

4-21     the applicant for a protective order under this subtitle.

4-22           SECTION 8.  Section 82.005, Family Code, as added by S.B.

4-23     797, Acts of the 75th Legislature, Regular Session, 1997, is

4-24     amended to read as follows:

4-25           Sec. 82.005.  APPLICATION FILED DURING SUIT FOR DISSOLUTION

4-26     OF MARRIAGE OR SUIT AFFECTING PARENT-CHILD RELATIONSHIP.  [(a)]  A

4-27     person who wishes to apply for a protective order with respect to

 5-1     the person's spouse and who is a party to a suit for the

 5-2     dissolution of a marriage or a suit affecting the parent-child

 5-3     relationship that is pending in a court must file the application

 5-4     as required by Subchapter D, Chapter 85 [a motion in that suit].

 5-5           [(b)  An applicant denied a protective order filed as a

 5-6     motion in a suit for dissolution of a marriage may not apply for a

 5-7     protective order in another court based on facts identical to the

 5-8     facts stated in the previous application.]

 5-9           SECTION 9.  Section 82.041(a), Family Code, as added by S.B.

5-10     797, Acts of the 75th Legislature, Regular Session, 1997, is

5-11     amended to read as follows:

5-12           (a)  A notice of an application for a protective order must:

5-13                 (1)  be styled "The State of Texas";

5-14                 (2)  be signed by the clerk of the court under the

5-15     court's seal;

5-16                 (3)  contain the name and location of the court;

5-17                 (4)  show the date the application was filed;

5-18                 (5)  show the date notice of the application for a

5-19     protective order was issued;

5-20                 (6)  show the date, time, and place of the hearing;

5-21                 (7)  show the file number;

5-22                 (8)  show the name of each applicant and each person

5-23     alleged to have committed family violence;

5-24                 (9)  be directed to each person alleged to have

5-25     committed family violence;

5-26                 (10)  show the name and address of the attorney for the

5-27     applicant or the mailing address of the applicant, if the applicant

 6-1     is not represented by an attorney; and

 6-2                 (11)  contain the address of the clerk of the court.

 6-3           SECTION 10.  Section 83.005, Family Code, as added by S.B.

 6-4     797, Acts of the 75th Legislature, Regular Session, 1997, is

 6-5     amended to read as follows:

 6-6           Sec. 83.005.  CONFLICTING ORDERS.  During the time the order

 6-7     is valid, a temporary ex parte order prevails over any other court

 6-8     order made under Title 5 to the extent of any conflict between the

 6-9     orders[, except that on a motion to vacate the temporary ex parte

6-10     order, the court shall vacate the portions of the order shown to be

6-11     in conflict with the other court order].

6-12           SECTION 11.  Section 84.001(a), Family Code, as added by S.B.

6-13     797, Acts of the 75th Legislature, Regular Session, 1997, is

6-14     amended to read as follows:

6-15           (a)  On the filing of an application for a protective order,

6-16     the court shall set a date and time for the hearing unless a later

6-17     date is requested by the applicant.  The [Except as provided by

6-18     Section 84.002, the] court may not set a date later than the 20th

6-19     [14th]  day after the date the application is filed.

6-20           SECTION 12.  Section 84.003, Family Code, as added by S.B.

6-21     797, Acts of the 75th Legislature, Regular Session, 1997, is

6-22     amended to read as follows:

6-23           Sec. 84.003.  HEARING RESCHEDULED FOR FAILURE OF SERVICE.

6-24     [(a)]  If a hearing set under this chapter is not held because of

6-25     the failure of a respondent to receive service of notice of an

6-26     application for a protective order, the applicant may request the

6-27     court to reschedule the hearing.

 7-1           [(b)  Except as provided by Section 84.002, the date for a

 7-2     rescheduled hearing shall be not later than 14 days after the date

 7-3     the request is made.]

 7-4           SECTION 13.  Section 85.002, Family Code, as added by S.B.

 7-5     797, Acts of the 75th Legislature, Regular Session, 1997, is

 7-6     amended to read as follows:

 7-7           Sec. 85.002.  EXCEPTION FOR VIOLATION OF EXPIRED PROTECTIVE

 7-8     ORDER.  If the court finds that a respondent violated a protective

 7-9     order by committing an act prohibited by the order as provided by

7-10     Section 85.022, that the order was in effect at the time of the

7-11     violation, and that the order has expired after the date that the

7-12     violation occurred, the court, without the necessity of making the

7-13     findings described by Section 85.001(a), shall render a protective

7-14     order as provided by Section 85.022 applying only to the respondent

7-15     and may render a protective order as provided by Section 85.021.

