81R6700 KKA-F

By: Harris S.B. No. 865

A BILL TO BE ENTITLED

AN ACT

relating to child support enforcement.

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

SECTION 1. Section 102.009, Family Code, is amended by adding Subsection (e) to read as follows:

(e) In a proceeding under Chapter 233, the requirements imposed by Subsections (a) and (c) do not apply to the extent of any conflict between those requirements and the provisions in Chapter 233.

SECTION 2. Section 102.011(b), Family Code, is amended to read as follows:

(b) The court may also exercise personal jurisdiction over a person on whom service of citation is required or over the person's personal representative, although the person is not a resident or domiciliary of this state, if:

(1) the person is personally served with citation in this state;

(2) the person submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;

(3) the child resides in this state as a result of the acts or directives of the person;

(4) the person resided with the child in this state;

(5) the person resided in this state and provided prenatal expenses or support for the child;

(6) the person engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;

(7) the person, [registered with the paternity registry maintained by the bureau of vital statistics] as provided by Chapter 160:

(A) registered with the paternity registry maintained by the bureau of vital statistics; or

(B) signed an acknowledgment of paternity of a child born in this state; or

(8) there is any basis consistent with the constitutions of this state and the United States for the exercise of the personal jurisdiction.

SECTION 3. Sections 154.062(b) and (c), Family Code, are amended to read as follows:

(b) Resources include:

(1) 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);

(2) interest, dividends, and royalty income;

(3) self-employment income;

(4) net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and

(5) all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, unemployment benefits, disability and workers' compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.

(c) Resources do not include:

(1) return of principal or capital;

(2) accounts receivable; or

(3) benefits paid in accordance with federal public assistance programs [aid for families with dependent children].

SECTION 4. Sections 154.130(a) and (b), Family Code, are amended to read as follows:

(a) Without regard to Rules 296 through 299, Texas Rules of Civil Procedure, in rendering an order of child support, the court shall make the findings required by Subsection (b) if:

(1) a party files a written request with the court not later than 10 days after the date of the hearing;

(2) a party makes an oral request in open court during the hearing; or

(3) the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines under Section 154.125 or 154.129, as applicable.

(b) If findings are required by this section, the court shall state whether the application of the guidelines would be unjust or inappropriate and shall state the following in the child support order:

"(1) the [monthly] net resources of the obligor per month are $______;

"(2) the [monthly] net resources of the obligee per month are $______;

"(3) the percentage applied to the obligor's net resources for child support [by the actual order rendered by the court] is ______%; and

"(4) [the amount of child support if the percentage guidelines are applied to the portion of the obligor's net resources that does not exceed the amount provided by Section 154.125(a), Family Code, is $______;

["(5)] if applicable, the specific reasons that the amount of child support per month ordered by the court varies from the amount computed by applying the percentage guidelines under Section 154.125 or 154.129, as applicable [stated in Subdivision (4) are: ______; and

["(6) if applicable, the obligor is obligated to support children in more than one household, and:

["(A) the number of children before the court is ______;

["(B) the number of children not before the court residing in the same household with the obligor is ______; and

["(C) the number of children not before the court for whom the obligor is obligated by a court order to pay support, without regard to whether the obligor is delinquent in child support payments, and who are not counted under Paragraph (A) or (B) is ______]."

SECTION 5. Sections 154.181(b), (c), and (e), Family Code, are amended to read as follows:

(b) Before a hearing on temporary orders or a final order, if no hearing on temporary orders is held, the court shall require the parties to the proceedings to disclose in a pleading or other statement:

(1) if private health insurance is in effect for the child, the identity of the insurance company providing the coverage, the policy number, which parent is responsible for payment of any insurance premium for the coverage, whether the coverage is provided through a parent's employment, and the cost of the premium; or

(2) if private health insurance is not in effect for the child, whether:

(A) the child is receiving medical assistance under Chapter 32, Human Resources Code;

(B) the child is receiving health benefits coverage under the state child health plan under Chapter 62, Health and Safety Code, and the cost of any premium; and

(C) either parent has access to private health insurance at reasonable cost to the obligor [that parent].

