Texas 2009 - 81st Regular

Texas House Bill HB4255 Compare Versions

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1	1	81R12498 MCK-D
2	2	By: Hilderbran, Darby, Rose, Walle H.B. No. 4255
3	3	Substitute the following for H.B. No. 4255:
4	4	By: Rose C.S.H.B. No. 4255
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the protection of children by enforcing compulsory
10	10	public school attendance requirements, ensuring reports of abuse or
11	11	neglect, protecting children from abuse and neglect, and ensuring
12	12	that births are reported and to the prosecution of the offense of
13	13	bigamy; providing criminal penalties.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Article 12.01, Code of Criminal Procedure, as
16	16	amended by Chapters 285 (H.B. 716), 593 (H.B. 8), 640 (H.B. 887),
17	17	and 841 (H.B. 959), Acts of the 80th Legislature, Regular Session,
18	18	2007, is reenacted and amended to read as follows:
19	19	Art. 12.01. FELONIES. Except as provided in Article 12.03,
20	20	felony indictments may be presented within these limits, and not
21	21	afterward:
22	22	(1) no limitation:
23	23	(A) murder and manslaughter;
24	24	(B) sexual assault under Section 22.011(a)(2),
25	25	Penal Code, or aggravated sexual assault under Section
26	26	22.021(a)(1)(B), Penal Code;
27	27	(C) sexual assault, if during the investigation
28	28	of the offense biological matter is collected and subjected to
29	29	forensic DNA testing and the testing results show that the matter
30	30	does not match the victim or any other person whose identity is
31	31	readily ascertained;
32	32	(D) continuous sexual abuse of young child or
33	33	children under Section 21.02, Penal Code;
34	34	(E) indecency with a child under Section 21.11,
35	35	Penal Code; or
36	36	(F) an offense involving leaving the scene of an
37	37	accident under Section 550.021, Transportation Code, if the
38	38	accident resulted in the death of a person;
39	39	(2) ten years from the date of the commission of the
40	40	offense:
41	41	(A) theft of any estate, real, personal or mixed,
42	42	by an executor, administrator, guardian or trustee, with intent to
43	43	defraud any creditor, heir, legatee, ward, distributee,
44	44	beneficiary or settlor of a trust interested in such estate;
45	45	(B) theft by a public servant of government
46	46	property over which he exercises control in his official capacity;
47	47	(C) forgery or the uttering, using or passing of
48	48	forged instruments;
49	49	(D) injury to an elderly or disabled individual
50	50	punishable as a felony of the first degree under Section 22.04,
51	51	Penal Code;
52	52	(E) sexual assault, except as provided by
53	53	Subdivision (1) [or (5)]; or
54	54	(F) arson;
55	55	(3) seven years from the date of the commission of the
56	56	offense:
57	57	(A) misapplication of fiduciary property or
58	58	property of a financial institution;
59	59	(B) securing execution of document by deception;
60	60	(C) a violation under Sections 162.403(22)-(39),
61	61	Tax Code;
62	62	(D) false statement to obtain property or credit
63	63	under Section 32.32, Penal Code;
64	64	(E) money laundering;
65	65	(F) [(D)] credit card or debit card abuse under
66	66	Section 32.31, Penal Code;
67	67	(G) [(F)] fraudulent use or possession of
68	68	identifying information under Section 32.51, Penal Code; or
69	69	(H) bigamy under Section 25.01, Penal Code,
70	70	except as provided by Subdivision (6);
71	71	(4) five years from the date of the commission of the
72	72	offense:
73	73	(A) theft or robbery;
74	74	(B) except as provided by Subdivision (5),
75	75	kidnapping or burglary;
76	76	(C) injury to an elderly or disabled individual
77	77	that is not punishable as a felony of the first degree under Section
78	78	22.04, Penal Code;
79	79	(D) abandoning or endangering a child; or
80	80	(E) insurance fraud;
81	81	(5) if the investigation of the offense shows that the
82	82	victim is younger than 17 years of age at the time the offense is
83	83	committed, 20 years from the 18th birthday of the victim of one of
84	84	the following offenses:
85	85	(A) sexual performance by a child under Section
86	86	43.25, Penal Code;
87	87	(B) aggravated kidnapping under Section
88	88	20.04(a)(4), Penal Code, if the defendant committed the offense
89	89	with the intent to violate or abuse the victim sexually; or
90	90	(C) burglary under Section 30.02, Penal Code, if
91	91	the offense is punishable under Subsection (d) of that section and
92	92	the defendant committed the offense with the intent to commit an
93	93	offense described by Subdivision (1)(B) or (D) of this article or
94	94	Paragraph (B) of this subdivision; [or]
95	95	(6) [(5)] ten years from the 18th birthday of the
96	96	victim of the offense:
97	97	(A) [indecency with a child under Section
98	98	21.11(a)(1) or (2), Penal Code;
99	99	[(B) except as provided by Subdivision (1),
100	100	sexual assault under Section 22.011(a)(2), Penal Code, or
101	101	aggravated sexual assault under Section 22.021(a)(1)(B), Penal
102	102	Code; or
103	103	[(C)] injury to a child under Section 22.04,
104	104	Penal Code; or
105	105	(B) bigamy under Section 25.01, Penal Code, if
106	106	the investigation of the offense shows that the person, other than
107	107	the legal spouse of the defendant, whom the defendant marries or
108	108	purports to marry or with whom the defendant lives under the
109	109	appearance of being married is younger than 18 years of age at the
110	110	time the offense is committed; or
111	111	(7) [(6)] three years from the date of the commission
112	112	of the offense: all other felonies.
