1-1 By: Ellis S.B. No. 1253
1-2 (In the Senate - Filed March 12, 1997; March 17, 1997, read
1-3 first time and referred to Committee on Jurisprudence;
1-4 April 17, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; April 17, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1253 By: Ellis
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to protective orders for family violence.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Subsection (b), Section 71.04, Family Code, is
1-13 amended to read as follows:
1-14 (b) An application may be filed by:
1-15 (1) an adult member of a family or household for the
1-16 protection of the applicant or for any other member of the family
1-17 or household;
1-18 (2) any adult for the protection of a child [member of
1-19 a family or household];
1-20 (3) any prosecuting attorney who represents the state
1-21 in a district or statutory county court in the county in which
1-22 venue of the application is proper for the protection of any person
1-23 alleged to be a victim of family violence; or
1-24 (4) the Department of Protective and Regulatory
1-25 Services for the protection of a member of a family or household.
1-26 SECTION 2. Section 71.041, Family Code, is amended to read
1-27 as follows:
1-28 Sec. 71.041. FEES AND COSTS. (a) An applicant or an
1-29 attorney representing an applicant for a protective order may not
1-30 be assessed any fee, cost, charge, or expense by a district or
1-31 county clerk of the court or a sheriff, constable, or other
1-32 [another] public official or employee in connection with the
1-33 filing, serving, or entering of the protective order or for any
1-34 other service described by this subsection, including:
1-35 (1) a[. A] fee [may not be charged to an applicant]
1-36 to dismiss, modify, or withdraw a protective order;
1-37 (2) a fee for certifying copies;
1-38 (3) a fee for comparing copies to originals;
1-39 (4) a court reporter fee;
1-40 (5) a judicial fund fee; or
1-41 (6) a fee for any other service related to a
1-42 protective order.
1-43 (b) Except on a showing of indigency or good cause by the
1-44 respondent, a court shall require in a protective order that the
1-45 respondent against whom an order is rendered pay the protective
1-46 order fee of $16, the standard fees charged by the clerk of the
1-47 court as in a general civil proceeding for the cost of service of
1-48 the order, the costs of court, and all other fees, charges, or
1-49 expenses incurred in connection with the protective order.
1-50 (c) A respondent who is ordered to pay costs who does not
1-51 pay the costs before the [60th day after the] date specified by the
1-52 court for payment of costs [order was rendered] may be punished for
1-53 contempt of court as provided by Section 21.002, Government Code.
1-54 If a date is not specified by the court, payment of costs is
1-55 required before the 60th day after the date the order was rendered.
1-56 (d) The court may require that the respondent against whom a
1-57 protective order is ordered pay [assess] a reasonable attorney's
1-58 fee as compensation for the services of a private or prosecuting
1-59 attorney or an attorney employed by the Department of Protective
1-60 and Regulatory Services representing an applicant against the
1-61 respondent [party who is found to have committed family violence].
1-62 In setting the amount of the fee, the court shall consider the
1-63 income and ability to pay of the person against whom the fee is
1-64 assessed. The amount of fees collected under this subsection as
2-1 compensation for the fees of a prosecuting attorney shall be paid
2-2 to the credit of the county fund from which the salaries of
2-3 employees of the prosecuting attorney are paid or supplemented and
2-4 the fees collected under this subsection as compensation for an
2-5 attorney employed by the Department of Protective and Regulatory
2-6 Services shall be deposited in the general revenue fund to the
2-7 credit of the Department of Protective and Regulatory Services.
2-8 The fees collected under this subsection as compensation for a
2-9 private attorney shall be paid to the private attorney, who may
2-10 enforce the order in the attorney's own name.
2-11 SECTION 3. Subsections (a) and (b), Section 71.06, Family
2-12 Code, are amended to read as follows:
2-13 (a) A person who is a party to a pending suit for the
2-14 dissolution of a marriage and who wishes to apply for a protective
2-15 order involving the relationship between the spouses or their
2-16 respective rights, duties, or powers must file an application for
2-17 the order in the court in which the suit is pending [under Section
2-18 3.581 of this code].
2-19 (b) A court may not dismiss or delay a hearing on an
2-20 application filed under this chapter [solely] on the grounds that a
2-21 suit for dissolution of a marriage is filed after the date of the
2-22 application [unless the court hearing the suit for dissolution has
2-23 rendered a temporary order, including a protective order, on behalf
2-24 of the applicant under this chapter, in response to an application
2-25 filed with that court or has denied the application on its merits.
