Protective Orders in Texas 2003

Do No Harm

TEXAS COUNCIL ON FAMILY VIOLENCE P.O. Box 161810 Austin, Texas 78716 512/794-1133 Fax: 512/685-6396 www.tcfv.org DO NO HARM: Protective Orders in Texas 2003 Edition

ACKNOWLEDGEMENTS

Updated by Nancy Flores, JD and Lori-Ann Lima, Public Policy Specialists, Texas Council on Family Violence. Original text written by Jodie Reaver.

The Texas Council on Family Violence (TCFV) extends our gratitude to the Governor’s Office/Criminal Justice Division of Texas, for recognizing the importance of this project and for providing the support needed to make the 2003 Edition of Do No Harm: Protective Orders in Texas possible. We would like to thank our contributing writers, reviewers, editors, and others for their valuable assistance with this edition: • Barbra McLendon, Public Policy Director, TCFV • Debbie Carter, Public Policy Coordinator, TCFV • Diane Aldridge, Public Policy Assistant, TCFV • Havilah Tower-Perkins, Communications Specialist, TCFV • Diana Meriggi, Communications Coordinator, TCFV

We would also like to thank the following contributors for their assistance in previous editions : Bree Buchanan, J.D., Jennifer Corrigan, Iliana Rodriquez, Eduardo Montiel, Kathleen Claps, Sharon Brooks, Travis County Attorney’s Office, Michelle Clark, Tina Price, Attorney, Legal Advocate, Women’s Haven, Domestic Violence Report, Northeastern University Press, National Institute of Justice, Jim Loveless, J.D. Special thanks for agreeing to be photographed for the cover goes to: Sharon Brooks, Chief, Protective Orders Division, Travis County Attorney’s Office, Joan Myers Carter, SafePlace Sr. Legal Advocate, Judge Mike Denton, County Court at Law No. 4, Domestic Violence Court, Travis County Courthouse, Andrew J. Edel, Deputy, Travis County Sheriff’s Office

Public Policy Department ✰Barbra McLendon, Public Policy Director ✰Debbie M. Carter, Public Policy Coordinator ✰Nancy Flores, JD, Public Policy Specialist ✰Krista Del Gallo, Public Policy Specialist ✰Lori-Ann Lima, Interim Public Policy Specialist ✰Diane Aldridge, Public Policy Assistant

This project is supported by grant # WF-99-14108-02 awarded by the Criminal Justice Division of the Office of the Governor. Points of view or opinions contained within this document are those of the author and do not necessarily represent the official position or policies of the Criminal Justice Division. Do No Harm: Protective Orders in Texas, 2003

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©Texas Council on Family Violence, 2003 Evaluation Form DO NOT HARM: Protective Orders in Texas 2003 Edition

TABLE OF CONTENTS

Purpose of Protocol ………………………..……………………………………………………….1

Why Are Protective Orders Important………………………………………………………….…..1

Types of Protective Orders……………..………………………………………………….....….…2 Magistrate’s Order for Emergency Protection (M.O.E.P.) Temporary Ex Parte Protective Order (TEXPO) Final Protective Orders

The Role of the Advocate…………………………………………………………………………10 Advocating For Clients (Even if you disagree with her.)

The Hearing: Final Protection Orders……………………………………………………………..10 Preparation For Court What Does the Court Have to Find? How Can the Violence Be Proven?

Protective Orders, Custody and Divorce……………………………………………………….….12 How Do Protective Orders Affect Divorce Orders and Custody Orders (SAPCR)? Protecting the Children: Should Protective Orders Address Access, Possession, and Support? How Do Protective Orders or Family Violence Affect Visitation? How Do Protective Orders or Family Violence Affect Custody?

Enforcement of Protective Orders……………………………………………………………..….16 What Can a Protective Order Do? What Happens If a Protective Order is Violated? What Happens If a Victim Changes Her Mind?

Frequently Asked Questions………………………………………………………………………20 Can a Protective Order Be Modified? What Are “Agreed” and “Mutual” Protective Orders? How Must Notice of the Order Be Given? How Much Notice of the Final Protective Order Hearing Is the Respondent Entitled to Have? How Are Law Enforcement Officers Notified of the Order? Why is the Entry of Protective Orders Into TCIC Important? Are Protective Orders from Other States Enforceable in Texas? Are Protective Orders from Texas Enforceable in Other States? Common Misconceptions Regarding Protective Orders What is Crime Victims’ Compensation?

Conclusion…………………………………………………………………………………….…..29

©Texas Council on Family Violence, 2003 DO NO HARM: Protective Orders in Texas 2003 Edition

ATTACHMENTS

A. Civil Protection Orders: Victims’ Views on Effectiveness B. Protective Order Forms/Magistrate’s Order for Emergency Protection Forms (M.O.E.P.) Magistrate’s Order for Emergency Protection (Spanish and English) Victim Notification Order Application for Further Detention Order for Further Detention C. Temporary Ex Parte Protective Order Forms Temporary Ex Parte Protective Order and Show Cause Order Temporary Ex Parte Protective Order and Show Cause with Exclusion from Residence Motion and Order For Extension Of Temporary Ex Parte Protective Order D. Protective Orders to Victims of Sexual Assault: SB 433 E. Recent Case Law on Protective Orders F. Protective Order Forms Protective Order Intake Form Application for Protective Order Affidavit in Support of Protective Order Application Order for Show Cause Hearing on Application for Protective Order Order Withholding from Earnings for Child Support Final Protective Order with Attachments G. Do No Harm: Protective Orders in Texas Brochure (English/Spanish) H. Motion to Modify Forms Motion to Modify Protective Order Order for Modification of Protective Order I. Family Violence and Custody in Texas J. Judicial Responses that Empower Battered Women K. Judicial Responses that Reinforce Women’s Entrapment L. You Be the Judge: Issuing and Enforcing Protective Orders M. Federal Firearms Language N. Motion For Contempt Form O. Obstacles in the Criminal Justice Process P. Advice to Prosecutors: 15 Steps to Making Victims Safer Q. Article – Illegal Aliens in State Courts: To Be Or Not To Be Reported to Immigration and Naturalization Service, by Harry J. Joe, Texas Bar Journal, November 2000

(Continued Next Page) R. Specific Protective Order Provisions That May Be Used to Assist Battered Immigrants S. What is Wrong with Mutual Orders of Protection? T. Data Entry Form for Texas Crime Information Center (TCIC) U. Traveling Safely: Enforcing Protective Orders Throughout the United States Brochure (English/Spanish)

Do No Harm: Protective Orders in Texas

DO NO HARM: Protective Orders In Texas 2003 Edition

PURPOSE OF PROTOCOL • 72% of victims reported that their lives had improved; This protocol will identify what benefits • 72% of the women felt better about protective orders offer victims of family themselves; and violence and explain how to obtain those • 74% of the women felt safer with a benefits. It is a resource for family 1 protective order. violence programs, the legal system and other advocates who assist domestic In a follow-up interview with the same violence victims. women six months later: • 85% of the women felt their lives had improved; WHY ARE PROTECTIVE • 93% of the women felt better about ORDERS IMPORTANT? themselves; and • 81% of the women felt safer. Protective order legislation was first enacted in 1979 to combat the problem of family violence. Civil protective orders See Attachment A offer both civil and criminal protections to Civil Protection Orders: Victims’ victims of family violence. Protective Views on Effectiveness orders play a variety of roles in ending family violence, including: In a study conducted on battered women’s decision-making when obtaining protective • To deter future violence; orders, researchers found that 92% of the • To stipulate appropriate and women who obtained orders did so inappropriate behavior; because they were “tired of the abuse.”2 • To reinforce beliefs that family Protective orders carried a message from violence is wrong and needs to be the victims to the abusers that said, “I can stopped; and leave you, and you can’t hurt me for it.” • To emphasize that family violence The women who received orders believed is a crime. that the legal system would “reinforce that The National Center for State Courts conducted a study in which they 1 Civil Protection Orders: The Benefits and interviewed women who had obtained Limitations for Victims of Domestic Violence, protective orders. The women were National Center for State Courts Research Report, 1997. interviewed by phone one month after they 2 K. Fischer and M. Rose, When enough is enough: had obtained a protective order. During Battered women’s decision-making around court the initial interview: orders of protection, Crime & Delinquency, vol. 41 no. 4, 1995 page 414.

