SRC-BWC H.B. 691 77(R)   BILL ANALYSIS


Senate Research Center   H.B. 691
By: Thompson (Harris)
Jurisprudence
5/10/2001
Engrossed


DIGEST AND PURPOSE 

Prior to 1995, child support was the only type of family support that could
be ordered in Texas and the only type of support for which wages could be
garnished.  The 1995 welfare reform bill included a provision for limited
spousal maintenance; however, spousal maintenance was difficult to enforce
without a garnishment provision. Legislation enacted in 1999 authorized
garnishment of the wages of a person ordered to pay spousal maintenance.
Although a court is now able to enforce spousal maintenance payments,
current law does not grant child support priority over spousal maintenance
or clearly limit all support to 50 percent of an obligor's earnings.  H.B.
691 establishes provisions regarding income withholding for spousal
maintenance, including granting priority to child support payments and
limiting the amount of support an obligor is required to pay.  

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 8, Family Code, as follows:

CHAPTER 8.  MAINTENANCE

SUBCHAPTER A.  GENERAL PROVISIONS

Sec. 8.001.  DEFINITIONS.  Defines "notice of application for a writ of
withholding," "obligee," "obligor," and "writ of withholding." 

[Sections 8.002-8.050 reserved for expansion]

SUBCHAPTER B.  COURT-ORDERED MAINTENANCE

Sec. 8.051.  ELIGIBILITY FOR MAINTENANCE; COURT ORDER.  Redesignates
Section 8.002 as Section 8.051.  Deletes text that authorized a court to
enforce an order for spousal maintenance by ordering garnishment of the
wages of the person ordered to pay the maintenance or by any other means
available under Section 8.009.  Makes a conforming change. 

Sec. 8.052.  FACTORS IN DETERMINING MAINTENANCE.  Redesignates Section
8.003 as Section 8.052. 

 Sec. 8.053.  PRESUMPTION.  Redesignates Section 8.004 as Section 8.053.  

Sec. 8.054.  DURATION OF MAINTENANCE ORDER.  Redesignates Section 8.005 as
Section 8.054.  Makes a conforming change. 
 
Sec. 8.055.  AMOUNT OF MAINTENANCE.  Redesignates Section 8.006 as Section
8.055. Makes references to "spouse" as "obligor" and "spouse receiving the
maintenance" as "obligee."  Makes conforming changes. 

Sec. 8.056.  TERMINATION.   Redesignates Section 8.007 as Section 8.056.
Makes a reference to "party receiving maintenance" as "obligee."  Makes a
conforming change. 

Sec. 8.057.  MODIFICATION OF MAINTENANCE ORDER.  Redesignates Section 8.008
as Section 8.057.   

Sec. 8.058.  MAINTENANCE ARREARAGES.  Provides that a spousal maintenance
payment not timely made constitutes an arrearage.   

Sec. 8.059.  ENFORCEMENT OF MAINTENANCE ORDER.  Redesignates Section 8.009
as Section 8.059.  Authorizes a court to enforce an order for spousal
maintenance under this chapter by ordering garnishment of the obligor's
wages or by any other means available under this section.  Makes conforming
and nonsubstantive changes. 

 Sec. 8.060.  PUTATIVE SPOUSE.  Redesignates Section 8.010 as Section 8.060.

Sec. 8.061.  UNMARRIED COHABITANTS.  Redesignates Section 8.011 as Section
8.061. 

[Sections 8.062-8.100 reserved for expansion]

SUBCHAPTER C.  INCOME WITHHOLDING

Sec. 8.101.  INCOME WITHHOLDING; GENERAL RULE.  Authorizes the court to
order that income be withheld from the disposable earnings of the obligor
as provided by this chapter, in a proceeding in which periodic payments of
spousal maintenance are ordered, modified, or enforced.  Provides that this
subchapter does not apply to contractual alimony or spousal maintenance,
regardless of whether the alimony or maintenance is taxable, except under
certain circumstances.  Authorizes an order or writ of withholding for
spousal maintenance to be combined with an order or writ of withholding for
child support only if the obligee has been appointed managing conservator
of the child for whom the child support is owed and is the conservator with
whom the child primarily resides.  Requires an order or writ of withholding
that combines withholding for spousal maintenance and child support to meet
certain requirements.  Provides that garnishment for the purposes of
spousal maintenance does not apply to unemployment insurance benefit
payments. 

