Texas 2009 - 81st Regular

Texas House Bill HB2373 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R5391 PEP-D
2	2	By: Madden H.B. No. 2373
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to garnishment of wages for court-ordered restitution in a
8	8	criminal judgment.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Article 42.037(g)(1), Code of Criminal
11	11	Procedure, is amended to read as follows:
12	12	(g)(1) The court may require a defendant to make restitution
13	13	under this article within a specified period or in specified
14	14	installments or in the manner provided by Article 42.039. If the
15	15	court requires the defendant to make restitution in specified
16	16	installments, in addition to the installment payments, the court
17	17	may require the defendant to pay a one-time restitution fee of $12,
18	18	$6 of which the court shall retain for costs incurred in collecting
19	19	the specified installments and $6 of which the court shall order to
20	20	be paid to the compensation to victims of crime fund.
21	21	SECTION 2. Article 42.037(h), Code of Criminal Procedure,
22	22	is amended to read as follows:
23	23	(h) If a defendant, other than a defendant ordered to pay
24	24	restitution in the manner provided by Article 42.039, is placed on
25	25	community supervision or is paroled or released on mandatory
26	26	supervision, the court or the parole panel shall order the payment
27	27	of restitution ordered under this article as a condition of
28	28	community supervision, parole, or mandatory supervision. The court
29	29	may revoke community supervision and the parole panel may revoke
30	30	parole or mandatory supervision if the defendant fails to comply
31	31	with the order. In determining whether to revoke community
32	32	supervision, parole, or mandatory supervision, the court or parole
33	33	panel shall consider:
34	34	(1) the defendant's employment status;
35	35	(2) the defendant's current and future earning
36	36	ability;
37	37	(3) the defendant's current and future financial
38	38	resources;
39	39	(4) the willfulness of the defendant's failure to pay;
40	40	(5) any other special circumstances that may affect
41	41	the defendant's ability to pay; and
42	42	(6) the victim's financial resources or ability to pay
43	43	expenses incurred by the victim as a result of the offense.
44	44	SECTION 3. Article 42.0371(b), Code of Criminal Procedure,
45	45	is amended to read as follows:
46	46	(b) The court shall, after considering the financial
47	47	circumstances of the defendant, specify in a restitution order
48	48	issued under Subsection (a) the manner in which the defendant must
49	49	pay the restitution. The court may require the defendant to pay the
50	50	restitution in the manner provided by Article 42.039.
51	51	SECTION 4. Chapter 42, Code of Criminal Procedure, is
52	52	amended by adding Article 42.039 to read as follows:
53	53	Art. 42.039. WITHHOLDING FROM EARNINGS FOR
54	54	RESTITUTION. (a) A court that, under Article 42.037 or 42.0371,
55	55	orders a defendant to make restitution to the victim of the offense
56	56	may order that income be withheld from the disposable earnings of
57	57	the defendant for restitution and be paid to a community
58	58	supervision and corrections department.
59	59	(b) The court has continuing jurisdiction of a defendant
60	60	whose income is the subject of an income withholding order to
61	61	administer and enforce the order.
62	62	(c) An income withholding order must direct any employer of
63	63	the defendant obligated to pay restitution to withhold from the
64	64	defendant's disposable earnings an amount that is equal to all or a
65	65	portion of the amount specified in the restitution order, but that
66	66	is not more than 50 percent of the defendant's disposable earnings.
67	67	The order must state:
68	68	(1) the style, docket number, and the court assessing
69	69	punishment;
70	70	(2) the name, address, and, if available, social
71	71	security number of the defendant;
72	72	(3) the amount of the restitution;
73	73	(4) the name and address of the community supervision
74	74	and corrections department to which payments are to be made; and
75	75	(5) any other matter necessary to effect the order.
76	76	(d) The defendant whose income is subject to a withholding
77	77	order or the attorney prosecuting the offense may request the clerk
78	78	of the court making the order to deliver a certified copy of the
79	79	income withholding order to any employer of the defendant. The
80	80	request must include the name and address of the employer. The
81	81	clerk shall issue a certified copy of the order and make a copy of
82	82	this article for each employer of the defendant whose income is the
83	83	subject of the order and shall deliver them not later than the
84	84	fourth working day after the date the order is signed by the court
85	85	or a request under this subsection is filed, whichever is later.
86	86	The order and a copy of this article shall be delivered to the
87	87	employer by certified or registered mail, return receipt requested,
88	88	to the person authorized to receive service of process in civil
89	89	cases generally, or to a person designated by the employer to
90	90	receive notices of delinquency by written notice to the clerk of the
91	91	appropriate court, or by the service of citation as provided by the
92	92	Texas Rules of Civil Procedure. The clerk may charge the defendant
93	93	whose income is subject to withholding a reasonable fee of not more
94	94	than $15 for each copy of the order mailed by the clerk. The amount
95	95	to be withheld shall be remitted to the community supervision and
96	96	corrections department named in the order on each regular due date
97	97	or pay date. The employer may deduct an administrative fee of not
98	98	more than $10 each month from the defendant's disposable earnings
99	99	in addition to the amount to be withheld as restitution.
