By Wise                                                H.B. No. 158
         76R33 MCK-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to recovery or possession of or access to certain children
 1-3     and to the offenses of interference with child custody, agreement
 1-4     to abduct from custody, and enticing a child.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  Chapter 18, Code of Criminal Procedure, is
 1-7     amended by adding Article 18.022 to read as follows:
 1-8           Art. 18.022.  WARRANT TO RECOVER CHILD.  (a)  On request by a
 1-9     district attorney, criminal district attorney, or county attorney,
1-10     the court may issue a warrant to recover an unlawfully detained or
1-11     concealed child.  The request must be in the form of an affidavit
1-12     that sets forth facts showing probable cause that issuance of the
1-13     warrant is necessary to protect the child or to preserve the
1-14     court's jurisdiction over the child.
1-15           (b)  A warrant to recover a child must contain an order
1-16     authorizing a peace officer to place the child in protective
1-17     custody or return the child as directed by the court.  The warrant
1-18     may be served in any county in the same manner as a search warrant.
1-19           (c)  On a declaration by the district attorney, criminal
1-20     district attorney, or county attorney that the child who is the
1-21     subject of a warrant under this article has been recovered or that
1-22     the warrant is no longer required, the court may dismiss the
1-23     warrant without further proceedings.
1-24           (d)  If a court has issued a warrant for the recovery of a
 2-1     child, a peace officer shall take actions necessary to locate and
 2-2     to place the child in protective custody or return the child to the
 2-3     person entitled to possession of the child.
 2-4           (e)  If a person entitled to possession of the child is not
 2-5     immediately available to take possession of the child, the peace
 2-6     officer shall deliver the child to the Department of Protective and
 2-7     Regulatory Services in the manner provided for return of a missing
 2-8     child under Section 262.007, Family Code.
 2-9           SECTION 2.  Chapter 42, Code of Criminal Procedure, is
2-10     amended by adding Article 42.0371 to read as follows:
2-11           Art. 42.0371.  MANDATORY RESTITUTION FOR OFFENSES INVOLVING
2-12     CHILD CUSTODY.  (a)  The court shall order a defendant convicted of
2-13     an offense under Section 25.03, 25.031, or 25.04, Penal Code, to
2-14     pay restitution to:
2-15                 (1)  the victim of the offense in an amount equal to:
2-16                       (A)  the cost of necessary rehabilitation for the
2-17     victim, including medical, psychiatric, and psychological care and
2-18     treatment;
2-19                       (B)  the cost incurred in returning the victim to
2-20     the person entitled to possession of the victim; and
2-21                       (C)  any other cost reasonably incurred by the
2-22     victim as a result of the defendant committing the offense;
2-23                 (2)  a private entity that provided uncompensated
2-24     victim assistance services to the victim in an amount equal to the
2-25     reasonable cost of those services; and
2-26                 (3)  the district attorney or county attorney in an
2-27     amount equal to the costs incurred in returning the victim to the
 3-1     person entitled to possession of the victim.
 3-2           (b)  The court shall, after considering the financial
 3-3     circumstances of the defendant, specify in a restitution order
 3-4     issued under Subsection (a) the manner in which the defendant is
 3-5     required to pay the restitution.
 3-6           (c)  A restitution order issued under Subsection (a) may be
 3-7     enforced by the state or a victim named in the order to receive the
 3-8     restitution in the same manner as a judgment in a civil action.
 3-9           (d)  The court may hold a hearing, make findings of fact, and
3-10     amend a restitution order issued under Subsection (a) if the
3-11     defendant fails to pay the victim named in the order in the manner
3-12     specified by the court.
3-13           SECTION 3.  Section 25.03, Penal Code, is amended to read as
3-14     follows:
3-15           Sec. 25.03.  Interference With Child Custody.  (a)  A person
3-16     commits an offense if he takes or retains a child younger than 18
3-17     years when he:
3-18                 (1)  knows that his taking or retention violates the
3-19     express terms of a judgment or order of a court disposing of the
3-20     child's custody; or
3-21                 (2)  has not been awarded custody of the child by a
3-22     court of competent jurisdiction, knows that a suit for divorce or a
3-23     civil suit or application for habeas corpus to dispose of the
3-24     child's custody has been filed or will be filed, and takes the
3-25     child out of the geographic area of the counties composing the
3-26     judicial district if the court is a district court or the county if
3-27     the court is a statutory county court, without the permission of
 4-1     the court and with the intent to deprive the court of authority
 4-2     over the child.
 4-3           (b)  A noncustodial parent commits an offense if, with the
 4-4     intent to interfere with the lawful custody of a child younger than
 4-5     18 years, he knowingly entices or persuades the child to leave the
 4-6     custody of the custodial parent, guardian, or person standing in
 4-7     the stead of the custodial parent or guardian of the child.
