By Goodman H.B. No. 680
77R1246 KEL-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the investigation, prosecution, and punishment of
1-3 certain criminal offenses involving child custody.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Articles 63.001(3), (5), and (6), Code of Criminal
1-6 Procedure, are amended to read as follows:
1-7 (3) "Missing child" means a child whose whereabouts
1-8 are unknown to a [the child's] legal custodian of the child, the
1-9 circumstances of whose absence indicate that:
1-10 (A) the child did not voluntarily leave the care
1-11 and control of the custodian, and the taking of the child was not
1-12 authorized by law;
1-13 (B) the child voluntarily left the care and
1-14 control of the [his legal] custodian without the custodian's
1-15 consent and without intent to return; or
1-16 (C) the child was taken or retained by another,
1-17 and the taking or retention was in violation of Chapter 25, Penal
1-18 Code [the terms of a court order for possession of or access to the
1-19 child].
1-20 (5) "Missing child or missing person report" or
1-21 "report" means information that is:
1-22 (A) given to a law enforcement agency on a form
1-23 used for sending information to the national crime information
1-24 center; and
2-1 (B) about a missing child or [missing] person
2-2 whose whereabouts are unknown to the reporter and who is alleged in
2-3 the form by the reporter to be missing.
2-4 (6) "Legal custodian of a child" means:
2-5 (A) a parent of a child if no managing
2-6 conservator or guardian of the person of the child has been
2-7 appointed;
2-8 (B) [,] the managing conservator of a child or a
2-9 guardian of a child if a managing conservator or guardian has been
2-10 appointed for the child;
2-11 (C) [,] a possessory conservator of a child if
2-12 the child is absent from the possessory conservator of the child at
2-13 a time when the possessory conservator is entitled to possession of
2-14 the child; [and the child is not believed to be with the managing
2-15 conservator,] or
2-16 (D) any other person who has assumed temporary
2-17 care and control of a child if at the time of disappearance the
2-18 child was not living with his parent, guardian, managing
2-19 conservator, or possessory conservator.
2-20 SECTION 2. Section 25.03, Penal Code, is amended to read as
2-21 follows:
2-22 Sec. 25.03. INTERFERENCE WITH CHILD CUSTODY. (a) In this
2-23 section, "right to the possession of or access to the child"
2-24 includes the rights of conservatorship, custody, and visitation.
2-25 (b) A person commits an offense if, regardless of the
2-26 existence of a court order or judgment relating to the right to the
2-27 possession of or access to the child, the person [he] takes or
3-1 retains a child younger than 18 years of age with the intent to
3-2 deprive:
3-3 (1) another of the right to the possession of or
3-4 access to the child; or
3-5 (2) a court of its authority over the child.
3-6 (c) For purposes of this section, an intent to deprive is
3-7 presumed if [when he]:
3-8 (1) the actor has received proper service [knows that
3-9 his taking or retention violates the express terms] of a court
3-10 order or judgment relating to the right to the possession of or
3-11 access to the child, and the taking or retention violates the
3-12 express terms of that [or] order or judgment [of a court disposing
3-13 of the child's custody]; or
3-14 (2) the actor:
3-15 (A) has not been appointed managing or
3-16 possessory conservator [awarded custody] of the child by a court of
3-17 competent jurisdiction;
3-18 (B) has received proper service of [, knows
3-19 that] a suit for divorce, a suit affecting the parent-child
3-20 relationship, or a civil suit or application for habeas corpus
3-21 relating to the right to the possession of or access to the child;
3-22 [to dispose of the child's custody has been filed,] and
3-23 (C) for a period exceeding 72 hours, and without
3-24 the permission of the court, takes the child out of the geographic
3-25 area of the counties composing the judicial district if the court
3-26 is a district court or the county if the court is a statutory
3-27 county court [, without the permission of the court and with the
4-1 intent to deprive the court of authority over the child].
4-2 (d) [(b)] A noncustodial parent commits an offense if, with
4-3 the intent to interfere with the lawful custody of a child younger
4-4 than 18 years of age, the parent [he] knowingly entices or
4-5 persuades the child to leave the custody of the custodial parent,
4-6 guardian, or person standing in the stead of the custodial parent
4-7 or guardian of the child.
4-8 (e) [(c)] It is an affirmative [a] defense to prosecution
4-9 under this section [Subsection (a)(2)] that the actor:
4-10 (1) reasonably believed the conduct was necessary to
4-11 prevent imminent danger of family violence, as defined by Section
4-12 71.004, Family Code, to the actor, the child, or another; and
4-13 (2) as soon as practicable, but in any event not more
4-14 than 24 hours after the beginning of the conduct, gave notice of
4-15 the child's location to:
4-16 (A) a law enforcement agency or prosecutor with
4-17 territorial jurisdiction over the location of the child's primary
4-18 residence during the 180-day period preceding the beginning of the
4-19 conduct; or
4-20 (B) a public social agency authorized to care
4-21 for children, including the Department of Protective and Regulatory
4-22 Services [returned the child to the geographic area of the counties
4-23 composing the judicial district if the court is a district court or
4-24 the county if the court is a statutory county court, within three
4-25 days after the date of the commission of the offense].
4-26 (f) It is not a defense to prosecution under this section
4-27 that the actor's conduct complied with a court order or judgment
5-1 relating to the right to the possession of or access to the child
5-2 if the order or judgment was entered after the date the actor began
5-3 to engage in the conduct.
5-4 (g) [(d)] An offense under this section is a state jail
5-5 felony.
5-6 SECTION 3. Section 25.04, Penal Code, is amended to read as
5-7 follows:
5-8 Sec. 25.04. ENTICING A CHILD. (a) In this section,
5-9 "electronic communication" includes a communication that is
5-10 initiated using electronic mail or the Internet.
5-11 (b) A person commits an offense if, with the intent to
5-12 interfere with the lawful custody of a child younger than 18 years
5-13 of age, the person [he] knowingly entices, persuades, or takes the
5-14 child from the custody of the parent or guardian or person standing
5-15 in the stead of the parent or guardian of such child.
5-16 (c) Except as provided by Subsection (d), an [(b) An]
5-17 offense under this section is a Class B misdemeanor.
5-18 (d) An offense under this section is a felony of the third
5-19 degree if [, unless it is shown on the trial of the offense that]
5-20 the actor:
5-21 (1) intended to commit a felony against the child; or
5-22 (2) used an electronic communication to entice,
5-23 persuade, or take the child [, in which event an offense under this
5-24 section is a felony of the third degree].
5-25 SECTION 4. (a) The change in law made by this Act applies
5-26 only to an offense committed on or after the effective date of this
5-27 Act. For purposes of this section, an offense is committed before
6-1 the effective date of this Act if any element of the offense occurs
6-2 before that date.
6-3 (b) An offense committed before the effective date of this
6-4 Act is covered by the law in effect when the offense was committed,
6-5 and the former law is continued in effect for that purpose.
6-6 SECTION 5. This Act takes effect September 1, 2001.