© Texas Council on Family Violence, 2003 1 Note: All statute citations refer to the Texas Family Code unless otherwise noted. Do No Harm: Protective Orders in Texas message.” Women in these studies sought document and applies primarily to the final protective orders in order to reclaim the protective order unless otherwise noted. freedom they had lost while in the abusive relationship. Magistrate’s Order for Emergency Protection In 2002, the Texas Department of Public Safety reported that 117 Texas women The magistrate’s order for emergency were killed by their intimate male protection (MOEP) is found in the Texas partners. In that same year, 183,440 Code of Criminal Procedure, Art. 17.292. incidents of family violence were This order was created to provide reported to law enforcement. However, emergency criminally enforceable the Texas Department of Human protection for victims of family violence Services estimates that 898,508 women and stalking victims after an offender has were physically abused in Texas in been arrested for an offense involving 2002, demonstrating that offenses family violence or stalking. involving family violence are greatly NOTE: Victims of dating violence are under-reported. eligible for MOEPs because the definition of family violence includes dating

violence. st A MOEP is good for “up to the 61 day TYPES OF PROTECTIVE ORDERS but not less than 31 days after the date of issuance.” Prior to September 1, 1999, MOEPs were always 31-day orders. The There are three different types of family expanded time frame gives magistrates the violence protective orders in Texas. discretion to issue these protective orders 1. Magistrate’s Order for Emergency for longer durations in cases where it is Protection (MOEP) warranted. 2. Temporary Ex Parte Protective The 1999 Legislature made a significant Order (TEXPO) change regarding MOEPs. Magistrates are 3. Final Protective Order now required to issue a 31 to 61-day MOEP in every case involving an arrest Each protective order is unique in either for aggravated assault against a family the process that is necessary to receive the member. In other words, if the arrest is for order or the legal remedies that the order an offense involving family violence “that provides. also involves serious bodily injury to the NOTE: Generally when someone refers to victim or the use or exhibition of a deadly a “protective order” they are referring to weapon during the commission of the the third listed above, the final order. This assault” the magistrate MUST issue a order can last up to two years and is the MOEP (Article 17.292(b)). order that a family violence victim can The MOEP is available to any victim apply for and is issued after a hearing that following an arrest for an offense both parties knew about in advance. . constituting family violence OR stalking. Below are descriptions of all three protective orders. Extensive additional There is a narrow window of time when information is given throughout this the MOEP can be issued. It is usually

© Texas Council on Family Violence, 2003 2 Note: All statute citations refer to the Texas Family Code unless otherwise noted. Do No Harm: Protective Orders in Texas issued at the perpetrator’s initial MOEP could be modified nor which appearance before a magistrate after an court(s) had jurisdiction for making the arrest. If the perpetrator is still in custody modification. As a result of the 78th (jail), the perpetrator can be brought back Legislature, as of 9/1/03, significant before the magistrate after the initial changes addressing the modification of a appearance. Your client may be able to MOEP take effect. ask the magistrate to consider issuing a MOEP if one was not issued when the • Only the issuing court or criminal court perpetrator initially appeared before the assuming jurisdiction over the criminal magistrate. case may modify a MOEP; and The following individuals can request a • A MOEP may only be modified if the MOEP: order is determined to be unworkable, and the modification will not place the • Victim victim at greater risk or endanger other • Magistrate on her/his own motion persons protected by the order. • Victim’s guardian th • Peace officer NEW: In addition, the 78 Legislature • State’s attorney addressed the potential for conflicting provisions between MOEPs and other There are no costs for requesting a court orders. The MOEP supersedes a magistrate’s order for emergency temporary ex parte protective order protection. Because the peace officer must (TEXPO) regardless of the order in which have had probable cause to arrest, a valid they were entered, unless the judge arrest alone is enough to get this specifically states that the provisions of the protection. TEXPO prevail. However, the Legislature The MOEP may include only the also clarified that the MOEP does not criminally enforceable portions of a supersede other orders issued under the protective order (see Code of Criminal Family Code, such as a final protective Procedure, Art. 17.292). order (Chapter 85, Subtitle B, Title 4), divorce orders (Title 1) or custody orders The most important thing about the (Title 5). magistrate’s order for emergency protection is that it is criminally See Attachment B enforceable. Any violation should result Magistrate’s Order for Emergency in an arrest. Protection Forms

Further Detention of Certain Persons In addition to issuing a MOEP after an Temporary Ex Parte arrest, a magistrate can request that the jail Protective Order (TEXPO) hold an offender for an additional 4-48 Temporary ex parte protective orders are hours if there is probable cause to believe routinely requested by victims and issued the violence will continue if the person is by courts at the time an application for a immediately released (Code of Criminal final protective order is filed. “Ex parte” Procedure, Art. 17.291). means that the order is issued based solely NEW: Previously, the law specified upon the affidavit of the applicant and neither the circumstances under which a

© Texas Council on Family Violence, 2003 3 Note: All statute citations refer to the Texas Family Code unless otherwise noted. Do No Harm: Protective Orders in Texas without notice to the respondent (the population of more than 1.5 million or in a batterer). The primary reason for applying county in a judicial district that is for a temporary ex parte order is to provide composed of more than one county the applicant with some protection (§84.002). between the time she requests the TEXPO When presented with a request for a and when the hearing for the final temporary ex parte order the judge may protective order takes place. (Usually no stop the hearing to contact the respondent later than 14 days after applying for the by phone and provide him/her an order.) opportunity to be present when court Unlike magistrate’s orders for emergency resumes (§83.007). However, the court protection and final protective orders, the must resume the hearing before the end of TEXPO is not criminally enforceable. the workday. This means that the defendant cannot be If the applicant has a MOEP and is arrested for violating the order. considering applying for a temporary ex Enforcement is only available through a parte order there are several reasons to civil contempt proceeding (a civil court apply. Temporary ex parte orders can: case). Applicants must be warned that the police will not arrest the respondent for • Provide some protection in the event violating this order. They may, however, that a MOEP expires before the arrest for another criminal offense (i.e. protective order hearing; harassment, criminal trespass, terroristic • Provide some protection if the final threat). protective order hearing is delayed due to lack of service, by agreement, or for A court may issue a TEXPO if it some other reason; and/or determines from the application that there • Address temporary possession and is a clear and present danger of family access to property and/or children. violence (§83.001(a)) or sexual assault

(Art. 7A.02 Texas Criminal Procedure, Exclusion of Party from Residence effective September 1, 2003). The court can enter the ex parte order for up to 20 In family violence cases, to exclude the days (§83.002(a)). This 20-day order can respondent from the residence in a be extended for additional 20-day periods TEXPO: at the applicant’s request or on the court’s • The applicant must have resided on own initiative (§83.002(b)). the premises within 30 days of the date the application was filed; Unless the applicant requests a later date, §83.006(b)(1); the hearing for the final order must be held • The respondent must have no later than 14 days after the date the committed family violence within request for a protective order is made 30 days of the date the application (§84.001). If the respondent received less was filed; §83.006(b)(2); and than 48 hours notice, the hearing can be • There must be a clear and present rescheduled for a date no later than 14 days danger that the respondent is likely after the date set for the hearing. to commit family violence against a (§84.004(a)). The hearing time may also member of the household. be extended to 20 days after the date the §83.006(b)(3). application is filed in counties with a

In addition, the applicant must file a sworn Effective September 1, 2003, protective affidavit providing a detailed description orders are available to victims of sexual of the facts and circumstances warranting assault regardless of the relationship to exclusion of the respondent from the the offender. For more information call residence. The applicant must appear in the Texas Association Against Sexual person to give testimony at the ex parte Assault (TAASA) at 512-474-7190 or visit hearing to justify the granting of the the website www.taasa.org. exclusion order without notice to the respondent (§83.006(a)). See Attachment D SB 433 – Protective Orders to Because of the explosive reaction some Victims of Sexual Assault batterers may have when ordered to leave their home and because the temporary ex parte protective order is not criminally Title 4 of the Texas Family Code lists the enforceable, the applicant may be exposed possible provisions that can be included in to significant risk during the time prior to protective orders. Recent case law has also the final protective order hearing. addressed several issues concerning Although more difficult for the victim, it protective orders, including: 1. may ultimately be safer if alternative Appealability, 2. Family relationship, 3. housing is sought until the final hearing Right to jury trial, and 4. Double jeopardy. (e.g., a family violence shelter or the home See Attachment E for a summary of the of a family member/friend). At the time of above topics. the final protective order hearing, the respondent may be excluded from the See Attachment E residence and the victim has the benefit of Recent Case Law on a criminally enforceable order. Protective Orders

See Attachment C Temporary Ex Parte Protective You may view the Family Code and all Order Forms Texas statutes on-line at: www.capitol.state.tx.us. However, it may take up to a year after the close of a Final Protective Orders legislative session for the on-line statutes to be updated. Protective orders are useful tools in stopping the violence between two people; Who Is Entitled to Protection? In order this includes non-marital situations such as to apply for a protective order, the in-laws, parent abuse, grandparent abuse, applicant must fit into one of the following same sex abuse, and other violent or statutorily recognized categories: threatening situations involving members or former members of the same household, 1. A person who is related to the extended family relationships, or of a respondent by blood or marriage dating relationship. (including a former spouse). For th example, an applicant could apply for NEW: The 78 Texas Legislature passed protection from a parent, sister, or SB 433, adding Chapter 7A “Protective father-in-law. (Texas Family Code Order For Victim of Sexual Assault” to the §71.003 & §82.002; See also Texas Texas Code of Criminal Procedure.

