Texas 2017 - 85th Regular

Texas House Bill HB3883 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	85R13668 JSC-F
2	2	By: White H.B. No. 3883
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to interference with possession of or access to a child;
8	8	providing penalties.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 157.001, Family Code, is amended by
11	11	amending Subsections (a) and (b) and adding Subsections (f) and (g)
12	12	to read as follows:
13	13	(a) A motion for enforcement as provided in this chapter may
14	14	be filed to enforce any provision of a temporary or final order
15	15	rendered in a suit or an agreement under Rule 11, Texas Rules of
16	16	Civil Procedure.
17	17	(b) The court may enforce by contempt any provision of a
18	18	temporary or final order or an agreement under Rule 11, Texas Rules
19	19	of Civil Procedure.
20	20	(f) The court may render a temporary order for possession of
21	21	or access to a child for the purpose of enforcing an order
22	22	previously rendered by the court without a party initiating a
23	23	modification proceeding.
24	24	(g) A parent or conservator who interferes with or denies a
25	25	parent or conservator possession of or access to a child to which
26	26	the parent or conservator is entitled under a court order is subject
27	27	to:
28	28	(1) prosecution under Section 25.03, Penal Code, if
29	29	the conduct of the parent or conservator violates that section; and
30	30	(2) liability to the party who was deprived of
31	31	possession of or access to the child.
32	32	SECTION 2. Subchapter A, Chapter 157, Family Code, is
33	33	amended by adding Section 157.0021 to read as follows:
34	34	Sec. 157.0021. MOTION TO EXPEDITE ENFORCEMENT OF POSSESSION
35	35	ORDER. (a) If a party alleges that the other party has engaged in
36	36	conduct that violates Section 25.03, Penal Code, such that the
37	37	petitioner was deprived of possession of or access to the child, the
38	38	party may file a motion to expedite enforcement under this section.
39	39	(b) A motion under this section must be in substantially the
40	40	following form:
41	41	IN THE DISTRICT COURT OF ____________________ COUNTY
42	42	STATE OF TEXAS
43	43	_____________________, Petitioner/Plaintiff,
44	44	v.
45	45	_____________________, Respondent, Defendant.
46	46	Case No.______________________
47	47	Assigned Judge_________________________
48	48	MOTION FOR EXPEDITED ENFORCEMENT OF POSSESSION ORDER
49	49	The undersigned conservator in the above case moves the
50	50	court, pursuant to the provisions of Chapter 157, Family Code, to
51	51	enforce possession or access time and rights, to which the
52	52	petitioner is entitled under a court order, that have been denied or
53	53	otherwise interfered with by the respondent. The name(s) and age(s)
54	54	of the child(ren) to which my possession or access time and rights
55	55	have been denied or interfered with are:
56	56	Name of Child:_________________________
57	57	Date of Birth:_________________________
58	58	Name of Child:_________________________
59	59	Date of Birth:_________________________
60	60	(Attach additional pages as necessary).
61	61	The first date of denial or interference with my
62	62	possession or access time with the child(ren) was:
63	63	____________________________________________________________.
64	64	I attempted to take possession of or have access to the
65	65	child(ren) by:___________________________________ according to my
66	66	order as stated as follows:___________________________________.
67	67	The next date of denial or interference with my
68	68	possession or access time with the child(ren) was:
69	69	_____________________________________________________________.
70	70	I attempted to take possession of or have access to the
71	71	child(ren) by:___________________________________ according to my
72	72	order as stated as follows:___________________________________.
73	73	(Attach additional pages as necessary).
74	74	The total number of times that my possession or access time
75	75	was denied or interfered with was:_______________________.
76	76	I am moving the court to enforce my order dated ____________
77	77	and signed by ______________________ and filed on
78	78	_________________.
79	79	I am asking the court for the following remedies, (select the
80	80	remedies the petitioner is seeking):
81	81	(1) A specific enforceable time schedule compensating
82	82	possession or access time for the time denied or otherwise
83	83	interfered with, which time shall be of the same type (e.g.,
84	84	holiday, weekday, weekend, summer) or as otherwise agreed on by the
85	85	deprived conservator, and shall be at the convenience of the
86	86	deprived conservator.
87	87	(2) Awarding of reasonable enforcement costs to the
88	88	deprived conservator, including attorney's fees, costs of court,
89	89	and costs for bringing this action.
90	90	(3) A specific possession or access time schedule,
91	91	enforceable by contempt of court.
92	92	(4) A fine not to exceed $500 per incident.
93	93	And further the petitioner requests the court to order one or
94	94	more of the following (select requested actions by court):
95	95	(1) Posting of a bond of cash or with sufficient
96	96	sureties, conditioned on compliance with the order specifying
97	97	possession or access.
98	98	(2) Attendance of counseling or educational sessions
99	99	that focus on the impact of possession or access disputes on
100	100	children and costs charged to the violating conservator.
101	101	(3) Supervised visitation.
102	102	(4) Any other remedy the court considers appropriate
103	103	(specify) __________________.
