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.