Sec. 8.102.  WITHHOLDING FOR ARREARAGES IN ADDITION TO CURRENT SPOUSAL
MAINTENANCE.  Authorizes the court, in addition to income withheld for
current spousal maintenance, to order that income be withheld from the
disposable earnings of the obligor to be applied toward the liquidation of
any arrearages.  Requires the additional amount withheld to be applied
toward arrearages to be whichever of the following amounts will discharge
the arrearages in the least amount of time:  an amount sufficient to
discharge the arrearages in not more than two years, or 20 percent of the
amount withheld for current maintenance. 

Sec. 8.103.  WITHHOLDING FOR ARREARAGES WHEN CURRENT MAINTENANCE IS NOT
DUE.  Authorizes a court to order income withholding to be applied toward
arrearages in an amount sufficient to discharge those arrearages in not
more than two years if current spousal maintenance is no longer owed. 

Sec. 8.104.  WITHHOLDING TO SATISFY JUDGMENT FOR ARREARAGES.  Authorizes
the court, in rendering a cumulative judgment for arrearages, to order that
a reasonable amount of income be withheld from the disposable earnings of
the obligor to be applied toward the satisfaction of the judgment. 

Sec. 8.105.  PRIORITY OF WITHHOLDING.  Provides that an order or writ of
withholding under this chapter has priority over any garnishment,
attachment, execution, or other order affecting disposable earnings, except
for an order or writ of withholding for child support under Chapter 158. 

Sec. 8.106.  MAXIMUM AMOUNT WITHHELD FROM EARNINGS.  Requires an order or
writ of withholding to direct that an obligor's employer withhold from the
obligor's disposable earnings the lesser of a certain amount.  
  
Sec. 8.107.  ORDER OR WRIT BINDING ON EMPLOYER DOING BUSINESS IN THIS
STATE.  Provides that an order or writ of withholding issued under this
chapter and delivered to an employer doing business in this state is
binding on the employer without regard to whether the obligor resides or
works outside this state. 

Sec. 8.108.  VOLUNTARY WRIT OF WITHHOLDING BY OBLIGOR.  Authorizes an
obligor to file with the clerk of the court a notarized or acknowledged
request signed by the obligor and the obligee for the issuance and delivery
to the obligor's employer of a writ of withholding.  Authorizes the obligor
to file the request under this section regardless of whether a writ or
order has been served on any party or whether the obligor owes arrearages.
Requires the clerk, on receipt of a request under this section, to issue
and deliver a writ of withholding in the manner provided by this
subchapter.  Authorizes an employer who receives a writ of withholding
issued under this section to request a hearing in the same manner and
according to the same terms provided by Section 8.205. 
Authorizes an obligor whose employer receives a writ of withholding issued
under this section to request a hearing in the manner provided by Section
8.258.  Authorizes an obligee to contest a writ of income withholding
issued under this section by requesting, not later than the 180th day after
the date on which the obligee discovers that the writ was issued, a hearing
to be conducted in the manner provided by Section 8.258 for a hearing on a
motion to stay. Prohibits a writ of withholding under this section from
reducing the total amount of spousal maintenance, including arrearages,
owed by the obligor. 

[Sections 8.109-8.150 reserved for expansion]

SUBCHAPTER D.  PROCEDURE

Sec. 8.151.  TIME LIMIT.  Authorizes the court to issue an order or writ
for withholding under this chapter at any time before all spousal
maintenance and arrearages are paid. 

Sec. 8.152.  CONTENTS OF ORDER OF WITHHOLDING.  Requires an order of
withholding to state certain information.  Requires the order for
withholding to require the obligor to notify the court promptly of any
material change affecting the order, including a change of employer.
Requires the court, on request by an obligee, to exclude from an order of
withholding the obligee's address and social security number if the obligee
or a member of the obligee's family or household is a victim of family
violence and is the subject of a protective order to which the obligor is
also subject.  Requires the court to order the clerk to perform certain
tasks, on granting a request under this section. 

