The Texas Council on Family Violence promotes safe and

healthy relationships by supporting service providers,

facilitating strategic prevention efforts, and

creating opportunities for freedom from domestic

violence.

TEXAS PROTECTIVE

ORDER FUNDAMENTALS

Tracy Grinstead-Everly, JD Public Policy Manager

Texas Council on Family Violence

LEGAL FOUNDATION Napoleonic Code: "Women, like walnut trees,

should be beaten every day.” Rescinded by a French court in 1924

1782: “Rule of Thumb” Sir Frances Buller, a British judge, ruling that a man may legally beat his wife, provided that he used a stick no thicker than his thumb

1871: Alabama is the first state to rescind the legal right of men to beat their wives (Fulgrahm v. State) Illegal in Texas in 1879

1976: Nebraska makes marital rape a crime Rape law passed in 1983 in Texas Abolished in all 50 states and Washington DC by 1993

LEGAL FOUNDATION 1993: The United Nations recognizes

domestic violence as an international human rights issue and issues a Declaration on the Elimination of Violence Against Women

1994: Congress passes the Violence Against Women Act, part of the federal Crime Victims Act

February 1996: the National Domestic Violence Hotline (NDVH) was established from funding allocated in the Violence Against Women Act

IF WE’VE “COME A LONG WAY,

BABY!”

THEN WHY ARE YOU STILL

CALLING ME “BABY?”

PROTECTIVE ORDERS: CRIMINAL LAW FOUNDATION

DEFINING FAMILY VIOLENCE – ADVOCACY MODEL Family violence is a pattern of assaultive and

coercive behaviors through which threats and violence are used to maintain power and control over the other partner.

Abusive behaviors include physical, sexual, psychological, emotional, financial, isolation, spiritual, and stalking.

Though the violence often escalates, underlying forms of control persist. Survivors often experience several concurrent types of abusive behavior, which may change at any time.

Much of this violence is not criminal. Accessibility and additional barriers exist for some

victims.

CRIMINAL JUSTICE RESPONSE TO FAMILY VIOLENCE

Few victims report.

Statutes are complicated and do not always reflect reality of FV.

This leads to fewer arrests.

This leads to fewer reports sent to prosecutors.

This leads to fewer charges being filed.

Judges and juries do not understand the dynamics and do not convict on cases presented.

Victims do not feel safe and offenders are not held accountable.

Few victims report.

DEFINING FAMILY VIOLENCE - STATUTORY

Texas Family Code § 71.004:(1) An act by a member of a family or

household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; or

DEFINING FAMILY VIOLENCE – STATUTORY (CONTINUED) Texas Family Code § 71.004:

(2) Abuse by a family or household member toward a child of the family or household (child abuse); or

(3) Dating Violence. Texas Family Code §71.0021: “Dating

Violence” – threat or action intended to result in physical harm, bodily injury, assault or sexual assault Intimate, not social relationshipsDefined by circumstances Includes GLBT relationships

DEFINING CHILD ABUSE AS IT RELATES TO FAMILY VIOLENCE

Texas Family Code §71.004(2): child abuse as it relates to family violence is defined as: Texas Family Code §261.001:

(C) Physical injury that results in substantial harm to the child or the genuine threat of the same;

(E) Sexual conduct harmful to a child’s mental, emotional or physical welfare; or

(G) Compelling or encouraging the child to engage in sexual conduct.

CHILD ABUSE AND NEGLECT

Legal definitions of child abuse and neglect are also often used against the victim.Texas Family Code §261.001(1): “abuse”

(A) mental or emotional injury (B) causing or permitting child to be in

situation in which the child sustains mental or emotional injury

Failing to act to prevent others from the above (“failure to protect” or “negligent supervision”)

CHILD ABUSE AND NEGLECT Problems with abuse and neglect

definitions:40-60% of batterers also abuse their

childrenUnreported child abuse:

Victims fear losing their children Batterers often manipulate the system

Victims injected into the juvenile court system Unrealistic and unsafe case plans for

victims Placement with the batterer or the

batterer’s family Late reports interpreted as means to gain

custody advantage

ARRESTS FOR FAMILY VIOLENCE - DISCRETIONARY Texas Code of Criminal Procedure §14.03:

peace officer MAY arrest without a warrant if with probable cause to believe: Person has committed an assault and there is

danger of further bodily injury; Person has violated a protective order if not

committed in the presence of the officer; Person has committed family violence; Person has prevented/interfered with an

individual’s ability to place an emergency telephone call if not committed in presence of officer.

