Texas 2011 - 82nd Regular

Texas Senate Bill SB786 Compare Versions

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1	1	By: Harris S.B. No. 786
2	2	(In the Senate - Filed February 18, 2011; March 1, 2011,
3	3	read first time and referred to Committee on Jurisprudence;
4	4	March 23, 2011, reported favorably by the following vote: Yeas 6,
5	5	Nays 0; March 23, 2011, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to procedures for establishment, modification, and
11	11	enforcement of child support obligations.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Subsection (c), Section 154.187, Family Code, is
14	14	amended to read as follows:
15	15	(c) An employer who has received an order or notice under
16	16	this subchapter shall provide to the sender, by first class mail not
17	17	later than the 40th [30th] day after the date the employer receives
18	18	the order or notice, a statement that the child:
19	19	(1) has been enrolled in the employer's health
20	20	insurance plan or is already enrolled in another health insurance
21	21	plan in accordance with a previous child support or medical support
22	22	order to which the employee is subject; or
23	23	(2) cannot be enrolled or cannot be enrolled
24	24	permanently in the employer's health insurance plan and provide the
25	25	reason why coverage or permanent coverage cannot be provided.
26	26	SECTION 2. Subsection (b), Section 154.303, Family Code, is
27	27	amended to read as follows:
28	28	(b) The parent, the child, if the child is 18 years of age or
29	29	older, or other person may not transfer or assign the cause of
30	30	action to any person, including a governmental or private entity or
31	31	agency, except for an assignment made to the Title IV-D agency under
32	32	Section 231.104 or in the provision of child support enforcement
33	33	services under Section 159.307.
34	34	SECTION 3. Section 156.401, Family Code, is amended by
35	35	amending Subsection (a) and adding Subsection (a-2) to read as
36	36	follows:
37	37	(a) Except as provided by Subsection (a-1), (a-2), or (b),
38	38	the court may modify an order that provides for the support of a
39	39	child, including an order for health care coverage under Section
40	40	154.182, if:
41	41	(1) the circumstances of the child or a person
42	42	affected by the order have materially and substantially changed
43	43	since the earlier of:
44	44	(A) the date of the order's rendition; or
45	45	(B) the date of the signing of a mediated or
46	46	collaborative law settlement agreement on which the order is based;
47	47	or
48	48	(2) it has been three years since the order was
49	49	rendered or last modified and the monthly amount of the child
50	50	support award under the order differs by either 20 percent or $100
51	51	from the amount that would be awarded in accordance with the child
52	52	support guidelines.
53	53	(a-2) A court or administrative order for child support in a
54	54	Title IV-D case may be modified as provided under Section
55	55	233.013(c) to provide for medical support of a child.
56	56	SECTION 4. Section 157.162, Family Code, is amended by
57	57	amending Subsection (c) and adding Subsection (c-1) to read as
58	58	follows:
59	59	(c) The movant may attach to the motion a [A] copy of a [the]
60	60	payment record maintained by the state disbursement unit under
61	61	Chapter 234 or a local registry that is current as of the date the
62	62	motion is filed. The movant may subsequently update that payment
63	63	record at the hearing. If a payment record was attached to the
64	64	motion as authorized by this subsection, the payment record, as
65	65	updated if applicable, [attached to the motion is evidence of the
66	66	facts asserted in the payment record and] is admissible to prove:
67	67	(1) the dates and in what amounts payments were made;
68	68	(2) the amount of any accrued interest;
69	69	(3) the cumulative arrearage over time; and
70	70	(4) the cumulative arrearage as of the final date of
71	71	the record.
72	72	(c-1) A [show whether payments were made. The] respondent
73	73	may offer [controverting] evidence controverting the contents of a
74	74	payment record under Subsection (c).
75	75	SECTION 5. Subdivisions (1) and (4), Section 157.311,
76	76	Family Code, are amended to read as follows:
77	77	(1) "Account" means:
78	78	(A) any type of a demand deposit account,
79	79	checking or negotiable withdrawal order account, savings account,
80	80	time deposit account, [money market] mutual fund account,
81	81	certificate of deposit, or any other instrument of deposit in which
82	82	an individual has a beneficial ownership either in its entirety or
83	83	on a shared or multiple party basis, including any accrued interest
84	84	and dividends; and
85	85	(B) an [a life] insurance policy, including a
86	86	life insurance policy or annuity contract, in which an individual
87	87	has a beneficial ownership or [liability insurance] against which
88	88	an individual may file [has filed] a claim or counterclaim.