7-16           SECTION 14.  Section 85.022(a), Family Code, as added by S.B.

7-17     797, Acts of the 75th Legislature, Regular Session, 1997, is

7-18     amended to read as follows:

7-19           (a)  In a protective order, the court may order the person

7-20     found to have committed family violence to:

7-21                 (1)  complete a battering intervention and prevention

7-22     [batterer's treatment] program as provided by Article 42.141, Code

7-23     of Criminal Procedure, and that meets the guidelines adopted by the

7-24     community justice assistance division of the Texas Department of

7-25     Criminal Justice if a program is available;

7-26                 (2)  counsel with a social worker, family service

7-27     agency, physician, psychologist, licensed therapist, or licensed

 8-1     professional counselor if a program under Subdivision (1) is not

 8-2     available; or

 8-3                 (3)  perform acts specified by the court that the court

 8-4     determines are necessary or appropriate to prevent or reduce the

 8-5     likelihood of family violence.

 8-6           SECTION 15.  Section 85.024(a), Family Code, as added by S.B.

 8-7     797, Acts of the 75th Legislature, Regular Session, 1997, is

 8-8     amended to read as follows:

 8-9           (a)  A person found to have engaged in family violence who is

8-10     ordered to attend a program or counseling under Section

8-11     85.022(a)(1) or (2) shall file with [and who does not provide to]

8-12     the court an affidavit before the 60th day after the date the order

8-13     was rendered stating either that the person has begun the program

8-14     or counseling or that a program or counseling is not available

8-15     within a reasonable distance from the person's residence.  A person

8-16     who files an affidavit that the person has begun the program or

8-17     counseling shall file with the court before the date the protective

8-18     order expires a statement that the person completed the program or

8-19     counseling not later than the 30th day before the expiration date

8-20     of the protective order.  An affidavit under this subsection must

8-21     be accompanied by a letter, notice, or certificate from the program

8-22     or counselor that verifies the person's completion of the program

8-23     or counseling.  A person who fails to comply with this subsection

8-24     may be  punished for contempt of court under Section 21.002,

8-25     Government Code.

8-26           SECTION 16.  Chapter 85, Family Code, as added by S.B. 797,

8-27     Acts of the 75th Legislature, Regular Session, 1997, is amended by

 9-1     adding Subchapter D to read as follows:

 9-2      SUBCHAPTER D.  RELATIONSHIP BETWEEN PROTECTIVE ORDER AND SUIT FOR

 9-3           DISSOLUTION OF MARRIAGE AND SUIT AFFECTING PARENT-CHILD

 9-4                                RELATIONSHIP

 9-5           Sec. 85.061.  DISMISSAL OF APPLICATION PROHIBITED;

 9-6     SUBSEQUENTLY FILED SUIT FOR DISSOLUTION OF MARRIAGE OR SUIT

 9-7     AFFECTING PARENT-CHILD RELATIONSHIP.  If an application for a

 9-8     protective order is pending, a court may not dismiss the

 9-9     application or delay a hearing on the application on the grounds

9-10     that a suit for dissolution of marriage or suit affecting the

9-11     parent-child relationship is filed after the date the application

9-12     was filed.

9-13           Sec. 85.062.  APPLICATION FILED WHILE SUIT FOR DISSOLUTION OF

9-14     MARRIAGE OR SUIT AFFECTING PARENT-CHILD RELATIONSHIP PENDING.  (a)

9-15     If a suit for dissolution of marriage or suit affecting the

9-16     parent-child relationship is pending, a party to the suit may apply

9-17     for a protective order against another party to the suit only by

9-18     filing an application in the court in which the suit is pending.

9-19           (b)  A court in which an application subject to this section

9-20     is filed, other than the court in which the suit for dissolution of

9-21     marriage or suit affecting the parent-child relationship is

9-22     pending, shall dismiss the application.

9-23           Sec. 85.063.  APPLICATION FILED AFTER FINAL ORDER RENDERED IN

9-24     SUIT FOR DISSOLUTION OF MARRIAGE OR SUIT AFFECTING PARENT-CHILD

9-25     RELATIONSHIP.  (a)  If a final order has been rendered in a suit

9-26     for dissolution of marriage or suit affecting the parent-child

9-27     relationship, an application for a protective order by a party to

 10-1    the suit against another party to the suit filed after the date the

 10-2    final order was rendered, and that is:

 10-3                (1)  filed in the county in which the final order was

 10-4    rendered, shall be filed in the court that rendered the final

 10-5    order; and

 10-6                (2)  filed in another county, shall be filed in a court

 10-7    having jurisdiction to render a protective order under this

 10-8    subtitle.

