85R26684 PMO-F
By: Whitmire, et al. S.B. No. 920
(Lucio III)
Substitute the following for S.B. No. 920: No.
A BILL TO BE ENTITLED
AN ACT
relating to access to a residence or former residence to retrieve
personal property, including access based on danger of family
violence.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 24A, Property Code, is amended by
amending Sections 24A.001 and 24A.002 and adding Section 24A.0021
to read as follows:
Sec. 24A.001. DEFINITIONS [DEFINITION]. In this chapter:
(1) "Electronic record" means a record created,
generated, sent, communicated, received, or stored by electronic
means.
(2) "Family violence" has the meaning assigned by
Section 71.004, Family Code.
(3) "Peace [, "peace] officer" means a person listed
under Article 2.12(1) or (2), Code of Criminal Procedure.
Sec. 24A.002. WRIT [ORDER] AUTHORIZING ENTRY AND PROPERTY
RETRIEVAL; PEACE OFFICER TO ACCOMPANY. (a) If a person is unable to
enter the person's residence or former residence to retrieve
personal property belonging to the person or the person's dependent
because the current occupant is denying the person entry, the
person may apply to the justice court for a writ [an order]
authorizing the person to enter the residence accompanied by a
peace officer to retrieve specific items of personal property.
(b) An application under Subsection (a) must:
(1) certify that the applicant is unable to enter the
residence because the current occupant of the residence:
(A) has denied the applicant access to the
residence; or
(B) poses a clear and present danger of family
violence to the applicant or the applicant's dependent;
(2) certify that, to the best of the applicant's
knowledge, the applicant is not:
(A) the subject of an active protective order
under Title 4, Family Code, a magistrate's order for emergency
protection under Article 17.292, Code of Criminal Procedure, or
another court order prohibiting entry to the residence; or
(B) otherwise prohibited by law from entering the
residence;
(3) allege that the applicant or the applicant's
[minor] dependent requires personal items located in the residence
that are only of the following types:
(A) medical records;
(B) medicine and medical supplies;
(C) clothing;
(D) child-care items;
(E) legal or financial documents;
(F) checks or bank or credit cards in the name of
the applicant;
(G) employment records; [or]
(H) personal identification documents; or
(I) copies of electronic records containing
legal or financial documents;
(4) describe with specificity the items that the
applicant intends to retrieve;
(5) allege that the applicant or the applicant's
dependent will suffer personal harm if the items listed in the
application are not retrieved promptly; and
(6) include a lease or other documentary evidence that
shows the applicant is currently or was formerly authorized to
occupy the residence.
(c) Before the justice of the peace may issue a writ [an
order] under this section, the applicant must execute a bond that:
(1) has two or more good and sufficient non-corporate
sureties or one corporate surety authorized to issue bonds in this
state;
(2) is payable to the occupant of the residence;
(3) is in an amount required by the justice; and
(4) is conditioned on the applicant paying all damages
and costs adjudged against the applicant for wrongful property
retrieval.
(d) The applicant shall deliver the bond to the justice of
the peace issuing the writ [order] for the justice's approval. The
bond shall be filed with the justice court.
(e) On sufficient evidence of urgency and potential harm to
the health and safety of any person and after sufficient notice to
the current occupant and an opportunity to be heard, the justice of
the peace may grant the application under this section and issue a
writ [an order] authorizing the applicant to enter the residence
accompanied by a peace officer and retrieve the property listed in
the application if the justice of the peace finds that:
(1) the applicant is unable to enter the residence
because the current occupant of the residence has denied the
applicant access to the residence to retrieve the applicant's
personal property or the personal property of the applicant's
dependent;
(2) the applicant is not:
(A) the subject of an active protective order
under Title 4, Family Code, a magistrate's order for emergency
protection under Article 17.292, Code of Criminal Procedure, or
another court order prohibiting entry to the residence; or
(B) otherwise prohibited by law from entering the
residence;
(3) there is a risk of personal harm to the applicant
or the applicant's dependent if the items listed in the application
are not retrieved promptly;
(4) the applicant is currently or was formerly
authorized to occupy the residence according to a lease or other
documentary evidence; and
(5) the current occupant received notice of the
application and was provided an opportunity to appear before the
court to contest the application.
