HBA-KHM, JLV C.S.H.B. 1365 77(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 1365 By: Goodman Juvenile Justice & Family Issues 3/11/2001 Committee Report (Substituted) BACKGROUND AND PURPOSE Current law provides for the establishment and enforcement of child support obligations in suits affecting the parent-child relationship. Among the provisions are procedures for ordering medical support and enforcing support obligations through mechanisms such as income withholding and liens. C.S.H.B. 1365 provides technical corrections and textual emendations to various provisions to clarify intent and to enhance establishment and enforcement provisions. C.S.H.B. 1365 also provides for the continuation of the duty of support beyond the death of an obligee, medical support for a child for whom child support is ordered, child support lien and levy processes, and administrative processes used by the Office of the Attorney General's child support division. 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. ANALYSIS C.S.H.B. 1365 amends the Family Code to set forth provisions relating to the establishment, modification, and enforcement of child support. The bill provides that a child support obligation does not terminate on the death of the obligee but continues as an obligation to the child named in the support order. The bill requires that after the death of the obligee, a child support payment is to be paid proportionately for the benefit of each surviving child and not to the estate of the obligor. The bill provides that the payment of child support is free of any creditor's claim against the deceased obligee's estate. The bill requires that if the obligor does not assume actual care, control, and possession of the child on the death of an obligee, current child support owed by the obligor is to be paid and a copy of the order provided to certain persons (Sec. 154.013). The bill provides that a child support lien arises by operation of law for all amounts of child support due and owing, including any accrued interest, and provides additional requirements of the content and methods of filing all child support lien notices (Secs. 157.312, 157.313, and 157.314). The bill provides that a lien is perfected if a lien is attached to a financial institution account in which the obligor has sole or part ownership interest and the support lien notice is delivered to the financial institution holding the account and releases the institution from liability for compliance with a levy notice (Secs. 157.316 and 157.329). The bill requires the county clerk, on receipt of a child support lien notice, to immediately record the notice in the county judgment records (Sec. 157.315). The bill provides that a lien attaches to all real and personal property including an individual retirement account, the proceeds of a life insurance policy, and a claim or potential right to the proceeds from an estate as an heir, beneficiary or creditor (Sec. 157.317). The bill provides that a lien is effective until all current support and child support arrearages, including interest and any costs and reasonable attorney's fees have been paid or the lien is otherwise released (Sec. 157.318). The bill provides for when the release of the child support lien is effective, and which court an action to foreclose a child support lien, to dispute arrearages, or to resolve issues of ownership interest is authorized to be brought (Secs. 157.322 and 157.323). The bill provides that a notice of levy sent to a financial institution must identify the amount of child support arrearages owing at the time the amount of arrearages was determined and direct the financial institution to pay to the claimant, not earlier than the 15th day or later than the 21st day after the date of the delivery of the notice, an amount from the assets of the obligor in the amount not to exceed the child support arrearages identified in the notice. The bill prohibits a financial institution that receives a notice of levy from closing an account, withdrawing funds, or paying funds to the obligor. The bill requires the financial institution that receives a notice of levy to notify any other person having an ownership interest in the account, that the account has been levied on in an amount not to exceed the amount of the child support arrearages (Sec. 157.327). The bill authorizes the claimant to proceed to levy on other property of the obligor until the total amount of child support due is paid if the property or right to property does not produce sufficient funds to satisfy the amount of child support arrearages (Sec. 157.331). The bill requires a claimant to deliver a notice of levy to any financial institution possessing or controlling assets or funds of the obligor and provides requirements for notice of levy to the obligor. The bill requires that the notice of the levy delivered to the obligor must inform the obligor that the claimant will not proceed with levy, if later than the 10th day after the date of receipt of the notice, the obligor pays the arrearages in full amount. The bill also authorizes the obligor to contest the levy by filing suit not later than the 10th day after the date of receipt of the notice. The bill also provides that if the claimant is the Title IV-D agency, the obligor receiving a notice of levy may request review by the agency not later than the 10th day after the date of receipt of the notice to resolve any issue in dispute regarding the existence or amount of the arrearages. The bill provides that if the review fails to resolve any issue in dispute, the obligor is authorized to file suit for a hearing not later than the fifth day after the date of the conclusion of the agency review. The bill further provides that if the obligor fails to timely file suit, the Title IV-D agency is authorized to request the financial institution to release and remit the funds subject to levy (Sec. 157.328). The bill authorizes the court to render an order requiring the obligor to make periodic payments or that income be withheld from the disposable earnings of the obligor in an amount sufficient to discharge the judgment in not more than two years (Sec. 157.264). The bill removes provisions relating to the contents of an order or a writ of withholding (Sec. 158.103). The bill requires the obligor's employer to send a copy of the income withholding order or writ to the insurance carrier with whom the claim has been filed in order to continue the ordered withholding of income (Sec. 158.206). The bill authorizes an administrative writ of withholding to contain only information that is necessary for the employer to withhold income for child support and medical support and is required to specify the place where the withheld income is to be paid (Sec. 158.504). On issuance of administrative writ of withholding, the bill requires the Office of the Attorney General, the designated Title IV-D agency in this state, to send notice