Sec. 8.153.  REQUEST FOR ISSUANCE OF ORDER OR WRIT OF WITHHOLDING.
Authorizes an obligor or obligee to file with the clerk of the court a
request for issuance of an order or writ of withholding. 

 Sec. 8.154.  ISSUANCE AND DELIVERY OF ORDER OR WRIT OF WITHHOLDING.
Requires the clerk of the court, on receipt of a request for issuance of an
order or writ of withholding, to deliver a certified copy of the order or
writ to the obligor's current employer or to any subsequent employer of the
obligor.  Requires the clerk to attach a copy of Subchapter E to the order
or writ.  Requires the clerk, not later than the fourth working day after
the date the order is signed or the request is filed, whichever is later,
to issue and deliver the certified copy of the order or writ by a certain
method.  

[Sections 8.155-8.200 reserved for expansion]

SUBCHAPTER E.  RIGHTS AND DUTIES OF EMPLOYER

Sec. 8.201.  ORDER OR WRIT BINDING ON EMPLOYER.  Provides that an employer
required to withhold income from earnings under this chapter is not
entitled to notice of the proceedings before the order of withholding is
rendered or writ of withholding is issued. Provides that an order or writ
of withholding is binding on an employer regardless of whether the employer
is specifically named in the order or writ. 

Sec. 8.202.  EFFECTIVE DATE AND DURATION OF INCOME WITHHOLDING. Requires an
employer to begin to withhold income in accordance with an order or writ of
withholding not later than the first pay period after the date the order or
writ was delivered to the employer.  Requires the employer to continue to
withhold income as required by the order or writ as long as the obligor is
employed by the employer. 

Sec. 8.203.  REMITTING WITHHELD PAYMENTS.  Requires the employer to remit
to the person or office named in the order or writ of withholding the
amount of income withheld from an obligor on each pay date.  Requires the
remittance to include the date on which the income withholding occurred.
Requires the employer to include with each remittance certain information. 
  
Sec. 8.204.  EMPLOYER MAY DEDUCT FEE FROM EARNINGS.  Authorizes an employer
to deduct an administrative fee of not more than $5 each month from the
obligor's disposable earnings in addition to the amount withheld as spousal
maintenance. 

Sec. 8.205.  HEARING REQUESTED BY EMPLOYER.  Authorizes an employer, not
later than the 20th day after the date an order or writ of withholding is
delivered to the employer, to file with the court a motion for a hearing on
the applicability of the order or writ to the employer.  Requires the
hearing under this section to be held on or before the 15th day after the
date the motion is made.  Requires an order or writ of withholding to be
binding and the employer to continue to withhold income and remit the
amount withheld pending further order of the court. 

Sec. 8.206.  LIABILITY AND OBLIGATION OF EMPLOYER FOR PAYMENTS. Provides
that an employer who complies with an order or writ of withholding under
this chapter is not liable to the obligor for the amount of income withheld
and remitted as required by the order or writ.  Provides that an employer
who receives, but does not comply with, an order or writ of withholding is
liable to certain individuals.  Requires an employer to comply with an
order of withholding for spousal maintenance or alimony issued in another
state that appears regular on its face in the same manner as an order
issued by a tribunal of this state.  Requires the employer to notify the
employee of the order and comply with the order in the manner provided by
Chapter 159F, with respect to an order of withholding for child support
issued by another state.  Authorizes the employer to contest the order of
withholding in the manner provided by that subchapter with respect to an
order of withholding for child support issued by another state. 

 Sec. 8.207.  EMPLOYER RECEIVING MULTIPLE ORDERS OR WRITS.  Requires an
employer who receives more than one order or writ of withholding to
withhold income from the same obligor to withhold the combined amounts due
under each order or writ unless the combined amounts due exceed the maximum
total amount of allowed income withholding under Section 8.106.  Requires
the employer, if the combined amounts to be withheld under multiple orders
or writs for the same obligor exceed the maximum total amount of allowed
income withholding under Section 8.106, to pay, until that maximum is
reached, in a certain order of priority.  

