81R5391 PEP-D
By: Madden H.B. No. 2373
A BILL TO BE ENTITLED
AN ACT
relating to garnishment of wages for court-ordered restitution in a
criminal judgment.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 42.037(g)(1), Code of Criminal
Procedure, is amended to read as follows:
(g)(1) The court may require a defendant to make restitution
under this article within a specified period or in specified
installments or in the manner provided by Article 42.039. If the
court requires the defendant to make restitution in specified
installments, in addition to the installment payments, the court
may require the defendant to pay a one-time restitution fee of $12,
$6 of which the court shall retain for costs incurred in collecting
the specified installments and $6 of which the court shall order to
be paid to the compensation to victims of crime fund.
SECTION 2. Article 42.037(h), Code of Criminal Procedure,
is amended to read as follows:
(h) If a defendant, other than a defendant ordered to pay
restitution in the manner provided by Article 42.039, is placed on
community supervision or is paroled or released on mandatory
supervision, the court or the parole panel shall order the payment
of restitution ordered under this article as a condition of
community supervision, parole, or mandatory supervision. The court
may revoke community supervision and the parole panel may revoke
parole or mandatory supervision if the defendant fails to comply
with the order. In determining whether to revoke community
supervision, parole, or mandatory supervision, the court or parole
panel shall consider:
(1) the defendant's employment status;
(2) the defendant's current and future earning
ability;
(3) the defendant's current and future financial
resources;
(4) the willfulness of the defendant's failure to pay;
(5) any other special circumstances that may affect
the defendant's ability to pay; and
(6) the victim's financial resources or ability to pay
expenses incurred by the victim as a result of the offense.
SECTION 3. Article 42.0371(b), Code of Criminal Procedure,
is amended to read as follows:
(b) The court shall, after considering the financial
circumstances of the defendant, specify in a restitution order
issued under Subsection (a) the manner in which the defendant must
pay the restitution. The court may require the defendant to pay the
restitution in the manner provided by Article 42.039.
SECTION 4. Chapter 42, Code of Criminal Procedure, is
amended by adding Article 42.039 to read as follows:
Art. 42.039. WITHHOLDING FROM EARNINGS FOR
RESTITUTION. (a) A court that, under Article 42.037 or 42.0371,
orders a defendant to make restitution to the victim of the offense
may order that income be withheld from the disposable earnings of
the defendant for restitution and be paid to a community
supervision and corrections department.
(b) The court has continuing jurisdiction of a defendant
whose income is the subject of an income withholding order to
administer and enforce the order.
(c) An income withholding order must direct any employer of
the defendant obligated to pay restitution to withhold from the
defendant's disposable earnings an amount that is equal to all or a
portion of the amount specified in the restitution order, but that
is not more than 50 percent of the defendant's disposable earnings.
The order must state:
(1) the style, docket number, and the court assessing
punishment;
(2) the name, address, and, if available, social
security number of the defendant;
(3) the amount of the restitution;
(4) the name and address of the community supervision
and corrections department to which payments are to be made; and
(5) any other matter necessary to effect the order.
(d) The defendant whose income is subject to a withholding
order or the attorney prosecuting the offense may request the clerk
of the court making the order to deliver a certified copy of the
income withholding order to any employer of the defendant. The
request must include the name and address of the employer. The
clerk shall issue a certified copy of the order and make a copy of
this article for each employer of the defendant whose income is the
subject of the order and shall deliver them not later than the
fourth working day after the date the order is signed by the court
or a request under this subsection is filed, whichever is later.
The order and a copy of this article shall be delivered to the
employer by certified or registered mail, return receipt requested,
to the person authorized to receive service of process in civil
cases generally, or to a person designated by the employer to
receive notices of delinquency by written notice to the clerk of the
appropriate court, or by the service of citation as provided by the
Texas Rules of Civil Procedure. The clerk may charge the defendant
whose income is subject to withholding a reasonable fee of not more
than $15 for each copy of the order mailed by the clerk. The amount
to be withheld shall be remitted to the community supervision and
corrections department named in the order on each regular due date
or pay date. The employer may deduct an administrative fee of not
more than $10 each month from the defendant's disposable earnings
in addition to the amount to be withheld as restitution.