(c) In rendering temporary orders, the court shall, except for good cause shown, order that any health insurance coverage in effect for the child continue in effect pending the rendition of a final order, except that the court may not require the continuation of any health insurance that is not available to the parent at reasonable cost to the obligor. If there is no health insurance coverage in effect for the child or if the insurance in effect is not available at a reasonable cost to the obligor, the court shall, except for good cause shown, order health care coverage for the child as provided under Section 154.182.

(e) In this section, "reasonable cost" means the cost of health insurance coverage for a child that does not exceed nine percent of the obligor's [responsible parent's] annual resources, as described by Section 154.062(b), if the obligor is responsible under a medical support order for the cost of health insurance coverage for only one child. If the obligor is responsible under a medical support order for the cost of health insurance coverage for more than one child, "reasonable cost" means the total cost of health insurance coverage for all children for which the obligor is responsible under a medical support order that does not exceed nine percent of the obligor's annual resources, as described by Section 154.062(b).

SECTION 6. Sections 154.182(a), (b), (b-1), (b-2), and (c), Family Code, are amended to read as follows:

(a) The court shall consider the cost, accessibility, and quality of health insurance coverage available to the parties and shall give priority to health insurance coverage available through the employment of one of the parties if the coverage is available at a reasonable cost to the obligor.

(b) In determining the manner in which health care coverage for the child is to be ordered, the court shall render its order in accordance with the following priorities, unless a party shows good cause why a particular order would not be in the best interest of the child:

(1) if health insurance is available for the child through a parent's employment or membership in a union, trade association, or other organization at reasonable cost to the obligor [parent], the court shall order that parent to include the child in the parent's health insurance;

(2) if health insurance is not available for the child under Subdivision (1) but is available to a parent from another source and at a reasonable cost to the obligor, the court may order that parent to provide health insurance for the child; or

(3) if health insurance coverage is not available for the child under Subdivision (1) or (2), the court shall order the obligor to pay the obligee, in addition to any amount ordered under the guidelines for child support, an amount, not to exceed the maximum amount that the obligor could be required to pay for health insurance under this subchapter [nine percent of the obligor's monthly resources], as cash medical support for the child.

(b-1) If the parent ordered to provide health insurance under Subsection (b)(1) or (2) is the obligee, the court shall order the obligor to pay the obligee, as additional child support, an amount equal to the actual cost of health insurance for the child, but not to exceed a reasonable cost to the obligor. In calculating the actual cost of health insurance for the child, if the obligee has other minor dependents covered under the same health insurance plan, the court shall divide the total cost to the obligee for the insurance by the total number of minor dependents, including the child covered under the plan.

(b-2) If the court finds that neither parent has access to private health insurance at a reasonable cost to the obligor, the court shall order the parent awarded the exclusive right to designate the child's primary residence or, to the extent permitted by law, the other parent to apply immediately on behalf of the child for participation in a government medical assistance program or health plan. If the child participates in a government medical assistance program or health plan, the court shall order cash medical support under Subsection (b)(3).

(c) In this section:

(1) "Accessibility" means the extent to which health insurance coverage for a child provides for the availability of medical care within a reasonable traveling distance and time from the child's primary residence, as determined by the court.

(2) "Reasonable[, "reasonable] cost" has the meaning assigned by Section 154.181(e).

SECTION 7. Section 154.183(c), Family Code, is amended to read as follows:

(c) As additional child support, the court shall allocate between the parties, according to their circumstances:

(1) [,] the reasonable and necessary health care expenses, including vision and dental expenses, of the [of a] child that are not reimbursed by health insurance or are not otherwise covered by the amount of cash medical support ordered under Section 154.182(b)(3); and

(2) amounts paid by either party as deductibles or copayments in obtaining health care services for the child covered under a health insurance policy.

SECTION 8. Section 154.187(c), Family Code, is amended to read as follows:

(c) An employer who has received an order or notice under this subchapter shall provide to the sender, by first class mail not later than the 30th day after the date the employer receives the order or notice, a statement that the child:

(1) has been enrolled in the employer's [a] health insurance plan or is already enrolled in another health insurance plan in accordance with a previous child support or medical support order to which the employee is subject; or

(2) cannot be enrolled or cannot be enrolled permanently in the employer's [a] health insurance plan and provide the reason why coverage or permanent coverage cannot be provided.