Government Code, §573.022, adult roommate, or on behalf of a child §573.024). against a parent. 2. A person who is currently living in the 2. An adult member of the dating same household as the respondent or relationship (§82.002(b)). Individuals has ever lived in the same household in dating relationships can file on their with the respondent. There is no own behalf. specific definition of “living together” 3. Any adult on behalf of a child. for the purpose of a protective order (§82.002(c)). An applicant could file and numerous factors may be on behalf of a neighbor’s child against considered by judges to determine who the child’s parent. A parent could file has “lived together” (§71.005, §71.006 on behalf of a teenage daughter who is & §82.002). a victim of dating violence. 3. A person who has had a child with the 4. Any prosecuting attorney who respondent (§71.003 & §82.002). represents the state in a county where 4. A person who is in a foster parent or the venue for a protective order is foster child relationship with the proper (§82.002(d)(1)). respondent, whether or not they live 5. The Department of Protective and together (§71.003, §82.002). Regulatory Services (DPRS) 5. A person who has or has had a (§82.002(d)(2)). The intent was to continuing relationship of a romantic allow DPRS to file on behalf of abused or intimate nature with the respondent. children, the elderly, and disabled The existence of such a relationship is people, although the statute on its face determined by considering the length does not limit that agency’s authority of the relationship; the nature of the to file to only these groups of people. relationship; and the frequency and 6. NEW: A person who is the victim of type of interaction between the persons sexual assault as defined in Section involved in the relationship. A casual 22.011 or 22.021 of the Penal Code, or acquaintanceship or ordinary a prosecuting attorney acting on behalf fraternization in a business or social of the victim, without regard to the context does not constitute a dating relationship between the victim and the relationship (§71.0021). offender (Art. 7A.01, Code of Criminal 6. NEW: A person who is a victim of Procedure). sexual assault regardless of her/his relationship to the offender. See Attachment F Protective Order Forms: Intake Form Who Is Eligible To File For a Protective Order? What Must the Application Include? 1. An adult family member on behalf of 1. Original Protective Order him or herself or on behalf of another member of the family or household The contents of an application for a (§82.002(a)(1)). For example, an protective order are mandated by §82.004 - applicant could file on the applicant’s §82.009. The application must clearly own behalf against a spouse, on behalf state: of an adult roommate against another

• The name and county of residence • A copy of the expired protective of each applicant; order or a statement that the • The name and county of residence former order is unavailable but of each person alleged to have will be filed with the court before committed family violence; the hearing, • The relationship between the • A description of the violation of applicant(s) and respondent(s); and the former protective order, and • A request for a protective order • A statement that the violation of (§82.004). the former order has not been grounds for any other order If the applicant is a former spouse of the protecting the applicant that has respondent or the application involves a been issued or requested under this child who is subject to the continuing section (§82.008). jurisdiction of a court, a copy of the divorce decree or Suit Affecting the 3. Renewal of Protective Order based on Parent-Child Relationship (SAPCR) order Threatened Harm must be attached to the application. If the A person can seek a renewal after the order is unavailable at the time the expiration or within the 30-day period application is filed, the pleading should prior to expiration of the protective order state that it is unavailable and that the by including in their application “a decree will be filed with the court before description of the threatened harm that the hearing on the protective order reasonably places the applicant in fear of (§82.006 and §82.007). If the respondent imminent physical harm, bodily injury, is a child who is subject to the continuing assault, or sexual assault" (§82.008 and jurisdiction of the court, a copy of the §82.0085). SAPCR order must be attached to the application, or if unavailable, the pleading should state that it is unavailable and that See Attachment F the order will be filed with the court before Protective Order Forms: the hearing on the protective order Sample Application (§82.007). If a temporary ex parte protective order is Where Can a Protective Order Be requested, the application must contain a Filed? detailed description of the facts and circumstances concerning the alleged 1. Which County? The Texas Family family violence and the need for Code gives the applicant two choices: immediate protective orders, and; it must • In the county where s/he resides; or be signed by each applicant under oath • In the county where the respondent (§82.009). resides (§82.003). 2. Renewal of Protective Order based There is no requirement as to the amount on Prior Violation of time living in the state or county in An application that requests a protective which someone is applying for a protective order on the basis that the respondent has order. Thus, a person who has recently violated an expired protective order must moved to (or fled to) Texas with the intent include: of residing here can get a protective order even if s/he does not meet the residency

© Texas Council on Family Violence, 2003 7 Note: All statute citations refer to the Texas Family Code unless otherwise noted. Do No Harm: Protective Orders in Texas requirement to file for a divorce, or other pauper’s oaths” to be filed with protective civil action . This is particularly important orders. Some counties were charging in situations where children are involved “administrative costs” and other add-ons, and there is an immediate need to obtain making protective orders unavailable to possession orders of the children. many applicants. Eventually the However, without personal jurisdiction Legislature determined that an applicant over the respondent, the range of available and/or lawyer for an applicant for a relief may be limited (see, e.g., §85.021(4), protective order can not be charged any child or spousal support). fees associated with obtaining the order. It should also be noted that an action for a However, a private attorney may charge an protective order is not a Title 5 action applicant a fee for their legal services (which covers suits affecting the parent- utilized in obtaining an order. child relationship), but a Title 4 action (which is entitled, “Protective Orders and No fees may be assessed against an Family Violence”). As such, case law has applicant for a protective order or an held that an action for a protective order attorney representing an applicant for a may be filed in the county where either the protective order (§81.002). applicant or respondent resides even if there is a pending custody action elsewhere or there is a court of continuing The party found to have committed family jurisdiction. [Magill v. Sheffield, 612 SW2d 677 violence will usually be ordered to pay the (Tex.Civ.App. - Dallas 1981, no writ), White v. Blake, costs, unless s/he can show good cause or 859 SW2d 551 (Tex.Civ.App. - Tyler 1993, no writ)] indigence (§81.003(a)). The court may 2. What Court? An application for a order a party against whom an agreed protective order may be filed in: district protective order is rendered to pay fees as court, court of domestic relations, juvenile well (§81.003(b)). Those costs include a court having the jurisdiction of a district $16 fee, the standard fees charged by the court, statutory county court, or clerk of the court in a general civil constitutional county court (§71.002). proceeding for the cost of serving the order, the costs of court, and all other fees, See Attachment F charges, or expenses incurred in Protective Order Forms connection with the protective order (§81.003(a)). If the order does not specify the date by which the fees should be paid, th What Are the Costs? The Legislature has payment of costs is required before the 60 made a series of attempts to make day after the order was rendered protective orders available to anyone in (§81.004(b)). Failure to pay the fees is need of emergency protection, regardless punishable by contempt (§81.004(a)). of income. There are no fees to the Additionally, the court may assess applicant for a protective order. attorney’s fees against the party found to have committed family violence or against Initially, filing fees and court costs were a party against whom an agreed protective set at a nominal amount, but some people order is rendered (§81.005(a)). still could not afford them. The Code was eventually amended to allow applicants to Can the Court Keep Some Information file “affidavits of inability to pay costs or Confidential? On request by the applicant

© Texas Council on Family Violence, 2003 8 Note: All statute citations refer to the Texas Family Code unless otherwise noted. Do No Harm: Protective Orders in Texas or a person protected by the order or by a NEW: Effective 9/1/03, temporary ex member of the family or household of the parte protective orders and final protective applicant, the court may exclude from a order applications are confidential, but protective order the address and telephone only in Harris County. These number of a person protected by the order applications are exempted from public (specifying only the county of residence), disclosure requirements and may only be the place of employment or business of a released to the respondent (offender) until person protected by the order, or the child- the date he is notified of it or the date that care facility or school a child protected by the hearing on the application (whichever the order attends or in which the child is sooner). resides (§85.007(a)). If requested, the court shall order the clerk to strike that How Long Do Protective Orders Last? information from the public records and maintain a confidential record of that 1. Protective Orders up to Two Years information solely for the court’s use (§85.007(b)). The exclusion of this The court can issue a protective order that information does not lessen the remains in effect for up to two years enforceability of the order. If the (§85.025). If the court does not specify a respondent is within the prescribed date for the order to expire, the order will distance (200 yards in most Texas be in effect for two years (§85.025). counties) of the applicant’s home, job, Along with extending the duration of school, or day care, it is presumed that s/he protective orders, the 1999 Legislature also knows where the applicant is. gave the respondent (the batterer) the In 1997, the Legislature added section ability to request a review of the protective 87.004 of the Code which provides that if order during its second year to determine if the protective order does contain the “there is a continuing need for the order.” address or phone number of a protected If the court determines that there is a place, and the address or phone number continuing need for protection, the order changes while the protective order is still “remains in effect until the date the order in effect (e.g., the child changes schools), expires.” If the court finds there is no the person protected by the order may file continuing need for the protective order, a notification of the change with the court “the court shall order that the protective who rendered the order. The clerk of the order expires on a date set by the court” court shall deliver a copy of the (§85.025(b)). notification to the respondent by registered 2. Protective Orders Extended if or certified mail. Respondent Is Incarcerated at Date of The filing of this notification does not Expiration. affect the validity of the order. The The 1999 Legislature also amended the applicant is not required to provide this Family Code to provide for a one-year notice and there may be situations where it extension of the protective order if the is not advisable due to safety concerns. As respondent is incarcerated (for any reason a practical matter, law enforcement may be or offense) on the date the order expires. able to respond more quickly if there is no Specifically, “if the respondent is confined confusion as to whether the respondent or imprisoned on the date the protective knew the address of the protected place. order [expires], the period for which the order is effective is extended, and the order

© Texas Council on Family Violence, 2003 9 Note: All statute citations refer to the Texas Family Code unless otherwise noted. Do No Harm: Protective Orders in Texas expires on the first anniversary of the date the person is released from confinement or THE ROLE OF THE ADVOCATE imprisonment” (§85.025( c)).

