1-1 By: Cuellar (Senate Sponsor - Ellis) H.B. No. 2124
1-2 (In the Senate - Received from the House May 10, 1999;
1-3 May 10, 1999, read first time and referred to Committee on
1-4 Jurisprudence; May 14, 1999, reported favorably, as amended, by the
1-5 following vote: Yeas 4, Nays 0; May 14, 1999, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: Ellis
1-7 Amend H.B. 2124 as follows:
1-8 1 On page 3, line 41 strike subsection (9).
1-9 2 On page 4, line 5 strike subsection (F).
1-10 3 On page 4, line 21 unstrike "imminent".
1-11 4 On page 4, line 32 strike "a" and unstrike "an adult".
1-12 A BILL TO BE ENTITLED
1-13 AN ACT
1-14 relating to protective orders and the protection of victims of
1-15 family violence, including the creation of certain capital
1-16 offenses.
1-17 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-18 SECTION 1. Article 17.292, Code of Criminal Procedure, is
1-19 amended to read as follows:
1-20 Art. 17.292. MAGISTRATE'S ORDER FOR EMERGENCY PROTECTION.
1-21 (a) At a defendant's appearance before a magistrate after arrest
1-22 for an offense involving family violence or an offense under
1-23 Section 42.072, Penal Code, the magistrate may issue an order for
1-24 emergency protection on the magistrate's own motion or on the
1-25 request of:
1-26 (1) the victim of the offense;
1-27 (2) the guardian of the victim;
1-28 (3) a peace officer; or
1-29 (4) the attorney representing the state.
1-30 (b) At a defendant's appearance before a magistrate after
1-31 arrest for an offense involving family violence, the magistrate
1-32 shall issue an order for emergency protection if the arrest is for
1-33 an offense that also involves:
1-34 (1) serious bodily injury to the victim; or
1-35 (2) the use or exhibition of a deadly weapon during
1-36 the commission of an assault.
1-37 (c) The magistrate in the order for emergency protection may
1-38 prohibit the arrested party from:
1-39 (1) committing:
1-40 (A) family violence or an assault on the person
1-41 protected under the order; or
1-42 (B) an act in furtherance of an offense under
1-43 Section 42.072, Penal Code;
1-44 (2) communicating:
1-45 (A) directly with a member of the family or
1-46 household or with the person protected under the order in a
1-47 threatening or harassing manner; or
1-48 (B) a threat through any person to a member of
1-49 the family or household or to the person protected under the order;
1-50 or
1-51 (3) going to or near:
1-52 (A) the residence, place of employment, or
1-53 business of a member of the family or household or of the person
1-54 protected under the order; or
1-55 (B) the residence, child care facility, or
1-56 school where a child protected under the order resides or attends.
1-57 (d) [(c)] The victim of the offense need not be present in
1-58 court when the order for emergency protection is issued.
1-59 (e) [(d)] In the order for emergency protection the
1-60 magistrate shall specifically describe the prohibited locations and
1-61 the minimum distances, if any, that the party must maintain, unless
1-62 the magistrate determines for the safety of the person or persons
1-63 protected by the order that specific descriptions of the locations
2-1 should be omitted.
2-2 (f) [(e)] To the extent that a condition imposed by an order
2-3 for emergency protection issued under this article conflicts with
2-4 an existing court order granting possession of or access to a
2-5 child, the condition imposed under this article prevails for the
2-6 duration of the order for emergency protection.
2-7 (g) [(f)] An order for emergency protection issued under
2-8 this article must contain the following statements printed in
2-9 bold-face type or in capital letters:
2-10 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
2-11 BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
2-12 CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT
2-13 RESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSE MAY BE PROSECUTED
2-14 AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS
2-15 PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY
2-16 CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS.
2-17 "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
2-18 ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
2-19 PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
2-20 VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
2-21 UNLESS A COURT CHANGES THE ORDER."