89	89	(4) "Financial institution" has the meaning assigned
90	90	by 42 U.S.C. Section 669a(d)(1) and includes a depository
91	91	institution, depository institution holding company as defined by
92	92	12 U.S.C. Section 1813(w), credit union, benefit association,
93	93	[liability or life] insurance company, [money market] mutual fund,
94	94	and any similar entity authorized to do business in this state.
95	95	SECTION 6. Subsection (a), Section 157.317, Family Code, is
96	96	amended to read as follows:
97	97	(a) A child support lien attaches to all real and personal
98	98	property not exempt under the Texas Constitution or other law,
99	99	including:
100	100	(1) an account in a financial institution;
101	101	(2) a retirement plan, including an individual
102	102	retirement account; [and]
103	103	(3) the proceeds of an [a life] insurance policy,
104	104	including the proceeds from a life insurance policy or annuity
105	105	contract and the proceeds from the sale or assignment of life
106	106	insurance or annuity benefits, a claim for compensation [negligence
107	107	or personal injury], or a [an insurance] settlement or award for the
108	108	claim for compensation, due to or owned by the obligor; and
109	109	(4) property seized and subject to forfeiture under
110	110	Chapter 59, Code of Criminal Procedure.
111	111	SECTION 7. Subchapter G, Chapter 157, Family Code, is
112	112	amended by adding Section 157.3271 to read as follows:
113	113	Sec. 157.3271. LEVY ON FINANCIAL INSTITUTION ACCOUNT OF
114	114	DECEASED OBLIGOR. (a) Subject to Subsection (b), the Title IV-D
115	115	agency may, not earlier than the 90th day after the date of death of
116	116	an obligor in a Title IV-D case, deliver a notice of levy to a
117	117	financial institution in which the obligor was the sole owner of an
118	118	account, regardless of whether the Title IV-D agency has issued a
119	119	child support lien notice regarding the account.
120	120	(b) The Title IV-D agency may not deliver a notice of levy
121	121	under this section if probate proceedings relating to the obligor's
122	122	estate have commenced.
123	123	(c) The notice of levy must:
124	124	(1) identify the amount of child support arrearages
125	125	determined by the Title IV-D agency to be owing and unpaid by the
126	126	obligor on the date of the obligor's death; and
127	127	(2) direct the financial institution to pay to the
128	128	Title IV-D agency, not earlier than the 45th day or later than the
129	129	60th day after the date of delivery of the notice, an amount from
130	130	the assets of the obligor or from funds due to the obligor that are
131	131	held or controlled by the institution, not to exceed the amount of
132	132	the child support arrearages identified in the notice.
133	133	(d) Not later than the 35th day after the date of delivery of
134	134	the notice, the financial institution must notify any other person
135	135	asserting a claim against the account that:
136	136	(1) the account has been levied on for child support
137	137	arrearages in the amount shown on the notice of levy; and
138	138	(2) the person may contest the levy by filing suit and
139	139	requesting a court hearing in the same manner that a person may
140	140	challenge a child support lien under Section 157.323.
141	141	(e) A person who contests a levy under this section, as
142	142	authorized by Subsection (d)(2), may bring the suit in:
143	143	(1) the district court of the county in which the
144	144	property is located or in which the obligor resided; or
145	145	(2) the court of continuing jurisdiction.
146	146	(f) The notice of levy may be delivered to a financial
147	147	institution as provided by Section 59.008, Finance Code, if the
148	148	institution is subject to that law or may be delivered to the
149	149	registered agent, the institution's main business office in this
150	150	state, or another address provided by the institution under Section
151	151	231.307.
152	152	(g) A financial institution may deduct its fees and costs,
153	153	including any costs for complying with this section, from the
154	154	deceased obligor's assets before paying the appropriate amount to
155	155	the Title IV-D agency.
156	156	SECTION 8. Subsections (b) and (b-1), Section 158.203,
157	157	Family Code, are amended to read as follows:
158	158	(b) An employer with 50 [250] or more employees shall remit
159	159	a payment required under this section by electronic funds transfer
160	160	or electronic data interchange not later than the second business
161	161	day after the pay date.
162	162	(b-1) An employer with fewer than 50 [250] employees may
163	163	remit a payment required under this section by electronic funds
164	164	transfer or electronic data interchange. A payment remitted by the
165	165	employer electronically must be remitted not later than the date
166	166	specified by Subsection (b).
167	167	SECTION 9. The heading to Section 158.503, Family Code, is
168	168	amended to read as follows:
169	169	Sec. 158.503. DELIVERY OF ADMINISTRATIVE WRIT TO EMPLOYER;
170	170	FILING WITH COURT OR MAINTAINING RECORD.
