By Ellis                                        S.B. No. 1253

      75R8607 JMM-F                           

                                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 71.04(b), Family Code, is amended to read

 1-5     as follows:

 1-6           (b)  An application may be filed by:

 1-7                 (1)  an adult member of a family or household for the

 1-8     protection of the applicant or for any other member of the family

 1-9     or household;

1-10                 (2)  any adult for the protection of a child [member of

1-11     a family or household];

1-12                 (3)  any prosecuting attorney who represents the state

1-13     in a district or statutory county court in the county in which

1-14     venue of the application is proper for the protection of any person

1-15     alleged to be a victim of family violence;  or

1-16                 (4)  the Department of Protective and Regulatory

1-17     Services for the protection of a member of a family or household.

1-18           SECTION 2.  Section 71.041, Family Code, is amended to read

1-19     as follows:

1-20           Sec. 71.041.  FEES AND COSTS.  (a)  An applicant or an

1-21     attorney representing an applicant for a protective order may not

1-22     be assessed any fee, cost, charge, or expense by a district or

1-23     county clerk of the court or a sheriff, constable, or other

1-24     [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           (d)  The court may require that the respondent against whom a

2-23     protective order is ordered pay [assess] a reasonable attorney's

2-24     fee as  compensation for the services of a private or prosecuting

2-25     attorney or an attorney employed by the Department of Protective

2-26     and Regulatory Services representing an applicant against the

2-27     respondent [party who is found to have committed family violence].

 3-1     In setting the amount of the fee, the court shall consider the

 3-2     income and ability to pay of the person against whom the fee is

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

 3-4     compensation for the fees of a prosecuting attorney shall be paid

 3-5     to the credit of the county fund from which the salaries of

 3-6     employees of the prosecuting attorney are paid or supplemented and

 3-7     the fees collected under this subsection as compensation for an

 3-8     attorney employed by the Department of Protective and Regulatory

 3-9     Services shall be deposited in the general revenue fund to the

3-10     credit of the Department of Protective and Regulatory Services.

3-11     The fees collected under this subsection as compensation for a

3-12     private attorney shall be paid to the private attorney, who may

3-13     enforce the order in the attorney's own name.

3-14           SECTION 3.  Sections 71.06(a) and (b), Family Code, are

3-15     amended to read as  follows:

3-16           (a)  A person who is a party to a pending suit for the

3-17     dissolution of a marriage and who wishes to apply for a protective

3-18     order involving the relationship between the spouses or their

3-19     respective rights, duties, or powers must file an application for

3-20     the order in the court in which the suit is pending [under Section

3-21     3.581 of this code].

3-22           (b)  A court may not dismiss or delay a hearing on an

3-23     application filed under this chapter [solely] on the grounds that a

3-24     suit for dissolution of a marriage is filed after the date of the

3-25     application [unless the court hearing the suit for dissolution has

3-26     rendered a temporary order, including a protective order, on behalf

3-27     of the applicant under this chapter, in response to an application

 4-1     filed with that court or has denied the application on its merits.

 4-2     On rendition of a temporary order, including a protective order, on

 4-3     behalf of the applicant under this chapter, or denial of an

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

 4-5     for dissolution, a court may dismiss an application filed under

 4-6     this chapter].

 4-7           SECTION 4.  Section 71.07(d), Family Code, is amended to read

 4-8     as follows:

 4-9           (d)  A notice of an application for a protective order shall:

4-10                 (1)  be styled "The State of Texas";

4-11                 (2)  be signed by the clerk under seal of court;

4-12                 (3)  contain the name and location of the court;

4-13                 (4)  show the date of filing of the application;

4-14                 (5)  show the date of issuance of the notice of the

4-15     application for a protective order;

4-16                 (6)  show the date, time, and place of the hearing;

4-17                 (7)  show the file number;

4-18                 (8)  show the names of the applicant and each person

4-19     alleged to have committed family violence;

4-20                 (9)  be directed to each person alleged to have

4-21     committed family violence;

4-22                 (10)  show the name and address of the attorney for the

4-23     applicant or the mailing address of the applicant if the applicant

4-24     is not represented by an attorney; and

4-25                 (11)  contain the address of the clerk.