SECTION 9. Section 154.191(b), Family Code, is amended to read as follows:

(b) This subchapter does not limit the authority of the court to render or modify a medical support order to provide [containing a provision] for payment of uninsured health expenses, health care costs, or health insurance premiums in a manner consistent [that are in addition to and inconsistent] with this subchapter.

SECTION 10. Section 157.005(b), Family Code, is amended to read as follows:

(b) The court retains jurisdiction to confirm the total amount of child support arrearages and render a cumulative money judgment for past-due child support, as provided by Section 157.263, if a motion for enforcement requesting a cumulative money judgment is filed not later than the 10th anniversary after the date:

(1) the child becomes an adult; or

(2) on which the child support obligation terminates under the child support order or by operation of law.

SECTION 11. Subchapter A, Chapter 157, Family Code, is amended by adding Section 157.009 to read as follows:

Sec. 157.009. CREDIT FOR PAYMENT OF DISABILITY BENEFITS. (a) In addition to any other credit or offset available to an obligor under this title, if a child for whom the obligor owes child support receives a lump-sum or periodic payment as a result of the obligor's disability and that payment is made to the obligee as the representative payee of the child, the obligor is entitled to a credit. The credit under this subsection is equal to the amount of the lump-sum or periodic payment and shall be applied to any child support arrearage and interest owed by the obligor on behalf of that child at the time the payment is made if the arrearage and interest accrued during the period of the obligor's disability.

(b) An obligor is not entitled to a credit under this section for any periodic payment for which the obligor has previously received an adjustment under Section 154.132.

SECTION 12. Section 157.162(d), Family Code, is amended to read as follows:

(d) The court may [not] find a respondent in contempt of court for failure to pay child support regardless of whether [if] the respondent appears at the hearing with a copy of the payment record or other evidence [satisfactory to the court] showing that the respondent is current in the payment of child support as ordered by the court.

SECTION 13. Section 157.262(f), Family Code, is amended to read as follows:

(f) The money judgment for arrearages rendered by the court may be subject to a counterclaim or offset as provided by this title [subchapter].

SECTION 14. Section 157.264, Family Code, is amended by adding Subsection (c) to read as follows:

(c) An order rendered under Subsection (b) does not preclude or limit the use of any other means for enforcement of the judgment.

SECTION 15. Section 157.268, Family Code, is amended to read as follows:

Sec. 157.268. APPLICATION OF CHILD SUPPORT PAYMENT. Child support collected shall be applied in the following order of priority:

(1) current child support;

(2) non-delinquent child support owed;

(3) [interest on the principal amounts specified in Subdivisions (4) and (5);

[(4)] the principal amount of child support that has not been confirmed and reduced to money judgment;

(4) [(5)] the principal amount of child support that has been confirmed and reduced to money judgment;

(5) interest on the principal amounts specified in Subdivisions (3) and (4); and

(6) the amount of any ordered attorney's fees or costs, or Title IV-D service fees authorized under Section 231.103 for which the obligor is responsible.

SECTION 16. Section 158.203, Family Code, is amended by amending Subsection (b) and adding Subsection (b-1) to read as follows:

(b) An employer with 250 or more employees shall remit a payment required under this section [For payments made] by electronic funds transfer or electronic data interchange[, the employer shall transmit the amount withheld] not later than the second business day after the pay date.

(b-1) An employer with fewer than 250 employees may remit a payment required under this section by electronic funds transfer or electronic data interchange. A payment remitted by the employer electronically must be remitted not later than the date specified by Subsection (b).

SECTION 17. Sections 158.215(a), (b), and (c), Family Code, are amended to read as follows:

(a) In this section, "lump-sum payment" means income in the form of a bonus or [commission or] an amount paid in lieu of vacation or other leave time. The term does not include an employee's usual earnings or an amount paid as severance pay on termination of employment.

(b) This section applies only to an employer who receives an administrative writ of withholding in a Title IV-D case [that requires that an obligor's income be withheld for child support arrearages].

(c) An employer to whom this section applies may not make a lump-sum payment to the obligor in the amount of $500 or more without first notifying the Title IV-D agency [that issued the writ] to determine whether all or a portion of the payment should be applied to [the] child support arrearages owed by the obligor.

