82R2412 MCK-F
By: Hilderbran H.B. No. 253
A BILL TO BE ENTITLED
AN ACT
relating to the protection of children by enforcing compulsory
public school attendance requirements, ensuring reports of abuse or
neglect, protecting children from abuse and neglect, ensuring that
births are reported, and prosecuting the offense of bigamy;
providing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 12.01, Code of Criminal Procedure, is
amended to read as follows:
Art. 12.01. FELONIES. Except as provided in Article 12.03,
felony indictments may be presented within these limits, and not
afterward:
(1) no limitation:
(A) murder and manslaughter;
(B) sexual assault under Section 22.011(a)(2),
Penal Code, or aggravated sexual assault under Section
22.021(a)(1)(B), Penal Code;
(C) sexual assault, if during the investigation
of the offense biological matter is collected and subjected to
forensic DNA testing and the testing results show that the matter
does not match the victim or any other person whose identity is
readily ascertained;
(D) continuous sexual abuse of young child or
children under Section 21.02, Penal Code;
(E) indecency with a child under Section 21.11,
Penal Code; or
(F) an offense involving leaving the scene of an
accident under Section 550.021, Transportation Code, if the
accident resulted in the death of a person;
(2) ten years from the date of the commission of the
offense:
(A) theft of any estate, real, personal or mixed,
by an executor, administrator, guardian or trustee, with intent to
defraud any creditor, heir, legatee, ward, distributee,
beneficiary or settlor of a trust interested in such estate;
(B) theft by a public servant of government
property over which he exercises control in his official capacity;
(C) forgery or the uttering, using or passing of
forged instruments;
(D) injury to an elderly or disabled individual
punishable as a felony of the first degree under Section 22.04,
Penal Code;
(E) sexual assault, except as provided by
Subdivision (1); or
(F) arson;
(3) seven years from the date of the commission of the
offense:
(A) misapplication of fiduciary property or
property of a financial institution;
(B) securing execution of document by deception;
(C) a felony violation under Chapter 162, Tax
Code;
(D) false statement to obtain property or credit
under Section 32.32, Penal Code;
(E) money laundering;
(F) credit card or debit card abuse under Section
32.31, Penal Code; [or]
(G) fraudulent use or possession of identifying
information under Section 32.51, Penal Code; or
(H) bigamy under Section 25.01, Penal Code,
except as provided by Subdivision (6);
(4) five years from the date of the commission of the
offense:
(A) theft or robbery;
(B) except as provided by Subdivision (5),
kidnapping or burglary;
(C) injury to an elderly or disabled individual
that is not punishable as a felony of the first degree under Section
22.04, Penal Code;
(D) abandoning or endangering a child; or
(E) insurance fraud;
(5) if the investigation of the offense shows that the
victim is younger than 17 years of age at the time the offense is
committed, 20 years from the 18th birthday of the victim of one of
the following offenses:
(A) sexual performance by a child under Section
43.25, Penal Code;
(B) aggravated kidnapping under Section
20.04(a)(4), Penal Code, if the defendant committed the offense
with the intent to violate or abuse the victim sexually; or
(C) burglary under Section 30.02, Penal Code, if
the offense is punishable under Subsection (d) of that section and
the defendant committed the offense with the intent to commit an
offense described by Subdivision (1)(B) or (D) of this article or
Paragraph (B) of this subdivision;
(6) ten years from the 18th birthday of the victim of
the offense:
(A) injury to a child under Section 22.04, Penal
Code; or
(B) bigamy under Section 25.01, Penal Code, if
the investigation of the offense shows that the person, other than
the legal spouse of the defendant, whom the defendant marries or
purports to marry or with whom the defendant lives under the
appearance of being married is younger than 18 years of age at the
time the offense is committed; or
(7) three years from the date of the commission of the
offense: all other felonies.
SECTION 2. Sections 25.091(a) and (b), Education Code, are
amended to read as follows:
(a) A peace officer serving as an attendance officer has the
following powers and duties concerning enforcement of compulsory
school attendance requirements:
(1) to investigate each case of a violation of
compulsory school attendance requirements referred to the peace
officer;
(2) to enforce compulsory school attendance
requirements by:
(A) referring a student to a juvenile court or
filing a complaint against a student in a county, justice, or
municipal court if the student has unexcused absences for the
amount of time specified under Section 25.094 or under Section
51.03(b)(2), Family Code; and
(B) filing a complaint in a county, justice, or
municipal court against a parent who violates Section 25.093;
(3) to serve court-ordered legal process;
(4) to review school attendance records for compliance
by each student investigated by the officer;
(5) to maintain an investigative record on each
compulsory school attendance requirement violation and related
court action and, at the request of a court, the board of trustees
of a school district, or the commissioner, to provide a record to
the individual or entity requesting the record;
(6) to make a home visit or otherwise contact the
parent of a student who is in violation of compulsory school
attendance requirements, except that a peace officer may not enter
a residence without the permission of the parent of a student
required under this subchapter to attend school or of the tenant or
owner of the residence except to lawfully serve court-ordered legal
process on the parent; [and]
(7) to make a home visit or otherwise contact the
parent of a student who is the subject of an ongoing investigation
under Chapter 261, Family Code, and who is in violation of
compulsory school attendance requirements, except that a peace
officer may not enter a residence without the effective consent of
the student required under this subchapter to attend school or the
permission of the parent of the student or of the owner or tenant of
the residence except to lawfully serve court-ordered legal process
on the parent or to execute a search warrant; and
(8) to take a student into custody with the permission
of the student's parent or in obedience to a court-ordered legal
process.