Advocates should be advised that Advocating For Clients enforcement of the protective order during (Even if you disagree with her) this extended period may be challenged because of a lack of notice to the Frequently, a client will make choices that respondent that the order remains in effect you “disagree” with. You may disagree for one year after his release from jail. for a variety of reasons, including For example, the protective order could concern for her safety. Remember that expire “on its face” during the first year of your job is to provide options for survivors the respondent’s confinement. The of family violence and to highlight the protective order would then continue to choices available. Encourage any remain in effect throughout his survivor to make the best choices she can confinement (regardless of length) and for for herself. She knows the batterer and her one year after his release. situation best. For example: On January 1, 2001, Amy gets a 2 year protective order in Burnet See Attachment G County against her husband Jim. Jim gets Do No Harm: Protective Orders in convicted of drunk driving and sent to Texas Brochure prison for five years beginning March 1, 2001. If Jim is released from prison on March 1, 2006, then Amy’s protective order is valid until March 1, 2007, because THE HEARING: he was in prison when it would have FINAL PROTECTIVE ORDERS expired and upon his release the order is automatically extended an extra year. If Preparation for Court Jim violates the order after his release, it may be very confusing for all involved It can be intimidating for victims of family when the protective order itself and the law violence to go before a court and ask that enforcement database reflect that the order the abuse stop. Advocates are instrumental expired years ago. The attorney writing in preparing them for this often frightening the order and the court are strongly and difficult experience. encouraged to verbally remind the parties of this provision and to include it in the As a victim of family violence goes warning language on the final protective through the criminal legal system, she will have contact with attorneys, law order. Family violence program 3 advocates are encouraged to make sure enforcement agencies, and judges. Often, their clients know and understand this these people are not well informed about provision. family violence and some may seem indifferent or even antagonistic toward her. See Attachment L 3 This protocol generally refers to battered You Be the Judge: Issuing and individuals as women, and batterers as men. A Enforcing Protective Orders 2000 Bureau of Justice Statistics study on intimate partner violence reported that 85% of victims are female and 15% of victims are male.

This does not mean that she is in the imminent physical harm, bodily injury, wrong; only that they lack knowledge assault, or sexual assault. In 1995, the about family violence and its damaging Legislature added language that effects on families. The attachments listed specifically excluded defensive measures below may help in understanding the for self-protection from the definition of possible scenarios in the criminal legal family violence (§71.004(1)). system, as well as tips on how to best In 2001, the Legislature included “dating advocate for a survivor. violence” in the definition of family Remind the victim that she is there for an violence. This ensures that dating violence important reason: to take care of herself. protective orders are subject to the same By applying for a protective order, she is procedures and penalties as all other taking positive steps toward keeping protective orders, including magistrate’s herself and her children safe. Let her orders for emergency protection. know that patience and willingness to communicate will help everyone work Dating violence is defined in §71.0021(a) toward a better outcome for her. as an act by an individual that is against another individual with whom that person What Does the Court has or has had a dating relationship and Have to Find? that is intended to result in physical harm, bodily injury, assault, or sexual assault or 1. If It Is the Applicant’s First that is a threat that reasonably places the Protective Order Against individual in fear of imminent physical Respondent harm, bodily injury, assault, or sexual assault, but does not include defensive In order for a judge to issue a protective measures to protect oneself. order, the court shall find whether: A dating relationship is defined in section • Family violence has occurred; and §71.0021(b) as a relationship between • Family violence is likely to occur individuals who have or have had a in the future. §85.001(a) continuing relationship of a romantic or OR intimate nature. The existence of such a Whether the applicant is relationship is determined by considering: • A victim of sexual assault; and the length of the relationship, the nature of the relationship, and the frequency and • The subject of a threat that type of interaction between the persons reasonably places the applicant in involved in the relationship. Casual fear of further harm from the acquaintanceship or ordinary fraternization alleged offender (Art. 7A.03 Texas in a business or social context does not Criminal Procedure, effective constitute a “dating relationship.” September 1, 2003). Family violence is defined in §71.004 as In order to prove that family violence is an act by a member of a family or likely to occur in the future, it is best to file household against another member of the for a protective order as soon after the last family or household that is intended to incident as possible. There are, however, result in physical harm, bodily injury, situations where it is appropriate to file assault, or sexual assault or a threat that even if the most recent incident is reasonably places the person in fear of somewhat remote (e.g., when the

© Texas Council on Family Violence, 2003 11 Note: All statute citations refer to the Texas Family Code unless otherwise noted. Do No Harm: Protective Orders in Texas respondent has been incarcerated since the respondent or the perception of a threat by incident or the applicant has been in hiding the applicant. For example, the respondent and the respondent has just located her). It may have told friends or family that, “As is also helpful to show a history of soon as that protective order expires,” he is violence or threats of violence. “going to get” the applicant. The applicant should qualify for a new protective order if 2. If Applicant’s Previous Protective she can show that this statement makes it Order Against Respondent Expired “reasonable” for her to fear for her Without Violation physical safety. It may be necessary to Requirements are the same as under #1. introduce evidence of the history of abuse 3. If Applicant Has Had a Previous in the relationship to place the statement in Protective Order That Was Violated context and to show that her fear is By Respondent reasonable. If a protective order has expired, the How Can the Violence applicant need only prove that the Be Proven? respondent violated the former order while The most important piece of evidence in it was still in effect by committing one of proving family violence is the testimony of the “criminally enforceable acts” listed in the victim. Protective order hearings are §85.022(b). (See “What can a protective often a “battle for credibility” between the order do?”, page 16) The applicant does parties since there are rarely other not need to show that family violence has witnesses. occurred or that family violence is likely to occur in the future if a renewal is sought Subject to the rules of evidence, proof may based upon a prior violation (§85.022). be made through other means, such as eyewitnesses to the abuse or its after- Once a court finds that a violation has effects (e.g., bruises, fearful behavior, occurred, the court must issue (no etc.), police reports, testimony of police discretion allowed) a protective order officers, medical records, photos of covering these same elements, and may injuries, torn clothing, and photos of issue a protective order covering the damaged property. additional elements listed in §85.021. 4. If Applicant Has Had a Previous PROTECTIVE ORDERS, Protective Order That Was NOT CUSTODY AND DIVORCE Violated but Is Still in Fear An applicant must show that s/he either previously had a protective order which is How Do Protective Orders Affect now expired or is protected by such an Divorce Orders and order that will expire within 30 days. Custody Orders (SAPCR-Suit Under this law, an applicant must also Affecting the Parent Child show “threatened harm that reasonably Relationship)? places the applicant in fear of imminent physical harm, bodily injury, assault, or 1. What Happens If An Application for sexual assault." Protective Order Is Filed Before a Divorce or SAPCR ? The court will interpret whether this statute requires an actual threat made by the

If an application for a protective order is clerk of the court that rendered the filed before a divorce or custody order protective order must: (SAPCR) is filed, the court may not a. Inform the clerk of the court in dismiss the application or delay a which the SAPCR or divorce is protective order hearing on the grounds pending that a final protective order that a divorce or SAPCR has been has been rendered; and subsequently filed (§85.061). b. Forward a copy of the final If a final protective order was issued protective order to the court in before the filing of a divorce or SAPCR, it which the divorce or SAPCR is is subject to being transferred to the county pending (§85.062(c)). where the divorce or SAPCR are If a final protective order is issued by a subsequently filed (§85.064(a)). The court court other than the divorce or SAPCR may transfer the protective order on its court, the protective order is subject to own motion or on the motion of either being transferred to the divorce or SAPCR party if the transferring court finds that it is court (§85.062(d)). in the interest of justice or for the safety or convenience of a party or a witness 3. What Happens If the Application for (§85.064(a)(c) and §85.064(d)). The Protective Order Is Filed After the person requesting the transfer shall be Divorce or SAPCR Is Final? responsible for paying for the costs of the Once a final divorce decree or SAPCR transfer unless the person requesting the order has been rendered, an applicant for a transfer is the applicant (§85.064(e)). protective order has two choices of where 2. What Happens If the Application for to file for the protective order: Protective Order Is Filed While the a. In the county and court where the Divorce or SAPCR Is Pending? SAPCR or divorce order was issued; or If a divorce or SAPCR is pending at the time the application for the protective b. In a court that has jurisdiction to order is filed, the applicant has two choices issue protective orders in the regarding where to file the protective order county in which the applicant or application: respondent resides (§85.063(a)). a. The court where the suit is pending; If a final protective order is rendered by a or court other than the divorce or SAPCR court, the protective order is subject to

b. If the applicant resides outside of being transferred to the divorce or SAPCR the jurisdiction (county) of the court (§85.063(b)). court in which the suit is pending, the applicant may file in the county 4. What Happens If a Protective Order where the applicant resides is Issued After the Date a Final (§85.062(a)). Order in a SAPCR Is Rendered That If an applicant chooses to pursue a Affects a Party’s Right to Possession protective order in the county where s/he or Access to a Child? resides, which is outside the jurisdiction of In 1995, the legislature addressed this with the suit, the applicant must inform the the result being §85.009-Order Valid Until clerk of the court that a divorce or SAPCR Superceded. A protective order supersedes is pending somewhere else (§85.062(b)). a prior SAPCR order for the duration of If the court issues a protective order, the