171	171	SECTION 10. Section 158.503, Family Code, is amended by
172	172	amending Subsections (a) and (b) and adding Subsection (b-1) to
173	173	read as follows:
174	174	(a) An administrative writ of withholding issued under this
175	175	subchapter may be delivered to an [obligor, obligee, and] employer
176	176	by mail or by electronic transmission.
177	177	(b) The Title IV-D agency shall:
178	178	(1) not [Not] later than the third business day after
179	179	the date of delivery of the administrative writ of withholding to an
180	180	employer, [the Title IV-D agency shall] file a copy of the writ,
181	181	together with a signed certificate of service, in the court of
182	182	continuing jurisdiction; or
183	183	(2) maintain a record of the writ until all support
184	184	obligations of the obligor have been satisfied or income
185	185	withholding has been terminated as provided by this chapter.
186	186	(b-1) The certificate of service required under Subsection
187	187	(b)(1) may be signed electronically. [This subsection does not
188	188	apply to the enforcement under Section 158.501(c) of a support
189	189	order rendered by a tribunal of another state.]
190	190	SECTION 11. Section 231.015, Family Code, is amended to
191	191	read as follows:
192	192	Sec. 231.015. INSURANCE REPORTING PROGRAM. (a) In
193	193	consultation with the Texas Department of Insurance and
194	194	representatives of the insurance industry in this state, including
195	195	insurance trade associations, the Title IV-D agency by rule shall
196	196	operate a program [to improve the enforcement of child support,
197	197	including the use of child support liens under Chapter 157. The
198	198	program shall provide for procedures, including data matches,]
199	199	under which insurers [insurance companies] shall cooperate with the
200	200	Title IV-D agency in identifying obligors who owe child support
201	201	arrearages and [or who] are subject to liens for child support
202	202	arrearages to intercept certain [liability] insurance settlements
203	203	or awards for claims in satisfaction of the arrearage amounts.
204	204	(b) An insurer [insurance company] that provides
205	205	information or responds to a notice of child support lien or levy
206	206	under Subchapter G, Chapter 157, or acts in good faith to comply
207	207	with procedures established by the Title IV-D agency under this
208	208	section is not liable for those acts under any law to any person.
209	209	SECTION 12. Section 231.307, Family Code, is amended by
210	210	amending Subsection (d) and adding Subsection (g) to read as
211	211	follows:
212	212	(d) A financial institution providing information or
213	213	responding to a notice of child support lien or levy provided under
214	214	Subchapter G, Chapter 157, or otherwise acting in good faith to
215	215	comply with the Title IV-D agency's procedures under this section
216	216	may not be liable under any federal or state law for any damages
217	217	that arise from those acts.
218	218	(g) This section does not apply to an insurer subject to the
219	219	reporting requirements under Section 231.015.
220	220	SECTION 13. The heading to Section 232.0135, Family Code,
221	221	is amended to read as follows:
222	222	Sec. 232.0135. DENIAL OF LICENSE ISSUANCE OR RENEWAL.
223	223	SECTION 14. Subsections (a) through (d), Section 232.0135,
224	224	Family Code, are amended to read as follows:
225	225	(a) A child support agency, as defined by Section 101.004,
226	226	may provide notice to a licensing authority concerning an obligor
227	227	who has failed to pay child support for six months or more that
228	228	requests the authority to refuse to accept an application for
229	229	issuance of a license to the obligor or renewal of an existing [the]
230	230	license of the obligor.
231	231	(b) A licensing authority that receives the information
232	232	described by Subsection (a) shall refuse to accept an application
233	233	for issuance of a license to the obligor or renewal of an existing
234	234	[the] license of the obligor until the authority is notified by the
235	235	child support agency that the obligor has:
236	236	(1) paid all child support arrearages;
237	237	(2) established with the agency a satisfactory
238	238	repayment schedule or is in compliance with a court order for
239	239	payment of the arrearages;
240	240	(3) been granted an exemption from this subsection as
241	241	part of a court-supervised plan to improve the obligor's earnings
242	242	and child support payments; or
243	243	(4) successfully contested the denial of issuance or
244	244	renewal of license under Subsection (d).
245	245	(c) On providing a licensing authority with the notice
246	246	described by Subsection (a), the child support agency shall send a
247	247	copy to the obligor by first class mail and inform the obligor of
248	248	the steps the obligor must take to permit the authority to accept
249	249	the obligor's application for license issuance or renewal.
