1-1     By:  Goodman (Senate Sponsor - West)                   H.B. No. 596
 1-2           (In the Senate - Received from the House May 11, 2001;
 1-3     May 11, 2001, read first time and referred to Committee on
 1-4     Jurisprudence; May 11, 2001, reported favorably by the following
 1-5     vote:  Yeas 6, Nays 0; May 11, 2001, sent to printer.)
 1-6                            A BILL TO BE ENTITLED
 1-7                                   AN ACT
 1-8     relating to suits affecting the parent-child relationship and the
 1-9     modification of an order rendered in a suit; providing penalties.
1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11           SECTION 1.  Section 153.008, Family Code, is amended to read
1-12     as follows:
1-13           Sec. 153.008.  CHILD'S CHOICE OF MANAGING CONSERVATOR. If the
1-14     child is 12 [10] years of age or older, the child may, by writing
1-15     filed with the court, choose the managing conservator, subject to
1-16     the approval of the court.
1-17           SECTION 2.  Sections 153.009(b) and (d), Family Code, are
1-18     amended to read as follows:
1-19           (b)  When the issue of managing conservatorship is contested,
1-20     on the application of a party, the court shall interview a child 12
1-21     [10] years of age or older and may interview a child under 12 [10]
1-22     years of age.  Interviewing a child does not diminish the
1-23     discretion of the court.
1-24           (d)  On the motion of a party or on the court's own motion,
1-25     the court shall cause a record of the interview to be made when the
1-26     child is 12 [10] years of age or older.  A record of the interview
1-27     shall be part of the record in the case.
1-28           SECTION 3.  Section 156.006(b), Family Code, is amended to
1-29     read as follows:
1-30           (b)  While a suit for modification is pending, the court may
1-31     not render a temporary order that has the effect of changing the
1-32     designation of the person who has the exclusive right to determine
1-33     the primary residence of the child under the [a sole or joint
1-34     managing conservator appointed in a] final order unless:
1-35                 (1)  the order is necessary because the child's present
1-36     living environment may endanger the child's physical health or
1-37     significantly impair the child's emotional development;
1-38                 (2)  the person designated in the final order [child's
1-39     managing conservator] has voluntarily relinquished the primary
1-40     [actual] care[, control,] and possession of the child for more than
1-41     six months and the temporary order is in the best interest of the
1-42     child; or
1-43                 (3)  the child is 12 [10] years of age or older and has
1-44     filed with the court in writing the name of the person who is the
1-45     child's preference to have the exclusive right to determine the
1-46     primary residence of the child [choice for managing conservator]
1-47     and the temporary order designating [naming] that person [as
1-48     managing conservator] is in the best interest of the child.
1-49           SECTION 4.  The heading for Subchapter B, Chapter 156, Family
1-50     Code, is amended to read as follows:
1-51       SUBCHAPTER B.  MODIFICATION OF [SOLE MANAGING] CONSERVATORSHIP,
1-52            POSSESSION AND ACCESS, OR DETERMINATION OF RESIDENCE
1-53           SECTION 5.  Section 156.101, Family Code, is amended to read
1-54     as follows:
1-55           Sec. 156.101.  GROUNDS FOR MODIFICATION OF ORDER ESTABLISHING
1-56     [SOLE MANAGING] CONSERVATORSHIP OR POSSESSION AND ACCESS.  [(a)]
1-57     The court may modify an order or portion of a decree that provides
1-58     for the appointment of a [designates a sole managing] conservator
1-59     of a child, that provides the terms and conditions of
1-60     conservatorship, or that provides for the possession of or access
1-61     to a child [of any age] if modification would be in the best
1-62     interest of the child and:
1-63                 (1)  the circumstances of the child, a [sole managing]
1-64     conservator, [possessory conservator,] or other party affected by
 2-1     the order have materially and substantially changed since the date
 2-2     of the rendition of the order; [and]
 2-3                 (2)  the child is at least 12 years of age and has
 2-4     filed with the court, in writing, the name of the conservator who
 2-5     is the child's preference to have the exclusive right to determine
 2-6     the primary residence of [the appointment of the new sole managing
 2-7     conservator would be a positive improvement for] the child; or
 2-8                 (3)  the conservator who has the exclusive right to
 2-9     establish the primary residence of the child has voluntarily
2-10     relinquished the primary care and possession of the child to
2-11     another person for at least six months.