(e) The employer shall begin to withhold income in
accordance with an order issued under this article not later than
the first pay period following the date on which the order is
delivered to the employer and shall continue to withhold income as
long as the defendant whose income is subject to the order is
employed by the employer.
(f) Not later than the 20th day after receipt of an income
withholding order, the employer may make a motion to the court that
made the order for hearing on the applicability of the order to the
employer. The hearing shall be held not later than the 15th day
after the date of the filing of the motion. The order remains
binding and the employer shall continue to make the payments
pending further order of the court.
(g) An employer receiving an order under this article who
complies with the order is not liable to the defendant whose income
is subject to the order for the amount of income withheld and paid
as provided in the order. An employer who receives an income
withholding order and who does not comply with the order is liable
for the amount not paid in compliance with the order. That amount
and reasonable attorney's fees and court costs may be collected by
the prosecuting attorney or by the victim for whose benefit the
withholding is to be made. An employer who receives an income
withholding order and who does not comply with the order is also
liable to the defendant whose income is subject to the order for any
amount withheld but not paid in compliance with the order and for
reasonable attorney's fees and court costs.
(h) An employer receiving more than one order on the same
defendant shall comply with each order to the maximum extent
possible. If the total amount in the orders exceeds 50 percent of
the defendant's disposable earnings, the employer shall pay an
equal amount on each order until each order is individually
satisfied. An employer who is ordered to withhold from more than
one defendant may combine the amounts withheld and make a single
payment to each appropriate community supervision and corrections
department requesting withholding if the employer separately
identifies the amount of the payment that is attributable to each
department.
(i) An employer may not use an order authorized by this
article as grounds in whole or part for the termination of
employment or for any other disciplinary action against an
employee. An employer may not refuse to hire an employee because of
an order withholding income. If an employer intentionally
discharges an employee in violation of this subsection, the
employer is liable to the employee for continuing wages and other
benefits and for reasonable attorney's fees and court costs
incurred by the employee in enforcing the employee's rights under
this subsection. An action under this subsection may be brought
only by the employee.
(j) In addition to the civil remedies provided by
Subsections (g) and (i) or to any other remedy provided by law, an
employer who knowingly violates Subsection (g) or (i) is subject to
a fine not to exceed $200 for each occurrence in which the employer
fails to withhold and pay in compliance with the withholding order.
The amount of a fine recovered under this subsection shall be paid
to the community supervision and corrections department to which
withholding is required to be paid and credited against the amount
of restitution ordered.
(k) When the employment of a defendant whose income is
withheld by the employer under an income withholding order is
terminated, both the defendant and the employer shall notify the
court of that fact not later than the seventh day after the
termination of employment and shall provide the defendant's last
known address and the name and address of the defendant's new
employer, if known. The defendant has a continuing duty to inform
each subsequent employer of the income withholding order after
obtaining employment. The defendant shall promptly notify the
court of any other change in the defendant's status that may affect
the income withholding order.
(l) A payment received by a community supervision and
corrections department under an income withholding order shall be
accounted for and distributed in the same manner as a payment
received directly from the defendant required to pay the
restitution.
SECTION 5. The change in law made by this Act applies only
to restitution for an offense committed on or after the effective
date of this Act. Restitution for an offense committed before the
effective date of this Act is governed by the law in effect when the
offense was committed, and the former law is continued in effect for
that purpose. For purposes of this section, an offense was
committed before the effective date of this Act if any element of
the offense occurred before that date.
SECTION 6. This Act takes effect January 1, 2010, but only
if the constitutional amendment proposed by the 81st Legislature,
Regular Session, 2009, relating to authorizing garnishment of wages
for court-ordered restitution in a criminal judgment, is approved
by the voters. If that constitutional amendment is not approved,
this Act has no effect.