By: Neave, et al. (Senate Sponsor - Zaffirini) H.B. No. 39
(In the Senate - Received from the House April 12, 2021;
April 13, 2021, read first time and referred to Committee on
Criminal Justice; May 17, 2021, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 7, Nays 0;
May 17, 2021, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 39 By: Whitmire
A BILL TO BE ENTITLED
AN ACT
relating to protective orders; making conforming changes.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 85.005(a) and (b), Family Code, are
amended to read as follows:
(a) To facilitate settlement, the parties to a proceeding
may agree in writing to [the terms of] a protective order as
provided by Sections [Section] 85.021 and 85.022. An agreement
under this subsection is subject to the approval of the court. The
court may not approve an agreement that requires the applicant for
the protective order to do or refrain from doing an act under
Section 85.022.
(b) An [To facilitate settlement, a respondent may agree in
writing to the terms of a protective order as provided by Section
85.022, subject to the approval of the court. The court may not
approve an agreement that requires the applicant to do or refrain
from doing an act under Section 85.022. The] agreed protective
order is enforceable civilly or criminally, regardless of whether
the court makes the findings required by Section 85.001.
SECTION 2. Section 85.006(a), Family Code, is amended to
read as follows:
(a) Notwithstanding Rule 107, Texas Rules of Civil
Procedure, a [A] court may render a protective order that is binding
on a respondent who does not attend a hearing if:
(1) the respondent received service of the application
and notice of the hearing; and
(2) proof of service was filed with the court before
the hearing.
SECTION 3. Section 85.025, Family Code, is amended by
adding Subsection (d) to read as follows:
(d) If the duration of a protective order is subject to an
automatic extension under Subsection (c), the Department of Public
Safety shall, based on the duration of the sentence of the person
subject to the protective order, enter the projected expiration
date of the order in the statewide law enforcement information
system maintained by the department. On release of the person, the
department shall update the information in the statewide law
enforcement system to reflect the date the order will expire
following the person's release.
SECTION 4. Section 85.026(a), Family Code, is amended to
read as follows:
(a) Each protective order issued under this subtitle,
including a temporary ex parte order, must contain the following
prominently displayed statements in boldfaced type, capital
letters, or underlined:
"A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR
CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500 OR BY CONFINEMENT IN
JAIL FOR AS LONG AS SIX MONTHS, OR BOTH."
"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."
"IT IS UNLAWFUL FOR ANY 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 A PROTECTIVE ORDER TO POSSESS A
FIREARM OR AMMUNITION."
"IF A PERSON SUBJECT TO A PROTECTIVE ORDER IS RELEASED FROM
CONFINEMENT OR IMPRISONMENT FOLLOWING THE DATE THE ORDER WOULD HAVE
EXPIRED, OR IF THE ORDER WOULD HAVE EXPIRED NOT LATER THAN THE FIRST
ANNIVERSARY OF THE DATE THE PERSON IS RELEASED FROM CONFINEMENT OR
IMPRISONMENT, THE ORDER IS AUTOMATICALLY EXTENDED TO EXPIRE ON:
"(1) THE FIRST ANNIVERSARY OF THE DATE THE PERSON IS
RELEASED, IF THE PERSON WAS SENTENCED TO CONFINEMENT OR
IMPRISONMENT FOR A TERM OF MORE THAN FIVE YEARS; OR
"(2) THE SECOND ANNIVERSARY OF THE DATE THE PERSON IS
RELEASED, IF THE PERSON WAS SENTENCED TO CONFINEMENT OR
IMPRISONMENT FOR A TERM OF FIVE YEARS OR LESS."
"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 BOTH. AN ACT THAT
RESULTS IN FAMILY VIOLENCE MAY BE PROSECUTED AS A SEPARATE
MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A
SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON
FOR AT LEAST TWO YEARS."
SECTION 5. Section 86.0011(a), Family Code, is amended to
read as follows:
(a) On receipt of an original or modified protective order
from the clerk of the issuing court, or on receipt of information
pertaining to the date of confinement or imprisonment or date of
release of a person subject to the protective order, a law
enforcement agency shall immediately, but not later than the third
business day after the date the order or information 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.