250	250	(d) An obligor receiving notice under Subsection (c) may
251	251	request a review by the child support agency to resolve any issue in
252	252	dispute regarding the identity of the obligor or the existence or
253	253	amount of child support arrearages. The agency shall promptly
254	254	provide an opportunity for a review, either by telephone or in
255	255	person, as appropriate to the circumstances. After the review, if
256	256	appropriate, the agency may notify the licensing authority that it
257	257	may accept the obligor's application for issuance or renewal of
258	258	license. If the agency and the obligor fail to resolve any issue in
259	259	dispute, the obligor, not later than the 30th day after the date of
260	260	receiving notice of the agency's determination from the review, may
261	261	file a motion with the court to direct the agency to withdraw the
262	262	notice under Subsection (a) and request a hearing on the motion.
263	263	The obligor's application for license issuance or renewal may not
264	264	be accepted by the licensing authority until the court rules on the
265	265	motion. If, after a review by the agency or a hearing by the court,
266	266	the agency withdraws the notice under Subsection (a), the agency
267	267	shall reimburse the obligor the amount of any fee charged the
268	268	obligor under Section 232.014.
269	269	SECTION 15. Subsection (a), Section 232.014, Family Code,
270	270	is amended to read as follows:
271	271	(a) A licensing authority may charge a fee to an individual
272	272	who is the subject of an order suspending license or of an action of
273	273	a child support agency under Section 232.0135 to deny issuance or
274	274	renewal of license in an amount sufficient to recover the
275	275	administrative costs incurred by the authority under this chapter.
276	276	SECTION 16. Section 233.012, Family Code, is amended to
277	277	read as follows:
278	278	Sec. 233.012. INFORMATION REQUIRED TO BE PROVIDED AT
279	279	NEGOTIATION CONFERENCE. At the beginning of the negotiation
280	280	conference, the child support review officer shall review with the
281	281	parties participating in the conference information provided in the
282	282	notice of child support review and inform the parties that:
283	283	(1) the purpose of the negotiation conference is to
284	284	provide an opportunity to reach an agreement on a child support
285	285	order;
286	286	(2) if the parties reach an agreement, the review
287	287	officer will prepare an agreed review order to be effective
288	288	immediately on being confirmed by the court, as provided by Section
289	289	233.024;
290	290	(3) a party does not have to sign a review order
291	291	prepared by the child support review officer but that the Title IV-D
292	292	agency may file a review order without the agreement of the parties;
293	293	(4) the parties may sign a waiver of the right to
294	294	service of process;
295	295	(5) a party may file a request for a court hearing on a
296	296	nonagreed order not later than [at any time before] the 20th day
297	297	after the date a copy of the petition for confirmation of the order
298	298	is delivered to the party [filed]; and
299	299	(6) a party may file a motion for a new trial not later
300	300	than [at any time before] the 30th day after an order is confirmed
301	301	by the court.
302	302	SECTION 17. Section 233.013, Family Code, is amended by
303	303	adding Subsection (c) to read as follows:
304	304	(c) Notwithstanding Subsection (b), the Title IV-D agency
305	305	may, at any time and without a showing of material and substantial
306	306	change in the circumstances of the parties, file a child support
307	307	review order that has the effect of modifying an existing order for
308	308	child support to provide medical support for a child if the existing
309	309	order does not provide health care coverage for the child as
310	310	required under Section 154.182.
311	311	SECTION 18. Section 1108.101, Insurance Code, is amended to
312	312	read as follows:
313	313	Sec. 1108.101. ASSIGNMENT GENERALLY. (a) This chapter
314	314	does not prevent an insured, owner, or annuitant from assigning, in
315	315	accordance with the terms of the policy or contract:
316	316	(1) any benefits to be provided under an insurance
317	317	policy or annuity contract to which this chapter applies; or
318	318	(2) any other rights under the policy or contract.
319	319	(b) A benefit or right described by Subsection (a) assigned
320	320	by an insured, owner, or annuitant after a child support lien notice
321	321	has been filed against the insured, owner, or annuitant by the Title
322	322	IV-D agency continues to be subject to the child support lien after
323	323	the date of assignment. The lien continues to secure payment of all
324	324	child support arrearages owed by the insured, owner, or annuitant
325	325	under the underlying child support order, including arrearages that
326	326	accrue after the date of assignment.
327	327	SECTION 19. Section 411.1271, Government Code, is amended
328	328	by adding Subsection (b-1) and amending Subsection (c) to read as
329	329	follows:
330	330	(b-1) The office of the attorney general is entitled to
331	331	obtain from the Department of Public Safety, the Federal Bureau of
332	332	Investigation Criminal Justice Information Services Division, or
333	333	another law enforcement agency criminal history record information
334	334	maintained by the department or agency that relates to a person who
335	335	owes child support in a Title IV-D case, as defined by Section
336	336	101.034, Family Code, for the purposes of locating that person and
337	337	establishing, modifying, or enforcing a child support obligation
338	338	against that person.