Dual arrests to be avoided - training on primary aggressor

ARRESTS FOR FAMILY VIOLENCE - MANDATORY Texas Code of Criminal Procedure §14.03: peace

officer SHALL arrest without a warrant with probable cause to believe that a person has violated a protective order

AND the offense is committed in the officer’s presence

Texas Code of Criminal Procedure §14.03: peace officer SHALL remain at the scene if necessary to verify an allegation of violation of a protective order

OR commission of an act of family violence to verify the

allegation and prevent further commission of the violation or of family violence

PROTECTIVE ORDERS

CIVIL JUSTICE RESPONSE TO FAMILY VIOLENCE

Victims do not trust/access the system.

Victims fear that no one will believe them.

Victims often lack objective evidence of their allegations and do not always present well in court.

Protective orders are denied /batterers get custody or unsupervised visits.

Victims respond in ways to best protect themselves and their children.

Victims lack legal protection /are punished for not following court

orders.

Victims are not safe and offenders and not held accountable.

Victims do not trust/access the system.

PROTECTIVE ORDERS AND RESTRAINING ORDERS A restraining order:

Usually a provision in another case, such as a divorce

Civil court order Civil consequences - contempt of court Applicant often must hire an attorney

A protective order: Separate court case Civil court order Civil and criminal options for enforcement No fees to petitioner – court may impose fees on

respondent A victim can have both simultaneously

WHO QUALIFIES FOR A P.O. To obtain a protective order the applicant must

be:Victim of family violence:

Related by blood or marriage to the respondent Living or lived with the respondent A parent having children with the respondent Foster parents with the respondent

Victim of dating violence – definition: Continuing relationship of “romantic or intimate

nature” – facts of length, nature and frequencyVictim of sexual assault Effective 9-1-11:

Victim of stalking Victim of trafficking New dating partner/spouse

TYPES OF PROTECTIVE ORDERS FOR FAMILY VIOLENCE VICTIMS IN TEXAS Magistrate’s Order for Emergency Protection

(MOEP, commonly referred to as an EPO) Temporary Ex-Parte Protective Order Final Protective Order Who files paperwork varies by county Forms vary by county

Texas Supreme Court Pro Se Protective Order Kit Forms available online in English, Spanish and

Vietnamese Interpretation issue

MAGISTRATE’S ORDER OF EMERGENCY PROTECTION

MAGISTRATE’S ORDER FOR EMERGENCY PROTECTION (MOEP)

Texas Code of Criminal Procedure §17.292: issued at offender’s initial appearance before magistrate after arrest

Who can request:The victimThe guardian of the victimPeace officerState’s attorneyThe magistrate on her/his own motion

GPS option

MAGISTRATE’S ORDER FOR EMERGENCY PROTECTION (MOEP)

MOEP is MANDATORY if the offense involves:Serious bodily injury to the victimThe use or exhibition of a deadly weapon

during the commission of an assault 31-91 days but for no less than 61 days if

use or exhibition of a deadly weapon

WHO CAN FILE FOR A PROTECTIVE ORDER Adult family members Dating adults Adult for a child Prosecuting attorneys (who represent the state) DFPS (Department of Family and Protective

Services) Survivor of sexual assault Additional applicants effective 9-1-11:

Minors who are victims of dating violence Stalking victims Trafficking victims New dating partners/spouses

TEMPORARY EX PARTE PROTECTIVE ORDERS (TEXPO) Issued by the court at the time an application for a final

protective order is filed Based on the applicant’s affidavit Effective 9-11: judge my recess ex parte hearing to call

respondent Must must resume hearing the same day Notice

Can be filed in the county where the victim or abuser lives – no length of residency requirement

Lasts up to 20 days and can be extended for additional 20 day periods at the applicant’s request or the court’s own initiative

Criminally enforceable if it has been personally served upon respondent

No mutual orders without separate applications

“RACE TO THE COURTHOUSE” – ADVANTAGES OF A “PREEMPTIVE PROTECTIVE ORDER” Preemptive: “to gain a strategic advantage in an

impending (allegedly unavoidable) war before that threat materializes.”