2-22 (h) [(g)] The magistrate issuing an order for emergency
2-23 protection under this article shall send a copy of the order to the
2-24 chief of police in the municipality where the member of the family
2-25 or household or individual protected by the order resides, if the
2-26 person resides in a municipality, or to the sheriff of the county
2-27 where the person resides, if the person does not reside in a
2-28 municipality. If the victim of the offense is not present when the
2-29 order is issued, the magistrate issuing the order shall order an
2-30 appropriate peace officer to make a good faith effort to notify,
2-31 within 24 hours, the victim that the order has been issued by
2-32 calling the victim's residence and place of employment. The clerk
2-33 of the court shall send a copy of the order to the victim.
2-34 (i) [(h)] If an order for emergency protection issued under
2-35 this article prohibits a person from going to or near a child care
2-36 facility or school, the magistrate shall send a copy of the order
2-37 to the child care facility or school.
2-38 (j) [(i)] An order for emergency protection issued under
2-39 this article is effective on issuance, and the defendant shall be
2-40 served a copy of the order in open court. An order for emergency
2-41 protection issued under this article remains in effect until the
2-42 31st day after the date of issuance.
2-43 (k) [(j)] To ensure that an officer responding to a call is
2-44 aware of the existence and terms of an order for emergency
2-45 protection issued under this article, each municipal police
2-46 department and sheriff shall establish a procedure within the
2-47 department or office to provide adequate information or access to
2-48 information for peace officers of the names of persons protected by
2-49 an order for emergency protection issued under this article and of
2-50 persons to whom the order is directed. The police department or
2-51 sheriff may enter an order for emergency protection issued under
2-52 this article in the department's or office's record of outstanding
2-53 warrants as notice that the order has been issued and is in effect.
2-54 (l) In the order for emergency protection, the magistrate
2-55 may suspend a license to carry a concealed handgun issued under
2-56 Section 411.177, Government Code, that is held by the defendant.
2-57 (m) [(k)] In this article, "family," "family violence," and
2-58 "household" have the meanings assigned by Chapter 71 [Section
2-59 71.01], Family Code.
2-60 SECTION 2. Chapter 17, Code of Criminal Procedure, is
2-61 amended by adding Article 17.293 to read as follows:
2-62 Art. 17.293. DELIVERY OF ORDER FOR EMERGENCY PROTECTION TO
2-63 OTHER PERSONS. The magistrate or the clerk of the magistrate's
2-64 court issuing an order for emergency protection under Article
2-65 17.292 that suspends a license to carry a concealed handgun shall
2-66 immediately send a copy of the order to the appropriate division of
2-67 the Department of Public Safety at its Austin headquarters. On
2-68 receipt of the order suspending the license, the department shall:
2-69 (1) record the suspension of the license in the
3-1 records of the department;
3-2 (2) report the suspension to local law enforcement
3-3 agencies, as appropriate; and
3-4 (3) demand surrender of the suspended license from the
3-5 license holder.
3-6 SECTION 3. Section 19.03(a), Penal Code, is amended to read
3-7 as follows:
3-8 (a) A person commits an offense if he commits murder as
3-9 defined under Section 19.02(b)(1) and:
3-10 (1) the person murders a peace officer or fireman who
3-11 is acting in the lawful discharge of an official duty and who the
3-12 person knows is a peace officer or fireman;
3-13 (2) the person intentionally commits the murder in the
3-14 course of committing or attempting to commit kidnapping, burglary,
3-15 robbery, aggravated sexual assault, arson, or obstruction or
3-16 retaliation;
3-17 (3) the person commits the murder for remuneration or
3-18 the promise of remuneration or employs another to commit the murder
3-19 for remuneration or the promise of remuneration;
3-20 (4) the person commits the murder while escaping or
3-21 attempting to escape from a penal institution;
3-22 (5) the person, while incarcerated in a penal
3-23 institution, murders another:
3-24 (A) who is employed in the operation of the
3-25 penal institution; or
3-26 (B) with the intent to establish, maintain, or
3-27 participate in a combination or in the profits of a combination;
3-28 (6) the person:
3-29 (A) while incarcerated for an offense under this
3-30 section or Section 19.02, murders another; or
3-31 (B) while serving a sentence of life
3-32 imprisonment or a term of 99 years for an offense under Section
3-33 20.04, 22.021, or 29.03, murders another;
3-34 (7) the person murders more than one person:
3-35 (A) during the same criminal transaction; or
3-36 (B) during different criminal transactions but
3-37 the murders are committed pursuant to the same scheme or course of
3-38 conduct; [or]
3-39 (8) the person murders an individual under six years
3-40 of age; or
3-41 (9) the person murders an individual who is protected
3-42 by an order issued under Section 6.504 or Chapter 85, Family Code,
3-43 under Article 17.292, Code of Criminal Procedure, or by another
3-44 jurisdiction as provided by Chapter 88, Family Code, while the
3-45 order is directed to the person.