2-12           [(b)  The court may modify an order that designates a sole
2-13     managing conservator of a child 10 years of age or older if:]
2-14                 [(1)  the child has filed with the court in writing the
2-15     name of the person who is the child's choice for managing
2-16     conservator; and]
2-17                 [(2)  the court finds that the appointment of the named
2-18     person is in the best interest of the child.]
2-19           SECTION 6.  Section 156.102, Family Code, is amended to read
2-20     as follows:
2-21           Sec. 156.102.  MODIFICATION OF EXCLUSIVE RIGHT TO DETERMINE
2-22     PRIMARY RESIDENCE OF CHILD [SOLE MANAGING CONSERVATORSHIP] WITHIN
2-23     ONE YEAR OF ORDER. (a)  If a suit seeking to modify the designation
2-24     of the person having the exclusive right to determine the primary
2-25     residence of a child [sole managing conservatorship] is filed not
2-26     later than one year after the date of rendition of the order, the
2-27     person filing the suit shall execute and attach an affidavit as
2-28     provided by Subsection (b).
2-29           (b)  The affidavit must contain, along with supporting facts,
2-30     at least one of the following allegations:
2-31                 (1)  that the child's present environment may endanger
2-32     the child's physical health or significantly impair the child's
2-33     emotional development;
2-34                 (2)  that the person who has the exclusive right to
2-35     determine the primary residence of the child [sole managing
2-36     conservator] is the person seeking or consenting to the
2-37     modification and the modification is in the best interest of the
2-38     child; or
2-39                 (3)  that the person who has the exclusive right to
2-40     determine the primary residence of the child [child's sole managing
2-41     conservator] has voluntarily relinquished the primary [actual]
2-42     care[, control,] and possession of the child for at least [not less
2-43     than] six months and the modification is in the best interest of
2-44     the child.
2-45           (c)  The court shall deny the relief sought and refuse to
2-46     schedule a hearing for modification under this section unless the
2-47     court determines, on the basis of the affidavit, that facts
2-48     adequate to support an allegation listed in Subsection (b) are
2-49     stated in the affidavit.  If the court determines that the facts
2-50     stated are adequate to support an allegation, the court shall set a
2-51     time and place for the hearing.
2-52           SECTION 7.  Section 156.103, Family Code, is amended to read
2-53     as follows:
2-54           Sec. 156.103.  INCREASED EXPENSES BECAUSE OF CHANGE OF
2-55     RESIDENCE.  (a)  If a change of residence results in increased
2-56     expenses for a party having possession of or access to a child, the
2-57     court may render appropriate orders to allocate those increased
2-58     expenses on a fair and equitable basis, taking into account the
2-59     cause of the increased expenses and the best interest of the child.
2-60           (b)  The payment of increased expenses by the party whose
2-61     residence is changed is rebuttably presumed to be in the best
2-62     interest of the child.
2-63           (c)  The court may render an order without regard to whether
2-64     another change in the terms and conditions for the possession of or
2-65     access to the child is made.  [VOLUNTARY RELINQUISHMENT. The court
2-66     may modify an order that designates a sole managing conservator if
2-67     the sole managing conservator has voluntarily relinquished actual
2-68     care, control, and possession of the child for a period of not less
2-69     than six months and the modification is in the best interest of the
 3-1     child.]
 3-2           SECTION 8.  Section 156.104, Family Code, is amended to read
 3-3     as follows:
 3-4           Sec. 156.104.  MODIFICATION OF ORDER ON CONVICTION FOR CHILD
 3-5     ABUSE;  PENALTY.  (a)  Except as provided by Section 156.1045, the
 3-6     conviction of a conservator, or an order deferring adjudication
 3-7     with regard to the conservator, for an offense involving the abuse
 3-8     of a child under Section 21.11, 22.011, or  22.021, Penal Code, is
 3-9     a material and substantial change of circumstances sufficient to
3-10     justify a temporary order and modification of an existing court
3-11     order or portion of a decree that provides for the appointment of a
3-12     conservator or that sets the terms and conditions of
3-13     conservatorship or for the possession of or access to a child.
