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.