80R1897 KSD-F

By: Harris S.B. No. 232

A BILL TO BE ENTITLED

AN ACT

relating to the rendition and issuance of a qualified domestic relations order, including an administrative qualified domestic relations order by the Title IV-D agency, to enforce child support obligations and to the designation of a child support obligee as an alternate payee under a qualified domestic relations order.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle D, Title 5, Family Code, is amended by adding Chapter 237 to read as follows: CHAPTER 237. ADMINISTRATIVE DOMESTIC RELATIONS ORDER

Sec. 237.001. RENDITION OF ADMINISTRATIVE DOMESTIC RELATIONS ORDER. (a) The Title IV-D agency may render an administrative domestic relations order to be delivered to a retirement plan subject to the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Section 1001 et seq.) or the law of this state to enforce a child support obligation against an obligor who has or will have vested retirement benefits under the plan.

(b) The Title IV-D agency may render an administrative domestic relations order under this chapter until all current child support and arrearages owed by the obligor, including money due for medical support, have been paid.

(c) A domestic relations order under this chapter:

(1) must be signed by the director of the Title IV-D agency or the director's designee;

(2) must include a statement that the assignment of benefits under the order is effective on the date the order is received by the retirement plan but that the retirement plan shall delay any distribution to the alternate payee until the 31st day after that date; and

(3) is considered to be a qualified domestic relations order if it complies with the requirements of Section 804.003(f), Government Code, or Section 206(d) of the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Section 1056(d)), as applicable.

(d) A plan administrator shall accept a domestic relations order rendered under this section and the order may be determined to be unqualified only if the plan administrator specifies in writing to the Title IV-D agency the reasons the order fails to meet a qualification requirement under federal law or the law of this state, as applicable.

Sec. 237.002. EFFECT OF DOMESTIC RELATIONS ORDER BY COURT. (a) The Title IV-D agency may not render a domestic relations order under this chapter for a suit affecting the parent-child relationship in which:

(1) a judge or an associate judge of a court of continuing jurisdiction renders a domestic relations order in the suit with respect to a retirement plan in which a child support obligor has or will have vested retirement benefits; and

(2) the court's order provides for the enforcement of the obligor's child support obligation.

(b) A domestic relations order rendered by the Title IV-D agency before the court's order remains in effect to the extent that the provisions of the order under this chapter are not superseded by the court's order.

(c) Notwithstanding Subsection (a), the Title IV-D agency may render a domestic relations order reflecting that child support arrearages have been paid in full.

Sec. 237.003. PLAN DISTRIBUTIONS AS TAXABLE INCOME. (a) A domestic relations order rendered under this chapter must provide that all plan distributions from tax-deferred benefits for the payment of child support shall be reported by the plan as income of the plan participant for federal income tax purposes.

(b) If a plan administrator refuses to accept the domestic relations order as qualified because of the provision required by Subsection (a), the Title IV-D agency may file a motion in the court of continuing jurisdiction to have the payment credit for plan distributions for which the obligee incurs a tax liability reduced by the amount of the obligee's marginal tax rate. After notice and hearing under Chapter 157, the court shall grant the agency's motion on sufficient proof of the obligee's marginal tax rate.

Sec. 237.004. FILING ADMINISTRATIVE DOMESTIC RELATIONS ORDER. The Title IV-D agency shall file a copy of an administrative domestic relations order with the court of continuing jurisdiction not later than the third business day after the date the order is sent to the retirement plan.

Sec. 237.005. NOTICE OF ORDER. (a) Not later than the 12th business day after the date the administrative domestic relations order is sent to the retirement plan, the Title IV-D agency shall send to the obligor, the obligee, and any other party:

(1) notice that a domestic relations order has been rendered by the agency and transmitted to the retirement plan;

(2) notice of the procedures by which a party may contest the order with regard to the identity of the obligor or the existence or amount of a current child support obligation or arrearages; and

(3) a copy of the order.

(b) The notice required under this section may be delivered to a party by:

(1) personal delivery by a person designated by the Title IV-D agency;

(2) first class mail to the party's address on file with the state case registry and to the party's last known address, if different; or

(3) service of citation as in civil cases generally.

Sec. 237.006. CONTEST OF ADMINISTRATIVE DOMESTIC RELATIONS ORDER. (a) A party who receives a notice under Section 237.005 may request a review by the Title IV-D agency to resolve any issue in dispute regarding the identity of the obligor or the existence or amount of a current child support obligation or arrearages. The agency shall provide an opportunity for a review either by a telephone conference or in person as appropriate to the circumstances.

(b) After a review under this section, the Title IV-D agency may render a new administrative domestic relations order that modifies or terminates the previous order.