© Texas Council on Family Violence, 2003 13 Note: All statute citations refer to the Texas Family Code unless otherwise noted. Do No Harm: Protective Orders in Texas the protective order, or until the SAPCR Access, Possession, and order is modified, so that, for example, Support? supervised exchanges of children for visitation can be addressed in a protective Yes! Special attention needs to be given to order. protective order applications that include children. Contact will occur whether it is §85.009 states: addressed or not and that contact could A protective order rendered under this turn into a life-threatening situation for the section is valid and enforceable, victim. To minimize this risk, every pending further action by the court that protective order involving children rendered the order, until it is properly should address possession, access superseded by another court with (visitation), and support. Keep in mind jurisdiction over the order. that legal conservatorship of the children differs from having possession of and

If a protective order and SAPCR access to the children. Protective Orders order conflict, the protective do not grant custody, only possession and order provisions are valid until access because unlike divorce decrees, (and if) the SAPCR court enters protective orders are temporary and expire new orders. eventually. In most cases, one parent will be given possession of the children and the children will live with that parent. The In 1997, Section 85.064(b) was added to other parent will usually be granted access the Family Code. This section provides (visitation) to the children at times that, if the possession and access specified by the order. This access may be provisions of a protective order conflict limited based on various factors that with a pre-existing SAPCR order, the court compromise the best interests of the may transfer the protective order to the children (i.e. family violence, substance court of continuing, exclusive jurisdiction abuse problems). over the children if the court finds that it is in the interest of justice or for the safety or The protective order should clearly state convenience of a party or a witness the following: (§85.064(c)). 1. Who is awarded temporary 5. What Is the Effect of a Transfer? possession of the children; 2. When, how, and where the children The court to which a protective order is will be exchanged between the transferred has jurisdiction over the order applicant and the respondent; and just as if it was rendered in the transferee court (§85.065). Therefore, the 3. Under what conditions the transferee court may modify, enforce, or respondent will visit with the vacate the protective order. The new children (e.g., no alcohol, drugs, court can enforce a violation of the order, etc.). even if the violation occurred prior to the transfer of the protective order (85.065(b)). See Attachment I Family Violence and Protecting the Children: Should Custody in Texas Protective Orders Address

How Do Protective Orders or • The parent attend and complete Family Violence Affect Visitation? a battering intervention and prevention program The Texas Family Code mandates that the (§153.004(d)). Court consider the commission of family violence in determining whether to deny, restrict or limit the possession of a child by How Do Protective Orders or a parent who may obtain custody of the Family Violence Affect Custody? child. §153.004(c). There is a “rebuttable presumption” against a batterer having The Texas Family Code specifically unsupervised visitation with a child. provides that the court shall consider §153.004(e) The court normally evidence of family violence when “presumes” that the parents would have determining whether to appoint a party as a joint custody. A rebuttable presumption sole or joint managing conservator (give simply allows the court to more easily sole or joint custody). The abuse must limit a batterer’s access to the child given have been committed within a two-year the history of family violence. period preceding the filing of the suit or while the suit is pending (§153.004(a)). If there is a history or pattern of The Court is prohibited from appointing committing family violence during the two joint managing conservators if credible years preceding the date of the filing of the evidence is presented of a history or suit or while the suit is pending. The court pattern of past or present child neglect, or may not allow a parent to have access (i.e., physical or sexual abuse by one parent visitation) to a child unless: directed against the other parent, a spouse, 1. The court finds that awarding the or a child (§153.004(b)). parent access to the child would not endanger the child’s physical health or NEW: Effective 9/1/03, the court must emotional welfare and would be in the consider whether a protective order was best interest of the child; and filed in the previous 2 years or during the pendency of the suit in cases determining 2. The court renders a possession order custody or access to a child in families designed to protect the safety and well- with a history of family violence being of the child and the victim. Such (153.004(f)). possession order may include provisions that: • The periods of access be See Attachment J supervised; Judicial Responses that Empower • The exchange of possession of Battered Women the child be in a protective setting; See Attachment K • The parent abstain from the Judicial Responses that Reinforce consumption of alcohol or a Women’s Entrapment controlled substance within 12 hours prior to or during the period of access to the child; and/or

protected under the order normally See Attachment L resides or attends; You Be the Judge: Issuing and 5. Stalking a member of the family or Enforcing Protective Orders household; or 6. Possessing a firearm, unless the person is a peace officer, as defined by Section

ENFORCEMENT OF 1.07, Penal Code, actively engaged in employment as a sworn, full-time paid PROTECTIVE ORDERS employee of a state agency or political subdivision. What Can a Protective NEW:W Effective 9/1/03 if a respondent Order Do? attempts to contact the protected person in any one of the three ways listed in #2 1. Criminally Enforceable Provisions above, he is subject to arrest. Previously There are 6 criminally enforceable all three types of communication had to provisions in a protective order have happened to be considered a criminal (§85.022(b)). The respondent is prohibited violation of the order. from : 1. Committing family violence; 2. Civilly Enforceable Provisions 2. Communicating: The following provisions (found in §85.021 and §85.022(a)) of the protective • Directly with a member of the order statute are generally enforceable by family or household in a civil contempt and use language similar to threatening or harassing manner, restraining orders and injunctions: • A threat through any person to a a. Prohibit a respondent from removing a member of the family or household, child from the possession of a person OR named in the court order or from the • On a finding of good cause, in any jurisdiction of the court manner with a member of the (§85.021(1)(a)). [Even though this is family or household except through not criminally enforceable under the party’s attorney or a person §25.07 of the Texas Penal Code, appointed by the court; Violation of a Protective Order, such 3. Going to or near the residence or place conduct could still constitute of employment or business of a Interference with Child Custody, member of the family or household;4 §25.03 of the Penal Code.]; 4. Going to or near the residence, child b. Prohibit the respondent from care facility, or school where a child transferring, encumbering or otherwise disposing of property mutually owned or leased by the parties, except when in 4 The court may be creative in setting distances. If, the ordinary course of business for example, the applicant and respondent are (§85.021(1)(b)); employed by the same employer, the court may c. Grant exclusive possession of a order the respondent to refrain from going to the floor of the building where the applicant works. residence to a party and, if appropriate, The respondent can be immediately arrested for direct one or more other parties to violating these criminally enforceable provisions. vacate the residence (§85.021(2)). [A

protective order can exclude a h. Prohibit the respondent from doing respondent from the home if the home specified acts or requiring the is jointly owned or leased, the home is respondent to do specified acts to owned or leased by the party retaining prevent family violence possession, or the home is owned or (§85.022(a)(3)). (This is a catchall leased by a party denied possession if provision that can include drug and the party denied possession has an alcohol counseling or anything else the obligation to support either the party court deems appropriate for protection granted possession or a child of the of the family). party granted possession (§85.021(2)(a-c).]; See Attachment F d. Provide possession of and access to a Protective Order Forms child. §85.021(3) (Note that the court Sample Order Withholding from does not have jurisdiction to appoint Earnings for Child Support the parties as conservators-only possession and access); e. Require payment of child or spousal 3. Suspension of License to Carry support (§85.021(4)); Concealed Handgun and Effect on f. Require that the respondent attend and Ability to Own a Firearm complete a batterer’s treatment The 1999 Legislature gave courts the program if there is one available. If a express power to suspend a person’s program is not available, a respondent license to carry a concealed handgun in a can be required to counsel with a social protective order (§85.022, Family Code) or worker, family service agency, in a M.O.E.P. (Art. 17.292(l), Code of physician, psychologist, licensed Criminal Procedure). Texas law also therapist, or licensed professional restricts a person’s eligibility for a 5 counselor (§85.022(a)); concealed handgun license if the person is g. Award a party possession of restricted by a court protective order or community property or jointly owned subject to a restraining order affecting the or leased property (§85.021(5)); or spousal relationship, other than a restraining order solely affecting property interests (Texas Government Code, 5 A person found to have engaged in family § 411.172(13)). A person is prohibited violence who is ordered to undergo counseling shall from knowingly selling, giving or loaning file with the court an affidavit before the sixtieth day after the date the order was rendered stating a handgun to a person who is the subject of either that the person has begun the program or an active protective order. Further, a counseling or that the program or counseling is not person against whom an active protective available within a reasonable distance from the order is directed commits an offense if he person’s residence. A person who files an affidavit knowingly purchases, rents, or receives as that the person has begun the program or counseling must file with the court before the date a loan or gift a handgun (§46.06(a)(5)&(6), the protective order expires a statement that the Texas Penal Code). person completed the program or counseling not later than the thirtieth day before the order expires. The suspension of a license to carry a The affidavit must be accompanied by a letter, concealed handgun is effective for the notice, or certificate from the program or counselor duration of the order. The clerk of the verifying the person’s completion of the program or counseling. §85.024(a).

