By Cuellar H.B. No. 2124
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to protective orders and the protection of victims of
1-3 family violence, including the creation of certain capital
1-4 offenses.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Article 17.292, Code of Criminal Procedure, is
1-7 amended to read as follows:
1-8 Art. 17.292. MAGISTRATE'S ORDER FOR EMERGENCY PROTECTION.
1-9 (a) At a defendant's appearance before a magistrate after arrest
1-10 for an offense involving family violence or an offense under
1-11 Section 42.072, Penal Code, the magistrate may issue an order for
1-12 emergency protection on the magistrate's own motion or on the
1-13 request of:
1-14 (1) the victim of the offense;
1-15 (2) the guardian of the victim;
1-16 (3) a peace officer; or
1-17 (4) the attorney representing the state.
1-18 (b) At a defendant's appearance before a magistrate after
1-19 arrest for an offense involving family violence, the magistrate
1-20 shall issue an order for emergency protection if the arrest is for
1-21 an offense that also involves:
1-22 (1) serious bodily injury to the victim; or
1-23 (2) the use or exhibition of a deadly weapon during
1-24 the commission of an assault.
2-1 (c) The magistrate in the order for emergency protection may
2-2 prohibit the arrested party from:
2-3 (1) committing:
2-4 (A) family violence or an assault on the person
2-5 protected under the order; or
2-6 (B) an act in furtherance of an offense under
2-7 Section 42.072, Penal Code;
2-8 (2) communicating:
2-9 (A) directly with a member of the family or
2-10 household or with the person protected under the order in a
2-11 threatening or harassing manner; or
2-12 (B) a threat through any person to a member of
2-13 the family or household or to the person protected under the order;
2-14 or
2-15 (3) going to or near:
2-16 (A) the residence, place of employment, or
2-17 business of a member of the family or household or of the person
2-18 protected under the order; or
2-19 (B) the residence, child care facility, or
2-20 school where a child protected under the order resides or attends.
2-21 (d) [(c)] The victim of the offense need not be present in
2-22 court when the order for emergency protection is issued.
2-23 (e) [(d)] In the order for emergency protection the
2-24 magistrate shall specifically describe the prohibited locations and
2-25 the minimum distances, if any, that the party must maintain, unless
2-26 the magistrate determines for the safety of the person or persons
2-27 protected by the order that specific descriptions of the locations
3-1 should be omitted.
3-2 (f) [(e)] To the extent that a condition imposed by an order
3-3 for emergency protection issued under this article conflicts with
3-4 an existing court order granting possession of or access to a
3-5 child, the condition imposed under this article prevails for the
3-6 duration of the order for emergency protection.
3-7 (g) [(f)] An order for emergency protection issued under
3-8 this article must contain the following statements printed in
3-9 bold-face type or in capital letters:
3-10 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
3-11 BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
3-12 CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT
3-13 RESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSE MAY BE PROSECUTED
3-14 AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS
3-15 PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY
3-16 CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS.
3-17 "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
3-18 ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
3-19 PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
3-20 VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
3-21 UNLESS A COURT CHANGES THE ORDER."
3-22 (h) [(g)] The magistrate issuing an order for emergency
3-23 protection under this article shall send a copy of the order to the
3-24 chief of police in the municipality where the member of the family
3-25 or household or individual protected by the order resides, if the
3-26 person resides in a municipality, or to the sheriff of the county
3-27 where the person resides, if the person does not reside in a
4-1 municipality. If the victim of the offense is not present when the
4-2 order is issued, the magistrate issuing the order shall order an
4-3 appropriate peace officer to make a good faith effort to notify,
4-4 within 24 hours, the victim that the order has been issued by
4-5 calling the victim's residence and place of employment. The clerk
4-6 of the court shall send a copy of the order to the victim.
4-7 (i) [(h)] If an order for emergency protection issued under
4-8 this article prohibits a person from going to or near a child care
4-9 facility or school, the magistrate shall send a copy of the order
4-10 to the child care facility or school.