113	113	SECTION 2. Sections 25.091(a) and (b), Education Code, are
114	114	amended to read as follows:
115	115	(a) A peace officer serving as an attendance officer has the
116	116	following powers and duties concerning enforcement of compulsory
117	117	school attendance requirements:
118	118	(1) to investigate each case of a violation of
119	119	compulsory school attendance requirements referred to the peace
120	120	officer;
121	121	(2) to enforce compulsory school attendance
122	122	requirements by:
123	123	(A) referring a student to a juvenile court or
124	124	filing a complaint against a student in a county, justice, or
125	125	municipal court if the student has unexcused absences for the
126	126	amount of time specified under Section 25.094 or under Section
127	127	51.03(b)(2), Family Code; and
128	128	(B) filing a complaint in a county, justice, or
129	129	municipal court against a parent who violates Section 25.093;
130	130	(3) to serve court-ordered legal process;
131	131	(4) to review school attendance records for compliance
132	132	by each student investigated by the officer;
133	133	(5) to maintain an investigative record on each
134	134	compulsory school attendance requirement violation and related
135	135	court action and, at the request of a court, the board of trustees
136	136	of a school district, or the commissioner, to provide a record to
137	137	the individual or entity requesting the record;
138	138	(6) to make a home visit or otherwise contact the
139	139	parent of a student who is in violation of compulsory school
140	140	attendance requirements, except that a peace officer may not enter
141	141	a residence without the permission of the parent of a student
142	142	required under this subchapter to attend school or of the tenant or
143	143	owner of the residence except to lawfully serve court-ordered legal
144	144	process on the parent; [and]
145	145	(7) to make a home visit or otherwise contact the
146	146	parent of the student who is the subject of an ongoing investigation
147	147	under Chapter 261, Family Code, and who is in violation of
148	148	compulsory school attendance requirements, except that a peace
149	149	officer may not enter a residence without the effective consent of
150	150	the student required under this subchapter to attend school or the
151	151	permission of the parent of the student or of the tenant or owner of
152	152	the residence except to lawfully serve court-ordered legal process
153	153	on the parent or to execute a search warrant; and
154	154	(8) to take a student into custody with the permission
155	155	of the student's parent or in obedience to a court-ordered legal
156	156	process.
157	157	(b) An attendance officer employed by a school district who
158	158	is not commissioned as a peace officer has the following powers and
159	159	duties with respect to enforcement of compulsory school attendance
160	160	requirements:
161	161	(1) to investigate each case of a violation of the
162	162	compulsory school attendance requirements referred to the
163	163	attendance officer;
164	164	(2) to enforce compulsory school attendance
165	165	requirements by:
166	166	(A) referring a student to a juvenile court or
167	167	filing a complaint against a student in a county, justice, or
168	168	municipal court if the student has unexcused absences for the
169	169	amount of time specified under Section 25.094 or under Section
170	170	51.03(b)(2), Family Code; and
171	171	(B) filing a complaint in a county, justice, or
172	172	municipal court against a parent who violates Section 25.093;
173	173	(3) to monitor school attendance compliance by each
174	174	student investigated by the officer;
175	175	(4) to maintain an investigative record on each
176	176	compulsory school attendance requirement violation and related
177	177	court action and, at the request of a court, the board of trustees
178	178	of a school district, or the commissioner, to provide a record to
179	179	the individual or entity requesting the record;
180	180	(5) to make a home visit or otherwise contact the
181	181	parent of a student who is in violation of compulsory school
182	182	attendance requirements, except that the attendance officer may not
183	183	enter a residence without permission of the parent or of the owner
184	184	or tenant of the residence;
185	185	(6) to make a home visit or otherwise contact the
186	186	parent of a student who is the subject of an ongoing investigation
187	187	under Chapter 261, Family Code, and who is in violation of
188	188	compulsory school attendance requirements, except that the
189	189	attendance officer may not enter a residence without effective
190	190	consent of the student required under this subchapter to attend
191	191	school or the permission of the parent of the student or of the
192	192	owner or tenant of the residence except to accompany a peace officer
193	193	who is executing a search warrant;
194	194	(7) at the request of a parent, to escort a student
195	195	from any location to a school campus to ensure the student's
196	196	compliance with compulsory school attendance requirements; and
197	197	(8) [(7)] if the attendance officer has or is informed
198	198	of a court-ordered legal process directing that a student be taken
199	199	into custody and the school district employing the officer does not
200	200	employ its own police department, to contact the sheriff,
201	201	constable, or any peace officer to request that the student be taken
202	202	into custody and processed according to the legal process.
