HBA-MPA H.B. 158 76(R) BILL ANALYSIS
Office of House Bill AnalysisH.B. 158
By: Wise
Criminal Jurisprudence
3/10/1999
Introduced
BACKGROUND AND PURPOSE
Legislation passed at a federal level over the last 15 years reflects a
growing concern about child abduction. H.B. 158 provides for a court to
issue a warrant for the recovery of a detained or concealed child. This
bill requires courts to order restitution to be paid by the offender to the
victims of enumerated offenses associated with child abduction, including
the cost of any necessary rehabilitation, and increases the criminal
penalty for these offenses. This bill also clarifies that it is
interference with custody if a person knowingly retains or takes a child in
the expectation of a divorce or change in custody status, and provides that
a court may issue an ex parte order for custody of a child if it finds a
clear and present danger that the child may be abducted.
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 Chapter 18, Code of Criminal Procedure, by adding
Article 18.022, as follows:
Art. 18.022. WARRANT TO RECOVER CHILD. (a) Authorizes the court to issue
a warrant upon request to recover a detained or concealed child upon
receipt of an affidavit from a district or county attorney showing probable
cause that issuance is necessary to protect the child or to preserve the
court's jurisdiction.
(b) Provides that such a warrant must authorize the child to be placed in
protective custody by a peace officer or to be returned as ordered by the
court. Authorizes the service of the warrant in any county in the same
manner as a search warrant.
(c) Provides that on the declaration by the attorney originally requesting
the warrant that the child is recovered or that the warrant is no longer
required, the warrant may be dismissed without further proceedings.
(d) Requires the peace officer executing the warrant to return the child to
the person entitled to possession of the child, or to place the child in
protective custody.
(e) Requires the peace officer executing the warrant to deliver the child
to the Department of Protective and Regulatory Services as provided under
Section 262.007 (Possession and Delivery of Missing Child), Family Code,
if the person entitled to possession of the child is not available.
SECTION 2. Amends Chapter 42, Code of Criminal Procedure, by adding
Article 42.0371, as follows:
Art. 42.0371. MANDATORY RESTITUTION FOR OFFENSES INVOLVING CHILD CUSTODY.
(a) Requires the court to order a defendant convicted under Sections 25.03
(Interference with Child Custody), 25.031 (Abduction from Custody), or
25.04 (Enticing a Child), Penal Code, to pay restitution to the victim of
the offense to cover the cost of necessary rehabilitation, the cost
incurred in returning the victim, and any other reasonable cost incurred by
the victim, to pay restitution to a private entity that provided victim
services at a reasonable cost, and to pay restitution to the district or
county attorney for the costs incurred in returning the victim.
(b) Requires the court to specify in the restitution order the manner in
which the defendant is required to pay restitution.
(c) Provides that a restitution order be enforced in the same manner as a
judgment in a civil action.
(d) Provides that the court may hold hearings, make findings of fact, and
amend the restitution order if the defendant fails to pay the victim as
specified.
SECTION 3. Amends Section 25.03 (Interference with Child Custody), Penal
Code, to specify that a person is interfering with child custody by taking
or retaining a child if the person knows that a suit of divorce, a civil
suit, or an application for habeas corpus to dispose of the child's
custody will be filed. Provides that a person is presumed to know that
such an action will be filed if another informs the person of the pending
filing, if the suit or application is filed within 30 days of the taking or
retention of the child, and if the person has not been awarded possession
of the child in a temporary or permanent court order. Deletes a provision
providing that it is a defense for a person charged under Subsection (a)(2)
that the child was returned to the judicial district or county within three
days of the offense. Provides that an offense under this section is a
third degree felony, rather than a state jail felony.
SECTION 4. Amends Section 25.031(b), Penal Code, to provide that an
offense under this section is a third degree felony, rather than a state
jail felony.
SECTION 5. Amends Section 25.04(b), Penal Code, to provide that an offense
under this section is a state jail felony, rather than a Class B
misdemeanor.
SECTION 6. Amends Chapter 25, Penal Code, by adding Sections 25.10 and
25.11, as follows:
Sec. 25.10. SUBSEQUENT CUSTODY OR VISITATION ORDER NO DEFENSE. Provides
that the award of custody or visitation is not a defense for a person
charged under Section 25.03, 25.031, or 25.04, and provides an exception.
Sec. 25.11 NECESSITY DEFENSE FOR OFFENSES INVOLVING CHILD CUSTODY. (a)
Provides that it is a defense for a person charged under Sections 25.03,
25.031, or 25.04, Penal Code, that the person: believed in good faith that
the action was necessary to avoid imminent harm to the child; filed within
10 days of the offense a report with the prosecuting attorney in the county
where the child resided, containing the information required by Subsection
(b); and filed within 30 days of the offense a suit for a modification of
the child's custody or possession order with the court.
(b) Provides that the report filed with the prosecuting attorney include
the name of the person charged, the current address and telephone number of
the child and the person charged, and the reason the person committed the
offense.
(c) Requires that the person charged under this section notify the
prosecuting attorney of any change in address or telephone number of the
child or the person charged, and provides that the information is
confidential and may not be disclosed.
SECTION 7. Amends Chapter 105, Family Code, by adding Section 105.009, as
follows:
Sec. 105.009. TEMPORARY EX PARTE ORDER TO PROHIBIT ABDUCTION. Authorizes a
person who has standing to file a suit affecting the parent-child
relationship to apply to a court for the issuance of a temporary ex parte
order providing for possession of or access to the child if: (1) such a
suit has not been filed and (2) an order for possession or access has not
been rendered. Authorizes the court to render the ex parte order without
other notice to the family or household and without a hearing, for a period
of up to 30 days with subsequent 30 day extensions, if the court finds from
the information contained in the application that there is a clear and
present danger that the child may be abducted. Provides that violation of
such an order is punishable by contempt and is enforced under Chapter 157.
( Black's Law Dictionary, Sixth Edition, ex parte: "on one side only; at
or for the benefit of one party only").
SECTION 8. Effective date: September 1, 1999.
Makes application of SECTION 3 of this Act prospective.
SECTION 9. Emergency clause.