(b) An attendance officer employed by a school district who
is not commissioned as a peace officer has the following powers and
duties with respect to enforcement of compulsory school attendance
requirements:
(1) to investigate each case of a violation of the
compulsory school attendance requirements referred to the
attendance officer;
(2) to enforce compulsory school attendance
requirements by:
(A) referring a student to a juvenile court or
filing a complaint against a student in a county, justice, or
municipal court if the student has unexcused absences for the
amount of time specified under Section 25.094 or under Section
51.03(b)(2), Family Code; and
(B) filing a complaint in a county, justice, or
municipal court against a parent who violates Section 25.093;
(3) to monitor school attendance compliance by each
student investigated by the officer;
(4) to maintain an investigative record on each
compulsory school attendance requirement violation and related
court action and, at the request of a court, the board of trustees
of a school district, or the commissioner, to provide a record to
the individual or entity requesting the record;
(5) to make a home visit or otherwise contact the
parent of a student who is in violation of compulsory school
attendance requirements, except that the attendance officer may not
enter a residence without permission of the parent or of the owner
or tenant of the residence;
(6) to make a home visit or otherwise contact the
parent of a student who is the subject of an ongoing investigation
under Chapter 261, Family Code, and who is in violation of
compulsory school attendance requirements, except that an
attendance officer may not enter a residence without the effective
consent of the student required under this subchapter to attend
school or the permission of the parent of the student or of the
owner or tenant of the residence except to accompany a peace officer
who is executing a search warrant;
(7) at the request of a parent, to escort a student
from any location to a school campus to ensure the student's
compliance with compulsory school attendance requirements; and
(8) [(7)] if the attendance officer has or is informed
of a court-ordered legal process directing that a student be taken
into custody and the school district employing the officer does not
employ its own police department, to contact the sheriff,
constable, or any peace officer to request that the student be taken
into custody and processed according to the legal process.
SECTION 3. Section 25.091(c), Education Code, is amended by
adding Subdivision (3) to read as follows:
(3) "Effective consent" does not include consent given
by a person who by reason of youth is known by the person to whom
consent is given to be unable to make a reasonable decision.
SECTION 4. Section 25.093, Education Code, is amended by
amending Subsections (a), (c), and (g) and adding Subsection (c-1)
to read as follows:
(a) If a warning notice is issued as required by Section
25.095(b) [25.095(a)], the parent with criminal negligence fails to
require the child to attend school as required by law, and the child
has absences for the amount of time specified under Section 25.094,
the parent commits an offense.
(c) Except as provided by Subsection (c-1), an [An] offense
under Subsection (a) is a Class A [C] misdemeanor. Each day the
child remains out of school may constitute a separate offense. Two
or more offenses under Subsection (a) may be consolidated and
prosecuted in a single action. If the court orders deferred
disposition under Article 45.051, Code of Criminal Procedure, the
court may require the defendant to provide personal services to a
charitable or educational institution as a condition of the
deferral.
(c-1) If a parent has been previously convicted of an
offense under Subsection (a), a subsequent offense under that
subsection is a felony of the third degree.
(g) If a parent refuses to obey a court order entered under
this section, the court may punish the parent for contempt of court
under Section 21.002, Government Code. Notwithstanding Section
21.002(b) or (c), Government Code, the punishment for contempt of
court for a parent who refuses to obey a court order entered under
this section is a fine of not more than $1,000, confinement in the
county jail for not more than six months, or both a fine and
confinement in jail.
SECTION 5. Section 25.094(e), Education Code, is amended to
read as follows:
(e) An offense under this section is a Class B [C]
misdemeanor.
