By: RodrÃguez S.B. No. 737
(In the Senate - Filed February 24, 2015; March 2, 2015,
read first time and referred to Committee on Criminal Justice;
April 20, 2015, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 0; April 20, 2015,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 737 By: Whitmire
A BILL TO BE ENTITLED
AN ACT
relating to certain protective orders and magistrate's orders for
emergency protection.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 17.292, Code of Criminal Procedure, is
amended by amending Subsections (a), (c), (g), (h), and (k) and
adding Subsections (h-1), (i-1), and (k-1) to read as follows:
(a) At a defendant's appearance before a magistrate after
arrest for an offense involving family violence or an offense under
Section 20A.02, 20A.03, 22.011, 22.021, or 42.072, Penal Code, the
magistrate may issue an order for emergency protection on the
magistrate's own motion or on the request of:
(1) the victim of the offense;
(2) the guardian of the victim;
(3) a peace officer; or
(4) the attorney representing the state.
(c) The magistrate in the order for emergency protection may
prohibit the arrested party from:
(1) committing:
(A) family violence or an assault on the person
protected under the order; or
(B) an act in furtherance of an offense under
Section 20A.02 or 42.072, Penal Code;
(2) communicating:
(A) directly with a member of the family or
household or with the person protected under the order in a
threatening or harassing manner; or
(B) a threat through any person to a member of the
family or household or to the person protected under the order;
(3) going to or near:
(A) the residence, place of employment, or
business of a member of the family or household or of the person
protected under the order; or
(B) the residence, child care facility, or school
where a child protected under the order resides or attends; or
(4) possessing a firearm, unless the person is a peace
officer, as defined by Section 1.07, Penal Code, actively engaged
in employment as a sworn, full-time paid employee of a state agency
or political subdivision.
(g) An order for emergency protection issued under this
article must contain the following statements printed in bold-face
type or in capital letters:
"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT
RESULTS IN FAMILY VIOLENCE OR A STALKING OR TRAFFICKING OFFENSE MAY
BE PROSECUTED AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE, AS
APPLICABLE. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE,
IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS.
THE POSSESSION OF A FIREARM BY A PERSON, OTHER THAN A PEACE OFFICER,
AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN
EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR
POLITICAL SUBDIVISION, WHO IS SUBJECT TO THIS ORDER MAY BE
PROSECUTED AS A SEPARATE OFFENSE PUNISHABLE BY CONFINEMENT OR
IMPRISONMENT.
"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
UNLESS A COURT CHANGES THE ORDER."
(h) As soon as possible but not later than the next business
day after the date the [The] magistrate issues [issuing] an order
for emergency protection under this article, the magistrate shall
send a copy of the order to the chief of police in the municipality
where the member of the family or household or individual protected
by the order resides, if the person resides in a municipality, or to
the sheriff of the county where the person resides, if the person
does not reside in a municipality. If the victim of the offense is
not present when the order is issued, the magistrate issuing the
order shall order an appropriate peace officer to make a good faith
effort to notify, within 24 hours, the victim that the order has
been issued by calling the victim's residence and place of
employment. The clerk of the court shall send a copy of the order to
the victim at the victim's last known address as soon as possible
but not later than the next business day after the date the order is
issued.
(h-1) A magistrate or clerk of the court may delay sending a
copy of the order under Subsection (h) only if the magistrate or
clerk lacks information necessary to ensure service and
enforcement.
(i-1) The copy of the order and any related information may
be sent under Subsection (h) or (i) electronically or in another
manner that can be accessed by the recipient.
(k) To ensure that an officer responding to a call is aware
of the existence and terms of an order for emergency protection
issued under this article, not later than the third business day
after the date of receipt of the copy of the order by the applicable
law enforcement agency with jurisdiction over the municipality or
county in which the victim resides, the law enforcement agency
shall enter the information required under Section 411.042(b)(6),
Government Code, into the statewide law enforcement information
system maintained by the Department of Public Safety [each
municipal police department and sheriff shall establish a procedure
within the department or office to provide adequate information or
access to information for peace officers of the names of persons
protected by an order for emergency protection issued under this
article and of persons to whom the order is directed. The police
department or sheriff may enter an order for emergency protection
issued under this article in the department's or office's record of
outstanding warrants as notice that the order has been issued and is
in effect].
(k-1) A law enforcement agency may delay entering the
information required under Subsection (k) only if the agency lacks
information necessary to ensure service and enforcement.
SECTION 2. Article 17.292(m), Code of Criminal Procedure,
is amended by adding Subdivision (3) to read as follows:
(3) "Business day" means a day other than a Saturday,
Sunday, or state or national holiday.
SECTION 3. Section 85.042, Family Code, is amended by
amending Subsections (a) and (d) and adding Subsections (f), (g),
and (h) to read as follows:
(a) Not later than the next business day after the date [The
clerk of] the court issues [issuing] an original or modified
protective order under this subtitle, the clerk of the court shall
send a copy of the order, along with the information provided by the
applicant or the applicant's attorney that is required under
Section 411.042(b)(6), Government Code, to:
(1) the chief of police of the municipality in which
the person protected by the order resides, if the person resides in
a municipality;
(2) the appropriate constable and the sheriff of the
county in which the person resides, if the person does not reside in
a municipality; and
(3) the Title IV-D agency, if the application for the
protective order indicates that the applicant is receiving services
from the Title IV-D agency.