203	203	SECTION 3. Section 25.091(c), Education Code, is amended by
204	204	adding Subdivision (3) to read as follows:
205	205	(3) "Effective consent" does not include consent given
206	206	by a person who by reason of youth is known by the person to whom
207	207	consent is given to be unable to make a reasonable decision.
208	208	SECTION 4. Section 25.093, Education Code, is amended by
209	209	amending Subsections (a), (c), and (g) and adding Subsection (c-1)
210	210	to read as follows:
211	211	(a) If a warning notice is issued as required by Section
212	212	25.095(b) [25.095(a)], the parent with criminal negligence fails to
213	213	require the child to attend school as required by law, and the child
214	214	has absences for the amount of time specified under Section 25.094,
215	215	the parent commits an offense.
216	216	(c) Except as provided by Subsection (c-1), an [An] offense
217	217	under Subsection (a) is a Class A [C] misdemeanor. Each day the
218	218	child remains out of school may constitute a separate offense. Two
219	219	or more offenses under Subsection (a) may be consolidated and
220	220	prosecuted in a single action. If the court orders deferred
221	221	disposition under Article 45.051, Code of Criminal Procedure, the
222	222	court may require the defendant to provide personal services to a
223	223	charitable or educational institution as a condition of the
224	224	deferral.
225	225	(c-1) If a parent has been previously convicted of an
226	226	offense under Subsection (a), a subsequent offense under that
227	227	subsection is a felony of the third degree.
228	228	(g) If a parent refuses to obey a court order entered under
229	229	this section, the court may punish the parent for contempt of court
230	230	under Section 21.002, Government Code. Notwithstanding Section
231	231	21.002(b) or (c), Government Code, the punishment for contempt of
232	232	court for a parent who refuses to obey a court order entered under
233	233	this section is a fine of not more than $1,000, confinement in the
234	234	county jail for not more than six months, or both a fine and
235	235	confinement in jail.
236	236	SECTION 5. Section 25.094(e), Education Code, is amended to
237	237	read as follows:
238	238	(e) An offense under this section is a Class B [C]
239	239	misdemeanor.
240	240	SECTION 6. Section 261.109, Family Code, is amended by
241	241	amending Subsection (b) and adding Subsection (c) to read as
242	242	follows:
243	243	(b) Except as provided by Subsection (c), an [An] offense
244	244	under this section is a Class B misdemeanor, unless it is shown on
245	245	the trial of the offense that the person has previously been
246	246	convicted under this section, in which event the offense is a Class
247	247	A misdemeanor.
248	248	(c) An offense under this section committed by a person who
249	249	is a professional as defined by Section 261.101(b) is a Class A
250	250	misdemeanor, unless it is shown on the trial of the offense that the
251	251	person has previously been convicted under this section, in which
252	252	event the offense is a state jail felony.
253	253	SECTION 7. Section 262.001, Family Code, is amended by
254	254	amending Subsection (b) and adding Subsection (c) to read as
255	255	follows:
256	256	(b) In determining the reasonable efforts, if any, that are
257	257	required to be made with respect to preventing or eliminating the
258	258	need to remove a child from the child's home or to make it possible
259	259	to return a child to the child's home, the child's health and safety
260	260	is the paramount concern.
261	261	(c) In making a determination under Subsection (b), the
262	262	court may find that based on the circumstances no reasonable
263	263	efforts would prevent or eliminate the need to remove a child and
264	264	that the department satisfied the requirements of Subsection (b)
265	265	even though the department made no efforts to prevent or eliminate
266	266	the need to remove a child.