4-11 (j) [(i)] An order for emergency protection issued under
4-12 this article is effective on issuance, and the defendant shall be
4-13 served a copy of the order in open court. An order for emergency
4-14 protection issued under this article remains in effect until the
4-15 31st day after the date of issuance.
4-16 (k) [(j)] To ensure that an officer responding to a call is
4-17 aware of the existence and terms of an order for emergency
4-18 protection issued under this article, each municipal police
4-19 department and sheriff shall establish a procedure within the
4-20 department or office to provide adequate information or access to
4-21 information for peace officers of the names of persons protected by
4-22 an order for emergency protection issued under this article and of
4-23 persons to whom the order is directed. The police department or
4-24 sheriff may enter an order for emergency protection issued under
4-25 this article in the department's or office's record of outstanding
4-26 warrants as notice that the order has been issued and is in effect.
4-27 (l) In the order for emergency protection, the magistrate
5-1 may suspend a license to carry a concealed handgun issued under
5-2 Section 411.177, Government Code, that is held by the defendant.
5-3 (m) [(k)] In this article, "family," "family violence," and
5-4 "household" have the meanings assigned by Chapter 71 [Section
5-5 71.01], Family Code.
5-6 SECTION 2. Chapter 17, Code of Criminal Procedure, is
5-7 amended by adding Article 17.293 to read as follows:
5-8 Art. 17.293. DELIVERY OF ORDER FOR EMERGENCY PROTECTION TO
5-9 OTHER PERSONS. The magistrate or the clerk of the magistrate's
5-10 court issuing an order for emergency protection under Article
5-11 17.292 that suspends a license to carry a concealed handgun shall
5-12 immediately send a copy of the order to the appropriate division of
5-13 the Department of Public Safety at its Austin headquarters. On
5-14 receipt of the order suspending the license, the department shall:
5-15 (1) record the suspension of the license in the
5-16 records of the department;
5-17 (2) report the suspension to local law enforcement
5-18 agencies, as appropriate; and
5-19 (3) demand surrender of the suspended license from the
5-20 license holder.
5-21 SECTION 3. Section 19.03(a), Penal Code, is amended to read
5-22 as follows:
5-23 (a) A person commits an offense if he commits murder as
5-24 defined under Section 19.02(b)(1) and:
5-25 (1) the person murders a peace officer or fireman who
5-26 is acting in the lawful discharge of an official duty and who the
5-27 person knows is a peace officer or fireman;
6-1 (2) the person intentionally commits the murder in the
6-2 course of committing or attempting to commit kidnapping, burglary,
6-3 robbery, aggravated sexual assault, arson, or obstruction or
6-4 retaliation;
6-5 (3) the person commits the murder for remuneration or
6-6 the promise of remuneration or employs another to commit the murder
6-7 for remuneration or the promise of remuneration;
6-8 (4) the person commits the murder while escaping or
6-9 attempting to escape from a penal institution;
6-10 (5) the person, while incarcerated in a penal
6-11 institution, murders another:
6-12 (A) who is employed in the operation of the
6-13 penal institution; or
6-14 (B) with the intent to establish, maintain, or
6-15 participate in a combination or in the profits of a combination;
6-16 (6) the person:
6-17 (A) while incarcerated for an offense under this
6-18 section or Section 19.02, murders another; or
6-19 (B) while serving a sentence of life
6-20 imprisonment or a term of 99 years for an offense under Section
6-21 20.04, 22.021, or 29.03, murders another;
6-22 (7) the person murders more than one person:
6-23 (A) during the same criminal transaction; or
6-24 (B) during different criminal transactions but
6-25 the murders are committed pursuant to the same scheme or course of
6-26 conduct; [or]
6-27 (8) the person murders an individual under six years
7-1 of age; or
7-2 (9) the person murders an individual who is protected
7-3 by an order issued under Section 6.504 or Chapter 85, Family Code,
7-4 under Article 17.292, Code of Criminal Procedure, or by another
7-5 jurisdiction as provided by Chapter 88, Family Code, while the
7-6 order is directed to the person.