Victim’s crisis and chaos versus abuser’s calculation Why victims often lose the race

Fear of retaliation from abuser for filing Child care, transportation, work problems Do not know their rights Wait list for advocate, attorney to assist

Dueling applications Perception is everything: fear and urgency versus

retaliation Judicial response can result in no PO for either party

BATTERER MANIPULATION OF P.O. Threats upon service Continuances Disqualification of potential attorneys Hearing

Physical proximity Cross examination

Pressure for agreed order Terms of order

Contact for purposes of children Visitation Child support Waiver of finding

Violation by “invitation”

PROTECTIVE ORDERS - RELIEF AVAILABLE: CRIMINALRespondent is prohibited from: Committing family violence Communicating with the victim or a member of

the victim’s family in a threatening or harassing manner

Going near the victim’s residence or place of employment (address can be confidential)

Stalking victim or a member of the victim’s family Possessing a firearm Effective 9-1-11: harming, threatening or

interfering with possession of pet, service or companion animal possessed by petitioner

PROTECTIVE ORDERS – RELIEF AVAILABLE: CIVIL Respondent is prohibited from:

Removing a child from the possession of the person named in the order

Transferring or disposing of property The court may:

Provide possession of and access to a child

Require payment of child or spousal support

Require respondent to complete BIPPAward possession of community property

REMOVAL PROVISION OF P.O.(“KICK OUT ORDER”) Applicant must have resided at residence

during past 30 days Respondent committed actual physical

violence within past 30 days Clear and present danger that respondent is

likely to commit family violence Name must be on lease/deed (unless duty to

support) Ability to pay rent/mortgage or bills without

help of respondent (unless duty to support) Must be a hardship to move Civil standby option

FINAL PROTECTIVE ORDERS Applicant and respondent must meet relationship

requirement If no prior PO: must show that family violence occurred and

is likely to occur in the future (no requirement of corroborating medical records or police reports under law)

If prior PO has expired or will expire within 30 days: must show threat of harm that reasonably places applicant in fear

If prior PO was violated: must show criminally enforceable provision was violated while PO in effect

Effective 9-1-11: final PO can last more than 2 years if: Serious bodily injury OR Two or more PO involving same applicant Containing family violence finding

Order is automatically extended by 1 year after respondent’s release from jail/prison, if PO expired while respondent was incarcerated

MILITARY PROTECTIVE ORDERS At Commanding Officer's discretion, may be short

(e.g., 10 days) Violence between current or ex- spouses, parents

of same child or co-habitating partners: prohibited from possessing a firearm

The military can enforce a civilian protective order Courts must notify base if a civilian PO is issued

against a military member The Commanding Officer can issue a MPO even

if a civilian order exists The MPO can be enforced on and off base An MPO cannot be issued against a civilian, even

if the victim is military

MILITARY PROTECTIVE ORDERS MPO paper work must be destroyed

six months after expiration, so encourage victims to keep a copy if proof of the order would be helpful in the future

If the military member is transferred to a new command, MPO expires

Enforcement of MPO is totally at discretion of Commanding Officer

ADDITIONAL PO LAWS EFFECTIVE 9-1-11 Previously made statements of child over 12 about abuse

concerning that child admissible in PO hearing Military must be advised of family violence report, PO or

family violence conviction against military member New partner may get PO against partner’s ex DFPS to obtain or assist a parent to obtain a protective

order on behalf of a child against an alleged perpetrator of abuse; trains DFPS workers on PO

Minors can apply without an adult Deletes “fear of further harm” requirement from sexual

assault and stalking PO applications Stalking protective orders – under sexual assault PO

provision in criminal code Regular process option Request at hearing after stalking arrest

Protective orders for trafficking victims, potentially for the lifetime of the parties – terms of SA PO

LAWYERS, GUNS AND MONEY

VIOLATIONS OF CIVIL PROTECTIVE ORDERS It is not a defense to violation charges that the

victim invited respondent to location. Law enforcement may not arrest a victim for

“violating” her/his own order. Violation of a protective order:

Contempt of court (up to 6 months/$500/both)class A misdemeanor (up to 1

year/$4,000/both) Second offense = third degree felony (2 – 10

years in prison/$10,000/both) Offender can be arrested for violation AND

other crime committed in process

VIOLATION OF MILITARY PROTECTIVE ORDERS If a member of the military violates the

order, he or she is subject to punishment under the Uniform Code of Military Justice (UCMJ):Willfully Disobeying a Superior

Commissioned OfficerWillfully Disobeying the Lawful Order of a

Warrant Officer, Noncommissioned Officer, or Petty Officer

Failure to Obey an Order or Regulation

BAIL AND JAIL HOLDS Texas Code of Criminal Procedure §17.291 Bail may be denied upon violation of MOEP, PO or

condition of bond The magistrate can hold the defendant in jail for four (4)

hours after making bail, if there is probable cause to believe any violence would continue if the person were immediately released.