 4-8           (c)  For the purposes of Subsection (a)(2), a person is
 4-9     presumed to know that a suit or application will be filed if:
4-10                 (1)  another person tells the actor in a manner that is
4-11     reasonably likely to inform the actor that the suit or application
4-12     will be filed;
4-13                 (2)  the suit or application is filed not later than
4-14     the 30th day after the date of the taking or retention of the
4-15     child; and
4-16                 (3)  the actor has not been awarded possession of the
4-17     child in a temporary or permanent order issued by a court.  [It is
4-18     a defense to prosecution under Subsection (a)(2) that the actor
4-19     returned the child to the geographic area of the counties composing
4-20     the judicial district if the court is a district court or the
4-21     county if the court is a statutory county court, within three days
4-22     after the date of the commission of the offense.]
4-23           (d)  An offense under this section is a [state jail] felony
4-24     of the third degree.
4-25           SECTION 4.  Section 25.031(b), Penal Code, is amended to read
4-26     as follows:
4-27           (b)  An offense under this section is a [state jail] felony
 5-1     of the third degree.
 5-2           SECTION 5.  Section 25.04(b), Penal Code, is amended to read
 5-3     as follows:
 5-4           (b)  An offense under this section is a state jail felony
 5-5     [Class B misdemeanor].
 5-6           SECTION 6.  Chapter 25, Penal Code, is amended by adding
 5-7     Sections 25.10 and 25.11 to read as follows:
 5-8           Sec. 25.10.  SUBSEQUENT CUSTODY OR VISITATION ORDER NO
 5-9     DEFENSE.  Except as provided by Section 25.11, it is not a defense
5-10     to prosecution under Section 25.03, 25.031, or 25.04 that the
5-11     actor, after committing the offense, is awarded custody or
5-12     visitation of the child by a court of competent jurisdiction.
5-13           Sec. 25.11.  NECESSITY DEFENSE FOR OFFENSES INVOLVING CHILD
5-14     CUSTODY.  (a)  It is a defense to prosecution under Section 25.03,
5-15     25.031, or 25.04 that the actor:
5-16                 (1)  believed in good faith that the actor's conduct
5-17     was immediately necessary to avoid imminent harm to the child;
5-18                 (2)  filed, not later than the 10th day after the date
5-19     of committing the offense, with the prosecuting attorney of the
5-20     county in which the child resided, a report containing the
5-21     information required by Subsection (b); and
5-22                 (3)  filed, not later than the 30th day after the date
5-23     of committing the offense, a suit for modification of the child's
5-24     custody or possession order in the court with continuing, exclusive
5-25     jurisdiction.
5-26           (b)  The report filed under Subsection (a)(2) must include:
5-27                 (1)  the name of the actor;
 6-1                 (2)  the current address and telephone number of the
 6-2     child and the actor; and
 6-3                 (3)  the reason the actor committed the offense.
 6-4           (c)  The actor shall notify the prosecuting attorney of any
 6-5     change in the address or telephone number of the actor or child.
 6-6     The address and telephone number of the child and actor are
 6-7     confidential and may not be disclosed.
 6-8           SECTION 7.  Chapter 105, Family Code, is amended by adding
 6-9     Section 105.009 to read as follows:
6-10           Sec. 105.009.  TEMPORARY EX PARTE ORDER TO PROHIBIT
6-11     ABDUCTION.  (a)  If a suit affecting the parent-child relationship
6-12     has not been filed and an order for possession of or access to the
6-13     child has not been rendered by a court having continuing, exclusive
6-14     jurisdiction, a person who has standing to file a suit affecting
6-15     the parent-child relationship may apply to a court for a temporary
6-16     ex parte order providing for possession of or access to the child.
6-17     The court may render the order without further notice to any other
6-18     member of the family or household and without a hearing if the
6-19     court finds from the information contained in the application that
6-20     there is a clear and present danger that the child may be abducted.
6-21           (b)  An order under Subsection (a) is valid for the period
6-22     specified in the order, not to exceed 30 days.  On the request of
6-23     the applicant or on the court's own motion, an order may be
6-24     extended for additional 30-day periods.
6-25           (c)  The violation of a temporary ex parte order rendered
6-26     under this section is punishable by contempt, and the order is
6-27     subject to and enforceable under Chapter 157.
 7-1           SECTION 8.  (a)  This Act takes effect September 1, 1999.
 7-2           (b)  The change in law made to Section 25.03, Penal Code, by
 7-3     this Act applies only to an offense committed on or after the
 7-4     effective date of this Act.  For purposes of this section, an
 7-5     offense is committed before the effective date of this Act if any
 7-6     element of the offense occurs before the effective date.
 7-7           (c)  An offense committed before the effective date of this
 7-8     Act is covered by the law in effect when the offense was committed,
 7-9     and the former law is continued in effect for this purpose.
7-10           SECTION 9.  The importance of this legislation and the
7-11     crowded condition of the calendars in both houses create an
7-12     emergency and an imperative public necessity that the
7-13     constitutional rule requiring bills to be read on three several
7-14     days in each house be suspended, and this rule is hereby suspended.