7-7 SECTION 4. Section 30.05(b)(2), Penal Code, is amended to
7-8 read as follows:
7-9 (2) "Notice" means:
7-10 (A) oral or written communication by the owner
7-11 or someone with apparent authority to act for the owner;
7-12 (B) fencing or other enclosure obviously
7-13 designed to exclude intruders or to contain livestock;
7-14 (C) a sign or signs posted on the property or at
7-15 the entrance to the building, reasonably likely to come to the
7-16 attention of intruders, indicating that entry is forbidden;
7-17 (D) the placement of identifying purple paint
7-18 marks on trees or posts on the property, provided that the marks
7-19 are:
7-20 (i) vertical lines of not less than eight
7-21 inches in length and not less than one inch in width;
7-22 (ii) placed so that the bottom of the mark
7-23 is not less than three feet from the ground or more than five feet
7-24 from the ground; and
7-25 (iii) placed at locations that are readily
7-26 visible to any person approaching the property and no more than:
7-27 (a) 100 feet apart on
8-1 forest land; or
8-2 (b) 1,000 feet apart on
8-3 land other than forest land; [or]
8-4 (E) the visible presence on the property of a
8-5 crop grown for human consumption that is under cultivation, in the
8-6 process of being harvested, or marketable if harvested at the time
8-7 of entry; or
8-8 (F) a written communication contained in a court
8-9 order posted on the property or delivered to a person that
8-10 prohibits the person from going to or near a specific location,
8-11 including:
8-12 (i) a temporary ex parte order or a
8-13 protective order rendered under Title 4, Family Code; or
8-14 (ii) a magistrate's order for emergency
8-15 protection rendered under Article 17.292, Code of Criminal
8-16 Procedure.
8-17 SECTION 5. Section 71.004, Family Code, is amended to read
8-18 as follows:
8-19 Sec. 71.004. FAMILY VIOLENCE. "Family violence" means:
8-20 (1) an act by a member of a family or household
8-21 against another member of the family or household that is intended
8-22 to result in physical harm, bodily injury, assault, or sexual
8-23 assault or that is a threat that reasonably places the member in
8-24 fear of [imminent] physical harm, bodily injury, assault, or sexual
8-25 assault, but does not include defensive measures to protect
8-26 oneself; or
8-27 (2) abuse, as that term is defined by Sections
9-1 261.001(1)(C), (E), and (G) by a member of a family or household
9-2 toward a child of the family or household.
9-3 SECTION 6. Section 82.002(a), Family Code, is amended to
9-4 read as follows:
9-5 (a) An application for a protective order to protect the
9-6 applicant or any other member of the applicant's family or
9-7 household may be filed by:
9-8 (1) a [an adult] member of the family or household; or
9-9 (2) any adult for the protection of a child.
9-10 SECTION 7. Section 85.022, Family Code, is amended by adding
9-11 Subsection (d) to read as follows:
9-12 (d) In a protective order, the court may suspend a license
9-13 to carry a concealed handgun issued under Section 411.177,
9-14 Government Code, that is held by a person found to have committed
9-15 family violence.
9-16 SECTION 8. Section 85.042, Family Code, is amended by adding
9-17 Subsection (e) to read as follows:
9-18 (e) The clerk of the court issuing an original or modified
9-19 protective order under Section 85.022 that suspends a license to
9-20 carry a concealed handgun shall send a copy of the order to the
9-21 appropriate division of the Department of Public Safety at its
9-22 Austin headquarters. On receipt of the order suspending the
9-23 license, the department shall:
9-24 (1) record the suspension of the license in the
9-25 records of the department;
9-26 (2) report the suspension to local law enforcement
9-27 agencies, as appropriate; and
10-1 (3) demand surrender of the suspended license from the
10-2 license holder.
