76R11727 KLA-D
By Cuellar H.B. No. 2124
Substitute the following for H.B. No. 2124:
By King of Parker C.S.H.B. No. 2124
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to protection of victims of family violence.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Article 17.292, Code of Criminal Procedure, is
1-5 amended to read as follows:
1-6 Art. 17.292. MAGISTRATE'S ORDER FOR EMERGENCY PROTECTION.
1-7 (a) At a defendant's appearance before a magistrate after arrest
1-8 for an offense involving family violence or an offense under
1-9 Section 42.072, Penal Code, the magistrate may issue an order for
1-10 emergency protection on the magistrate's own motion or on the
1-11 request of:
1-12 (1) the victim of the offense;
1-13 (2) the guardian of the victim;
1-14 (3) a peace officer; or
1-15 (4) the attorney representing the state.
1-16 (b) At a defendant's appearance before a magistrate after
1-17 arrest for an offense involving family violence, the magistrate
1-18 shall issue an order for emergency protection if the arrest is for
1-19 an offense that also involves:
1-20 (1) serious bodily injury to the victim; or
1-21 (2) the use or exhibition of a deadly weapon during
1-22 the commission of an assault.
1-23 (c) The magistrate in the order for emergency protection may
1-24 prohibit the arrested party from:
2-1 (1) committing:
2-2 (A) family violence or an assault on the person
2-3 protected under the order; or
2-4 (B) an act in furtherance of an offense under
2-5 Section 42.072, Penal Code;
2-6 (2) communicating:
2-7 (A) directly with a member of the family or
2-8 household or with the person protected under the order in a
2-9 threatening or harassing manner; or
2-10 (B) a threat through any person to a member of
2-11 the family or household or to the person protected under the order;
2-12 or
2-13 (3) going to or near:
2-14 (A) the residence, place of employment, or
2-15 business of a member of the family or household or of the person
2-16 protected under the order; or
2-17 (B) the residence, child care facility, or
2-18 school where a child protected under the order resides or attends.
2-19 (d) [(c)] The victim of the offense need not be present in
2-20 court when the order for emergency protection is issued.
2-21 (e) [(d)] In the order for emergency protection the
2-22 magistrate shall specifically describe the prohibited locations and
2-23 the minimum distances, if any, that the party must maintain, unless
2-24 the magistrate determines for the safety of the person or persons
2-25 protected by the order that specific descriptions of the locations
2-26 should be omitted.
2-27 (f) [(e)] To the extent that a condition imposed by an order
3-1 for emergency protection issued under this article conflicts with
3-2 an existing court order granting possession of or access to a
3-3 child, the condition imposed under this article prevails for the
3-4 duration of the order for emergency protection.
3-5 (g) [(f)] An order for emergency protection issued under
3-6 this article must contain the following statements printed in
3-7 bold-face type or in capital letters:
3-8 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
3-9 BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
3-10 CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT
3-11 RESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSE MAY BE PROSECUTED
3-12 AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS
3-13 PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY
3-14 CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS.
3-15 "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
3-16 ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
3-17 PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
3-18 VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
3-19 UNLESS A COURT CHANGES THE ORDER."
3-20 (h) [(g)] The magistrate issuing an order for emergency
3-21 protection under this article shall send a copy of the order to the
3-22 chief of police in the municipality where the member of the family
3-23 or household or individual protected by the order resides, if the
3-24 person resides in a municipality, or to the sheriff of the county
3-25 where the person resides, if the person does not reside in a
3-26 municipality. If the victim of the offense is not present when the
3-27 order is issued, the magistrate issuing the order shall order an
4-1 appropriate peace officer to make a good faith effort to notify,
4-2 within 24 hours, the victim that the order has been issued by
4-3 calling the victim's residence and place of employment. The clerk
4-4 of the court shall send a copy of the order to the victim.
4-5 (i) [(h)] If an order for emergency protection issued under
4-6 this article prohibits a person from going to or near a child care
4-7 facility or school, the magistrate shall send a copy of the order
4-8 to the child care facility or school.