 10-9          (b)  A protective order rendered by a court in which an

10-10    application is filed under Subsection (a)(2) is subject to transfer

10-11    under Section 85.064.

10-12          Sec. 85.064.  TRANSFER OF PROTECTIVE ORDER.  (a)  If a

10-13    protective order was rendered before the filing of a suit for

10-14    dissolution of marriage or suit affecting the parent-child

10-15    relationship or while the suit is pending as provided by Section

10-16    85.061, the court that rendered the order shall, on the motion of a

10-17    party or on the court's own motion, transfer enforcement of the

10-18    order to the court having jurisdiction of the suit in the manner

10-19    provided by Chapter 155.

10-20          (b)  If a protective order that affects a party's right to

10-21    possession of or access to a child is rendered after the date a

10-22    final order was rendered in a suit affecting the parent-child

10-23    relationship, on the motion of a party or on the court's own

10-24    motion, the court shall transfer enforcement of the order to the

10-25    court of continuing, exclusive jurisdiction.

10-26          SECTION 17.  Chapter 87, Family Code, as added by S.B. 797,

10-27    Acts of the 75th Legislature, Regular Session, 1997, is amended by

 11-1    adding Section 87.004 to read as follows:

 11-2          Sec. 87.004.  CHANGE OF ADDRESS OR TELEPHONE NUMBER.  (a)  If

 11-3    a protective order contains the address or telephone number of a

 11-4    person protected by the order, of the place of employment or

 11-5    business of the person, or of the child-care facility or school of

 11-6    a child protected by the order and that information is not

 11-7    confidential under Section 85.007, the person protected by the

 11-8    order may file a notification of change of address or telephone

 11-9    number with the court that rendered the order to modify the

11-10    information contained in the order.

11-11          (b)  The clerk of the court shall attach the notification of

11-12    change to the protective order and shall deliver a copy of the

11-13    notification to the respondent by registered or certified mail as

11-14    provided by Rule 21a, Texas Rules of Civil Procedure.

11-15          (c)  The filing of a notification of change of address or

11-16    telephone number and the attachment of the notification to a

11-17    protective order does not affect the validity of the order.

11-18          SECTION 18.  Section 153.131, Family Code, is amended to read

11-19    as follows:

11-20          Sec. 153.131.  PRESUMPTION THAT PARENT TO BE APPOINTED

11-21    MANAGING CONSERVATOR.  (a)  Subject to the prohibition in Section

11-22    153.004, unless [Unless] the court finds that appointment of the

11-23    parent or parents would not be in the best interest of the child

11-24    because the appointment would significantly impair the child's

11-25    physical health or emotional development, a parent shall be

11-26    appointed sole managing conservator or both parents shall be

11-27    appointed as joint managing conservators of the child.

 12-1          (b)  It is a rebuttable presumption that the appointment of

 12-2    the parents of a child as joint managing conservators is in the

 12-3    best interest of the child.  A finding of a history of family

 12-4    violence involving the parents of a child removes the presumption

 12-5    under this subsection.

 12-6          SECTION 19.  Sections 84.002 and 85.008, Family Code, as

 12-7    added by S.B. 797, Acts of the 75th Legislature, Regular Session,

 12-8    1997, are repealed.

 12-9          SECTION 20.  (a) This Act takes effect September 1, 1997.

12-10          (b)  The changes in law made by Sections 2-5 and 13 of this

12-11    Act apply to a pending application for a protective order

12-12    regardless of whether the application is filed before, on, or after

12-13    the effective date of this Act.

12-14          (c)  Except as provided by Subsection (b) of this section,

12-15    the change in law made by this Act applies only to an application

12-16    for a protective order made on or after the effective date of this

12-17    Act.  An application for a protective order made before the

12-18    effective date of this Act is governed by the law in effect on the

12-19    date the application was made, and the former law is continued in

12-20    effect for that purpose.

12-21          SECTION 21.  The importance of this legislation and the

12-22    crowded condition of the calendars in both houses create an

12-23    emergency and an imperative public necessity that the

12-24    constitutional rule requiring bills to be read on three several

12-25    days in each house be suspended, and this rule is hereby suspended.