Understanding Protective Orders in Texas BRONWYN BLAKE LEGAL
Understanding Protective Orders in Texas BRONWYN BLAKE LEGAL DIRECTOR
Legal Disclaimer The information contained in our trainings is intended to provide legal information only and should not be construed as legal advice. Texas Advocacy Project does not represent this institution. Please direct specific legal questions to your institution’s legal representative.
Pronouns You will primarily see the pronouns ‘he’ and ‘she’ in the following presentation. In addition, the speaker may often use ‘he’ to refer to the abuser and ‘she’ to refer to the victim. Unfortunately, the data in this area of law is lacking because domestic violence is largely unreported. The statistics that we have available to us overwhelmingly deal with female victims and male perpetrators because the majority of domestic violence reports reflect this gender dynamic. Nonetheless, TAP recognizes the existence and validity of all forms of gender identity and expression and that these individuals can be and are victims of abuse.
Copyright This work contains fair use of copyrighted and noncopyrighted images from the public domain and internet for nonprofit educational purposes in accordance with Section 107 of the Copyright Act of 1976. Quotations are attributed to the original authors and sources. Further use of these materials and this presentation are restricted
Who is TAP? § § We are a nonprofit law firm providing free legal services to survivors of: § Intimate partner violence; § Sexual assault; and § Stalking. Other services offered: § Training & Advocacy § Education & Outreach
Key Takeaways This presentation will cover the following topics: § How Texas law defines crimes and terms related to protective orders. § The different types of protective orders available, how they work, and when they can be issued. § Brief overview of other protections and practices to keep survivors safe.
DEFINITIONS: PROTECTIVE ORDERS AND RELATED CRIMES + TERMS
What Is A Protective Order? A court order that is issued to address and prevent continuing acts of family/dating violence, sexual abuse or assault, stalking, or trafficking.
It’s just a piece of paper, right? “In cases where victims had gotten a PO and the suspect had not violated it, 79. 5% of study participants reported they believed he hadn’t violated the PO because he was afraid of going to jail. ” TK Logan, Ph. D. , et. al. (2009) The Kentucky Civil Protective Order Study: A Rural and Urban Multiple Perspective Study of Protective Order Violation Consequences, Responses, & Costs
Bases for Protective Orders § Family Violence § § (Includes Dating Violence) Sexual Assault/Abuse Trafficking Stalking Tex. Fam. Code § 85. 001; Tex. Fam. Code § 71. 004; Tex. Code Crim. Proc. Art. 7 A. 03
What is Family Violence? An act by a member of a family or household against another member of the family or household that intended to result in: 1. Physical harm, bodily injury, assault or sexual assault, OR 2. A threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault Tex. Fam. Code § 71. 004
Family And Household Members § Current or former spouses, § Parents of the same child, § Currently or previously lived together, or § Relatives by blood or marriage. Tex. Fam. Code §§ 71. 003, 71. 004, 71. 006
What is Dating Violence? 1. Offender and survivor are: § Current or former dating partners, or § Third party love triangle. 2. Offender causes the survivor: § Physical harm, § Bodily injury, § Sexual assault; or § Reasonable fear that one of these is about to happen. Tex. Fam. Code § 71. 0021
Third Party/Love Triangle Exes & Current Spouse/Partner of Exes Jane Example: Jane’s new boyfriend, Rob Sam
What is Sexual Assault? § A person commits an offense if the person intentionally or knowingly: Ø causes the penetration of the anus or sexual organ of another person by any means, without that person's consent; Ø causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or Ø causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor Tex. Pen. Code § 22. 011
What is Stalking? § When an offender, on more than one occasion and pursuant to the same scheme or course of conduct, knowingly engages in harassing conduct with reason to know that it will cause their survivor to reasonably fear bodily injury or death for themselves, a member of their family, or harm to their property. § Stalking includes an offender making a victim feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. Tex. Pen. Code § 42. 072
What is Trafficking? § Human trafficking is a modern form of slavery. § Involves controlling a person through force, fraud, or coercion to exploit the victim forced labor, sexual exploitation, or both. § Most commonly recognized form is sexual trafficking. Tex. Pen. Code § 20 A. 02
What is Child Abuse? Abuse by a member of the family or household toward a child of the family or household including sexual assault, physical violence, or threats of physical violence. Tex. Fam. Code §§ 71. 004(2); 261. 001(1)(C), (E), (G-K)
What is Indecent Assault? *NEW* EFFECTIVE IMMEDIATELY Without the other person ’s consent and with the intent to arouse or gratify the sexual desire of any person, the person: (1)touches the anus, breast, or any part of the genitals of another person; (2)touches another person with the anus, breast, or any part of the genitals of any person; (3)exposes or attempts to expose another person ’s genitals, pubic area, anus, buttocks, or female areola; or (4)causes another person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of any person. Texas Penal Code Sec. 22. 012
WHAT TYPES OF PROTECTIVE ORDERS ARE AVAILABLE TO KEEP SURVIVORS SAFE?
