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.