© Texas Council on Family Violence, 2003 17 Note: All statute citations refer to the Texas Family Code unless otherwise noted. Do No Harm: Protective Orders in Texas issuing court must send a copy of the order • Possession of the firearm while to DPS which is then required to: carrying out official duties. • Record the suspension; • Report the suspension to local law See Attachment M enforcement agencies and demand Federal Firearms Language surrender for the suspended license from the license holder (§85.042, Family Code for protective orders What Happens If a Protective and Art. 17.293, Code of Criminal Order Is Violated? Procedure for M.O.E.P.’s. State law prohibits a person from The following is a summary of the possessing a firearm for the duration of consequences for violating each of the the protective order and for five years three types of protective orders. This following the date of the person’s release section continues with the duties of peace from confinement following the conviction officers and scenarios in which the of a Class A misdemeanor or higher family respondent may be arrested. violence assault, or following the date of • If a magistrate’s order for emergency the person’s release from community protection (MOEP) is violated, the supervision following the conviction of a respondent is subject to arrest. Class A misdemeanor (§46.04(b)) Penal Code). A violation of this law is • If a temporary ex parte protective order punishable as a Class A misdemeanor. (TEXPO) is violated, it is enforceable Federal law prohibits anyone who has only through civil contempt. However, ever been convicted of a misdemeanor if another crime is committed, the family violence assault or who is a respondent may be arrested for that respondent in a protective order from crime. possessing a firearm or ammunition. (18 • If the respondent violates the U.S. Code §922) The Bureau of Alcohol, criminally enforceable parts of a final Tobacco and Firearms defines possession protective order, he is subject to arrest. as “care, custody and control.” If the civilly enforceable provisions of Official Use Exemption: the final order are violated, it is enforceable through civil contempt. Both state and federal law allow law enforcement officers who are respondents in a protective order to possess their A peace officer who investigates a family service weapon, while on duty. Federal violence allegation shall advise a possible law also includes military personnel. victim of all reasonable means to prevent However, there is no exception for a further violence, including: family violence related conviction under • Written notice of a victim’s legal state or federal law. rights and remedies; and The Bureau of Alcohol, Tobacco and • The availability of shelters or other Firearms has interpreted the “official use community services (Art. 5.04, exemption,” to mean: Code of Criminal Procedure). • A government issued firearm; and At the peace officer’s discretion, the officer may provide civil standby

© Texas Council on Family Violence, 2003 18 Note: All statute citations refer to the Texas Family Code unless otherwise noted. Do No Harm: Protective Orders in Texas assistance and stay with the victim or take be criminally enforceable under some the victim to a place of safety (Art. 5.045, other section of the Penal Code. For Code of Criminal Procedure). A peace example, a violation of an order for officer that investigates a family violence possession and access of a child could be a call is required to make a written report felony under §25.03 of the Penal Code. (Art. 5.05 Code of Criminal Procedure). Failure to pay child support under a protective order may be a violation of A peace officer may arrest without a §25.05 of the Penal Code. warrant anyone the officer has probable cause to believe has committed an assault See Attachment N against a member of the person’s family or Motion For Contempt Forms household (Art. 14.03(a), Code of Criminal Procedure). A peace officer shall arrest a person whom the officer has probable As an advocate for survivors of abuse, you cause to believe has violated a protective provide essential support and information order under Texas Penal Code §25.07, if about available options. To do this, you the violation is committed in the presence must be well acquainted with Texas law of the peace officer (Art. 14.03(b), Code of and be knowledgeable about the local Criminal Procedure). prosecutor’s policies regarding protective After an arrest for an offense involving orders in your county. While the law family violence, a magistrate may issue a stipulates what must be followed, magistrate’s order for emergency prosecuting attorneys can decide how they protection (MOEP). are going to implement the law. For example, prosecuting attorneys can After there has been a hearing and a final establish their own criteria for choosing protective order is issued, a violation of which victims they will assist. See the any of the five criminally enforceable section, “Common misconceptions provisions set out in §85.022(b) is a Class regarding protective orders” on page 27 for A misdemeanor. If the violation more information. constituted an assault or an offense of stalking or the defendant has already been What Happens If a Victim convicted two or more times of violations, Changes Her Mind? the offense is a third degree felony (§25.07(g), Penal Code). In addition to Women may choose not to proceed with a being charged with violating the protective protective order hearing for many reasons, order, the offender could also be charged including, but not limited to: for the offense s/he committed, such as assault, stalking, or aggravated assault. • Fear of retaliation for legal protection; The agency releasing a person arrested or • Fear of ending the relationship held without warrant for family violence permanently; shall make a reasonable attempt to notify the victim of the imminent release (Art. • Fear of the courthouse and 17.29, Code of Criminal Procedure). courtroom proceedings; and/or • Past negative experiences with the Finally, some parts of the protective order legal system. not expressly enforceable by immediate arrest under §25.07 of the Penal Code may

See Attachment O See Attachment Q Obstacles in the Criminal Article by Harry J. Joe Legal Process When advocating for immigrant survivors Some prosecutors have policies that it is important to access information from a require the protective order process to legal service agency or attorney that continue even if the victim changes her specializes in immigration issues AND mind. In those situations women may feel understands the dynamics of domestic disengaged from the process because they violence. Protective orders can be a no longer want a protective order, but are useful tool to address issues of safety and forced to continue with the proceedings. It possession of children for immigrant is important to work with the prosecuting women. Please refer to Attachment R for attorney’s office to encourage them to creative remedies for immigrant women adopt policies that respect women’s accessing protective orders. You may also choices. learn more about working with immigrants in Passport to Independence: Assisting For women who do not want to continue Immigrant Survivors of Abuse, a with the protective order process, but must publication by the Texas Council on due to the prosecutor’s policy, it may still Family Violence. be possible to request a protective order that prohibits abuse, but allows the two individuals to continue living together. See Attachment R This may be the most viable option for Specific Provisions for Immigrant women who want to continue a Survivors relationship with their partners, but want the violence to cease. FREQUENTLY A SKED QUESTIONS

See Attachment P Advice to Prosecutors: 15 Steps to Can a Protective Order Be Making Victims Safer Modified?

Temporary Protective Orders. Section Women may justifiably fear greater levels 83.004 of the Family Code gives any of retaliation if they proceed with the “member of the family or household protective order. It is always important to affected by a temporary ex parte order” the listen to the survivor because she knows right to file a motion to vacate (i.e., do the abuser best and knows how he is likely away with or dissolve) the order. to react to the order. Final Protective Orders. Section 87.001 Immigrant Women. All persons provides that either party in a final regardless of immigration status are protective order can file a motion to eligible to apply for protective orders. modify the order. The party may request Please refer to Attachment Q, an article by to exclude any of the orders issued in the immigration attorney, Harry J. Joe, to learn original protective order or include matters more about immigrant access to state not included in the prior order. However, courts. the modification cannot extend the order

© Texas Council on Family Violence, 2003 20 Note: All statute citations refer to the Texas Family Code unless otherwise noted. Do No Harm: Protective Orders in Texas past two years from the original date What Are “Agreed” and “Mutual” (§87.002). Protective Orders?

A respondent can file a motion “not earlier A “mutual” protective order is one in than the first anniversary of the date on which a court renders an order that applies which the order was rendered requesting to both parties and requires both parties to that the court review the protective order do or refrain from doing acts under Section and determine whether there is a 85.022. In Texas, the court must render continuing need for the order.” If the court two distinct and separate protective finds there is a continuing need, the order orders in two separate documents that will remain in effect until the date reflect the appropriate conditions for originally ordered. If the court finds there each party. is no continuing need, “the court shall order that the protective order expires on a A court may NOT render one protective date set by the court” (§85.025(b)). order under Section 85.022 that applies to both parties. Notice of a motion to modify is sufficient if delivery of the motion is attempted on Section 85.005 of the Texas Family Code the respondent at the respondent’s last sets out special provisions for agreed known address by registered or certified protective orders. Both the applicant and mail as provided by rule 21a of the Texas the respondent may agree to do or refrain Rules of Civil Procedure (§87.003). from doing the civilly enforceable portions of the protective order (§85.005(a)). See Attachment H However, only the respondent may agree Motion to Modify to do or refrain from doing the criminally enforceable portions of the order (§85.005(b)). In fact, a court is prohibited NEW:W The 78th Legislature made from approving an agreed order that significant changes regarding the requires an applicant to do or refrain from circumstances under which a MOEP can doing the criminally enforceable portions be modified and who can modify a of the order (§85.005(b)). MOEP. HB 297 established the The purpose of this is to protect the following (Effective September 1, 2003): applicant, who felt a need to file the order in the first place, from having a protective • Only the issuing court or criminal order work against her (and be subject to court assuming jurisdiction over the arrest). In order for a respondent to obtain criminal case may modify a MOEP a full protective order against an applicant, and whereby the applicant would also be • A MOEP may only modified if: refrained from doing the criminally 9 The order is determined to be enforceable portions of the order, he must unworkable, file a separate application (§82.022). As 9 The modification will not place stated above, the court must enter two the victim at greater risk, and separate protective orders (two separate 9 The modification will not documents) in order for the applicant in the endanger a person protected by original protective order to be ordered to the order. do or refrain from doing the criminally enforceable portions of the order