Remember! A Restraining Order (TRO) IS NOT the same as a Protective Order (PO). How are they different?
Types of Protective Orders in Texas Magistrate’s Order for Emergency Protection (MOEP) • TX Code of Criminal Procedure (TCCP) § 17. 292 Temporary Ex Parte Protective Order (TEXPO) • TX Family Code (TFC) § 83 Final Protective Orders • TFC §§ 71, 81 -82, 84 -88, TCCP § 7 A, TCCP § 6. 09
Magistrate’s Order for Emergency Protection [“MOEP” or “EPO”]
Magistrate’s Order for Emergency Protection § § § Most common type of protective order issued in Texas Only available after an arrest for: Ø Family violence (includes dating violence) Ø Sexual assault (and some related offenses) Ø Stalking Ø Trafficking Issued while offender is in jail Tied to places, not people Relatively quick and easy process In effect for 31 to 91 days Tex. Code Crim. Proc. Art. 17. 292
Who can request an EPO? Can be requested by: 1. the survivor; 2. a guardian of the survivor; 3. an attorney representing the state; 4. a peace officer; or 5. the court. Tex. Code Crim. Proc. Art. 17. 292(a)
How can an EPO help survivors? An EPO may prohibit an offender from: § Committing family violence, sexual assault, or stalking; § Threats and harassment; § Coming within a specific distance of certain locations; § Possessing a firearm; § Communication in any manner with victim(s) except through attorney or court appointed person if good cause is shown. Tex. Code Crim. Proc. Art. 17. 292(c)
Issuing EPOs per warrant case § If the suspect leaves the scene and no arrest is made, a warrant must be issued. § An EPO cannot be issued until suspect is in custody. § Survivors should consider other protective orders. § Officer should still inform survivor about EPO and collect all information. § When a suspect is arrested: Follow up with survivor to confirm that EPO is still needed. § Ensure that protected addresses are still correct. §
Conflicting Orders There are times when an EPO conflicts with a preexisting custody order. In these cases: § The LAST order issued controls (but see TEXPO exception). § Does not stop visitation exchanges; exchanges just cannot be made at protected addresses. TCCP § 17. 292(f)
Can an EPO be modified before it expires? Yes. TCCP § 17. 292(j) § File Motion to Modify EPO in issuing court, or the court assuming jurisdiction of the underlying offense if all parties agree to the transfer. § A hearing must be held in order to modify an EPO. § All affected parties must be given notice when the hearing is set: the respondent, the protected party, and the prosecuting agency. §
How a Judge Decides Whether to Modify an EPO § Three elements: § EPO must be “unworkable. ” § The original survivor will not be placed in any greater danger as a result of the modification. § Any other person protected by the order will not be placed in greater danger as a result of the modification. CCP § 17. 292(j)
Gaps In EPO Law If no family violence relationship, EPO is not available for arrests for offenses including: Continuous Sexual Abuse Indecency with a Child Compelling prostitution Sexual Performance by a Child Definition of child abuse under the Texas Family Code does not include the child of a dating partner if s/he doesn’t live with the other partner. Tex. Pen. Code §§ 21. 02; 21. 11; 43. 05(a)(2); 43. 25
Temporary Ex Parte Protective Order [TEXPO]
Temporary Ex Parte Protective Order § § § Can be obtained without notice to offender Add: notice requirement after issuance Requires CLEAR AND PRESENT DANGER of family violence, sexual assault, abuse, stalking, or trafficking Valid for 20 days & it may be extended Both civilly and criminally enforceable Tex. Fam. Code § 83; Tex. Code Crim. Proc. Art. 7 A. 02
TEXPO “Kick Out” Order Temporary Ex Parte Order can require offender to vacate the home. § Survivor must include an affidavit that shows: 1. Survivor resided at the residence during the last 30 days, 2. Offender committed family violence in the last 30 days, AND 3. Clear and present danger. WARNING: asking for this can prompt a judge to contact the offender! Tex. Fam. Code § 83. 006; Tex. Code Crim. Proc. Art. 7 A. 02 §
Time Set for Hearing The court shall set a date and time for a hearing no later than the 14 th day* after the date the application is filed. Tex. Fam. Code § 84. 001