Sec. 8.208.  EMPLOYER'S LIABILITY FOR DISCRIMINATORY HIRING OR DISCHARGE.
Prohibits an employer from using an order or writ of withholding as grounds
in whole or part for the termination of employment of, or for any other
disciplinary action against, an employee.  Prohibits an employer from
refusing to hire an employee because of an order or writ of withholding.
Provides that an employer who intentionally discharges an employee in
violation of this section is liable to that employee for current wages,
other employment benefits, and reasonable attorney's fees and court costs
incurred in enforcing the employee's rights. Requires the court, in
addition to liability imposed under this section, to order with respect to
an employee whose employment was suspended or terminated in violation of
this section appropriate injunctive relief, including reinstatement of the
employee's position with the employer and fringe benefits or seniority lost
as a result of the suspension or termination. Authorizes an employee to
bring an action to enforce the employee's rights under this section. 

Sec. 8.209.  PENALTY FOR NONCOMPLIANCE.  Provides that in addition to the
civil remedies provided by this subchapter or any other remedy provided by
law, an employer who knowingly violates this chapter by failing to withhold
income for spousal maintenance or to remit withheld income in accordance
with an order or writ of withholding issued under this chapter commits an
offense.  Provides that an offense under this section is punishable by a
fine not to exceed $200 for each violation. 

Sec. 8.210.  NOTICE OF TERMINATION OF EMPLOYMENT AND OF NEW EMPLOYMENT.
Requires an obligor who terminates employment with an employer who has been
withholding income and the obligor's employer to each notify the court and
the obligee of certain information.  Requires the obligor to inform a
subsequent employer of the order or writ of withholding after obtaining
employment. 

[Sections 8.211-8.250 reserved for expansion]

SUBCHAPTER F.  WRIT OF WITHHOLDING ISSUED BY CLERK

Sec. 8.251.  NOTICE OF APPLICATION FOR WRIT OF WITHHOLDING; FILING.
Authorizes an obligor or obligee to file a notice of application for a writ
of withholding if income withholding was not ordered at the time spousal
maintenance was ordered.  Authorizes the obligor or obligee to file the
notice of application for a writ of withholding in the court that ordered
the spousal maintenance under Subchapter B. 

Sec. 8.252.  CONTENTS OF NOTICE OF APPLICATION FOR WRIT OF WITHHOLDING.
Requires the notice of application for a writ of withholding to be verified
and state, describe, and include certain information. 

Sec. 8.253.  INTERSTATE REQUEST FOR WITHHOLDING.  Provides that the
registration of a foreign order that provides for spousal maintenance or
alimony as provided in Chapter 159 is sufficient for filing a notice of
application for a writ of withholding.  Requires the notice to be filed
with the clerk of the court having venue as provided in Chapter 159.
Authorizes the notice of application for a writ of withholding to be
delivered to the obligor at the same time that an order is filed for
registration under Chapter 159. 
 
Sec. 8.254.  ADDITIONAL ARREARAGES.  Authorizes the writ of withholding to
include withholding for arrearages that accrue between the filing of the
notice and the date of the hearing or the issuance of the writ, if the
notice of application for a writ of withholding states that the obligor has
failed to pay more than one spousal maintenance payment according to the
terms of the spousal maintenance order, 

Sec. 8.255.  DELIVERY OF NOTICE OF APPLICATION FOR WRIT OF WITHHOLDING;
TIME OF DELIVERY.  Requires the party who files a notice of application for
a writ of withholding to deliver the notice to the obligor by first-class
or certified mail, return receipt requested, addressed to the obligor's
last known address or place of employment or service of citation as in
civil cases generally.  Requires the party who filed the notice to file
with the court a certificate stating the name, address, and date the party
mailed the notice, if the notice is delivered by mail.  Provides that the
notice is considered to have been received by the obligor on a certain
date. 
  
Sec. 8.256.  MOTION TO STAY ISSUANCE OF WRIT OF WITHHOLDING. Authorizes the
obligor to stay issuance of a writ of withholding by filing a motion to
stay with the clerk of the court not later than the 10th day after the date
the notice of application for a writ of withholding was received.  Provides
that the grounds for filing a motion to stay issuance are limited to a
dispute concerning the identity of the obligor or the existence or the
amount of the arrearages.  Requires the obligor to verify that the
statements of fact in the motion to stay issuance of the writ are correct. 