267	267	SECTION 8. Section 262.1015(b), Family Code, is amended to
268	268	read as follows:
269	269	(b) A court may issue a temporary restraining order in a
270	270	suit by the department for the removal of an alleged perpetrator
271	271	under Subsection (a) if the department's petition states facts
272	272	sufficient to satisfy the court that:
273	273	(1) there is an immediate danger to the physical
274	274	health or safety of the child or the child has been a victim of
275	275	sexual abuse;
276	276	(2) there is no time, consistent with the physical
277	277	health or safety of the child, for an adversary hearing;
278	278	(3) the child is not in danger of abuse from a parent
279	279	or other adult with whom the child will continue to reside in the
280	280	residence of the child; [and]
281	281	(4) the parent or other adult with whom the child will
282	282	continue to reside in the child's home is likely to:
283	283	(A) make a reasonable effort to monitor the
284	284	residence; and
285	285	(B) report to the department and the appropriate
286	286	law enforcement agency any attempt by the alleged perpetrator to
287	287	return to the residence; and
288	288	(5) the issuance of the order is in the best interest
289	289	of the child.
290	290	SECTION 9. Section 262.102(b), Family Code, is amended to
291	291	read as follows:
292	292	(b) In determining whether the circumstances described by
293	293	Subsections (a)(1) and (2) exist [there is an immediate danger to
294	294	the physical health or safety of a child], the court shall [may]
295	295	consider whether the child's household includes a person who has:
296	296	(1) abused or neglected another child in a manner that
297	297	caused serious injury to or the death of the other child; or
298	298	(2) sexually abused another child.
299	299	SECTION 10. Subchapter B, Chapter 262, Family Code, is
300	300	amended by adding Section 262.116 to read as follows:
301	301	Sec. 262.116. PROHIBITION ON ACCOMPANYING CHILD. If the
302	302	department takes possession of a child under this chapter by
303	303	removing the child from an adult entitled to possession of the
304	304	child, the department may not allow that adult to accompany or
305	305	remain with the child after the child is in the department's
306	306	custody.
307	307	SECTION 11. Section 195.004, Health and Safety Code, is
308	308	amended by amending Subsection (d) and adding Subsection (d-1) to
309	309	read as follows:
310	310	(d) Except as provided by Subsection (d-1), an [An] offense
311	311	under this section is a Class C misdemeanor.
312	312	(d-1) An offense under this section for failure to perform a
313	313	duty required by Section 192.003 is a Class A misdemeanor.
314	314	SECTION 12. Section 25.01, Penal Code, is amended by
315	315	amending Subsection (e) and adding Subsection (f) to read as
316	316	follows:
317	317	(e) Except as provided by Subsection (f), an [An] offense
318	318	under this section is a felony of the third degree[, except that if
319	319	at the time of the commission of the offense, the person whom the
320	320	actor marries or purports to marry or with whom the actor lives
321	321	under the appearance of being married is:
322	322	[(1) 16 years of age or older, the offense is a felony
323	323	of the second degree; or
324	324	[(2) younger than 16 years of age, the offense is a
325	325	felony of the first degree].
326	326	(f) If it is shown at the trial of the offense that at the
327	327	time of the commission of the offense the person whom the actor
328	328	marries or purports to marry or with whom the actor lives under the
329	329	appearance of being married is 17 years of age or younger, the
330	330	offense is:
331	331	(1) a felony of the second degree if the actor is 17
332	332	years of age or younger; or
333	333	(2) a felony of the first degree if the actor is 18
334	334	years of age or older.
335	335	SECTION 13. Section 25.091, Education Code, as amended by
336	336	this Act, applies beginning with the 2009-2010 school year.
337	337	SECTION 14. The changes in law made by this Act to Sections
338	338	25.093 and 25.094, Education Code, Section 261.109, Family Code,
339	339	Section 195.004, Health and Safety Code, and Section 25.01, Penal
340	340	Code, apply only to an offense committed on or after the effective
341	341	date of this Act. An offense committed before the effective date of
342	342	this Act is governed by the law in effect when the offense was
343	343	committed, and the former law is continued in effect for that
344	344	purpose. For purposes of this section, an offense is committed
345	345	before the effective date of this Act if any element of the offense
346	346	occurs before that date.
347	347	SECTION 15. The change in law made by this Act to Article
348	348	12.01, Code of Criminal Procedure, does not apply to an offense if
349	349	the prosecution of that offense becomes barred by limitation before
350	350	the effective date of this Act. The prosecution of that offense
351	351	remains barred as if this Act had not taken effect.
352	352	SECTION 16. The change in law made by this Act to Section
353	353	262.1015(b), Family Code, applies only to a petition for a
354	354	temporary restraining order in a suit by the Department of Family
355	355	and Protective Services filed on or after the effective date of this
356	356	Act. A petition filed before the effective date of this Act is
357	357	governed by the law in effect on the date the petition was filed,
358	358	and the former law is continued in effect for that purpose.
359	359	SECTION 17. To the extent of any conflict, this Act prevails
360	360	over another Act of the 81st Legislature, Regular Session, 2009,
361	361	relating to nonsubstantive additions to and corrections in enacted
362	362	codes.
363	363	SECTION 18. This Act takes effect September 1, 2009.