Senate Bill 1440, Texas: “CPS Takes Away your Child Property Bill”


After much opposition for Texas Governor Rick Perry to veto this bill that makes it almost a mandate for (governor) appointed associate judges (who unconstitutionally claim “Executive” “immunity” under Coast Guard and maritime statutes as an accessory before and after the fact or crime to include high treason and misprision) to kidnap your child or property under color of law and in conspiracy against your, inter alia, Fourth Amendment rights against unreasonable search and seizure Fifth and Fourteenth Amendment substantive due process of law right not to be deprived of life, liberty, or property absent due process of law and absent equal protections of the law (Fourteenth Amendment), Thirteenth (originally Fourteenth) Amendment right not to be subjected to conditions of involuntary servitude,  Fourteenth Amendment constitutional right to procedural due process of law, Ninth Amendment implied, un-enumerated rights (to be a parent and to do what you want with your property, at least, so long as you’re not hurting anyone else), and your well-established (as a matter of law and fact) right to familial association and integrity and right to privacy absent government intrusion, the bill was snuck in behind another bill that was widely accepted and passed by a majority vote of 1 …out of 1 individual in the room…the same speaker who presented the bill.

See also:  Title 5, Protection of Consumers of Financial Services, Chapter 396, Private Child Support Enforcement Agencies, Texas Finance Code, http://www.statutes.legis.state.tx.us/Docs/FI/htm/FI.396.htm, (see definition of deceptive trade practices)

See also: Senate Journal, 81st Legislature, Austin, Texas,March 17, 2009, http://www.journals.senate.state.tx.us/sjrnl/81r/pdf/81RSJ03-17-F.PDF#page=53

Senate Bill 1440, Texas:

“CPS Takes Away your Child Property Bill”

By: Kirk Watson(D), Senate

Jerry Madden (R), House

S.B. No.  1440

(Senate Bill 1440 amends the Family Code to clarify that certain proposed orders or judgments of an associate judge in Title IV-D or child protection cases become the order or judgment of the referring court without the signature of the judge of the referring court if a request for a de novo hearing is not timely filed or the right to such hearing is waived.) [Note: Title IV-D refers to Federal Social Security Act through which states, oftentimes through the Attorney General–in Texas, Gregg Abbott–collect and enforce child support for certain property owners/ “parents” who have gone to the attorney general’s office in response to solicitation for help collecting child support from another parent.]

AN ACT relating to orders and judgments rendered by associate judges in child support and child protection cases and to the investigation of child abuse and neglect.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION
A
1.
AA
Subsection (a), Section 201.1041, Family Code, is amended to read as follows:
(a)
AA
If a request for a de novo hearing before the referring court is not timely filed or the right to a de novo hearing before the referring court is waived, the proposed order or judgment of the associate judge, other than a proposed order or judgment providing for enforcement by contempt or the immediate incarceration of a party, shall become the order or judgment of the referring court by operation of law without the signature of the judge of the referring court or ratification by the referring court.
SECTION
A
2.
AA
Subsection (a), Section 201.2041, Family Code, is amended to read as follows:
(a)
AA
If a request for a de novo hearing before the referring court is not timely filed or the right to a de novo hearing before the referring court is waived, the proposed order or judgment of the
associate judge becomes the order or judgment of the referring court by operation of law without
the signature of the judge of the referring court or ratification by the referring court.
SECTION
A
3.
AA
Section 261.302, Family Code, is amended by adding Subsection (g) to read as follows:
(g)
AA
The department, without filing suit, may seek a court order in aid of an investigation under Section 261.303. SECTION
A
4.
AA
Section 261.303, Family Code, is amended by amending Subsections (a), (b), and (c) and adding Subsections (c-1), (c-2), (c-3), (f), (g), (h), (i), (j), (k), (l), and (m) to read as follows:
(a)
AA
A person may not interfere with an investigation of a report of child abuse or neglect conducted by the department or designated agency , and a court may render an order to assist the
department in an investigation under this sub- chapter.  If admission to the home, school, or any place where the child may be cannot be obtained, or if consent to transport a child for purposes relating to an interview or investigation cannot be obtained, then, on presentation of an application supported by an affidavit described by Subsection (c-2) that is executed by an investigator or authorized representative of the department, [for good cause shown] the court having family law jurisdiction,including any associate judge designated by the court, may, on finding that the affidavit is sufficient and without prior notice or a hearing, [shall] order the parent, the person responsible for the care of the children, or the person in charge of any place where the child may be to allow entrance, transport of the child, or both entrance and transport for the interview, examination, and investigation.
(c)
AA
If a parent or person responsible for the child’s care does not consent to release of the child’s prior medical,psychological, or psychiatric records or to a medical, psychological, or psychiatric examination of the child that is requested by the department or designated agency, then, on presentation of an application supported by an affidavit described by Subsection (c-2) that is executed by an investigator or authorized representative of the department, the court having family law jurisdiction, including any associate judge designated by the court, may, on finding that the affidavit is sufficient and without prior notice or a hearing [shall, for good cause shown], order the records to be released or the examination to be made at the times and places designated by the court.
(c-1)
AA
If a person having possession of records relating to a child that are relevant to an investigation does not consent to the release of the records on the request of the department or designated agency, then, on presentation of an application supported by an affidavit described by Subsection (c-2) that is
executed by an investigator or authorized representative of the department, the court having family law jurisdiction, including any associate judge designated by the court, may, on finding that the
affidavit is sufficient and without prior notice or a hearing, order the records to be released at the time and place designated by the court.
(c-2)
AA
An application filed under this section must be accompanied by an affidavit executed by an investigator or authorized representative of the department that states facts sufficient to lead a person of ordinary prudence and caution to believe that:

3.  based on information available, a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect;

(2)

AA
the requested order is necessary to aid in the investigation; and
(3)  there is a fair probability that allegations of abuse or neglect will be sustained if the order is issued and executed.
(c-3)
AA
An application and supporting affidavit used to obtain a court order in aid of an investigation under this section may be filed on any day, including Sunday.
(f)
AA
A court may designate an associate judge to render an order in aid of an investigation under this section. An order rendered by an associate judge is immediately effective without the
ratification or signature of the court making the designation.
(g)
AA
As soon as practicable after executing the order or attempting to execute the order, as applicable, the department shall file with the clerk of the court that rendered the order a written report stating:
(1)
AA
the facts surrounding the execution of the order,
including the date and time the order was executed and the name of
the investigator or authorized representative executing the order;
or
(2)
AA
the reasons why the department was unable to execute the order.
(h)
AA
A court issuing an order in aid of an investigation under this section shall keep a record of all the proceedings before the court under this subchapter, including a report filed with the court under Subsection (g). The record of proceedings, including any application and supporting affidavit presented to the court and any report filed with the court under Subsection (g), is confidential and may only be disclosed as provided by Subsection
(i) or Section 261.201. (i)
AA
If the department files a suit under Chapter 262 (termination of parental Rights, Texas Family Code), the department shall include with its original petition a copy of the record of all the proceedings before the court under this sub-chapter, including an application and supporting affidavit for an order under this section and any report relating to an order in aid of an investigation.
(j)
AA
As soon as practicable after the department obtains access to records of a child under an order in aid of an investigation, the department shall notify the child’s parents or another person with legal custody of the child that the department has obtained the records.
(k)
AA
Access to a confidential record under this sub-chapter does not constitute a waiver of confidentiality.
(l)
AA
This section does not prevent a court from requiring notice and a hearing before issuance of an order in aid of an investigation under this section if the court determines that:
(1)
AA
there is no immediate risk to the safety of the child; and
(2)
AA
notice and a hearing are required to determine whether the requested access to persons, records, or places or transport of the child is necessary to aid in the investigation.

(m)

AA
A court’s denial of a request for an ex-parte order under this section does not prevent the issuance of a criminal warrant.
SECTION
A
5.
AA
This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009

 

Introduced:  Legislative Session 81R, Introduced by Kirk Watson (D)

Source:  Texas Legislature Online, Texas Legislature Reference Library(http://www.lrl.state.tx.us/), Austin, Texas, http://www.legis.state.tx.us/tlodocs/81R/billtext/pdf/SB01440F.pdf#navpanes=0
Governor’s Prior Veto Proclamation
Gov. Perry Vetoes SB 1440
June 19, 2009
TO ALL TO WHOM THESE PRESENTS SHALL COME:
Pursuant to Article IV, Section 14, of the Texas Constitution, I, Rick Perry, Governor of Texas, do hereby disapprove of and veto Senate Bill No. 1440 of the 81st Texas Legislature, Regular Session, due to the following objections:
As a result of Gates v. Texas Department of Protective and Regulatory Services, Senate Bill No. 1440 would establish guidelines for Texas Department of Family and Protective Services (DFPS) caseworkers to follow when making entry and transport-for-interview decisions in alleged child abuse and neglect cases. The court’s decision in Gates is extremely narrow in its articulation of the standards that must be met for transporting a child to conduct an interview. The decision also creates uncertainty about how court orders allowing such transport are to be obtained by DFPS under
existing law. This court-created uncertainty must be addressed. Senate Bill No. 1440, however, overreaches and may
not give due consideration to the Fourth Amendment rights of a parent or guardian.
DFPS is charged with protecting the unprotected, and all parties involved benefit when procedures are clear and easily
understood. Texas law should provide a clearly delineated investigative process that not only supports the rights of parents and guardians, but also provides DFPS with the proper authority and flexibility to protect the most vulnerable Texans. I am directing DFPS, through its parental advisory committee, to study the effect of the Gates decision on the ability of the department to appropriately enter a residence and, if necessary for the protection of the child, to transport the child for interviews in a neutral location. I am also directing DFPS, through its parental advisory committee, to develop and
recommend statewide procedures to follow when seeking court orders to aid investigations, while protecting the rights of parents and families.
IN TESTIMONY WHEREOF,
I have signed my name officially and caused the  Seal of the State to be affixed hereto at Austin, this the 19th day of June, 2009.
RICK PERRY
Governor of Texas
ATTESTED BY:
COBY SHORTER, III
Deputy Secretary of State
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