(§85.003). Unless it is an agreed order, the methods of getting copies of the protective court must make an independent finding in order to the respondent, applicant, law each order that the parties committed enforcement entities, and the school or family violence and are likely to commit daycare of a protected child. Section violence in the future (§85.001(c)). 85.041 now provides specific instructions as to how an order should be served in Once the court approves the agreement, the open court. If the respondent is present at court must render an agreed protective the hearing and the order has been reduced order that is in the best interest of the to writing, the judge or master shall sign applicant, the family or household, or a the order and give a copy of the order to member of the family or household the respondent. It is good practice to §85.005(c). An agreed protective order is require the respondent to sign the not enforceable as a contract, and it expires protective order stating that s/he did on the date the court order expires. receive a copy of the order. If the §85.005(e). applicant is in court, a certified copy of the When drafting agreed orders, it is signed order shall be given to him/her. If important to include “command language”. the applicant is not in court the clerk of the In Lee v. State, 799 SW2d 751 (1990), the court shall mail a certified copy of the issue was whether an agreed protective order to the applicant by the third business order was criminally enforceable when the day after conclusion of the hearing drafting of the order had no order, decree, (§85.041(b)). or other sort of command language from If the respondent is present at the hearing, the court. Although the Court of Criminal but the order is not reduced to writing, the Appeals found it to be criminally judge or master shall give notice orally to enforceable, it would be wise to include the respondent of the part of the order that command language in orders that are contains the criminally enforceable agreed. For example, rather than “the provisions, or any other part of the order parties agree to...” the order should recite that contains provisions to prevent further “the parties agree and, therefore, family violence. The clerk of the court respondent is ordered to...." shall mail a copy of the order to the See Attachment S respondent and a certified copy of the What is Wrong With Mutual order to the applicant not later than the Orders of Protection? third business day after the date of the hearing (§85.041(c)).

If the respondent is not present at the How Must Notice of the hearing and the order has been reduced to Order Be Given? writing, the clerk of the court shall Once issued, a protective order must be immediately provide a certified copy of the delivered to the respondent in accordance order to the applicant and mail a copy of with Rule 21a of the Texas Rules of Civil the order to the respondent via certified Procedure, served in the same manner as a mail, return receipt requested pursuant to writ of injunction, or served in open court Rule 21a of the Texas Rules of Civil at the close of the hearing (§85.041(a)). Procedure, by the third business day after the hearing (§85.041(d)). Several changes were made in 1995 to §85.041 and §85.042, which prescribe the

NOTE: Although the Family Code allows served less than 48 hours prior to the service on an absent or defaulted hearing, the court must reschedule respondent via certified mail for (§84.004(a)). The hearing must be held enforcement purposes, it may be better to within 14 days of this request (§84.004(a)). serve the respondent personally. A protective order may be issued against a The clerk of the court is responsible for respondent who was served less than 48 sending a copy of the protective order or hours prior to the hearing, if the respondent an order vacating or modifying the does not request that the court reschedule protective order to the chief of police of the hearing (§85.006). Even if notice was the city where the applicant resides, if the within 48 hours of the hearing, a court may applicant resides in the city, or to the issue a protective order against a appropriate constable or sheriff of the respondent who does not show up for a county where applicant resides, if the hearing, as long as s/he was served. In respondent does not reside in a city other words, a respondent who is served (§85.042(a)(c)). within 48 hours of the hearing must show up in court and request that the hearing be In 1995, the Legislature made the clerk of rescheduled or the 48-hour notice the court responsible for sending a copy of requirement is effectively waived the order to the child care facility or school (§85.006). if the respondent is prohibited from going to or near a child care facility or school

(§85.042(b)). Formerly, the party How Are Law Enforcement requesting the order bore this Officers Notified of the Order? responsibility. Due to the lag time between the issuance of the order and the Law enforcement is responsible for entry receipt of the order by schools and other of the order into the Texas Crime authorities, it is recommended to advise Information Center (T.C.I.C.). The 77th clients to keep a certified copy of the Legislature clarified law enforcement’s protective order with them at all times, and duty to enter protective orders into T.C.I.C. to provide a copy of the order to the school The law states that on receipt of an or child care facility immediately. original or modified protective order from the clerk of the issuing court, a law enforcement agency shall immediately, How Much Notice Of The Final but not later than 10 days following the Protective Order Hearing Is The receipt of the order, enter the order into Respondent Entitled To Have? the T.C.I.C. system with the required information. The agency responsible for The respondent is entitled to notice at least entering the order into T.C.I.C. is the 48 hours prior to the hearing (§84.004(a)). agency that has jurisdiction wherever the Notice must be served in accordance with applicant resides. For example, if an the Texas Rules of Civil Procedure and applicant resides in the city, the chief of service by publication is not authorized police of the city where the applicant (§82.043(c)). resides is responsible for entering the A respondent receiving notice within 48 order, or if the applicant resides in the hours of the hearing may request that the county, the sheriff or constable of the court reschedule the hearing (§84.004(a)). If requested, and the respondent was

© Texas Council on Family Violence, 2003 23 Note: All statute citations refer to the Texas Family Code unless otherwise noted. Do No Harm: Protective Orders in Texas county is responsible for entering the agency to provide adequate information or order. access to information for law enforcement The Texas Government Code requires the officers of the names of each person Bureau of Identification and Records to protected by an order issued under subtitle collect information concerning the number B, Title 4, and of each person against and nature of protective orders. The whom protective orders are directed information must include all pertinent (§86.001(a)). information about all persons with active Law enforcement agencies may enter 6 protective orders, including : protective orders in the agency’s computer • The name, sex, race, date of birth, records of outstanding warrants as notice personal descriptors, address, and that the order has been issued and is county of residence of the currently in effect. When the agency respondent; receives notification by a clerk of court • Any known identifying numbers of that the court has vacated or dismissed an the respondent, including the order the agency shall remove the order respondent’s social security from the agency’s computer record of number or driver’s license number; outstanding warrants (§86.001(b)).

• The name and county of residence of the person(s) protected by the order; Why Is the Entry of Protective • The residence address and place of Orders Into TCIC Important? employment of the applicant, unless that information is excluded The entry of protective orders into TCIC is from the order under §85.007; important because without such entry: 1. The respondent could purchase a • The child-care facility or school where a child protected by the firearm because he/she would pass the order normally resides or attends, background check; unless that information is excluded 2. If the victim does not have a copy of from the order under §85.007; the order when officers arrive at 2 a.m., they will have no way to verify • The relationship or former relationship between the applicant whether an order exists and the and the respondent; and respondent potentially gets one free violation; • The date the order expires (§411.042(b)(6),Texas Government 3. Law enforcement officers have one Code). less piece of information about a dangerous individual that may be Each law enforcement agency is also stopped for a traffic violation (a high required to establish procedures in the percentage of felons are identified this way), and not having this information 6 Although the law does not require it, because of seriously affects officer safety and the Texas Department of Safety’s programming for victim safety; and/or the data entry of protective orders, the order can be entered into neither the statewide system nor the 4. Only the entering agency would have federal system (NCIC) without the sex, race, and the hard copy and know the order date of birth of the applicant, the children, and any existed; until it is entered into the other protected person who is a member of the statewide system, no other departments family or household.

in Texas would be able to access the should be enforced for 5 years by the data. enforcing state (§88.003(a)).

See Attachment T Foreign protective orders that address Data Entry Form for Texas Crime custody and visitation rights must be Information Center (TCIC) enforced if the provisions were issued in accordance with the jurisdictional requirements in the issuing state. Are Protective Orders From Other States Enforceable In Texas? Foreign protective orders are assumed to be valid if the order names the protected The short answer to this question is, yes. person and the respondent and is currently Historically, however, they were not in effect (88.003(d)). A protected person always enforced. A good deal of does not have to present a certified copy. confusion has surrounded this area of the In fact, the protected person may provide a law, in part because these orders in other copy of the order, or law enforcement may states are not always called “protective rely on a state or federal registry system to orders” and may look very different from determine the validity of the order. If the Texas orders. When the Violence Against protected person cannot present a copy of Women Act passed in 1994 it clarified that the foreign protective order and law a protective order from anywhere in this enforcement cannot locate the order in a country or its territories is enforceable in registry database, law enforcement may any other state or territory (42 U.S. Code determine that there is probable cause to §1398(c)). enforce the order by relying on any relevant information (§88.004(c)). This In 2001, the Legislature created Chapter includes interviews with the protected 88, the Uniform Interstate Enforcement of person and/or the respondent (§88.004(b)). Domestic Violence Protection Orders Act, to clarify the duty of the courts and law Foreign orders do not need to be registered enforcement agencies to enforce foreign or filed in the new state in order for the (out-of-state) protective orders. order to be enforced (§88.004(e)). Orders may be entered into a statewide database if The Act states that each state must enforce the protected person chooses to have the all the terms of a foreign protective order, order entered. An agency cannot charge a including terms that the enforcing state fee for providing this service would not normally allow. For example, if (§88.005(b)(f)). the order of the issuing state provides a provision to address property and the Any agency, law enforcement officer, enforcing state’s statutes do not authorize prosecuting attorney, clerk of court, or property distribution; the enforcing state government official acting in their official would have to enforce the property capacity is immune from civil and criminal provision of the foreign order, regardless liability for acts or omissions done in good of their own laws. If the issuing state’s faith while complying with the provisions statute authorizes 5-year protective orders of the Uniform Interstate Enforcement of and the enforcing state only authorizes 2- Domestic-Violence Protection Orders Act year protective orders, the foreign order (§88.006).