339	339	(c) Criminal history record information obtained by the
340	340	office of the attorney general under this section [Subsection (a)
341	341	or (b)] may not be released or disclosed to any person except on
342	342	court order or with the consent of the person who is the subject of
343	343	the criminal history record information.
344	344	SECTION 20. Subsection (a), Section 34.04, Tax Code, is
345	345	amended to read as follows:
346	346	(a) A person, including a taxing unit and the Title IV-D
347	347	agency, may file a petition in the court that ordered the seizure or
348	348	sale setting forth a claim to the excess proceeds. The petition
349	349	must be filed before the second anniversary of the date of the sale
350	350	of the property. The petition is not required to be filed as an
351	351	original suit separate from the underlying suit for seizure of the
352	352	property or foreclosure of a tax lien on the property but may be
353	353	filed under the cause number of the underlying suit.
354	354	SECTION 21. Subsection (a), Article 59.06, Code of Criminal
355	355	Procedure, is amended to read as follows:
356	356	(a) Except as provided by Subsection (k), all forfeited
357	357	property shall be administered by the attorney representing the
358	358	state, acting as the agent of the state, in accordance with accepted
359	359	accounting practices and with the provisions of any local agreement
360	360	entered into between the attorney representing the state and law
361	361	enforcement agencies. If a local agreement has not been executed,
362	362	the property shall be sold on the 75th day after the date of the
363	363	final judgment of forfeiture at public auction under the direction
364	364	of the county sheriff, after notice of public auction as provided by
365	365	law for other sheriff's sales. The proceeds of the sale shall be
366	366	distributed as follows:
367	367	(1) to any interest holder to the extent of the
368	368	interest holder's nonforfeitable interest; [and]
369	369	(2) after any distributions under Subdivision (1), if
370	370	the Title IV-D agency has filed a child support lien in the
371	371	forfeiture proceeding, to the Title IV-D agency in an amount not to
372	372	exceed the amount of child support arrearages identified in the
373	373	lien; and
374	374	(3) the balance, if any, after the deduction of court
375	375	costs to which a district court clerk is entitled under Article
376	376	59.05(f) and, after that deduction, the deduction of storage and
377	377	disposal costs, to be deposited not later than the 30th day after
378	378	the date of the sale in the state treasury to the credit of the
379	379	general revenue fund.
380	380	SECTION 22. Subsection (c), Section 233.017, Family Code,
381	381	is repealed.
382	382	SECTION 23. Subsection (c), Section 154.187, Family Code,
383	383	as amended by this Act, applies to an order or notice received by an
384	384	employer on or after the effective date of this Act. An order or
385	385	notice received by an employer before the effective date of this Act
386	386	is governed by the law in effect on the date the order or notice was
387	387	received, and the former law is continued in effect for that
388	388	purpose.
389	389	SECTION 24. Subsection (a-2), Section 156.401, and
390	390	Subsection (c), Section 233.013, Family Code, as added by this Act,
391	391	apply to each child support order, regardless of whether the order
392	392	was rendered before, during, or after the effective date of this
393	393	Act.
394	394	SECTION 25. Section 157.162, Family Code, as amended by
395	395	this Act, applies to a motion for child support enforcement filed on
396	396	or after the effective date of this Act. A motion filed before the
397	397	effective date of this Act is governed by the law in effect on the
398	398	date the motion was filed, and the former law is continued in effect
399	399	for that purpose.
400	400	SECTION 26. Section 158.203, Family Code, as amended by
401	401	this Act, applies to child support payments withheld by an employer
402	402	on or after the effective date of this Act.
403	403	SECTION 27. Section 158.503, Family Code, as amended by
404	404	this Act, applies to an administrative writ of withholding issued
405	405	on or after the effective date of this Act.
406	406	SECTION 28. Subsection (b), Section 1108.101, Insurance
407	407	Code, as added by this Act, applies to an assignment made on or
408	408	after the effective date of this Act. An assignment made before the
409	409	effective date of this Act is governed by the law in effect on the
410	410	date the assignment was made, and the former law is continued in
411	411	effect for that purpose.
412	412	SECTION 29. Subsection (a), Article 59.06, Code of Criminal
413	413	Procedure, as amended by this Act, applies to a sale of forfeited
414	414	property that occurs on or after the effective date of this Act. A
415	415	sale that occurs before the effective date of this Act is governed
416	416	by the law in effect on the date the property was sold, and the
417	417	former law is continued in effect for that purpose.
418	418	SECTION 30. This Act takes effect September 1, 2011.
419	419	* * * * *