(c) If a review under this section fails to resolve any issue in dispute, the party may file with the court, not later than the 30th day after the date of receiving notice of the Title IV-D agency's determination, a motion under Chapter 157 to withdraw or modify the administrative domestic relations order or to replace the order with an alternative payment arrangement. In determining whether to withdraw, modify, or replace the agency's order, the court may consider the subsistence needs of the obligor and the obligor's family against the right of the obligee to have child support arrearages paid as quickly as possible.

SECTION 2. Section 9.101(a), Family Code, is amended to read as follows:

(a) Notwithstanding any other provision of this chapter, the court that rendered a final decree of divorce or annulment or another final order dividing property under this title retains continuing, exclusive jurisdiction to render an enforceable qualified domestic relations order or similar order permitting payment of pension, retirement plan, or other employee benefits divisible under the law of this state or of the United States to an alternate payee or other lawful payee, except that a court with jurisdiction under Title 5 may render an enforceable qualified domestic relations order to enforce support for a child.

SECTION 3. Section 201.104(e), Family Code, is amended to read as follows:

(e) Notwithstanding Subsection (d) and subject to Section 201.1042(g), an associate judge may hear and render an order on:

(1) a suit to modify or clarify an existing child support order;

(2) a motion to enforce a child support order, including a motion for the rendition of a qualified domestic relations order for child support, or revoke a respondent's community supervision and suspension of commitment; or

(3) a respondent's compliance with the conditions provided in the associate judge's report for suspension of the respondent's commitment.

SECTION 4. Section 231.002(e), Family Code, is amended to read as follows:

(e) The Title IV-D agency may take the following administrative actions with respect to the location of a parent, the determination of parentage, and the establishment, modification, and enforcement of child support and medical support orders required by 42 U.S.C. Section 666(c), without obtaining an order from any other judicial or administrative tribunal:

(1) issue an administrative subpoena, as provided by Section 231.303, to obtain financial or other information;

(2) order genetic testing for parentage determination, as provided by Chapter 233;

(3) order income withholding, as provided by Chapter 233, and issue an administrative writ of withholding, as provided by Chapter 158; [and]

(4) take any action with respect to execution, collection, and release of a judgment or lien for child support necessary to satisfy the judgment or lien, as provided by Chapter 157; and

(5) render an administrative domestic relations order under Chapter 237.

SECTION 5. Section 804.001, Government Code, is amended by amending Subdivisions (1) and (2) and adding Subdivisions (1-a), (2-a), and (6) to read as follows:

(1) "Alternate payee" means a spouse, former spouse, child support obligee, child, or other dependent of a member or retiree who is recognized by a domestic relations order as having a right to receive all or a portion of the benefits payable by a public retirement system with respect to such member or retiree.

(1-a) "Child support obligee" has the meaning assigned to "obligee" by Section 101.021, Family Code.

(2) "Domestic relations order" means any judgment, decree, or order, including approval of a property settlement agreement, which relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child support obligee, child, or other dependent of a member or retiree, and is made pursuant to a domestic relations law, including a community property law of the State of Texas or of another state.

(2-a) "Obligor" has the meaning assigned by Section 101.022, Family Code.

(6) "Title IV-D agency" has the meaning assigned by Section 101.033, Family Code.

SECTION 6. Section 804.003, Government Code, is amended by amending Subsections (b) and (d) and by adding Subsections (p) and (q) to read as follows:

(b) Except as provided in Subsections [Subsection] (d) and (p), the administrative head of a public retirement system to which this chapter applies and to which a domestic relations order is submitted or his designee has exclusive authority to determine whether a domestic relations order is a qualified domestic relations order. A determination by the administrative head or his designee under this section may be appealed only to the board of trustees of the public retirement system. An appeal to the board of trustees of a statewide retirement system is a contested case under Chapter 2001. However, the board of a statewide retirement system by rule may waive the requirement of an appeal to the board. On appeal of a decision made by the board of trustees or by the administrative head if there is no appeal to the board under this section, the standard of review is by substantial evidence.

(d) Except as provided by Subsection (p), under [Under] the optional retirement program, applicable carriers shall determine whether a domestic relations order is a qualified domestic relations order. If a dispute arises over the determination of whether a domestic relations order is a qualified domestic relations order which cannot be resolved by the procedure described in Subsection (g), the court which issued the order or which otherwise has jurisdiction over the matter shall resolve the dispute with respect to a divorce or other domestic relations action in which an alternate payee's right to receive all or a portion of the benefits payable to a member or retiree under the optional retirement program is created or established.