104	104	Final disposition of a motion filed pursuant to this section
105	105	shall take place no later than 45 days after filing of the motion.
106	106	I have attached an affidavit stating the specific details as
107	107	to how and when my possession or access time and rights with the
108	108	child(ren) was denied.
109	109	Signed under penalties of perjury this _________________ day
110	110	of __________________, 20_______.
111	111	My Signature:____________________________
112	112	My Full Name:_____________________________________________
113	113	My Mailing Address:_______________________________________
114	114	My Telephone Numbers:_____________________________________
115	115	The last four digits of my social security
116	116	number:___________________
117	117	The last four digits of my driver's license:____________________
118	118	The last four digits of the social security number of the
119	119	respondent, if known:___________________
120	120	The last known address of the
121	121	respondent:______________________________________
122	122	Subscribed and sworn to before me this __________ day of
123	123	______________, 20_______________.
124	124	Notary Public (or Clerk or Judge) Name and Signature
125	125	_______________________________________________________________.
126	126	My Commission Expires:_______________________________.
127	127	(c) A respondent's order to appear following a motion under
128	128	this section must be in substantially the following form:
129	129	ORDER TO APPEAR
130	130	The State of Texas, to the within-named respondent: You are
131	131	hereby directed to appear and answer the foregoing claim and to have
132	132	with you all books, papers, and witnesses needed by you to establish
133	133	your defense to the claim.
134	134	This matter shall be heard at ____________________ (name or
135	135	address of building), in _______________, County of ____________,
136	136	State of Texas, at _____ (time) of the _______________ day of
137	137	______________, 20_________.
138	138	And you are further notified that in case you do not so appear
139	139	judgment may be entered against you as follows:
140	140	For the enforcement or modification of possession of or
141	141	access to a child as requested by the petitioner.
142	142	And, in addition, for costs of the action (including
143	143	attorney's fees where provided by law), including costs of service
144	144	of the order.
145	145	A fine of up to $500 for each incident of violation.
146	146	Dated this _______ day of ___________, 20___________.
147	147	Clerk of the Court (or Judge) ___________________________________.
148	148	A copy of this order must be mailed by certified mail, return
149	149	receipt requested, to the respondent and return of service brought
150	150	to the hearing.
151	151	A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL
152	152	FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A
153	153	MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.
154	154	SECTION 3. Section 157.061(b), Family Code, is amended to
155	155	read as follows:
156	156	(b) If the motion for enforcement does not request contempt,
157	157	the court shall set the motion for hearing on the request of a party
158	158	not later than the 14th day after the date the party makes the
159	159	request.
160	160	SECTION 4. Section 157.062(c), Family Code, is amended to
161	161	read as follows:
162	162	(c) Notice of hearing on a motion for enforcement of a final
163	163	order, temporary order, or agreement under Rule 11, Texas Rules of
164	164	Civil Procedure, providing for child support or possession of or
165	165	access to a child, any provision of a final order rendered against a
166	166	party who has already appeared in a suit under this title, or any
167	167	provision of a temporary order shall be given to the respondent not
168	168	later than the 10th day before the date of the hearing by personal
169	169	service of a copy of the motion and notice or through certified mail
170	170	to the last known address of the respondent as recorded by the court
171	171	[not later than the 10th day before the date of the hearing]. For
172	172	purposes of this subsection, "temporary order" includes a temporary
173	173	restraining order, standing order, injunction, and any other
174	174	temporary order rendered by a court.
175	175	SECTION 5. Section 157.166, Family Code, is amended by
176	176	adding Subsection (d) to read as follows:
177	177	(d) An order granted under this section must contain the
178	178	following statement:
179	179	WARNING TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR
180	180	POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER LITIGATION
181	181	TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF ANY
182	182	VIOLATION OF THIS ORDER SHALL BE PUNISHED.
183	183	SECTION 6. Subchapter D, Chapter 157, Family Code, is
184	184	amended by adding Section 157.169 to read as follows:
185	185	Sec. 157.169. ADDITIONAL REMEDIES. If the court finds that
186	186	a party has engaged in conduct described by Section 25.03, Penal
187	187	Code, a court may order one or more of the following remedies:
188	188	(1) a fine not to exceed $500 for each incident of
189	189	interference or denial of possession or access time;
190	190	(2) a specific possession or access schedule,
191	191	enforceable by contempt;
192	192	(3) posting of a bond by cash or with sufficient
193	193	sureties, conditioned on compliance with the order specifying
194	194	possession or access;
195	195	(4) attendance of counseling or educational sessions
196	196	that focus on the impact of possession and access disputes on
197	197	children;
198	198	(5) supervised visitation; or
199	199	(6) any other remedy the court considers appropriate,
200	200	which may include an order which modifies a prior order specifying
201	201	possession of or access to the child.