FINAL PROTECTIVE ORDERS
What Can A Protective Order Do? § Prohibit offender from committing certain acts. § Require offender to perform certain acts. § Any provisions that “the court determines are necessary or appropriate to prevent or reduce the likelihood” of family violence or future harm. § Both civilly and criminally enforceable. Tex. Fam. Code § 85. 022; Tex. Code Crim. Proc. Art. 7 A. 05
Enforcing Protective Orders Civil enforcement: Contempt § Criminal enforcement: § Generally a misdemeanor § Higher penalties for multiple violations or convictions § Charges for violation of PO and underlying assault § Conflicting orders: the most recent order prevails § Tex. Fam. Code § 85. 026; Tex. Code Crim. Proc. Art. 7 A. 06
Criminally Enforceable Provisions § § § § Prohibit family violence/future harm Prohibit threatening and harassing communication Prohibit all communication, with “good cause” Prohibit conduct likely to harass, annoy, alarm, abuse, torment, or embarrass Stay away from residence and other protected addresses Protect pets Prohibit possession of firearms or ammunition, unless the person is a peace officer Tex. Fam. Code § 85. 022; Tex. Code Crim. Proc. Art. 7 A. 05, Tex. Pen. Code § 25. 07
Civilly Enforceable Provisions Stay away from Survivor and other protected parties § Prohibit removing child from possession § Allow visitation with children § Prohibit transfer of property § Grant exclusive possession of property § Require payment of child/spousal support § Require attendance at batterer’s program § Suspend license to carry a weapon Tex. Fam. Code §§ 85. 022, 85. 026 §
Modification of PO § § § At the request of either party Can drop the stay away restriction Can add increased safety measures Must have a hearing Hearing NOT required in order to change protected addresses Tex. Fam. Code § 87. 001, 87. 004
Other Provisions § Ideally, either the District or County Attorney would file a protective order for survivor. § Applications should be filed without regard to criminal charges § Lower standard of proof than in criminal cases (burden is prove by a preponderance of the evidence) Tex. Fam. Code §§ 81. 007, 85. 026; Tex. Code Crim. Pro. Arts. 5. 06, 7 A. 03(b), 7 A. 06; Tex. Pen. Code § 25. 07(e)
Cost for Applying § No court costs related to filing of a protective order can be assessed to survivor § Costs can be assessed to respondent through the protective order including court costs and attorney fees Tex. Fam. Code §§ 81. 002, 81. 003
Can a Survivor Violate a PO? NO! “A peace officer investigating conduct that may constitute an offense under this section for a violation of an order may NOT arrest a person protected by that order for a violation of that order. ” Tex. Pen. Code § 25. 07 (e)
*NEW* Confidentiality of Applicant’s Address If an Applicant requests, a court may issue an order § § § Requiring survivor to: § Disclose survivor’s mailing address to the court; § Designate a person to receive on behalf of survivor any notice or documents filed with the court relating to the application; and § Provide the designated person’s mailing address to the court. Requiring that the court clerk: § Strike survivor’s mailing address from public record; § Maintain a confidential record of survivor’s address for use only by the court; and Prohibit the release of the information to the offender. Tex. Fam. Code § 82. 011, effective Sept. 1, 2017
Full Faith And Credit 18 USC § 2265; Tex. Fam. Code § 88. 003 § POs from Texas are enforceable in other states § POs issued in other states are enforceable in Texas
FAMILY VIOLENCE & DATING VIOLENCE PROTECTIVE ORDERS
Family Violence Protective Orders Eligibility § Spouses, former spouses, dating relationship, exes, persons in romantic involvement § Member/former member of the same household § Adult for child § Persons related by blood § Current partner’s former partner or former partner’s current partner § Prosecuting attorney & Venue § County of residence for applicant or respondent § Any county in which the family violence is alleged to have occurred
What must the Survivor prove? Survivor’s first application for a PO: • Family violence occurred and • Family violence likely to occur again If Survivor • Prior PO or a PO that will expire has a prior within next 30 days PO that has • Violation OR threat of harm that expired or reasonably places applicant in will expire in the next 30 fear of imminent physical harm days: Tex. Fam. Code §§ 82. 008, 82. 0085, 85. 001