SECTION 6. Article 7B.001(a), Code of Criminal Procedure,
is amended to read as follows:
(a) The following persons may file an application for a
protective order under this subchapter without regard to the
relationship between the applicant and the alleged offender:
(1) a person who is the victim of an offense under
Section 20A.02, 20A.03, 21.02, 21.11, 22.011, 22.021, [or] 42.072,
or 43.05, Penal Code;
(2) any adult, including a parent or guardian, who is
acting on behalf of a victim described by Subdivision (1), if the
victim is younger than 18 years of age or an adult ward [a person who
is the victim of an offense under Section 20A.02, 20A.03, or 43.05,
Penal Code]; or
(3) [a parent or guardian acting on behalf of a person
younger than 17 years of age who is the victim of an offense listed
in Subdivision (1);
[(4) a parent or guardian acting on behalf of a person
younger than 18 years of age who is the victim of an offense listed
in Subdivision (2); or
[(5)] a prosecuting attorney acting on behalf of a
person described by Subdivision (1) or [,] (2)[, (3), or (4)].
SECTION 7. Article 7B.001, Code of Criminal Procedure, is
amended to conform to Chapter 1066 (H.B. 1343), Acts of the 86th
Legislature, Regular Session, 2019, by adding Subsections (a-1) and
(a-2) and is further amended to read as follows:
(a-1) Except as provided by Subsection (a-2), if an
application has not yet been filed in the case under Subsection (a),
the attorney representing the state shall promptly file an
application for a protective order with respect to each victim of an
offense listed in Subdivision (1) of that subsection following the
offender's conviction of or placement on deferred adjudication
community supervision for the offense.
(a-2) The attorney representing the state may not file an
application under Subsection (a-1) with respect to a victim if the
victim requests that the attorney representing the state not file
the application. This subsection does not apply to a victim who is
younger than 18 years of age or who is an adult ward.
SECTION 8. Article 7B.003, Code of Criminal Procedure, is
amended to conform to Chapter 1066 (H.B. 1343), Acts of the 86th
Legislature, Regular Session, 2019, by adding Subsection (c) and is
further amended to read as follows:
(c) An offender's conviction of or placement on deferred
adjudication community supervision for an offense listed in Article
7B.001(a)(1) constitutes reasonable grounds under Subsection (a).
SECTION 9. Article 7B.007, Code of Criminal Procedure, is
amended to conform to Chapter 1066 (H.B. 1343), Acts of the 86th
Legislature, Regular Session, 2019, by adding Subsection (a-1) and
is further amended to read as follows:
(a-1) The court shall issue a protective order effective for
the duration of the lives of the offender and victim if the offender
is:
(1) convicted of or placed on deferred adjudication
community supervision for an offense listed in Article
7B.001(a)(1); and
(2) required under Chapter 62 to register for life as a
sex offender.
SECTION 10. Article 7B.007, Code of Criminal Procedure, is
amended by amending Subsection (b) and adding Subsection (b-1) to
read as follows:
(b) The following persons may file at any time an
application with the court to rescind the protective order:
(1) a victim of an offense listed in Article
7B.001(a)(1) who is 18 [17] years of age or older;
(2) subject to Subsection (b-1), [or] a parent or
guardian acting on behalf of a victim of an offense listed in
Article 7B.001(a)(1) who is younger than 18 [17] years of age or an
adult ward; or
(3) a person not otherwise described by Subdivision
(1) or (2) who filed the application for the protective order.
(b-1) A [(2) a victim of an offense listed in Article
7B.001(a)(2) or a] parent or guardian may not file an application to
rescind the protective order under Subsection (b)(2) if the parent
or guardian is the alleged offender subject to the protective order
[acting on behalf of a victim who is younger than 18 years of age].