SECTION 18. Section 159.611(a), Family Code, is amended to read as follows:

(a) Except as provided by Section 159.615, on petition a tribunal of this state may modify a child support order issued in another state and registered in this state only if Section 159.613 does not apply and after notice and hearing the tribunal finds that:

(1) the following requirements are met:

(A) the child, the obligee who is an individual, and the obligor do not reside in the issuing state;

(B) a petitioner who is a nonresident of this state seeks modification; and

(C) the respondent is subject to the personal jurisdiction of the tribunal of this state; or

(2) this state is the state of residence of the child [and the child], or a party who is an individual[,] is subject to the personal jurisdiction of the tribunal of this state, and all of the parties who are individuals have filed consents in a record in the issuing tribunal [consents] for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction.

SECTION 19. Section 160.103(a), Family Code, is amended to read as follows:

(a) Except as provided by Chapter 233, this [This] chapter governs every determination of parentage in this state.

SECTION 20. Section 160.601(b), Family Code, is amended to read as follows:

(b) The proceeding is governed by the Texas Rules of Civil Procedure, except as provided by Chapter 233.

SECTION 21. Section 201.009(e), Family Code, is amended to read as follows:

(e) On a request for a de novo hearing, the referring court may consider testimony or other evidence in the record[, if the record is taken by a court reporter,] in addition to witnesses or other matters presented under Section 201.015.

SECTION 22. Section 201.015(c), Family Code, is amended to read as follows:

(c) In the de novo hearing before the referring court, the parties may present witnesses on the issues specified in the request for hearing. The referring court may also consider the record from the hearing before the associate judge, including the charge to and verdict returned by a jury[, if the record was taken by a court reporter].

SECTION 23. Sections 231.015 and 231.202, Family Code, are amended to read as follows:

Sec. 231.015. INSURANCE REPORTING [PILOT] PROGRAM. (a) In consultation with the Texas Department of Insurance and representatives of the insurance industry in this state, including insurance trade associations, the Title IV-D agency by rule shall operate [establish] a [pilot] program to improve the enforcement of child support, including the use of child support liens under Chapter 157. The [pilot] program shall provide for procedures, including data matches, [develop processes] under which insurance companies shall [may voluntarily] cooperate with the Title IV-D agency in identifying obligors who owe child support arrearages or who are subject to liens for child support arrearages to intercept certain liability insurance settlements or awards for claims in satisfaction of the arrearage amounts.

(b) An insurance company that provides information or [otherwise] responds to a notice of child support lien or levy under Subchapter G, Chapter 157, or acts in good faith to comply with procedures established by the Title IV-D agency [in the pilot program] under this section is not liable for those acts under any law to any person.

Sec. 231.202. AUTHORIZED COSTS AND FEES IN TITLE IV-D CASES. In a Title IV-D case filed under this title, including a case filed under Chapter 159, the Title IV-D agency shall pay only the following costs and fees:

(1) filing fees and fees for issuance and service of process as provided by Chapter 110 of this code and by Sections 51.317 (b)(1), (2), and (3) and (b-1) [51.317], 51.318(b)(2), and 51.319(2), Government Code;

(2) fees for transfer as provided by Chapter 110;

(3) fees for the issuance and delivery of orders and writs of income withholding in the amounts provided by Chapter 110;

(4) the fee that sheriffs and constables are authorized to charge for serving process under Section 118.131, Local Government Code, for each item of process to each individual on whom service is required, including service by certified or registered mail, to be paid to a sheriff, constable, or clerk whenever service of process is required;

(5) the fee for filing an administrative writ of withholding under Section 158.503(d); and

(6) the fee for issuance of a subpoena as provided by Section 51.318(b)(1), Government Code.

SECTION 24. Section 232.005(a), Family Code, is amended to read as follows:

(a) A petition under this chapter must state that license suspension is required under Section 232.003 and allege:

(1) the name and, if known, social security number of the individual;

(2) [with regard to each license, the type, and if known, number of any license the individual is believed to hold and] the name of the licensing authority that issued a [the] license the individual is believed to hold; and

(3) the amount of arrearages owed under the child support order or the facts associated with the individual's failure to comply with:

(A) a subpoena; or

(B) the terms of a court order providing for the possession of or access to a child.

SECTION 25. Section 34.001, Civil Practice and Remedies Code, is amended by adding Subsection (c) to read as follows:

(c) This section does not apply to a judgment for child support under the Family Code.