This period can be extended up to forty-eight hours if authorized in writing by a magistrate. If the extended time period exceeds twenty four (24) hours, the magistrate must make a finding: The violence would be continued if the person were released

AND The person has previously been arrested within ten (10) years

on more than one occasion for family violence or for any other offense involving the use or exhibition of a deadly weapon.

TEXAS FIREARM LAWS:PROTECTIVE ORDERS Texas Penal Code §25.07 and §46.04(c): It is a crime for an

abuser to possess a firearm if there is an active protective order in place Types of PO: magistrate’s order, family violence, stalking,

sexual assault, foreign or restraining order in divorce Penalty: class A misdemeanor (up to 1 year in county jail, up

to $4,000 fine or both) for first offense; third degree felony (2-10 years in prison/up to a $10,000 fine/both) if subsequent conviction

Notice must be given in court, on order and on any citation Mandatory (FV) or discretionary (SA or stalking) suspension of

CHL Provision not applicable to law enforcement in course of full-

time government employment Off-duty officer may not possess duty weapon Officer may not possess personal firearms

Entry into TCIC – 10 days

FEDERAL GUN CONTROL ACT:18 U.S.C. 922(G)(8)QUALIFYING PROTECTION ORDER It is a federal crime to transport, receive or possess

firearms or ammunition if subject to a “qualifying protection order” Issued after hearing of which respondent had actual

notice and opportunity to participate; and Finding that respondent poses a credible threat to the

physical safety of the victim OR order prohibiting respondent from using any force that would cause injury to victim

Penalty: up to 10 years in prison/$250,000 fine/both

It is also a federal offense for a person to assist another person in possessing a firearm if there is a valid protective order against that other person

FEDERAL GUN CONTROL ACT:18 U.S.C. 922(G)(8)QUALIFYING PROTECTION ORDER Provision not applicable to law enforcement or

military in course of government employment “Intimate partner:” current or former spouse,

people with a child in common, or current or former cohabitants (does not include dating partners)

Full faith and credit No exemption for military in Texas Effect of Texas PO on military in other states

FULL FAITH AND CREDIT VAWA,18 U.S.C. 2265 Orders consistent with federal law get full

faith and credit – enforceable in all states “Consistent” orders:

Court had jurisdiction over parties and matter under law of that state or Native American tribe; and

“Reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person’s right to due process”

Interstate violations – 5 years or up to life, depending on circumstances

ENFORCEMENT OF FOREIGN P.O. Uniform Interstate Enforcement of Protective

Orders Act: Texas Family Code Chapter 88:Full faith and creditNot necessary to register POBest practice to carry and provide certified

copy of order, but not required (enforceable if law enforcement has probable cause to believe there is a valid order)

The state that issues the order determines who is covered and the terms and conditions

Effective 9-1-11: Texas must enforce the order in the same manner as the issuing court

ECONOMIC BENEFITS OFPROTECTIVE ORDERS Priority for services under Crime Victims’

Compensation Fund Restitution for medical bills and counseling, lost

wages, support, child care, some property, necesssry travel, relocation, attorney’s fees for civil actions

Victim eligible if suffers physical/mental harm as a result of a criminal act

Victim must cooperate with law enforcement Lease termination Unemployment benefits without disqualification TANF – exemptions to child support and

employment requirements Deposit waivers for utilities

ADDITIONAL BENEFITS OF PROTECTIVE ORDERS

Assist with evidence for immigration cases Finding of family violence for

divorce/support Child custody and possession

Contact with advocates for services and referrals for public benefits

PO BILLS FILED 83RD SESSION TCFV Agenda:

HB 2172: continuous violation of PO SB 129: expanded venue for filing PO SB 743: continuous violation of PO

HB 570: allows electronic service of MOEP HB 1292: adds “trafficking” to findings of PO

(clean-up bill on trafficking PO – 82nd) HB 1438: MOEP extended if defendant

incarcerated when order expires HB 1462: adds contact with family member to

terms of violation of PO or MOEP SB 357: add “trafficking” to findings of PO

(clean-up bill on trafficking PO – 82nd)

FINAL THOUGHTS

“Start where you are, Use what you have,Do what you can.”

-Arthur Ashe

CONTACT INFORMATION

Tracy Grinstead-Everly, JDPublic Policy Manager

tgrinstead-everly@tcfv.org

Texas Council on Family Violence(512) 794-1133 – phone

(800) 525-1978 – toll free (512) 794-1199 – fax

www.tcfv.org