(p) A domestic relations order issued by the Title IV-D agency under Chapter 237, Family Code, is considered to be a qualified domestic relations order if it complies with the requirements of Subsection (f).

(q) For federal tax purposes, benefits paid to a child support obligee as an alternate payee are considered benefits payable to the child and must be reported under Section 402(a), Internal Revenue Code of 1986, as taxable income of the member or retiree who is the obligor.

SECTION 7. Subchapter A, Chapter 804, Government Code, is amended by adding Section 804.006 to read as follows:

Sec. 804.006. ADMINISTRATIVE DOMESTIC RELATIONS ORDER. (a) An administrative domestic relations order issued by the Title IV-D agency under Chapter 237, Family Code, and received by a public retirement system is considered to be a qualified domestic relations order as provided by Section 804.003(p).

(b) The child support obligee named in an order under this section is considered to be an alternate payee.

(c) The public retirement system shall remit payments in accordance with the instructions in the order.

SECTION 8. Section 815.503, Government Code, is amended by amending Subsection (b) and adding Subsection (e) to read as follows:

(b) Records may be released to a member, annuitant, retiree, beneficiary, or alternate payee or to an authorized attorney, family member, or representative acting on behalf of the member, annuitant, retiree, beneficiary, or alternate payee. The retirement system may release the records to an administrator, carrier, or agent or attorney acting on behalf of the retirement system, to another governmental entity having a legitimate need for the information to perform the purposes of the retirement system, to the attorney general for the purpose of enforcing a child support obligation, or to a party in response to a subpoena issued under applicable law.

(e) This section does not prevent the disclosure or confirmation on an individual basis of the status or identity of a participant as a member, retiree, deceased member or retiree, beneficiary, or alternate payee of the retirement system.

SECTION 9. Section 845.115(a), Government Code, is amended to read as follows:

(a) Information contained in records in the custody of the retirement system or maintained in the custody of another governmental entity or an administrator or carrier acting in cooperation with or on behalf of the retirement system concerning an individual member, retiree, annuitant, or beneficiary is confidential and is not subject to public disclosure under Chapter 552. The information may not be disclosed in a form identifiable with a specific individual unless:

(1) the information is disclosed to:

(A) the individual or the individual's attorney, guardian, executor, administrator, conservator, or other person who the director determines is acting in the interest of the individual or the individual's estate;

(B) a spouse or former spouse of the individual and the director determines that the information is relevant to the spouse's or former spouse's interest in member accounts, benefits, or other amounts payable by the retirement system;

(C) a governmental official or employee and the director determines that disclosure of the information requested is reasonably necessary to the performance of the duties of the official or employee; [or]

(D) a person authorized by the individual in writing to receive the information; or

(E) the attorney general for the purpose of enforcing a child support obligation; or

(2) the information is disclosed pursuant to a subpoena and the director determines that the individual will have a reasonable opportunity to contest the subpoena.

SECTION 10. Section 855.115(a), Government Code, is amended to read as follows:

(a) Information contained in records that are in the custody of the retirement system concerning an individual member, retiree, annuitant, or beneficiary is confidential under Section 552.101, and may not be disclosed in a form identifiable with a specific individual unless:

(1) the information is disclosed to:

(A) the individual or the individual's attorney, guardian, executor, administrator, conservator, or other person who the director determines is acting in the interest of the individual or the individual's estate;

(B) a spouse or former spouse of the individual after the director determines that the information is relevant to the spouse's or former spouse's interest in member accounts, benefits, or other amounts payable by the retirement system;

(C) a governmental official or employee after the director determines that disclosure of the information requested is reasonably necessary to the performance of the duties of the official or employee; [or]

(D) a person authorized by the individual in writing to receive the information; or

(E) the attorney general for the purpose of enforcing a child support obligation; or

(2) the information is disclosed pursuant to a subpoena and the director determines that the individual will have a reasonable opportunity to contest the subpoena.

SECTION 11. Section 32(a), Texas Local Fire Fighters Retirement Act (Article 6243e, Vernon's Texas Civil Statutes), is amended to read as follows:

(a) Information contained in records that are in the custody of a retirement system established under this Act concerning an individual member, retiree, annuitant, or beneficiary is confidential for purposes of Section 552.101, Government Code [under Section 3(a)(1), Chapter 424, Acts of the 63rd Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's Texas Civil Statutes)], and may not be disclosed in a form identifiable with a specific individual unless:

(1) the information is disclosed to:

(A) the individual;

(B) the individual's attorney, guardian, executor, administrator, conservator, or other person who the board of trustees of the retirement system determines is acting in the interest of the individual or the individual's estate;

(C) a spouse or former spouse of the individual if the board of trustees determines that the information is relevant to the spouse's or former spouse's interest in member accounts, benefits, or other amounts payable by the retirement system; [or]

(D) a person authorized by the individual in writing to receive the information; or

(E) the attorney general for the purpose of enforcing a child support obligation; or

(2) the information is disclosed under an authorization of the board of trustees that specifies the reason for the disclosure.