Duration of FVPO 2 years § Most common duration § Default if no duration specified in order § Can be shorter but not longer in most cases § Automatic extension if offender is confined on expiration date § 1 year from release date if sentence for confinement was for 5+ years § 2 years from release date if sentence for confinement was for 5 years or less § Tex. Fam. Code § 85. 025(c)
Protective Order Lasting > 2 Years § Up to the lives of the offender and victim if: § *NEW* offender committed an act constituting a felony offense involving family violence against the survivor or a member of the survivor’s family or household; § It is not relevant that the offender may not have been charged with or convicted of the offense; Offender caused serious bodily injury to the survivor or a member of the survivor’s family or household; OR § Offender was the subject of 2 or more previous POs to protect the same survivor; AND after a finding that the offender committed FV and is likely to commit FV Tex. Fam. Code § 85. 025; Tex. Pen. Code § 1. 07(a)(46) in the future. §
TRAFFICKING, SEXUAL ASSAULT & ABUSE, & STALKING PROTECTIVE ORDERS
Who Can Apply for this PO? Who can apply? § Survivor § Parent or guardian of child victim (in certain cases) § Prosecuting attorney Survivor of: § Aggravated sexual § Sexual assault § Stalking § Compelling prostitution § Continuous SA of a child § Trafficking § Indecency with a child § Continuous trafficking § Indecent assault* Tex. Code Crim. Proc. Art. 7 A. 01(a) (*NEW) Effective Immediately
Where to apply? A survivor can file for a protective order in any county where: § the survivor resides, § the offender resides, or § any element of the offense occurred. * A survivor can also file in the criminal court prosecuting the offender for stalking. Tex. Code Crim. Proc. Art. 6. 09, 7 A. 01(b)
Required Findings The court must find reasonable grounds exist to believe the survivor is a victim of a qualifying crime (sexual assault, stalking, or trafficking). Tex. Code Crim. Proc. Art. 7 A. 03
Outcry statement of a child Can use hearsay statement of child victim in PO hearing if: § Child is 13 years old or younger § Victim of: Ø Continuous SA of a child Ø Indecency with a child Ø Indecent Assault (*NEW) Effective Immediately Ø Sexual Assault Ø Aggravated Sexual Assault Statement is admissible in the same manner it would be in a Suit Affecting the Parent-Child Relationship (SAPCR or custody suit) under Family Code Section 104. 006. Tex. Code Crim. Proc. Art. 7 A. 035
Duration of these POs § 2 years by default if not specified in order § Can be any duration § Up to the duration of the lives of the offender and survivor Tex. Code Crim. Proc. Art. 7 A. 07
Key Differences Family Violence PO Family/household relationship § Requirement of likely future harm § Higher burden for lifetime PO § Longer extension for shorter confinement of Respondent Tex. Fam. Code §§ 82. 002, 85. 001, 85. 025, 84. 006 § PO for Sexual Assault, Stalking or Trafficking No relationship requirement § No “likely to occur again” requirement § Lifetime PO easier to obtain § Outcry statement – child 13 years or younger § Tex. Cod. Crim. Proc. §§ 7 A. 01, 7 A. 03, 7 A. 07, 7 A. 035
OTHER PROTECTIONS
Military Protective Orders § Issued and enforced by commanding officer § Generally short in duration § Can include: § stay away provisions § kick out order from military residence § surrender of the weapons and weapons custody card § other orders deemed appropriate Do. D Instruction 6400. 06
Bond Conditions A magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community. Tex. Code Crim. Proc. Arts. 17. 40
How can bond conditions help protect the survivor? Potential conditions of bond: § Family-violence evaluation for offender § No contact with and/or stay-away from survivor § BIPP, drug and/or alcohol counseling § Pre-trial supervision § EM or GPS tracking, curfews § Drug and/or alcohol testing § Violation can send offender back to jail until criminal trial § Tex. Code Crim. Proc. Art. 17. 40
Questions?
Bronwyn Blake Legal Director bblake@texasadvocacyproject. org
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