4-9 (j) [(i)] An order for emergency protection issued under
4-10 this article is effective on issuance, and the defendant shall be
4-11 served a copy of the order in open court. An order for emergency
4-12 protection issued under this article remains in effect until the
4-13 31st day after the date of issuance.
4-14 (k) [(j)] To ensure that an officer responding to a call is
4-15 aware of the existence and terms of an order for emergency
4-16 protection issued under this article, each municipal police
4-17 department and sheriff shall establish a procedure within the
4-18 department or office to provide adequate information or access to
4-19 information for peace officers of the names of persons protected by
4-20 an order for emergency protection issued under this article and of
4-21 persons to whom the order is directed. The police department or
4-22 sheriff may enter an order for emergency protection issued under
4-23 this article in the department's or office's record of outstanding
4-24 warrants as notice that the order has been issued and is in effect.
4-25 (l) [(k)] In this article, "family," "family violence," and
4-26 "household" have the meanings assigned by Chapter 71 [Section
4-27 71.01], Family Code.
5-1 SECTION 2. Section 30.05(b)(2), Penal Code, is amended to
5-2 read as follows:
5-3 (2) "Notice" means:
5-4 (A) oral or written communication by the owner
5-5 or someone with apparent authority to act for the owner;
5-6 (B) fencing or other enclosure obviously
5-7 designed to exclude intruders or to contain livestock;
5-8 (C) a sign or signs posted on the property or at
5-9 the entrance to the building, reasonably likely to come to the
5-10 attention of intruders, indicating that entry is forbidden;
5-11 (D) the placement of identifying purple paint
5-12 marks on trees or posts on the property, provided that the marks
5-13 are:
5-14 (i) vertical lines of not less than eight
5-15 inches in length and not less than one inch in width;
5-16 (ii) placed so that the bottom of the mark
5-17 is not less than three feet from the ground or more than five feet
5-18 from the ground; and
5-19 (iii) placed at locations that are readily
5-20 visible to any person approaching the property and no more than:
5-21 (a) 100 feet apart on
5-22 forest land; or
5-23 (b) 1,000 feet apart on
5-24 land other than forest land; [or]
5-25 (E) the visible presence on the property of a
5-26 crop grown for human consumption that is under cultivation, in the
5-27 process of being harvested, or marketable if harvested at the time
6-1 of entry; or
6-2 (F) a written communication contained in a court
6-3 order posted on the property or delivered to a person that
6-4 prohibits the person from going to or near a specific location,
6-5 including:
6-6 (i) a temporary ex parte order or a
6-7 protective order rendered under Title 4, Family Code; or
6-8 (ii) a magistrate's order for emergency
6-9 protection rendered under Article 17.292, Code of Criminal
6-10 Procedure.
6-11 SECTION 3. Section 71.004, Family Code, is amended to read
6-12 as follows:
6-13 Sec. 71.004. FAMILY VIOLENCE. "Family violence" means:
6-14 (1) an act by a member of a family or household
6-15 against another member of the family or household that is intended
6-16 to result in physical harm, bodily injury, assault, or sexual
6-17 assault or that is a threat that reasonably places the member in
6-18 fear of [imminent] physical harm, bodily injury, assault, or sexual
6-19 assault, but does not include defensive measures to protect
6-20 oneself; or
6-21 (2) abuse, as that term is defined by Sections
6-22 261.001(1)(C), (E), and (G) by a member of a family or household
6-23 toward a child of the family or household.
6-24 SECTION 4. (a) The change in law made by Section 2 of this
6-25 Act applies only to an offense that is committed on or after the
6-26 effective date of this Act. An offense is committed before the
6-27 effective date of this Act if any element of the offense occurs
7-1 before the effective date.
7-2 (b) An offense committed before the effective date of this
7-3 Act is covered by the law in effect when the offense was
7-4 committed, and the former law is continued in effect for that
7-5 purpose.
7-6 SECTION 5. This Act takes effect September 1, 1999.
7-7 SECTION 6. The importance of this legislation and the
7-8 crowded condition of the calendars in both houses create an
7-9 emergency and an imperative public necessity that the
7-10 constitutional rule requiring bills to be read on three several
7-11 days in each house be suspended, and this rule is hereby suspended.