of the amount of arrearages, including accrued interest, to the obligor (Sec. 158.505). The bill requires a government agency, private company, institution, or other entity to provide the information requested directly to the attorney general without the requirement of payment of a fee for the information (Sec. 231.302). The bill requires the clerk of the court to file suit in a suit to determine parentage (Sec. 102.013). The bill authorizes the court to order retroactive child support for a child for a period after the termination of a previous child support order if the termination resulted from the marriage or remarriage of the child's parents (Sec. 154.009). The bill requires the court to render an order with specific requirements, directing payment of current child support amounts, arrearages, and support paid but not dispersed. The bill requires the order to be distributed to certain persons or agencies (Sec. 154.013). The bill provides that any support paid to the obligee in excess of the amount ordered is required to be returned to the obligor, if the obligor is not in arrears and the obligor's child support obligation has terminated (Sec. 154.012). The bill authorizes the presiding judge to appoint a visiting child support master under certain conditions specified by the bill (Sec. 201.113). The bill provides that if both parties support and sign the child support order and paternity is established, then the attorney general is authorized to present the order and waiver to the court for confirmation without conducting a negotiation conference (Secs. 233.009 and 233.0095). The bill authorizes the court to sign the order before filing the order, and requires the signed order to be immediately filed (Sec. 233.024). The bill provides that a certified child support payment record produced by the state disbursement unit is admissible as evidence of the truth of the information contained in the record and does not require further authentication or verification. The bill requires that a dispute of a matter stated in a payment record produced by the state disbursement unit be resolved by deposition on written interrogatories and does not require other testimony by a representative of the state disbursement unit (Sec. 234.001). The bill authorizes the attorney general to enter into contracts or cooperative agreements to process through the state disbursement unit child support collections (Sec. 234.004). The bill authorizes, rather than requires, the attorney general in cooperation with a work group to adopt rules in compliance with federal law for the operation of the state case registry and the state disbursement unit (Sec. 234.006). The bill authorizes a court of this state to modify an order of child support rendered by an appropriate tribunal of another state after registration of the order (Sec. 156.408). The bill provides that a notice of a motion for modification of an order may be served by mailing a copy of the citation to the respondent with a copy of the motion and provides additional notice requirements (Sec. 156.409). The bill authorizes the attorney general to enforce a support order rendered by a tribunal of another state (Sec. 158.501). EFFECTIVE DATE September 1, 2001. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 1365 modifies the original by providing that if the obligor does not assume actual care, control, and possession of the child on the death of an obligee, current child support owed by the obligor is to be paid and a copy of the order provided to certain persons. The substitute modifies the original by removing requirements to include the social security number and mailing address of each child named in the support order and the social security number of the managing conservator or guardian of the child in an order directing payment of current child support The substitute also removes requirements to include a copy of the provisions in the order (Sec. 154.013). The substitute modifies the original to provide that the provisions governing an alternative method of computing support for children does not constitute a variance from the child support guidelines requiring specific findings by the court (Sec. 154.130). The substitute provides that a notice of a motion for modification of an order providing for the support of a child may be served by first class mail (Sec. 156.409). The substitute sets forth provisions defining "account" and provides that "lien" means a child support lien issued in this or another state (Sec. 157.311). The substitute modifies the original by providing that a foreclosure action is not required as a prerequisite to levy and execution on a judicial or administrative determination of arrearages (Sec. 157.312). The substitute modifies the original by providing that a notice of a lien for child support may be in the form authorized by federal law or regulation (Sec. 157.313). The substitute modifies the original by providing that a child support lien notice may be delivered to certain persons, as appropriate. The substitute requires the claimant to provide a copy of the notice to the obligor not later than the 21st day after the date of filing or delivering the child support lien notice (Sec. 157.314). The substitute modifies the original by no longer requiring the county clerk to record the date and time of the notice in the records (Sec. 157.315). The substitute modifies the original by additionally providing that a lien attaches to all real and personal property including a claim or potential right to the proceeds from an estate as an heir, beneficiary, or creditor (Sec. 157.317). The substitute provides that a lien is effective until all current support and child support arrearages, including interest and any costs and reasonable attorney's fees have been paid or the lien is otherwise released (Sec. 157.318). The substitute provides that the release of the child support lien is effective when it is delivered to certain individuals or organizations that may have been served with a lien notice (Sec. 157.322) The substitute specifies the courts in which an action to foreclose a child support lien, to dispute arrearages, or to resolve issues of ownership interest is authorized may be brought (Sec. 157.323). The substitute sets forth deadlines relating to the notice of levy and the filing of suit (Sec. 157.328). The substitute modifies provisions relating to the compensation of a visiting child support master (Sec. 201.113). The substitute modifies the definitions of "financial institutions" and "account" and authorizes a financial institution participating in data matches to provide the attorney general an address for the purpose of service of notices or process (Sec. 231.307). The substitute restores to current law the following sections: Secs. 105.006(f), 154.062(d), 154.123(b), 154.129, 154.182, 154.184, 154.243, 155.207, 156.003, 160.003(b), 160.006(a), 160.207(a), 231.301 (a) and (b), and 231.302(b).