SECTION 12. Section 17(a), Article 6243e.2(1), Revised Statutes, is amended to read as follows:

(a) Information contained in records that are in the custody of a fund established under this article concerning an individual member, retiree, or beneficiary is not public information under Chapter 552, Government Code. The information may not be disclosed in a form identifiable with a specific individual unless:

(1) the information is disclosed to:

(A) the individual;

(B) the individual's attorney, guardian, executor, administrator, or conservator, or other legal representative of the individual's estate or court-approved small estate or other person who the board determines is acting in the interest of the individual or the individual's estate;

(C) a spouse or former spouse of the individual, or the attorney of the spouse or former spouse, if the information concerns the spouse's or former spouse's interest in member accounts, benefits, or other amounts payable by the fund; [or]

(D) a person with written authorization from the individual to receive the information; or

(E) the attorney general for the purpose of enforcing a child support obligation; or

(2) the information is disclosed under an authorization of the board that specifies the reason for the disclosure.

SECTION 13. Section 29(a), Article 6243g-4, Revised Statutes, is amended to read as follows:

(a) Information contained in a record that is in the custody of a fund established under this article concerning an individual member, retiree, survivor, or beneficiary is confidential for purposes of Sections 552.101, 552.102, and 552.117, Government Code. The information may not be disclosed in a form that identifies a specific individual unless the information is disclosed to:

(1) the individual;

(2) the individual's attorney, guardian, executor, administrator, or conservator; [or]

(3) a person who has written authorization from the individual to receive the information; or

(4) the attorney general for the purpose of enforcing a child support obligation.

SECTION 14. Section 26(a), Chapter 88, Acts of the 77th Legislature, Regular Session, 2001 (Article 6243h, Vernon's Texas Civil Statutes), is amended to read as follows:

(a) Records that are in the custody of the pension system concerning an individual member, deferred participant, retiree, eligible survivor, beneficiary, or alternate payee are not public information under Chapter 552, Government Code, and may not be disclosed in a form identifiable to a specific individual unless:

(1) the information is disclosed to:

(A) the individual or the individual's attorney, guardian, executor, administrator, or conservator, or another person who the executive director determines is acting in the interest of the individual or the individual's estate;

(B) a spouse or former spouse of the individual and the executive director determines that the information is relevant to the spouse's or former spouse's interest in a member's accounts or benefits or other amounts payable by the pension system;

(C) a governmental official or employee and the executive director determines that disclosure of the information requested is reasonably necessary to the performance of the duties of the official or employee; [or]

(D) a person authorized by the individual in writing to receive the information; or

(E) the attorney general for the purpose of enforcing a child support obligation; or

(2) the information is disclosed under a subpoena and the executive director determines that the individual will have a reasonable opportunity to contest the subpoena.

SECTION 15. Section 13(a), Chapter 451, Acts of the 72nd Legislature, Regular Session, 1991 (Article 6243n, Vernon's Texas Civil Statutes), is amended to read as follows:

(a) Information contained in records that are in the custody of the retirement board or the system concerning an individual member, retiree, annuitant, beneficiary, or alternate payee is confidential under this section and may not be disclosed in a form identifiable with a specific individual unless:

(1) the information is disclosed to:

(A) the individual or the individual's attorney, guardian, executor, administrator, conservator, or other person who the pension director determines is acting in the interest of the individual or the individual's estate;

(B) a spouse or former spouse of the individual if the pension director determines that the information is relevant to the spouse's or former spouse's interest in member accounts, benefits, or other amounts payable by the retirement system;

(C) a governmental official or employee if the pension director determines that disclosure of the information requested is reasonably necessary to the performance of the duties of the official or employee;

(D) the individual's employer as defined in this Act; [or]

(E) a person authorized by the individual in writing to receive the information; or

(F) the attorney general for the purpose of enforcing a child support obligation; or

(2) the information is disclosed pursuant to a subpoena and the pension director determines that the individual will have a reasonable opportunity to contest the subpoena.

SECTION 16. The change in law made by this Act applies to a domestic relations order as provided by Section 804.003(p), Government Code, as added by this Act, received by a public retirement system on or after the effective date of this Act. A domestic relations order received before the effective date of this Act is governed by the law in effect on the date the order was received, and that law is continued in effect for that purpose.

SECTION 17. This Act takes effect September 1, 2007.