By Solis of Cameron H.B. No. 1077
76R321 JMC-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the issuance of an order for emergency protection after
1-3 a defendant's appearance before a magistrate.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Article 17.292, Code of Criminal Procedure, is
1-6 amended to read as follows:
1-7 Art. 17.292. MAGISTRATE'S ORDER FOR EMERGENCY PROTECTION.
1-8 (a) At a defendant's appearance before a magistrate after arrest
1-9 for an offense involving family violence or an offense under
1-10 Section 42.072, Penal Code, the magistrate may issue an order for
1-11 emergency protection on the magistrate's own motion or on the
1-12 request of:
1-13 (1) the victim of the offense;
1-14 (2) the guardian of the victim;
1-15 (3) a peace officer; or
1-16 (4) the attorney representing the state.
1-17 (b) After a defendant's appearance before a magistrate as
1-18 provided by Subsection (a), the magistrate, on request of the
1-19 victim of the offense or the guardian of the victim, may issue an
1-20 order for emergency protection not later than the third day after
1-21 the date the defendant was arrested if the magistrate finds that
1-22 there is a clear and present danger that family violence or conduct
1-23 described by Section 42.072, Penal Code, will occur.
1-24 (c) Before issuing an order for emergency protection under
2-1 Subsection (b), the magistrate may provide the defendant with an
2-2 opportunity to appear before the magistrate and, by telephone or
2-3 summons, notify the defendant of the opportunity. Without regard
2-4 to whether the defendant is able to appear before the magistrate,
2-5 the magistrate shall decide the request for an order for emergency
2-6 protection before the end of the working day that the request is
2-7 made.
2-8 (d) The magistrate in the order for emergency protection may
2-9 prohibit the arrested party from:
2-10 (1) committing:
2-11 (A) family violence or an assault on the person
2-12 protected under the order; or
2-13 (B) an act in furtherance of an offense under
2-14 Section 42.072, Penal Code;
2-15 (2) communicating:
2-16 (A) directly with a member of the family or
2-17 household or with the person protected under the order in a
2-18 threatening or harassing manner; or
2-19 (B) a threat through any person to a member of
2-20 the family or household or to the person protected under the order;
2-21 or
2-22 (3) going to or near:
2-23 (A) the residence, place of employment, or
2-24 business of a member of the family or household or of the person
2-25 protected under the order; or
2-26 (B) the residence, child care facility, or
2-27 school where a child protected under the order resides or attends.
3-1 (e) [(c)] The victim of the offense need not be present in
3-2 court when the order for emergency protection is issued.
3-3 (f) [(d)] In the order for emergency protection the
3-4 magistrate shall specifically describe the prohibited locations and
3-5 the minimum distances, if any, that the party must maintain, unless
3-6 the magistrate determines for the safety of the person or persons
3-7 protected by the order that specific descriptions of the locations
3-8 should be omitted.
3-9 (g) [(e)] To the extent that a condition imposed by an order
3-10 for emergency protection issued under this article conflicts with
3-11 an existing court order granting possession of or access to a
3-12 child, the condition imposed under this article prevails for the
3-13 duration of the order for emergency protection.
3-14 (h) [(f)] An order for emergency protection issued under
3-15 this article must contain the following statements printed in
3-16 bold-face type or in capital letters:
3-17 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
3-18 BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
3-19 CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT
3-20 RESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSE MAY BE PROSECUTED
3-21 AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS
3-22 PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY
3-23 CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS.
3-24 "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
3-25 ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
3-26 PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
3-27 VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
4-1 UNLESS A COURT CHANGES THE ORDER."
4-2 (i) [(g)] The magistrate issuing an order for emergency
4-3 protection under this article shall send a copy of the order to the
4-4 chief of police in the municipality where the member of the family
4-5 or household or individual protected by the order resides, if the
4-6 person resides in a municipality, or to the sheriff of the county
4-7 where the person resides, if the person does not reside in a
4-8 municipality. If the victim of the offense is not present when the
4-9 order is issued, the magistrate issuing the order shall order an
4-10 appropriate peace officer to make a good faith effort to notify,
4-11 within 24 hours, the victim that the order has been issued by
4-12 calling the victim's residence and place of employment. The clerk
4-13 of the court shall send a copy of the order to the victim.
4-14 (j) [(h)] If an order for emergency protection issued under
4-15 this article prohibits a person from going to or near a child care
4-16 facility or school, the magistrate shall send a copy of the order
4-17 to the child care facility or school.
4-18 (k) [(i)] An order for emergency protection issued under
4-19 this article is effective on issuance, and the defendant shall be
4-20 served a copy of the order:
4-21 (1) in open court, if the order is issued under
4-22 Subsection (a); or
4-23 (2) in the same manner as citation under the Texas
4-24 Rules of Civil Procedure, except that service by publication is not
4-25 authorized, if the order is issued under Subsection (b).
4-26 (l) An order for emergency protection issued under this
4-27 article remains in effect until the 31st day after the date of
5-1 issuance.
5-2 (m) [(j)] To ensure that an officer responding to a call is
5-3 aware of the existence and terms of an order for emergency
5-4 protection issued under this article, each municipal police
5-5 department and sheriff shall establish a procedure within the
5-6 department or office to provide adequate information or access to
5-7 information for peace officers of the names of persons protected by
5-8 an order for emergency protection issued under this article and of
5-9 persons to whom the order is directed. The police department or
5-10 sheriff may enter an order for emergency protection issued under
5-11 this article in the department's or office's record of outstanding
5-12 warrants as notice that the order has been issued and is in effect.
5-13 (n) [(k)] In this article, "family," "family violence," and
5-14 "household" have the meanings assigned by Chapter 71 [Section
5-15 71.01], Family Code.
5-16 SECTION 2. The change in law made by this Act applies only
5-17 to a defendant arrested for an offense committed on or after the
5-18 effective date of this Act. A defendant arrested for an offense
5-19 committed before the effective date of this Act is covered by the
5-20 law in effect when the offense was committed, and the former law is
5-21 continued in effect for that purpose. For purposes of this
5-22 section, an offense was committed before the effective date of this
5-23 Act if any element of the offense occurred before that date.
5-24 SECTION 3. This Act takes effect September 1, 1999.
5-25 SECTION 4. The importance of this legislation and the
5-26 crowded condition of the calendars in both houses create an
5-27 emergency and an imperative public necessity that the
6-1 constitutional rule requiring bills to be read on three several
6-2 days in each house be suspended, and this rule is hereby suspended.