2-26 On rendition of a temporary order, including a protective order, on
2-27 behalf of the applicant under this chapter, or denial of an
2-28 application for a protective order by the court hearing the suit
2-29 for dissolution, a court may dismiss an application filed under
2-30 this chapter].
2-31 SECTION 4. Subsection (d), Section 71.07, Family Code, is
2-32 amended to read as follows:
2-33 (d) A notice of an application for a protective order shall:
2-34 (1) be styled "The State of Texas";
2-35 (2) be signed by the clerk under seal of court;
2-36 (3) contain the name and location of the court;
2-37 (4) show the date of filing of the application;
2-38 (5) show the date of issuance of the notice of the
2-39 application for a protective order;
2-40 (6) show the date, time, and place of the hearing;
2-41 (7) show the file number;
2-42 (8) show the names of the applicant and each person
2-43 alleged to have committed family violence;
2-44 (9) be directed to each person alleged to have
2-45 committed family violence;
2-46 (10) show the name and address of the attorney for the
2-47 applicant or the mailing address of the applicant if the applicant
2-48 is not represented by an attorney; and
2-49 (11) contain the address of the clerk.
2-50 SECTION 5. Subsection (d), Section 71.09, Family Code, is
2-51 amended to read as follows:
2-52 (d) In [A prosecuting attorney in] a county with a
2-53 population of more than 1.5 million, the court shall set a date and
2-54 time for [may request that] a hearing on the application [under
2-55 Subsection (a) of this section take place] not later than 20 days
2-56 after the date the application is filed and set [or that] a hearing
2-57 rescheduled under Subsection (c) to [of this section] take place
2-58 not later than 20 days after the date on which the request is made.
2-59 [The prosecuting attorney may make a request under this subsection
2-60 on a case-by-case basis or to all the courts in the county for all
2-61 cases under this chapter. A court shall grant the request of a
2-62 prosecuting attorney under this subsection.]
2-63 SECTION 6. Subsection (c), Section 71.10, Family Code, is
2-64 amended to read as follows:
2-65 (c) If the court finds that a respondent violated a [former]
2-66 protective order made under this chapter by committing an act
2-67 prohibited by the [former] order under Section 71.11(b), that [of
2-68 this code while] the [former] order was in effect at the time of
2-69 the violation, and that the former order is not currently in
3-1 effect, the court, without finding whether family violence has
3-2 occurred or whether family violence is likely to occur again in the
3-3 future, shall issue a protective order under Section 71.11(b)
3-4 applying only to the respondent and may enter a protective order
3-5 authorized under Section 71.11(a) applying to both the respondent
3-6 and the applicant that is in the best interest of the applicant,
3-7 the family or household, or a member of the family or household.
3-8 SECTION 7. Subsections (a) and (e), Section 71.11, Family
3-9 Code, are amended to read as follows:
3-10 (a) In a protective order the court may:
3-11 (1) prohibit a party from:
3-12 (A) removing a child member of the family or
3-13 household from the possession of a person named in the court order
3-14 or from the jurisdiction of the court; or
3-15 (B) transferring, encumbering, or otherwise
3-16 disposing of property mutually owned or leased by the parties,
3-17 except when in the ordinary course of business;
3-18 (2) grant exclusive possession of a residence to a
3-19 party and, if appropriate, direct one or more other parties to
3-20 vacate the residence if:
3-21 (A) the residence is jointly owned or leased by
3-22 the party receiving exclusive possession and by some other party
3-23 denied possession;
3-24 (B) the residence is owned or leased by the
3-25 party retaining possession; or
3-26 (C) the residence is owned or leased by the
3-27 party denied possession but only if that party has an obligation to
3-28 support the party granted possession of the residence or a child of
3-29 the party granted possession;
3-30 (3) provide for possession of and access to a child of
3-31 a party if the person receiving possession of or access to the
3-32 child is a parent, as that term is defined by Section 101.024
3-33 [11.01 of this code], of the child;
3-34 (4) require the payment of support for a party or for
3-35 a child of a party if the person required to make the payment has
3-36 an obligation to support the other party or the child;
3-37 (5) require the person found to have committed family
3-38 violence to complete a battering intervention and prevention
3-39 [batterer's treatment] program described by Article 42.141, Code of
3-40 Criminal Procedure, and that meets the guidelines adopted by the
3-41 community justice assistance division of the Texas Department of
3-42 Criminal Justice if a program is available or, if a program is not
3-43 available, to counsel with a social worker, family service agency,
3-44 physician, psychologist, licensed therapist, or licensed
3-45 professional counselor;
3-46 (6) award to a party use and possession of specified
3-47 property that is community property or jointly owned or leased; or
3-48 (7) prohibit the person found to have committed family
3-49 violence from doing specified acts or require the person found to
3-50 have committed family violence to do specified acts necessary or
3-51 appropriate to prevent or reduce the likelihood of family violence.