100	100	(e) The employer shall begin to withhold income in
101	101	accordance with an order issued under this article not later than
102	102	the first pay period following the date on which the order is
103	103	delivered to the employer and shall continue to withhold income as
104	104	long as the defendant whose income is subject to the order is
105	105	employed by the employer.
106	106	(f) Not later than the 20th day after receipt of an income
107	107	withholding order, the employer may make a motion to the court that
108	108	made the order for hearing on the applicability of the order to the
109	109	employer. The hearing shall be held not later than the 15th day
110	110	after the date of the filing of the motion. The order remains
111	111	binding and the employer shall continue to make the payments
112	112	pending further order of the court.
113	113	(g) An employer receiving an order under this article who
114	114	complies with the order is not liable to the defendant whose income
115	115	is subject to the order for the amount of income withheld and paid
116	116	as provided in the order. An employer who receives an income
117	117	withholding order and who does not comply with the order is liable
118	118	for the amount not paid in compliance with the order. That amount
119	119	and reasonable attorney's fees and court costs may be collected by
120	120	the prosecuting attorney or by the victim for whose benefit the
121	121	withholding is to be made. An employer who receives an income
122	122	withholding order and who does not comply with the order is also
123	123	liable to the defendant whose income is subject to the order for any
124	124	amount withheld but not paid in compliance with the order and for
125	125	reasonable attorney's fees and court costs.
126	126	(h) An employer receiving more than one order on the same
127	127	defendant shall comply with each order to the maximum extent
128	128	possible. If the total amount in the orders exceeds 50 percent of
129	129	the defendant's disposable earnings, the employer shall pay an
130	130	equal amount on each order until each order is individually
131	131	satisfied. An employer who is ordered to withhold from more than
132	132	one defendant may combine the amounts withheld and make a single
133	133	payment to each appropriate community supervision and corrections
134	134	department requesting withholding if the employer separately
135	135	identifies the amount of the payment that is attributable to each
136	136	department.
137	137	(i) An employer may not use an order authorized by this
138	138	article as grounds in whole or part for the termination of
139	139	employment or for any other disciplinary action against an
140	140	employee. An employer may not refuse to hire an employee because of
141	141	an order withholding income. If an employer intentionally
142	142	discharges an employee in violation of this subsection, the
143	143	employer is liable to the employee for continuing wages and other
144	144	benefits and for reasonable attorney's fees and court costs
145	145	incurred by the employee in enforcing the employee's rights under
146	146	this subsection. An action under this subsection may be brought
147	147	only by the employee.
148	148	(j) In addition to the civil remedies provided by
149	149	Subsections (g) and (i) or to any other remedy provided by law, an
150	150	employer who knowingly violates Subsection (g) or (i) is subject to
151	151	a fine not to exceed $200 for each occurrence in which the employer
152	152	fails to withhold and pay in compliance with the withholding order.
153	153	The amount of a fine recovered under this subsection shall be paid
154	154	to the community supervision and corrections department to which
155	155	withholding is required to be paid and credited against the amount
156	156	of restitution ordered.
157	157	(k) When the employment of a defendant whose income is
158	158	withheld by the employer under an income withholding order is
159	159	terminated, both the defendant and the employer shall notify the
160	160	court of that fact not later than the seventh day after the
161	161	termination of employment and shall provide the defendant's last
162	162	known address and the name and address of the defendant's new
163	163	employer, if known. The defendant has a continuing duty to inform
164	164	each subsequent employer of the income withholding order after
165	165	obtaining employment. The defendant shall promptly notify the
166	166	court of any other change in the defendant's status that may affect
167	167	the income withholding order.
168	168	(l) A payment received by a community supervision and
169	169	corrections department under an income withholding order shall be
170	170	accounted for and distributed in the same manner as a payment
171	171	received directly from the defendant required to pay the
172	172	restitution.
173	173	SECTION 5. The change in law made by this Act applies only
174	174	to restitution for an offense committed on or after the effective
175	175	date of this Act. Restitution for an offense committed before the
176	176	effective date of this Act is governed by the law in effect when the
177	177	offense was committed, and the former law is continued in effect for
178	178	that purpose. For purposes of this section, an offense was
179	179	committed before the effective date of this Act if any element of
180	180	the offense occurred before that date.
181	181	SECTION 6. This Act takes effect January 1, 2010, but only
182	182	if the constitutional amendment proposed by the 81st Legislature,
183	183	Regular Session, 2009, relating to authorizing garnishment of wages
184	184	for court-ordered restitution in a criminal judgment, is approved
185	185	by the voters. If that constitutional amendment is not approved,
186	186	this Act has no effect.