3-14           (b)  A person commits an offense if the person files a suit
3-15     to modify an order or portion of a decree based on the grounds
3-16     permitted under Subsection (a) and the person knows that the person
3-17     against whom the motion is filed has not been convicted of an
3-18     offense, or received deferred adjudication for an offense, under
3-19     Section 21.11, 22.011, or 22.021, Penal Code.  An offense under
3-20     this subsection is a Class B misdemeanor.  [MODIFICATION FROM SOLE
3-21     MANAGING CONSERVATORSHIP TO JOINT MANAGING CONSERVATORSHIP.  (a)
3-22     The court may modify an order that designates a sole managing
3-23     conservator if a parent of the child requests appointment as a
3-24     joint managing conservator and the court finds that:]
3-25                 [(1)  the circumstances of the child or the sole
3-26     managing conservator have materially and substantially changed
3-27     since the rendition of the order;]
3-28                 [(2)  retention of a sole managing conservatorship
3-29     would be detrimental to the welfare of the child; and]
3-30                 [(3)  the appointment of the parent as a joint managing
3-31     conservator would be a positive improvement for and in the best
3-32     interest of the child.]
3-33           [(b)  An order of joint conservatorship, in and of itself,
3-34     does not constitute grounds for modifying a support order.]
3-35           SECTION 9.  Subchapter B, Chapter 156, Family Code, is
3-36     amended by adding Section 156.1045 to read as follows:
3-37           Sec. 156.1045.  MODIFICATION OF ORDER ON CONVICTION FOR
3-38     FAMILY VIOLENCE. (a)  The conviction or an order deferring
3-39     adjudication of a person who is a possessory conservator or a sole
3-40     or joint managing conservator for an offense involving family
3-41     violence is a material and substantial change of circumstances
3-42     sufficient to justify a temporary order and modification of an
3-43     existing court order or portion of a decree that provides for the
3-44     appointment of a conservator or that sets the terms and conditions
3-45     of conservatorship or for the possession of or access to a child to
3-46     conform the order to the requirements of Section 153.004(d).
3-47           (b)  A person commits an offense if the person files a suit
3-48     to modify an order or portion of a decree based on the grounds
3-49     permitted under Subsection (a) and the person knows that the person
3-50     against whom the motion is filed has not been convicted of an
3-51     offense, or received deferred adjudication for an offense,
3-52     involving family violence.  An offense under this subsection is a
3-53     Class B misdemeanor.
3-54           SECTION 10.  Section 156.409, Family Code, is amended to read
3-55     as follows:
3-56           Sec. 156.409.  CHANGE IN PHYSICAL POSSESSION.  If the sole
3-57     managing conservator of a child or the joint managing conservator
3-58     who has the exclusive right to determine [designates] the [child's]
3-59     primary residence of the child has voluntarily relinquished the
3-60     primary [actual] care[, control,] and possession of the child to
3-61     another person for at least six months, the court may modify an
3-62     order providing for the support of the child to provide that the
3-63     other person having physical possession of the child shall have the
3-64     right to receive and give receipt for payments of support for the
3-65     child and to hold or disburse money for the benefit of the child.
3-66           SECTION 11. Chapter 42, Code of Criminal Procedure, is
3-67     amended by adding Article 42.23 to read as follows:
3-68           Art. 42.23.  NOTIFICATION OF COURT OF FAMILY VIOLENCE
3-69     CONVICTION. (a)  In this article, "family violence" has the meaning
 4-1     assigned by Section 71.004, Family Code.
 4-2           (b)  If the attorney representing the state in a criminal
 4-3     case involving family violence learns that the defendant is subject
 4-4     to the jurisdiction of another court relating to an order that
 4-5     provides for the appointment of a conservator or that sets the
 4-6     terms and conditions of conservatorship or for possession of or
 4-7     access to a child, the attorney representing the state shall notify
 4-8     the court in which the defendant is being tried of the existence of
 4-9     the order and the identity of the court of continuing jurisdiction.
4-10           (c)  On the conviction or entry of an order deferring
4-11     adjudication of a defendant for an offense involving family
4-12     violence, the convicting court or the court entering the order
4-13     shall notify the court of continuing jurisdiction of the conviction
4-14     or deferred adjudication.
4-15           SECTION 12.  The following are repealed:
4-16                 (1)  Section 156.105, Family Code; and
4-17                 (2)  Subchapters C and D, Chapter 156, Family Code.
4-18           SECTION 13.  This Act takes effect September 1, 2001, and
4-19     applies to an action to modify an order in a suit affecting the
4-20     parent-child relationship pending on that date or filed on or after
4-21     that date.
4-22                                  * * * * *