(d) The applicant or the applicant's attorney shall provide
to the clerk of the court:
(1) the name and address of each law enforcement
agency, child-care facility, school, and other individual or entity
to which the clerk is required to send [mail] a copy of the order
under this section; and
(2) any other information required under Section
411.042(b)(6), Government Code.
(f) A clerk of the court may transmit the order and any
related information electronically or in another manner that can be
accessed by the recipient.
(g) A clerk of the court may delay sending a copy of the
order under Subsection (a) only if the clerk lacks information
necessary to ensure service and enforcement.
(h) In this section, "business day" means a day other than a
Saturday, Sunday, or state or national holiday.
SECTION 4. Section 86.0011, Family Code, is amended to read
as follows:
Sec. 86.0011. DUTY TO ENTER INFORMATION INTO STATEWIDE LAW
ENFORCEMENT INFORMATION SYSTEM. (a) On receipt of an original or
modified protective order from the clerk of the issuing court, a law
enforcement agency shall immediately, but not later than the third
business [10th] day after the date the order is received, enter the
information required by Section 411.042(b)(6), Government Code,
into the statewide law enforcement information system maintained by
the Department of Public Safety.
(b) In this section, "business day" means a day other than a
Saturday, Sunday, or state or national holiday.
SECTION 5. Section 411.042(b), Government Code, is amended
to read as follows:
(b) The bureau of identification and records shall:
(1) procure and file for record photographs, pictures,
descriptions, fingerprints, measurements, and other pertinent
information of all persons arrested for or charged with a criminal
offense or convicted of a criminal offense, regardless of whether
the conviction is probated;
(2) collect information concerning the number and
nature of offenses reported or known to have been committed in the
state and the legal steps taken in connection with the offenses, and
other information useful in the study of crime and the
administration of justice, including information that enables the
bureau to create a statistical breakdown of:
(A) offenses in which family violence was
involved;
(B) offenses under Sections 22.011 and 22.021,
Penal Code; and
(C) offenses under Sections 20A.02 and 43.05,
Penal Code;
(3) make ballistic tests of bullets and firearms and
chemical analyses of bloodstains, cloth, materials, and other
substances for law enforcement officers of the state;
(4) cooperate with identification and crime records
bureaus in other states and the United States Department of
Justice;
(5) maintain a list of all previous background checks
for applicants for any position regulated under Chapter 1702,
Occupations Code, who have undergone a criminal history background
check under Section 411.119, if the check indicates a Class B
misdemeanor or equivalent offense or a greater offense;
(6) collect information concerning the number and
nature of protective orders and magistrate's orders of emergency
protection and all other pertinent information about all persons
subject to [on] active [protective] orders, including pertinent
information about persons subject to conditions of bond imposed for
the protection of the victim in any family violence, sexual assault
or abuse, or stalking case. Information in the law enforcement
information system relating to an active [protective] order shall
include:
(A) the name, sex, race, date of birth, personal
descriptors, address, and county of residence of the person to whom
the order is directed;
(B) any known identifying number of the person to
whom the order is directed, including the person's social security
number or driver's license number;
(C) the name and county of residence of the
person protected by the order;
(D) the residence address and place of employment
or business of the person protected by the order, unless that
information is excluded from the order under Section 85.007, Family
Code, or Article 17.292(e), Code of Criminal Procedure;
(E) the child-care facility or school where a
child protected by the order normally resides or which the child
normally attends, unless that information is excluded from the
order under Section 85.007, Family Code, or Article 17.292(e), Code
of Criminal Procedure;
(F) the relationship or former relationship
between the person who is protected by the order and the person to
whom the order is directed;
(G) the conditions of bond imposed on the person
to whom the order is directed, if any, for the protection of a
victim in any family violence, sexual assault or abuse, or stalking
case; [and]
(H) any minimum distance the person subject to
the order is required to maintain from the protected places or
persons; and
(I) the date the order expires;
(7) grant access to criminal history record
information in the manner authorized under Subchapter F;
(8) collect and disseminate information regarding
offenders with mental impairments in compliance with Chapter 614,
Health and Safety Code; and
(9) record data and maintain a state database for a
computerized criminal history record system and computerized
juvenile justice information system that serves:
(A) as the record creation point for criminal
history record information and juvenile justice information
maintained by the state; and
(B) as the control terminal for the entry of
records, in accordance with federal law and regulations, federal
executive orders, and federal policy, into the federal database
maintained by the Federal Bureau of Investigation.
SECTION 6. The changes in law made by this Act apply to a
protective order or magistrate's order of emergency protection
issued on or after the effective date of this Act, regardless of
whether the conduct on which the order is based occurred before, on,
or after that date.
SECTION 7. This Act takes effect September 1, 2015.
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