202	202	SECTION 7. Section 25.03, Penal Code, is amended by
203	203	amending Subsections (a), (b), (c), (c-1), and (c-2) and adding
204	204	Subsections (b-1) and (b-2) to read as follows:
205	205	(a) A person commits an offense if the person takes or
206	206	retains a child younger than 18 years of age:
207	207	(1) when the person knows that the person's taking or
208	208	retention violates the express terms of a judgment or order,
209	209	including a temporary order, of a court disposing of the child's
210	210	custody;
211	211	(2) when the person has not been awarded custody of the
212	212	child by a court of competent jurisdiction, knows that a suit for
213	213	divorce or a civil suit or application for habeas corpus to dispose
214	214	of the child's custody has been filed, and takes the child out of
215	215	the geographic area of the counties composing the judicial district
216	216	if the court is a district court or the county if the court is a
217	217	statutory county court:
218	218	(A) [,] without the permission of the court and
219	219	with the intent to deprive the court of authority over the child; or
220	220	(B) without the permission of each parent,
221	221	managing conservator, or guardian of the child;
222	222	(3) outside of the United States with the intent to
223	223	deprive a person entitled to possession of or access to the child of
224	224	that possession or access and without the permission of that
225	225	person; or
226	226	(4) during a period of possession or access granted by
227	227	the court under a judgment or order to a parent, conservator, or
228	228	guardian of the child with the intent to:
229	229	(A) violate a court judgment or order; and
230	230	(B) prevent the parent, conservator, or guardian
231	231	of the child from having custody of the child during the period of
232	232	possession of or access to the child granted by the court.
233	233	(b) A person [noncustodial parent] commits an offense if,
234	234	with the intent to interfere with the lawful custody of a child
235	235	younger than 18 years, the person [noncustodial parent] knowingly
236	236	entices or persuades the child to leave the custody of the person
237	237	who is entitled to custody of the child at the time of the offense,
238	238	including the [custodial] parent, guardian, or person standing in
239	239	the stead of the [custodial] parent or guardian of the child.
240	240	(b-1) It is not a defense to prosecution under Subsection
241	241	(a)(4) that at the time of the offense the child refused to go with
242	242	the person who is entitled to custody of the child at that time.
243	243	(b-2) It is not a defense to prosecution under Subsection
244	244	(b) that the person entitled to custody of the child is the
245	245	noncustodial parent of the child.
246	246	(c) It is a defense to prosecution under Subsection (a)(2)
247	247	that the actor returned the child to the geographic area of the
248	248	counties composing the judicial district if the court is a district
249	249	court or the county if the court is a statutory county court, within
250	250	24 hours [three days] after the time [date] of the commission of the
251	251	offense.
252	252	(c-1) It is an affirmative defense to prosecution under
253	253	Subsection (a)(3) or (a)(4) that:
254	254	(1) the taking or retention of the child was pursuant
255	255	to a valid order providing for possession of or access to the child;
256	256	or
257	257	(2) notwithstanding any violation of a valid order
258	258	providing for possession of or access to the child, the actor's
259	259	retention of the child was due only to circumstances beyond the
260	260	actor's control and:
261	261	(A) the actor promptly provided notice or made
262	262	reasonable attempts to provide notice of those circumstances to the
263	263	other person entitled to possession of or access to the child and to
264	264	local law enforcement in the municipality or county in which the
265	265	other person resides; and
266	266	(B) not later than 24 hours after the time the
267	267	violation of Subsection (a)(3) or (a)(4) occurred:
268	268	(i) the actor delivers the child to the
269	269	person entitled to custody or to local law enforcement; or
270	270	(ii) a court has issued an emergency order
271	271	authorizing the actor to retain possession of the child.
272	272	(c-2) Subsection (a)(3) or (a)(4) does not apply if, at the
273	273	time of the offense, the actor [person taking or retaining the
274	274	child]:
275	275	(1) was entitled to possession of or access to the
276	276	child; and
277	277	(2) was fleeing the commission or attempted commission
278	278	of family violence, as defined by Section 71.004, Family Code,
279	279	against the child or the actor, provided that:
280	280	(A) a protective order under Title 4, Family
281	281	Code, or a magistrate's order for emergency protection under
282	282	Article 17.292, Code of Criminal Procedure, is in effect;
283	283	(B) an application for a protective order has
284	284	been filed under Title 4, Family Code; or
285	285	(C) not later than the 14th day after the date the
286	286	actor took or retained the child in violation of this section, the
287	287	actor filed an application for a protective order under Title 4,
288	288	Family Code [person].
289	289	SECTION 8. Chapter 157, Family Code, as amended by this Act,
290	290	applies only to an enforcement action commenced on or after the
291	291	effective date of this Act.
292	292	SECTION 9. Section 25.03, Penal Code, as amended by this
293	293	Act, applies only to an offense committed on or after the effective
294	294	date of this Act. An offense committed before the effective date of
295	295	this Act is governed by the law in effect on the date the offense was
296	296	committed, and the former law is continued in effect for that
297	297	purpose. For purposes of this section, an offense was committed
298	298	before the effective date of this Act if any element of the offense
299	299	occurred before that date.
300	300	SECTION 10. This Act takes effect September 1, 2017.