By Wise H.B. No. 288
76R2319 KEL-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the prosecution of, the punishment for, and venue in
1-3 the prosecution of the offenses of interference with child custody,
1-4 agreement 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 13, Code of Criminal Procedure, is
1-7 amended by adding Article 13.28 to read as follows:
1-8 Art. 13.28. OFFENSES INVOLVING CHILD CUSTODY. An offense
1-9 under Section 25.03, 25.031, or 25.04, Penal Code, may be
1-10 prosecuted in the county in which:
1-11 (1) the offense was committed;
1-12 (2) the child was found;
1-13 (3) the parent, guardian, or other person having
1-14 lawful custody or physical possession of the child resides; or
1-15 (4) the governmental agency having custody or physical
1-16 possession of the child under court order is located.
1-17 SECTION 2. Chapter 42, Code of Criminal Procedure, is
1-18 amended by adding Article 42.0371 to read as follows:
1-19 Art. 42.0371. MANDATORY RESTITUTION FOR OFFENSES INVOLVING
1-20 CHILD CUSTODY. (a) The court shall order a defendant convicted of
1-21 an offense under Section 25.03, 25.031, or 25.04, Penal Code, to
1-22 pay restitution:
1-23 (1) to the victim of the offense in an amount equal
1-24 to:
2-1 (A) the cost of necessary rehabilitation for the
2-2 victim, including medical, psychiatric, and psychological care and
2-3 treatment;
2-4 (B) the cost incurred in returning the victim to
2-5 the parent, guardian, or other person having lawful custody or
2-6 physical possession of the victim; and
2-7 (C) any other cost reasonably incurred by the
2-8 victim as a result of the defendant committing the offense; and
2-9 (2) to a private entity that provided uncompensated
2-10 victim assistance services to the victim in an amount equal to the
2-11 reasonable cost of those services.
2-12 (b) The court shall, after considering the financial
2-13 circumstances of the defendant, specify in a restitution order
2-14 issued under Subsection (a) the manner in which the defendant is
2-15 required to pay the restitution.
2-16 (c) A restitution order issued under Subsection (a) may be
2-17 enforced by the state or a victim named in the order to receive the
2-18 restitution in the same manner as a judgment in a civil action.
2-19 (d) The court may hold a hearing, make findings of fact, and
2-20 amend a restitution order issued under Subsection (a) if the
2-21 defendant fails to pay the victim named in the order in the manner
2-22 specified by the court.
2-23 SECTION 3. Sections 25.03(c) and (d), Penal Code, are
2-24 amended to read as follows:
2-25 (c) [It is a defense to prosecution under Subsection (a)(2)
2-26 that the actor returned the child to the geographic area of the
2-27 counties composing the judicial district if the court is a district
3-1 court or the county if the court is a statutory county court,
3-2 within three days after the date of the commission of the offense.]
3-3 [(d)] An offense under this section is a [state jail] felony
3-4 of the third degree.
3-5 SECTION 4. Section 25.031(b), Penal Code, is amended to read
3-6 as follows:
3-7 (b) An offense under this section is a [state jail] felony
3-8 of the third degree.
3-9 SECTION 5. Section 25.04(b), Penal Code, is amended to read
3-10 as follows:
3-11 (b) An offense under this section is a state jail felony
3-12 [Class B misdemeanor].
3-13 SECTION 6. Chapter 25, Penal Code, is amended by adding
3-14 Sections 25.10 and 25.11 to read as follows:
3-15 Sec. 25.10. SUBSEQUENT CUSTODY OR VISITATION ORDER NO
3-16 DEFENSE. Except as provided by Section 25.11, it is not a defense
3-17 to prosecution under Section 25.03, 25.031, or 25.04 that the
3-18 actor, after committing the offense, is awarded custody or
3-19 visitation of the child by a court of competent jurisdiction.
3-20 Sec. 25.11. NECESSITY DEFENSE FOR OFFENSES INVOLVING CHILD
3-21 CUSTODY. (a) It is a defense to prosecution under Section 25.03,
3-22 25.031, or 25.04, that the actor:
3-23 (1) believed in good faith that the actor's conduct
3-24 was immediately necessary to avoid imminent harm to the child; and
3-25 (2) filed, not later than 72 hours after committing
3-26 the offense, a suit for modification of the child's custody or
3-27 possession order in the court with continuing, exclusive
4-1 jurisdiction.
4-2 (b) A petition requesting modification of a custody or
4-3 possession order under Subsection (a)(2) must include documentation
4-4 of the harm that the actor sought to avoid by committing the
4-5 offense.
4-6 SECTION 7. (a) The change in law made by this Act applies
4-7 only to an offense, or the venue for the trial of an offense,
4-8 committed on or after the effective date of this Act. For purposes
4-9 of this section, an offense is committed before the effective date
4-10 of this Act if any element of the offense occurs before that date.
4-11 (b) An offense, or the venue for the trial of an offense,
4-12 committed before the effective date of this Act is covered by the
4-13 law in effect when the offense was committed, and the former law is
4-14 continued in effect for that purpose.
4-15 SECTION 8. This Act takes effect September 1, 1999.
4-16 SECTION 9. The importance of this legislation and the
4-17 crowded condition of the calendars in both houses create an
4-18 emergency and an imperative public necessity that the
4-19 constitutional rule requiring bills to be read on three several
4-20 days in each house be suspended, and this rule is hereby suspended.