Sec. 8.257.  EFFECT OF FILING MOTION TO STAY.  Prohibits the clerk of the
court, if the obligor files a motion to stay as provided by Section 8.256,
from delivering the writ of withholding to the obligor's employer before a
hearing is held. 

Sec. 8.258.  HEARING ON MOTION TO STAY.  Requires the court, if the obligor
files a motion to stay as provided by Section 8.256, to set a hearing on
the motion and requires the clerk of the court to notify the obligor and
obligee of the date, time, and place of the hearing. Requires the court to
hold a hearing on the motion to stay not later than the 30th day after the
date the motion was filed unless the obligor and obligee agree and waive
the right to have the motion heard within 30 days.  Requires the court,
after the hearing, to render an order for income withholding that includes
a determination of any amount of arrearages or grant the motion to stay. 

Sec. 8.259.  SPECIAL EXCEPTIONS.  Provides that a defect in a notice of
application for a writ of withholding is waived unless the respondent
specially excepts in writing and cites with particularity the alleged
defect, obscurity, or other ambiguity in the notice.  Requires a special
exception under this section to be heard by the court before hearing the
motion to stay issuance. Requires the court, if the court sustains an
exception, to provide the party filing the notice an opportunity to refile
and requires the court to continue the hearing to a specified date without
requiring additional service. 

Sec. 8.260.  WRIT OF WITHHOLDING AFTER ARREARAGES ARE PAID.  Prohibits the
court from refusing to order withholding solely on the basis that the
obligor paid the arrearages after the obligor received the notice of
application for a writ of withholding. Requires the court to order that a
reasonable amount of income be withheld and applied toward the liquidation
of arrearages, even though a judgment confirming arrearages was rendered
against the obligor.   

Sec. 8.261.  REQUEST FOR ISSUANCE AND DELIVERY OF WRIT OF WITHHOLDING.
Requires the party who filed the notice, if a notice of application for a
writ of withholding is delivered and the obligor does not file a motion to
stay within the time provided by Section 8.256, to file with the clerk of
the court a request for issuance of the writ  of withholding stating the
amount of current spousal maintenance, the amount of arrearages, and the
amount to be withheld from the obligor's income.  Prohibits the party who
filed the notice from filing a request for issuance before the 11th day
after the date the obligor received the notice of application for a writ of
withholding. 

Sec. 8.262.  ISSUANCE AND DELIVERY OF WRIT OF WITHHOLDING.  Requires the
clerk of the court, on the filing of a request for issuance of a writ of
withholding, to issue and deliver the writ as provided by Subchapter D not
later than the second working day after the date the request is filed.
Requires the clerk to charge a fee in the amount of $15 for issuing the
writ of withholding. 

Sec. 8.263.  CONTENTS OF WRIT OF WITHHOLDING.  Requires a writ of
withholding to direct that an obligor's employer or a subsequent employer
withhold from the obligor's disposable earnings an amount for current
spousal maintenance and arrearages consistent with this chapter. 

Sec. 8.264.  EXTENSION OF REPAYMENT SCHEDULE BY PARTY; UNREASONABLE
HARDSHIP.  Authorizes a party who files a notice of application for a writ
of withholding and who determines that the schedule for repaying arrearages
would cause unreasonable hardship to the obligor or the obligor's family to
extend the payment period in the writ. 

Sec. 8.265.  REMITTANCE OF AMOUNT TO BE WITHHELD.  Requires the obligor's
employer to remit the amount withheld to the person or office named in the
writ on each pay date and requires the obligor's employer to include with
the remittance the date on which the withholding occurred. 

Sec. 8.266.  FAILURE TO RECEIVE NOTICE OF APPLICATION FOR WRIT OF
WITHHOLDING.  Authorizes the obligor, not later than the 30th day after the
date of the first pay period after the date the obligor's employer receives
a writ of withholding, to file an affidavit with the court stating certain
information.  Authorizes the obligor to file with the affidavit a motion to
withdraw the writ of withholding and request a hearing on the applicability
of the writ.  Prohibits income withholding from being interrupted until
after the hearing at which the court renders an order denying or modifying
withholding. 