Sec. 24A.0021. TEMPORARY EX PARTE WRIT AUTHORIZING ENTRY
AND PROPERTY RETRIEVAL. (a) A justice of the peace may issue a writ
under Section 24A.002 without providing notice and hearing under
Section 24A.002(e)(5) if the justice finds at a hearing on the
application that:
(1) the conditions of Sections 24A.002(e)(1)-(4) are
established;
(2) the current occupant poses a clear and present
danger of family violence to the applicant or the applicant's
dependent; and
(3) the personal harm to be suffered by the applicant
or the applicant's dependent will be immediate and irreparable if
the application is not granted.
(b) A justice of the peace issuing a writ under this section
may waive the bond requirements under Sections 24A.002(c) and (d).
(c) The justice of the peace may recess a hearing under
Subsection (a) to notify the current occupant by telephone that the
current occupant may attend the hearing or bring to the court the
personal property listed in the application. The justice of the
peace shall reconvene the hearing before 5 p.m. that day regardless
of whether the current occupant attends the hearing or brings the
personal property to the court.
(d) A temporary ex parte writ issued under Subsection (a)
must state the period, not to exceed five days, during which the
writ is valid.
SECTION 2. Sections 24A.003(a), (b), and (c), Property
Code, are amended to read as follows:
(a) If the justice of the peace grants an application under
Section 24A.002 or Section 24A.0021, a peace officer shall
accompany and assist the applicant in making the authorized entry
and retrieving the items of personal property listed in the
application.
(b) If the current occupant of the residence is present at
the time of the entry, the peace officer shall provide the occupant
with a copy of the writ [court order] authorizing the entry and
property retrieval.
(c) Before removing the property listed in the application
from the residence, the applicant must submit all property
retrieved to the peace officer assisting the applicant under this
section to be inventoried. The peace officer shall create an
inventory listing the items taken from the residence, provide a
copy of the inventory to the applicant, provide a copy of the
inventory to the current occupant or, if the current occupant is not
present, leave the copy in a conspicuous place in the residence, and
return the property to be removed from the residence to the
applicant. The officer shall file the original inventory with the
court that issued the writ [order] authorizing the entry and
property retrieval.
SECTION 3. Section 24A.004, Property Code, is amended to
read as follows:
Sec. 24A.004. IMMUNITY FROM LIABILITY. A landlord or a
landlord's agent who permits or facilitates entry into a residence
in accordance with a writ [court order] issued under this chapter is
not civilly or criminally liable for an act or omission that arises
in connection with permitting or facilitating the entry.
SECTION 4. Sections 24A.005(a) and (c), Property Code, are
amended to read as follows:
(a) A person commits an offense if the person interferes
with a person or peace officer entering a residence and retrieving
personal property under the authority of a writ [court order]
issued under Section 24A.002 or 24A.0021.
(c) It is a defense to prosecution under this section that
the actor did not receive a copy of the writ [court order] or other
notice that the entry or property retrieval was authorized.
SECTION 5. Section 24A.006(a), Property Code, is amended to
read as follows:
(a) The occupant of a residence that is the subject of a writ
[court order] issued under Section 24A.002 or 24A.0021, not later
than the 10th day after the date of the authorized entry, may file a
complaint in the court that issued the writ [order] alleging that
the applicant has appropriated property belonging to the occupant
or the occupant's dependent.
SECTION 6. Chapter 24A, Property Code, as amended by this
Act, applies only to an application filed on or after the effective
date of this Act. An application filed before the effective date of
this Act is governed by the law in effect on the date the
application was filed, and the former law is continued in effect for
that purpose.
SECTION 7. This Act takes effect September 1, 2017.