4-26           SECTION 5.  Section 71.09(d), Family Code, is amended to read

4-27     as follows:

 5-1           (d)  In [A prosecuting attorney in] a county with a

 5-2     population of more than 1.5 million, the court shall set a date and

 5-3     time for [may  request that] a hearing on the application [under

 5-4     Subsection (a) of this section take place] not later than 20 days

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

 5-6     rescheduled under Subsection (c) to [of this section] take place

 5-7     not later  than 20 days after the date on which the request is

 5-8     made.  [The prosecuting attorney may make a request under this

 5-9     subsection on a case-by-case basis or to all the courts in the

5-10     county for all cases under this chapter.  A court shall grant the

5-11     request of a prosecuting attorney under this subsection.]

5-12           SECTION 6.  Section 71.10(c), Family Code, is amended to read

5-13     as follows:

5-14           (c)  If the court finds that a respondent violated a [former]

5-15     protective order made under this chapter by committing an act

5-16     prohibited by the [former] order under Section 71.11(b), that [of

5-17     this code while] the [former] order was in effect at the time of

5-18     the violation, and that the former order is not currently in

5-19     effect, the court, without finding whether family violence has

5-20     occurred or whether family violence is likely to occur again in the

5-21     future, shall issue a protective order under Section 71.11(b)

5-22     applying only to the respondent and may enter a protective order

5-23     authorized under Section 71.11(a) applying to both the respondent

5-24     and the applicant that is in the best interest of the applicant,

5-25     the family or household, or a member of the family or household.

5-26           SECTION 7.  Sections 71.11(a) and (e), Family Code, are

5-27     amended to read as follows:

 6-1           (a)  In a protective order the court may:

 6-2                 (1)  prohibit a party from:

 6-3                       (A)  removing a child member of the family or

 6-4     household from the possession of a person named in the court order

 6-5     or from the jurisdiction of the court; or

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

 6-7     disposing of property mutually owned or leased by the parties,

 6-8     except when in the ordinary course of business;

 6-9                 (2)  grant exclusive possession of a residence to a

6-10     party and, if appropriate, direct one or more other parties to

6-11     vacate the residence if:

6-12                       (A)  the residence is jointly owned or leased by

6-13     the party receiving exclusive possession and by some other party

6-14     denied possession;

6-15                       (B)  the residence is owned or leased by the

6-16     party retaining possession; or

6-17                       (C)  the residence is owned or leased by the

6-18     party denied possession but only if that party has an obligation to

6-19     support the party granted possession of the residence or a child of

6-20     the party granted possession;

6-21                 (3)  provide for possession of and access to a child of

6-22     a party if the person receiving possession of or access to the

6-23     child is a parent, as that term is defined by Section 101.024

6-24     [11.01 of this code], of the child;

6-25                 (4)  require the payment of support for a party or for

6-26     a child of a party if the person required to make the payment has

6-27     an obligation to support the other party or the child;

 7-1                 (5)  require the person found to have committed family

 7-2     violence to complete a battering intervention and prevention

 7-3     [batterer's treatment] program as provided by Article 42.141, Code

 7-4     of Criminal Procedure, and that meets the guidelines adopted by the

 7-5     community justice assistance division of the Texas Department of

 7-6     Criminal Justice  if a program is available or if a program is not

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

 7-8     physician, psychologist, licensed therapist, or licensed

 7-9     professional counselor;

7-10                 (6)  award to a party use and possession of specified

7-11     property that is community property or jointly owned or leased;  or

7-12                 (7)  prohibit the person found to have committed family

7-13     violence from doing specified acts or require the person found to

7-14     have committed family violence to do specified acts necessary or

7-15     appropriate to prevent or reduce the likelihood of family violence.