SECTION 6. Section 261.109(b), Family Code, is amended to
read as follows:
(b) An offense under this section is a Class A misdemeanor,
except that the offense is a state jail felony if it is shown on the
trial of the offense that:
(1) the person committing the offense is a
professional as defined by Section 261.101(b); or
(2) the child was a person with mental retardation who
resided in a state supported living center, the ICF-MR component of
the Rio Grande State Center, or a facility licensed under Chapter
252, Health and Safety Code, and the actor knew that the child had
suffered serious bodily injury as a result of the abuse or neglect.
SECTION 7. Section 262.001, Family Code, is amended by
amending Subsection (b) and adding Subsection (c) to read as
follows:
(b) In determining the reasonable efforts, if any, that are
required to be made with respect to preventing or eliminating the
need to remove a child from the child's home or to make it possible
to return a child to the child's home, the child's health and safety
is the paramount concern.
(c) In making a determination under Subsection (b), the
court may find that based on the circumstances no reasonable
efforts would prevent or eliminate the need to remove a child and
that the department satisfied the requirements of Subsection (b)
even though the department made no efforts to prevent or eliminate
the need to remove a child.
SECTION 8. Section 262.1015(b), Family Code, is amended to
read as follows:
(b) A court may issue a temporary restraining order in a
suit by the department for the removal of an alleged perpetrator
under Subsection (a) if the department's petition states facts
sufficient to satisfy the court that:
(1) there is an immediate danger to the physical
health or safety of the child or the child has been a victim of
sexual abuse;
(2) there is no time, consistent with the physical
health or safety of the child, for an adversary hearing;
(3) the child is not in danger of abuse from a parent
or other adult with whom the child will continue to reside in the
residence of the child; [and]
(4) the parent or other adult with whom the child will
continue to reside in the child's home is likely to:
(A) make a reasonable effort to monitor the
residence; and
(B) report to the department and the appropriate
law enforcement agency any attempt by the alleged perpetrator to
return to the residence; and
(5) the issuance of the order is in the best interest
of the child.
SECTION 9. Section 262.102(b), Family Code, is amended to
read as follows:
(b) In determining whether the circumstances described by
Subsections (a)(1) and (2) exist [there is an immediate danger to
the physical health or safety of a child], the court shall [may]
consider whether the child's household includes a person who has:
(1) abused or neglected another child in a manner that
caused serious injury to or the death of the other child; or
(2) sexually abused another child.
SECTION 10. Subchapter B, Chapter 262, Family Code, is
amended by adding Section 262.116 to read as follows:
Sec. 262.116. PROHIBITION ON ACCOMPANYING CHILD. If the
department takes possession of a child under this chapter by
removing the child from an adult entitled to possession of the
child, the department may not allow that adult to accompany or
remain with the child after the child is in the department's
custody.
SECTION 11. Section 195.004, Health and Safety Code, is
amended by amending Subsection (d) and adding Subsection (d-1) to
read as follows:
(d) Except as provided by Subsection (d-1), an [An] offense
under this section is a Class C misdemeanor.
(d-1) An offense under this section for failure to perform a
duty required by Section 192.003 is a Class A misdemeanor.
SECTION 12. Section 25.01, Penal Code, is amended by
amending Subsection (e) and adding Subsection (f) to read as
follows:
(e) Except as provided by Subsection (f), an [An] offense
under this section is a felony of the third degree[, except that if
at the time of the commission of the offense, the person whom the
actor marries or purports to marry or with whom the actor lives
under the appearance of being married is:
[(1) 16 years of age or older, the offense is a felony
of the second degree; or
[(2) younger than 16 years of age, the offense is a
felony of the first degree].
(f) If it is shown at the trial of the offense that at the
time of the commission of the offense the person whom the actor
marries or purports to marry or with whom the actor lives under the
appearance of being married is 17 years of age or younger, the
offense is:
(1) a felony of the second degree if the actor is 17
years of age or younger; or
(2) a felony of the first degree if the actor is 18
years of age or older.
SECTION 13. Section 25.091, Education Code, as amended by
this Act, applies beginning with the 2010-2011 school year.
SECTION 14. The changes in law made by this Act to Sections
25.093 and 25.094, Education Code, Section 261.109, Family Code,
Section 195.004, Health and Safety Code, and Section 25.01, Penal
Code, apply only to an offense committed on or after the effective
date of this Act. 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 is committed
before the effective date of this Act if any element of the offense
occurs before that date.
SECTION 15. The change in law made by this Act to Article
12.01, Code of Criminal Procedure, does not apply to an offense if
the prosecution of that offense becomes barred by limitation before
the effective date of this Act. The prosecution of that offense
remains barred as if this Act had not taken effect.
SECTION 16. The change in law made by this Act to Section
262.1015(b), Family Code, applies only to a petition for a
temporary restraining order in a suit by the Department of Family
and Protective Services filed on or after the effective date of this
Act. A petition filed before the effective date of this Act 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 17. This Act takes effect September 1, 2011.