SECTION 26. Section 12.0011, Property Code, is amended by adding Subsection (d) to read as follows:

(d) This section does not apply to a child support lien notice issued by the Title IV-D agency under Chapter 157, Family Code. For purposes of this subsection, "Title IV-D agency" has the meaning assigned by Section 101.033, Family Code.

SECTION 27. Section 72.101, Property Code, is amended by adding Subsection (e) to read as follows:

(e) This section does not apply to money collected as child support and held for disbursement by a governmental agency, financial institution, or other entity pending identification and location of the person to whom the money is owed.

SECTION 28. Section 601.454(c), Transportation Code, is amended to read as follows:

(c) Information obtained under this subchapter is confidential. The agent:

(1) may use the information only for a purpose authorized under this subchapter;

(2) [and] may not use the information for a commercial purpose; and

(3) on request, and subject to appropriate safeguards to protect the privacy of motor vehicle owners developed by the implementing agencies and the attorney general, may provide the information to the attorney general for the purpose of enforcing child support obligations.

SECTION 29. Sections 154.130(c), 154.182(d), 234.010, and 234.011, Family Code, are repealed.

SECTION 30. Section 102.009, Family Code, as amended by this Act, applies to a proceeding under Chapter 233, Family Code, that is pending before the Title IV-D agency or initiated by the Title IV-D agency on or after the effective date of that provision.

SECTION 31. Section 102.011, Family Code, as amended by this Act, applies only to an acknowledgment of paternity signed on or after the effective date of that provision.

SECTION 32. Sections 154.062 and 154.130, Family Code, as amended by this Act, apply only to a suit affecting the parent-child relationship that is commenced on or after the effective date of those provisions. A suit affecting the parent-child relationship commenced before the effective date of those provisions is governed by the law in effect on the date the suit was commenced, and the former law is continued in effect for that purpose.

SECTION 33. Sections 154.181, 154.182, 154.183, and 154.191, Family Code, as amended by this Act, apply to a suit affecting the parent-child relationship pending in a trial court on or filed on or after the effective date of those provisions.

SECTION 34. Section 154.187, Family Code, as amended by this Act, applies to an order or notice received by an employer on or after the effective date of that provision. An order or notice received by an employer before the effective date of that provision is governed by the law in effect on the date the order or notice was received, and the former law is continued in effect for that purpose.

SECTION 35. Section 157.009, Family Code, as added by this Act, applies only to a money judgment for child support arrearages that is rendered on or after the effective date of that provision. A money judgment for child support arrearages rendered before the effective date of that provision is governed by the law in effect on the date that the judgment was rendered, and the former law is continued in effect for that purpose.

SECTION 36. Section 157.162, Family Code, as amended by this Act, applies to a hearing to enforce an order in a suit affecting the parent-child relationship that commences on or after the effective date of that provision. A hearing that commences before the effective date of that provision is governed by the law in effect on the date the hearing commenced, and the former law is continued in effect for that purpose.

SECTION 37. Section 157.268, Family Code, as amended by this Act, applies only to child support collected on or after January 1, 2010.

SECTION 38. Section 158.203, Family Code, as amended by this Act, applies to child support payments withheld by an employer on or after September 1, 2009.

SECTION 39. Sections 201.009 and 201.015, Family Code, as amended by this Act, apply only to a hearing before an associate judge that is commenced on or after the effective date of that provision. A hearing before an associate judge that commenced before the effective date of that provision is governed by the law in effect on the date the hearing commenced, and the former law is continued in effect for that purpose.

SECTION 40. Section 232.005, Family Code, as amended by this Act, applies only to a petition filed on or after the effective date of that provision. A petition filed before the effective date of that provision is governed by the law in effect on the date the petition was filed, and the former law is continued in effect for that purpose.

SECTION 41. Section 34.001, Civil Practice and Remedies Code, as amended by this Act, applies to each judgment for child support under the Family Code, regardless of the date on which the judgment was rendered.

SECTION 42. (a) Except as provided by Subsections (b) and (c) of this section:

(1) this Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution; and

(2) if this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.

(b) The change in law made by this Act to Section 157.268, Family Code, takes effect January 1, 2010.

(c) The change in law made by this Act to Section 158.203, Family Code, takes effect September 1, 2009.