3-46 SECTION 4. Section 30.05(b)(2), Penal Code, is amended to
3-47 read as follows:
3-48 (2) "Notice" means:
3-49 (A) oral or written communication by the owner
3-50 or someone with apparent authority to act for the owner;
3-51 (B) fencing or other enclosure obviously
3-52 designed to exclude intruders or to contain livestock;
3-53 (C) a sign or signs posted on the property or at
3-54 the entrance to the building, reasonably likely to come to the
3-55 attention of intruders, indicating that entry is forbidden;
3-56 (D) the placement of identifying purple paint
3-57 marks on trees or posts on the property, provided that the marks
3-58 are:
3-59 (i) vertical lines of not less than eight
3-60 inches in length and not less than one inch in width;
3-61 (ii) placed so that the bottom of the mark
3-62 is not less than three feet from the ground or more than five feet
3-63 from the ground; and
3-64 (iii) placed at locations that are readily
3-65 visible to any person approaching the property and no more than:
3-66 (a) 100 feet apart on
3-67 forest land; or
3-68 (b) 1,000 feet apart on
3-69 land other than forest land; [or]
4-1 (E) the visible presence on the property of a
4-2 crop grown for human consumption that is under cultivation, in the
4-3 process of being harvested, or marketable if harvested at the time
4-4 of entry; or
4-5 (F) a written communication contained in a court
4-6 order posted on the property or delivered to a person that
4-7 prohibits the person from going to or near a specific location,
4-8 including:
4-9 (i) a temporary ex parte order or a
4-10 protective order rendered under Title 4, Family Code; or
4-11 (ii) a magistrate's order for emergency
4-12 protection rendered under Article 17.292, Code of Criminal
4-13 Procedure.
4-14 SECTION 5. Section 71.004, Family Code, is amended to read
4-15 as follows:
4-16 Sec. 71.004. FAMILY VIOLENCE. "Family violence" means:
4-17 (1) an act by a member of a family or household
4-18 against another member of the family or household that is intended
4-19 to result in physical harm, bodily injury, assault, or sexual
4-20 assault or that is a threat that reasonably places the member in
4-21 fear of [imminent] physical harm, bodily injury, assault, or sexual
4-22 assault, but does not include defensive measures to protect
4-23 oneself; or
4-24 (2) abuse, as that term is defined by Sections
4-25 261.001(1)(C), (E), and (G) by a member of a family or household
4-26 toward a child of the family or household.
4-27 SECTION 6. Section 82.002(a), Family Code, is amended to
4-28 read as follows:
4-29 (a) An application for a protective order to protect the
4-30 applicant or any other member of the applicant's family or
4-31 household may be filed by:
4-32 (1) a [an adult] member of the family or household; or
4-33 (2) any adult for the protection of a child.
4-34 SECTION 7. Section 85.022, Family Code, is amended by adding
4-35 Subsection (d) to read as follows:
4-36 (d) In a protective order, the court may suspend a license
4-37 to carry a concealed handgun issued under Section 411.177,
4-38 Government Code, that is held by a person found to have committed
4-39 family violence.
4-40 SECTION 8. Section 85.042, Family Code, is amended by adding
4-41 Subsection (e) to read as follows:
4-42 (e) The clerk of the court issuing an original or modified
4-43 protective order under Section 85.022 that suspends a license to
4-44 carry a concealed handgun shall send a copy of the order to the
4-45 appropriate division of the Department of Public Safety at its
4-46 Austin headquarters. On receipt of the order suspending the
4-47 license, the department shall:
4-48 (1) record the suspension of the license in the
4-49 records of the department;
4-50 (2) report the suspension to local law enforcement
4-51 agencies, as appropriate; and
4-52 (3) demand surrender of the suspended license from the
4-53 license holder.
