HBA-SEB C.S.H.B. 2124 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 2124
By: Cuellar
Juvenile Justice and Family Issues
4/12/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Currently, a magistrate is authorized to issue an order for emergency
protection in a case involving family violence.  The order prevents the
defendant from going within 200 yards of the victim for 31 days.  In many
cases, however, the magistrate does not issue an order for emergency
protection.  A victim of domestic violence who is not under such an order
may be in danger if the defendant is released from jail.  C.S.H.B. 2124
requires a magistrate to issue an order for emergency protection in a
family violence case if the victim sustained serious injury or the
defendant used or exhibited a deadly weapon.  It also modifies the
definitions of "notice" and "family violence." 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Article 17.292, Code of Criminal Procedure, to require a
magistrate to issue an order for emergency protection at a defendant's
appearance before the magistrate if an arrest involving family violence
includes serious injury to the victim or the use or exhibition of a deadly
weapon during the commission of an assault.  Redesignates Subsections
(c)-(k) to (d)-(l). 

SECTION 2.  Amends Section 30.05(b)(2), Penal Code, to include in the
definition of "notice" a written communication contained in a court order
posted on the property or delivered to a person that prohibits the person
from going to or near a specific location, including a temporary ex parte
order or a protective order rendered under Title 4, Family Code (Protective
Orders and Family Violence), or a magistrate's order for emergency
protection rendered under Article 17.292, Code of Criminal Procedure
(Magistrate's Order for Emergency Protection).   

SECTION 3.  Amends Section 71.004, Family Code, to redefine a provision of
the definition of "family violence" to specify that a member of a family or
household is reasonably placed in fear of physical harm, bodily injury,
assault, or sexual assault rather than in fear of imminent physical harm,
bodily injury, assault, or sexual assault. 

SECTION 4.  Makes application of Section 2 of this Act prospective.

SECTION 5.  Effective date: September 1, 1999.

SECTION 6. Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute modifies the original in SECTION 1 by amending Article
17.292, Code of Criminal Procedure, by creating a new Subsection (b) to
require a magistrate to issue an order for emergency protection if an
arrest involving family violence includes serious injury to the victim or
the use or exhibition of a deadly weapon during the commission of an
assault.  The substitute redesignates existing Subsections (c)-(k) to
(d)-(l).   The original would have amended Subsection (a) to require,
rather than authorize, a magistrate to issue an order for emergency
protection at a defendant's  appearance before the magistrate for an
offense involving family violence or stalking.  The substitute reinstates
text that was deleted in the original, which specifies the persons eligible
to initiate or request an order for emergency protection.   

The substitute modifies the original by deleting proposed SECTION 4, which
would have amended Section 153.252, Family Code, to provide that a finding
of a history of family violence committed by the parent of a child removes
the presumption that a standard possession order provides reasonable
minimum possession of a child for a parent named as possessory conservator
or joint managing conservator and is in the best interest of the child. 

The substitute modifies the original by deleting proposed SECTION 6, which
would have made application of SECTION 4 of this Act, now deleted,
prospective. 

The substitute redesignates SECTIONS 5, 7, and 8 of the original to
SECTIONS 4, 5, and 6 of the substitute, respectively.