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.