4-54 SECTION 9. Section 411.180, Government Code, is amended by
4-55 adding Subsection (i) to read as follows:
4-56 (i) This section does not apply to a suspension of a license
4-57 under Section 85.022, Family Code, or Article 17.292, Code of
4-58 Criminal Procedure.
4-59 SECTION 10. Sections 411.187(a) and (c), Government Code,
4-60 are amended to read as follows:
4-61 (a) A license may be suspended under this section if the
4-62 license holder:
4-63 (1) is charged with the commission of a Class A or
4-64 Class B misdemeanor or an offense under Section 42.01, Penal Code,
4-65 or of a felony under an information or indictment;
4-66 (2) fails to display a license as required by Section
4-67 411.205;
4-68 (3) fails to notify the department of a change of
4-69 address or name as required by Section 411.181;
5-1 (4) carries a concealed handgun under the authority of
5-2 this subchapter of a different category than the license holder is
5-3 licensed to carry; [or]
5-4 (5) fails to return a previously issued license after
5-5 a license is modified as required by Section 411.184(d);
5-6 (6) commits an act of family violence and is the
5-7 subject of an active protective order rendered under Title 4,
5-8 Family Code; or
5-9 (7) is arrested for an offense involving family
5-10 violence or an offense under Section 42.072, Penal Code, and is the
5-11 subject of an order for emergency protection issued under Article
5-12 17.292, Code of Criminal Procedure.
5-13 (c) A license may be suspended under this section:
5-14 (1) for 30 days, if the person's license is subject to
5-15 suspension for a reason listed in Subsection (a)(3), (4), or (5),
5-16 except as provided by Subdivision (3);
5-17 (2) for 90 days, if the person's license is subject to
5-18 suspension for a reason listed in Subsection (a)(2), except as
5-19 provided by Subdivision (3);
5-20 (3) for not less than one year and not more than three
5-21 years if the person's license is subject to suspension for a reason
5-22 listed in Subsection (a), other than the reason listed in
5-23 Subsection (a)(1), and the person's license has been previously
5-24 suspended for the same reason; [or]
5-25 (4) until dismissal of the charges if the person's
5-26 license is subject to suspension for the reason listed in
5-27 Subsection (a)(1); or
5-28 (5) for the duration of or the period specified by:
5-29 (A) the protective order issued under Title 4,
5-30 Family Code, if the person's license is subject to suspension for
5-31 the reason listed in Subsection (a)(6); or
5-32 (B) the order for emergency protection issued
5-33 under Article 17.292, Code of Criminal Procedure, if the person's
5-34 license is subject to suspension for the reason listed in
5-35 Subsection (a)(7).
5-36 SECTION 11. (a) In accordance with Section 311.031(c),
5-37 Government Code, which gives effect to a substantive amendment
5-38 enacted by the same legislature that codifies the amended statute,
5-39 the text of Sections 411.187(a) and (c), Government Code, as set
5-40 out in Section 10 of this Act, gives effect to changes made by
5-41 Chapter 1261, Acts of the 75th Legislature, Regular Session, 1997.
5-42 (b) To the extent of any conflict, this Act prevails over
5-43 another Act of the 76th Legislature, Regular Session, 1999,
5-44 relating to nonsubstantive additions to and corrections in enacted
5-45 codes.
5-46 SECTION 12. (a) The change in law made by Section 4 of this
5-47 Act applies only to an offense that is committed on or after the
5-48 effective date of this Act. An offense is committed before the
5-49 effective date of this Act if any element of the offense occurs
5-50 before the effective date.
5-51 (b) An offense committed before the effective date of this
5-52 Act is covered by the law in effect when the offense was
5-53 committed, and the former law is continued in effect for that
5-54 purpose.
5-55 SECTION 13. This Act takes effect September 1, 1999.
5-56 SECTION 14. The importance of this legislation and the
5-57 crowded condition of the calendars in both houses create an
5-58 emergency and an imperative public necessity that the
5-59 constitutional rule requiring bills to be read on three several
5-60 days in each house be suspended, and this rule is hereby suspended.
5-61 * * * * *