Sec. 8.267.  ISSUANCE AND DELIVERY OF WRIT OF WITHHOLDING TO SUBSEQUENT
EMPLOYER.  Authorizes a party authorized to file a notice of application
for a writ of withholding under this subchapter to deliver a copy of the
writ to a subsequent employer of the obligor by certified mail after the
clerk of the court issues a writ of withholding. Requires the withholding,
except as provided by an order under Section 8.152, to include the name,
address, and signature of the party and clearly indicate that the writ is
being issued to a subsequent employer.  Requires the party to file a copy
of the writ of withholding with the clerk not later than the third working
day after the date of delivery of the writ to the subsequent employer and
the postal return receipt from the delivery to the subsequent employer not
later than the third working day after the date the party receives the
receipt.  Requires the party to pay the clerk a fee in the amount of $15
for filing the copy of the writ. 

[Sections 8.268-8.300 reserved for expansion]

SUBCHAPTER G.  MODIFICATION, REDUCTION,
OR TERMINATION OF WITHHOLDING

Sec. 8.301.  AGREEMENT BY PARTIES REGARDING AMOUNT OR DURATION OF
WITHHOLDING.  Authorizes an obligor and obligee to agree to reduce or
terminate income withholding for spousal maintenance on the occurrence of
any contingency stated in the order.  Authorizes the obligor and obligee to
file a notarized or acknowledged request with the clerk of the court under
Section 8.108 for a revised writ of withholding or notice of termination of
withholding.  Requires the clerk to issue and deliver to the obligor's
employer a writ of withholding that reflects the agreed revision or a
notice of termination of withholding.  Provides that an agreement by the
parties under this section does not modify the terms of an order for
spousal maintenance. 

Sec. 8.302.  MODIFICATIONS TO OR TERMINATION OF WITHHOLDING IN VOLUNTARY
WITHHOLDING CASES.  Authorizes the obligee, if an obligor initiates
voluntary withholding under Section 8.108, to file with the clerk of the
court a notarized request signed by the obligor and the obligee for the
issuance and delivery to the obligor of a modified writ of withholding that
reduces the amount of withholding or a notice of termination of
withholding.  Requires the clerk, on receipt of a request under this
section, to issue and deliver a modified writ of withholding or notice of
termination in the manner provided by Section 8.301.  Authorizes the clerk
to charge a fee in the amount of $15 for issuing and delivering the
modified writ of withholding or notice of termination.  Authorizes an
obligee to contest a modified writ of withholding or notice of termination
issued under this section by requesting a hearing in the manner provided by
Section 8.258 not later than the 180th day after the date the obligee
discovers that the writ or notice was issued. 

Sec. 8.303.  TERMINATION OF WITHHOLDING IN MANDATORY WITHHOLDING CASES.
Authorizes an obligor for whom withholding for maintenance owed or
withholding for maintenance and child support owed is mandatory to file a
motion to terminate withholding. Requires the court, on a showing by the
obligor that the obligor has complied fully with the terms of the
maintenance or child support order, as applicable, to render an order for
the issuance and delivery to the obligor of a notice of termination of
withholding.  Requires the clerk to issue and deliver the notice of
termination ordered under this section to the obligor. Authorizes the clerk
to charge a fee in the amount of $15 for issuing and delivering the notice. 

Sec. 8.304.  DELIVERY OF ORDER OF REDUCTION OR TERMINATION OF WITHHOLDING.
Authorizes any person to deliver to the obligor's employer a certified copy
of an order that reduces the amount of spousal maintenance to be withheld
or terminates the withholding. 

Sec. 8.305.  LIABILITY OF EMPLOYERS.  Provides that the provisions of this
chapter regarding the liability of employers for withholding apply to an
order that reduces or terminates withholding. 

SECTION 2.  Amends Section 158.207, Family Code, by adding Subsection (c)
to require an employer who receives more than one order or writ of
withholding that combines withholding for child support and spousal
maintenance as provided by Section 8.101 to withhold income and pay the
amount withheld in accordance with Section 8.207. 

SECTION 3.  Effective date: September 1, 2001.

_Provides that the change in law made by this Act applies to spousal
maintenance payments regardless of whether the payments become due before,
on, or after the effective date of this Act.