By: Raymond (Senate Sponsor - Rodriguez) H.B. No. 3439
(In the Senate - Received from the House May 16, 2011;
May 16, 2011, read first time and referred to Committee on
Jurisprudence; May 21, 2011, reported favorably by the following
vote: Yeas 5, Nays 0; May 21, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to missing children; providing a criminal penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 63.001(3), Code of Criminal Procedure,
is amended to read as follows:
(3) "Missing child" means a child whose whereabouts
are unknown to the child's legal custodian, the circumstances of
whose absence indicate that:
(A) the child did not voluntarily leave the care
and control of the custodian, and the taking of the child was not
authorized by law;
(B) the child voluntarily left the care and
control of the [his legal] custodian without the custodian's
consent and without intent to return; [or]
(C) the child was taken or retained in violation
of the terms of a court order for possession of or access to the
child; or
(D) the child was taken or retained without the
permission of the custodian and with the effect of depriving the
custodian of possession of or access to the child unless the taking
or retention of the child was prompted by the commission or
attempted commission of family violence, as defined by Section
71.004, Family Code, against the child or the actor.
SECTION 2. Section 25.03, Penal Code, is amended by
amending Subsection (a) and adding Subsections (c-1) and (c-2) to
read as follows:
(a) A person commits an offense if the person takes or
retains a child younger than 18 years of age [when the person]:
(1) when the person knows that the person's taking or
retention violates the express terms of a judgment or order,
including a temporary order, of a court disposing of the child's
custody; [or]
(2) when the person has not been awarded custody of
the child by a court of competent jurisdiction, knows that a suit
for divorce or a civil suit or application for habeas corpus to
dispose of the child's custody has been filed, and takes the child
out of the geographic area of the counties composing the judicial
district if the court is a district court or the county if the court
is a statutory county court, without the permission of the court and
with the intent to deprive the court of authority over the child; or
(3) outside of the United States with the intent to
deprive a person entitled to possession of or access to the child of
that possession or access and without the permission of that
person.
(c-1) It is an affirmative defense to prosecution under
Subsection (a)(3) that:
(1) the taking or retention of the child was pursuant
to a valid order providing for possession of or access to the child;
or
(2) notwithstanding any violation of a valid order
providing for possession of or access to the child, the actor's
retention of the child was due only to circumstances beyond the
actor's control, and the actor promptly provided notice or made
reasonable attempts to provide notice of those circumstances to the
other person entitled to possession of or access to the child.
(c-2) Subsection (a)(3) does not apply if, at the time of
the offense, the person taking or retaining the child:
(1) was entitled to possession of or access to the
child; and
(2) was fleeing the commission or attempted commission
of family violence, as defined by Section 71.004, Family Code,
against the child or the person.
SECTION 3. The change in law made by this Act in amending
Article 63.001(3), Code of Criminal Procedure, applies only to the
report of a missing child made under Chapter 63, Code of Criminal
Procedure, as amended by this Act, on or after the effective date of
this Act. The report of a missing child made before the effective
date of this Act is governed by the law in effect when the report was
made, and the former law is continued in effect for that purpose.
SECTION 4. The change in law made by this Act in amending
Section 25.03, Penal Code, applies 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 on the date 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 5. This Act takes effect September 1, 2011.
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