SECTION 11. Article 56A.052(d), Code of Criminal Procedure,
is amended to read as follows:
(d) This subsection applies only to a victim of an offense
under Section 20A.02, 20A.03, 21.02, 21.11, 22.011, 22.021, 42.072,
or 43.05, Penal Code. A victim described by this subsection or a
parent or guardian of the victim, if the victim is younger than 18
years of age or an adult ward, is entitled to the following rights
within the criminal justice system:
(1) the right to be informed:
(A) that the victim or, if the victim is younger
than 18 years of age or an adult ward, the victim's parent or
guardian or another adult acting on the victim's behalf[, as
applicable,] may file an application for a protective order under
Article 7B.001;
(B) of the court in which the application for a
protective order may be filed; [and]
(C) that, on request of the victim or, if the
victim is younger than 18 years of age or an adult ward, on request
of the victim's parent or guardian or another adult acting on the
victim's behalf, [as applicable, and subject to the Texas
Disciplinary Rules of Professional Conduct,] the attorney
representing the state may, subject to the Texas Disciplinary Rules
of Professional Conduct, file the application for a protective
order on behalf of the requestor [victim]; and
(D) that, subject to the Texas Disciplinary Rules
of Professional Conduct, the attorney representing the state
generally is required to file the application for a protective
order with respect to the victim if the defendant is convicted of or
placed on deferred adjudication community supervision for the
offense;
(2) the right to:
(A) request that the attorney representing the
state, subject to the Texas Disciplinary Rules of Professional
Conduct, file an application for a protective order described by
Subdivision (1); and
(B) be notified when the attorney representing
the state files an application for a protective order under Article
7B.001;
(3) if the victim or the victim's parent or guardian,
as applicable, is present when the defendant is convicted or placed
on deferred adjudication community supervision, the right to:
(A) be given by the court the information
described by Subdivision (1); and
(B) file an application for a protective order
under Article 7B.001 immediately following the defendant's
conviction or placement on deferred adjudication community
supervision if the court has jurisdiction over the application; and
(4) if the victim or the victim's parent or guardian,
as applicable, is not present when the defendant is convicted or
placed on deferred adjudication community supervision, the right to
be given by the attorney representing the state the information
described by Subdivision (1).
SECTION 12. Section 25.07, Penal Code, is amended by
amending Subsection (g) and adding Subsection (h) to read as
follows:
(g) An offense under this section is a Class A misdemeanor,
except the offense is:
(1) subject to Subdivision (2), a state jail felony if
it is shown at the trial of the offense that the defendant violated
an order issued under Subchapter A, Chapter 7B [as a result of an
application filed under Article 7A.01(a-1)], Code of Criminal
Procedure, following the defendant's conviction of or placement on
deferred adjudication community supervision for an offense, if the
order was issued with respect to a victim of that offense; or
(2) a felony of the third degree if it is shown on the
trial of the offense that the defendant:
(A) has previously been convicted two or more
times of an offense under this section or two or more times of an
offense under Section 25.072, or has previously been convicted of
an offense under this section and an offense under Section 25.072;
or
(B) has violated the order or condition of bond
by committing an assault or the offense of stalking.
(h) For purposes of Subsection (g), a conviction under the
laws of another state for an offense containing elements that are
substantially similar to the elements of an offense under this
section or Section 25.072 is considered to be a conviction under
this section or Section 25.072, as applicable.
SECTION 13. The following provisions are repealed:
(1) Section 1, Chapter 1066 (H.B. 1343), Acts of the
86th Legislature, Regular Session, 2019, which amended Article
7A.01, Code of Criminal Procedure;
(2) Section 2, Chapter 1066 (H.B. 1343), Acts of the
86th Legislature, Regular Session, 2019, which amended Article
7A.03, Code of Criminal Procedure; and
(3) Section 3, Chapter 1066 (H.B. 1343), Acts of the
86th Legislature, Regular Session, 2019, which amended Article
7A.07, Code of Criminal Procedure.
SECTION 14. Section 85.005, Family Code, as amended by this
Act, applies only to a protective order approved by the court on or
after the effective date of this Act.
SECTION 15. Section 85.006, Family Code, as amended by this
Act, applies only to a protective order for which the respondent
receives service on or after the effective date of this Act.
SECTION 16. Sections 85.025, 85.026, and 86.0011, Family
Code, as amended by this Act, apply only to a protective order
issued on or after the effective date of this Act.
SECTION 17. Subchapter A, Chapter 7B, Code of Criminal
Procedure, as amended by this Act, applies only to a protective
order for which an application is filed on or after the effective
date of this Act.
SECTION 18. Article 56A.052(d), Code of Criminal Procedure,
as amended by this Act, applies to a victim of criminally injurious
conduct for which a judgment of conviction is entered or a grant of
deferred adjudication community supervision is made on or after the
effective date of this Act, regardless of whether the criminally
injurious conduct occurred before, on, or after the effective date
of this Act.
SECTION 19. To the extent of any conflict, this Act prevails
over another Act of the 87th Legislature, Regular Session, 2021,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 20. This Act takes effect September 1, 2021.
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