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                                  * * * * *