7-16           (e)  A person found to have engaged in family violence for

7-17     whom counseling or a battering intervention and prevention

7-18     [batterer's treatment] program as provided by Article 42.141, Code

7-19     of Criminal Procedure, is  ordered under Subsection (a)(5) shall

7-20     file with [of this section and who does not provide to] the court

7-21     before the 60th day after the date the order was rendered an

7-22     affidavit that the person has started the counseling or the program

7-23     or that the counseling or the program is not available within a

7-24     reasonable distance of the person's residence.  A person who files

7-25     an affidavit that the person has begun the counseling or program

7-26     shall file with the court before the date the protective order

7-27     expires a statement that the person completed the counseling or

 8-1     program not later than the 30th day before the expiration date of

 8-2     the protective order.  An affidavit under this subsection must be

 8-3     accompanied by a letter, notice, or certificate from the counselor

 8-4     or program that verifies the person's completion of the program.  A

 8-5     person who fails to comply with this subsection may be punished for

 8-6     contempt of court as provided by  Section 21.002, Government Code.

 8-7     The order shall specifically advise the person of the requirements

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

 8-9     failure to comply.

8-10           SECTION 8.  Section 71.15(f), Family Code, is amended to read

8-11     as follows:

8-12           (f)  During the period of its validity, a temporary ex parte

8-13     order prevails over any other court order made under Title 5 to the

8-14     extent of any conflict between the orders [Subtitle A, Title 2, of

8-15     this code, except that on a motion to vacate the temporary ex parte

8-16     order, the court shall vacate those portions of the temporary order

8-17     shown to be in conflict with any other court order made under

8-18     Subtitle A, Title 2, of this code].

8-19           SECTION 9.  Section 3.581, Family Code, is amended to read as

8-20     follows:

8-21           Sec. 3.581. PROTECTIVE ORDERS.  On the motion of any party to

8-22     a suit for divorce or annulment or to declare a marriage void, the

8-23     court may issue a protective order as provided by Chapter 71

8-24     [Section 71.06].

8-25           SECTION 10.  Section 153.131, Family Code, is amended to read

8-26     as follows:

8-27           Sec. 153.131.  PRESUMPTION THAT PARENT TO BE APPOINTED

 9-1     MANAGING CONSERVATOR.  (a)  Subject to Section 153.004, unless

 9-2     [Unless] the court finds that appointment of the parent or parents

 9-3     would not be in the best interest of the child because the

 9-4     appointment would significantly impair the child's physical health

 9-5     or emotional development, a parent shall be appointed sole managing

 9-6     conservator or both parents shall be appointed as joint managing

 9-7     conservators of the child.

 9-8           (b)  It is a rebuttable presumption that the appointment of

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

9-10     best interest of the child.  A finding of a history of family

9-11     violence involving the parents of a child removes the presumption

9-12     under this subsection.

9-13           SECTION 11.  Sections 3.582 and 3.583, Family Code, are

9-14     repealed.

9-15           SECTION 12.  (a) This Act takes effect September 1, 1997.

9-16           (b)  The changes in law made by Sections 2 and 6 of this Act

9-17     apply to a pending application for a protective order regardless of

9-18     whether the application is filed before, on, or after the effective

9-19     date of this Act.

9-20           (c)  Except as provided by Subsection (b) of this section,

9-21     the change in law made by this Act applies only to an application

9-22     for a protective order made on or after the effective date of this

9-23     Act.  An application for a protective order made before the

9-24     effective date of this Act is governed by the law in effect on the

9-25     date the application was made, and the former law is continued in

9-26     effect for that purpose.

9-27           SECTION 13.  The importance of this legislation and the

 10-1    crowded condition of the calendars in both houses create an

 10-2    emergency and an imperative public necessity that the

 10-3    constitutional rule requiring bills to be read on three several

 10-4    days in each house be suspended, and this rule is hereby suspended.