3-52 (e) A person found to have engaged in family violence for
3-53 whom counseling or a battering intervention and prevention
3-54 [batterer's treatment] program described by Article 42.141, Code of
3-55 Criminal Procedure, is ordered under Subsection (a)(5) shall file
3-56 with [of this section and who does not provide to] the court before
3-57 the 60th day after the date the order was rendered an affidavit
3-58 that the person has started the counseling or the program or that
3-59 the counseling or the program is not available within a reasonable
3-60 distance of the person's residence. A person who files an
3-61 affidavit that the person has begun the counseling or program shall
3-62 file with the court before the date the protective order expires a
3-63 statement that the person completed the counseling or program not
3-64 later than the 30th day before the expiration date of the
3-65 protective order. An affidavit under this subsection must be
3-66 accompanied by a letter, notice, or certificate from the counselor
3-67 or program that verifies the person's completion of the program. A
3-68 person who fails to comply with this subsection may be punished for
3-69 contempt of court as provided by Section 21.002, Government Code.
4-1 The order shall specifically advise the person of the requirements
4-2 of this subsection [requirement] and the possible punishment for
4-3 failure to comply.
4-4 SECTION 8. Subsection (f), Section 71.15, Family Code, is
4-5 amended to read as follows:
4-6 (f) During the period of its validity, a temporary ex parte
4-7 order prevails over any other court order made under Title 5 to the
4-8 extent of any conflict between the orders [Subtitle A, Title 2, of
4-9 this code, except that on a motion to vacate the temporary ex parte
4-10 order, the court shall vacate those portions of the temporary order
4-11 shown to be in conflict with any other court order made under
4-12 Subtitle A, Title 2, of this code].
4-13 SECTION 9. Section 3.581, Family Code, is amended to read as
4-14 follows:
4-15 Sec. 3.581. PROTECTIVE ORDERS. On the motion of any party
4-16 to a suit for divorce or annulment or to declare a marriage void,
4-17 the court may issue a protective order as provided by Chapter 71
4-18 [Section 71.06].
4-19 SECTION 10. Section 153.131, Family Code, is amended to read
4-20 as follows:
4-21 Sec. 153.131. PRESUMPTION THAT PARENT TO BE APPOINTED
4-22 MANAGING CONSERVATOR. (a) Subject to the prohibition in Section
4-23 153.004, unless [Unless] the court finds that appointment of the
4-24 parent or parents would not be in the best interest of the child
4-25 because the appointment would significantly impair the child's
4-26 physical health or emotional development, a parent shall be
4-27 appointed sole managing conservator or both parents shall be
4-28 appointed as joint managing conservators of the child.
4-29 (b) It is a rebuttable presumption that the appointment of
4-30 the parents of a child as joint managing conservators is in the
4-31 best interest of the child. A finding of a history of family
4-32 violence involving the parents of a child removes the presumption
4-33 under this subsection.
4-34 SECTION 11. Sections 3.582 and 3.583, Family Code, are
4-35 repealed.
4-36 SECTION 12. (a) This Act takes effect September 1, 1997.
4-37 (b) The changes in law made by Sections 2 and 6 of this Act
4-38 apply to a pending application for a protective order regardless of
4-39 whether the application is filed before, on, or after the effective
4-40 date of this Act.
4-41 (c) Except as provided by Subsection (b) of this section,
4-42 the change in law made by this Act applies only to an application
4-43 for a protective order made on or after the effective date of this
4-44 Act. An application for a protective order made before the
4-45 effective date of this Act is governed by the law in effect on the
4-46 date the application was made, and the former law is continued in
4-47 effect for that purpose.
4-48 SECTION 13. The importance of this legislation and the
4-49 crowded condition of the calendars in both houses create an
4-50 emergency and an imperative public necessity that the
4-51 constitutional rule requiring bills to be read on three several
4-52 days in each house be suspended, and this rule is hereby suspended.
4-53 * * * * *