10-3 SECTION 9. Section 411.180, Government Code, is amended by
10-4 adding Subsection (i) to read as follows:
10-5 (i) This section does not apply to a suspension of a license
10-6 under Section 85.022, Family Code, or Article 17.292, Code of
10-7 Criminal Procedure.
10-8 SECTION 10. Sections 411.187(a) and (c), Government Code,
10-9 are amended to read as follows:
10-10 (a) A license may be suspended under this section if the
10-11 license holder:
10-12 (1) is charged with the commission of a Class A or
10-13 Class B misdemeanor or an offense under Section 42.01, Penal Code,
10-14 or of a felony under an information or indictment;
10-15 (2) fails to display a license as required by Section
10-16 411.205;
10-17 (3) fails to notify the department of a change of
10-18 address or name as required by Section 411.181;
10-19 (4) carries a concealed handgun under the authority of
10-20 this subchapter of a different category than the license holder is
10-21 licensed to carry; [or]
10-22 (5) fails to return a previously issued license after
10-23 a license is modified as required by Section 411.184(d);
10-24 (6) commits an act of family violence and is the
10-25 subject of an active protective order rendered under Title 4,
10-26 Family Code; or
10-27 (7) is arrested for an offense involving family
11-1 violence or an offense under Section 42.072, Penal Code, and is the
11-2 subject of an order for emergency protection issued under Article
11-3 17.292, Code of Criminal Procedure.
11-4 (c) A license may be suspended under this section:
11-5 (1) for 30 days, if the person's license is subject to
11-6 suspension for a reason listed in Subsection (a)(3), (4), or (5),
11-7 except as provided by Subdivision (3);
11-8 (2) for 90 days, if the person's license is subject to
11-9 suspension for a reason listed in Subsection (a)(2), except as
11-10 provided by Subdivision (3);
11-11 (3) for not less than one year and not more than three
11-12 years if the person's license is subject to suspension for a reason
11-13 listed in Subsection (a), other than the reason listed in
11-14 Subsection (a)(1), and the person's license has been previously
11-15 suspended for the same reason; [or]
11-16 (4) until dismissal of the charges if the person's
11-17 license is subject to suspension for the reason listed in
11-18 Subsection (a)(1); or
11-19 (5) for the duration of or the period specified by:
11-20 (A) the protective order issued under Title 4,
11-21 Family Code, if the person's license is subject to suspension for
11-22 the reason listed in Subsection (a)(6); or
11-23 (B) the order for emergency protection issued
11-24 under Article 17.292, Code of Criminal Procedure, if the person's
11-25 license is subject to suspension for the reason listed in
11-26 Subsection (a)(7).
11-27 SECTION 11. (a) In accordance with Section 311.031(c),
12-1 Government Code, which gives effect to a substantive amendment
12-2 enacted by the same legislature that codifies the amended statute,
12-3 the text of Sections 411.187(a) and (c), Government Code, as set
12-4 out in Section 10 of this Act, gives effect to changes made by
12-5 Chapter 1261, Acts of the 75th Legislature, Regular Session, 1997.
12-6 (b) To the extent of any conflict, this Act prevails over
12-7 another Act of the 76th Legislature, Regular Session, 1999,
12-8 relating to nonsubstantive additions to and corrections in enacted
12-9 codes.
12-10 SECTION 12. (a) The change in law made by Section 4 of this
12-11 Act applies only to an offense that is committed on or after the
12-12 effective date of this Act. An offense is committed before the
12-13 effective date of this Act if any element of the offense occurs
12-14 before the effective date.
12-15 (b) An offense committed before the effective date of this
12-16 Act is covered by the law in effect when the offense was
12-17 committed, and the former law is continued in effect for that
12-18 purpose.
12-19 SECTION 13. This Act takes effect September 1, 1999.
12-20 SECTION 14. The importance of this legislation and the
12-21 crowded condition of the calendars in both houses create an
12-22 emergency and an imperative public necessity that the
12-23 constitutional rule requiring bills to be read on three several
12-24 days in each house be suspended, and this rule is hereby suspended.