Are Protective Orders From (names of those protected by the order) Texas Enforceable In Other and are likely to commit family States? violence in the future. Based on these findings I am issuing a protective order Protective orders from Texas are valid and against you for the protection of should be enforced in other states; however (names of those protected by the other states may have enacted legislation order). If you violate this order, you that affects the Texas protective order. may be arrested and punished by a fine If a client intends to travel to another state, of up to $4,000 or by confinement in the advocate should contact that state’s jail for up to one year, or both. A domestic violence coalition to determine if violation that results in family violence there any special conditions required for may be prosecuted as a separate enforcement. Although VAWA misdemeanor or felony offense. If the specifically prohibits states from requiring act is prosecuted as a separate felony out-of-state orders to be registered prior to offense, it is punishable by enforcement, victims are encouraged to confinement in prison for at least two make local law enforcement in their new years. Even if you are not arrested, by community aware of it. Many states will violating this order you may be found allow voluntary registration and advocates in contempt of court and fined up to should contact the state domestic violence $500 or confined in jail for as long as in the new state for more specific six months, or both for each violation. information. “No person, including (applicant’s name), may give permission to you/anyone to ignore or violate any See Attachment U provision of this order. During the Traveling Safely: Enforcing Protective time in which this order is valid, every Orders Throughout the United States provision of this order is in full force and effect unless a court changes the Are Warnings Required On order. In other words, even if you are Protective Orders? invited by (applicant’s name) to do something that is in violation of this Section 85.026 sets out the warnings that order, you could be arrested and/or must be a part of all protective order fined if you do so. Only a court may documents, including temporary ex parte change this order.” protective orders. The warnings in this section refer to punishment for criminal Common Misconceptions offenses under the Penal Code. The 1999 Regarding Protective Orders Legislature amended the Family Code to also require warning language that reflects Many prosecuting attorneys have their own federal law. policies regarding protective orders. These policies are often confused with law It can be very effective to have the issuing because they are followed so closely in a judge give oral warnings as well. The particular jurisdiction. If a client has local following is suggested: policies explained to her rather than law, “This court finds that you have she may be adversely impacted by this committed family violence against

© Texas Council on Family Violence, 2003 26 Note: All statute citations refer to the Texas Family Code unless otherwise noted. Do No Harm: Protective Orders in Texas misconception as she moves about the victim of crime in another state or state. country that does not have crime Some common misconceptions include: victim’s compensation for which the individual would be eligible; 1. Family violence must have occurred within the past 30 days. This policy is • The crime must be reported to law common throughout the state, but it it enforcement within a reasonable is not the law. Regarding the time period; occurrence of violence the Family • The individual must file the Code only requires that: application within three years from • Family violence has occurred; the date of the crime (the time may and be extended for good cause, including the age of the victim or • Is likely to occur in the the physical or mental incapacity of future. the victim) (Art. 56.37, Code of 2. Income eligibility requirements. Some Criminal Procedure); prosecutors’ offices impose income guidelines and may only represent • A claim may be denied or reduced indigent clients. This “gate-keeping if the claimant or victim has not measure” limits the number of cooperated with the appropriate law applicants they assist. The law does enforcement agencies (Art. 56.45 Code of Criminal Procedure). If a not impose income limits on who is victim signs an affidavit of non- eligible for a protective order. prosecution that may be viewed as 3. Individuals cannot receive a protective being uncooperative. order if a divorce order or a suit NOTE affecting parent-child relationship NOTE: All persons regardless of (SAPCR) is pending. This policy is immigration status may apply for Crime Victims’ Compensation it they meet the not the law. A victim always has the necessary criteria. United States right to apply for a protective order. citizenship is not required. A policy such as this seriously jeopardizes the safety of the applicant Individuals who qualify are: because s/he is left without any 1. An innocent victim of crime who protections during the time of the suffers emotional harm/death; divorce. 2. An authorized individual acting on What Is Crime Victims’ behalf of a victim; Compensation (CVC)? 3. A person who legally assumes the obligations or voluntarily pays certain Often individuals applying for protective expenses related to the crime on behalf orders are also victims of crime. These of the victim; victims may be eligible for Crime Victims’ 4. A dependent of a victim; Compensation (CVC). To qualify for CVC: 5. An immediate family member or household members related by blood or • The crime must occur in Texas to a marriage who require psychiatric care Texas resident or a United States or counseling as a result of the crime; resident, or the crime must involve a Texas resident who became the 6. An intervener who goes to the aid of the victim or a peace officer;

7. A peace officer, firefighter, or • Care of a child or a dependent; individual whose employment includes • Funeral and burial expenses; the duty of protecting the public (Art. • Crime scene clean-up; 56.32, Code Criminal Procedure). • Replacement costs for clothing, Qualifying crimes involves “criminally bedding, or property seized as injurious conduct,” which is defined as evidence or rendered unusable as a “conduct that occurs or is attempted, poses result of the investigation; a substantial threat of personal injury or death and is, or would be, punishable by • Reasonable attorney fees for fine, imprisonment, or death.” This assistance in filing the Crime includes sex offenses, kidnapping, Victims’ Compensation application aggravated robbery, assaultive offenses, and in obtaining benefits, if the arson, homicide, and other violent crimes claim is approved; in which the victim suffers physical or • Loss of wages and travel to seek emotional harm or death. medical treatment; Benefits can be denied or reduced if the • One time relocation expenses for behavior of the victim contributed to the domestic violence victims; crime. Behaviors of the victim are • NEW: Travel expenses related to unacceptable if s/he: attending the victim’s funeral and • Knowingly or willingly up to 10 days or $1000 of lost participated in the crime; wages as a result of bereavement.

• Is the offender or accomplice of the In 1999, the Texas Legislature authorized offender; payment to victims of family violence for • Was incarcerated in a penal rental assistance or relocation. Victims institution or on probation or parole can receive a one-time payment of $2000 for a felony involving criminally for relocation and $1800 for rental injurious conduct at the time of the assistance (Art. 56.42 Texas Criminal crime; Procedure). • Knowingly or intentionally submits In the case of catastrophic injuries false or forged information to the resulting in a total and permanent attorney general. disability, the victim may be eligible for Individuals can receive compensation for $50,000 in benefits for: benefits up to a total of $50,000. The funds may be paid to the victim/claimant • Making a home or car accessible or to service providers on behalf of the • Job training and vocational victim for the following expenses: rehabilitation • Medical, hospital, physical therapy, • Training in the use of special or nursing care; appliances • Psychiatric care or counseling; • Home health care • Loss of earnings or support; • Reimbursement of lost wages. • Loss of wages due to participation in, or attendance at, the Advocates may assist victims with the investigation, prosecutorial and application to ensure all information and judicial processes, and travel; necessary attachments are included.

Advocates can also stay informed of the CVC Program status of the victim’s case. Office of the Attorney General PO Box 12198 Crime Victims’ Compensation is a Austin, TX 78711-2548 resource of last resort for victims of crime. (800) 983-9933 Other sources such as workers Fax: (512) 320-8270 compensation or insurance should be www.oag.state.tx.us accessed first. If these resources are available to you, you may not be CONCLUSION awarded compensation. For more information about Crime Protective orders are just one piece in a Victim’s Compensation you can request system of laws that provides safety for applications or additional information individuals in abusive relationships. from: Listening to the victim and honoring her needs will enhance your ability to assist Crime Victim Services Division - her through this process.

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Attachment A Civil Protection Orders: Victims’ Views on Effectiveness

T O EN F J TM U R ST U.S. Department of Justice A I P C E E D

O J C S F A V Office of Justice Programs F M O I N A C I J S R E BJ G O OJJ DP O F PR National Institute of Justice JUSTICE National Institute of Justice R e s e a r c h P r e v i e w Jeremy Travis, Director January 1998 Civil Protection Orders: Victims’ Views on Effectiveness Summary of a Research Study by Susan L. Keilitz, Courtenay Davis, Hillery S. Efkeman, Carol Flango, and Paula L. Hannaford of the National Center for State Courts

Domestic violence has moved into the spotlight in public de- ■ The criminal record of the abuser should be considered bate in this country, particularly with the 1994 passage of the in fashioning the protection order. Violence Against Women Act. After years of considering do- In addition, researchers called for further research on the mestic violence a “family matter,” the criminal justice, legal, interactive aspects of domestic violence, such as: and medical communities are now collaborating to protect women and children from abusers. ■ Use of criminal history information in crafting orders and counseling victims. Previous research has shown that the effectiveness of civil protection orders for victims of family violence depends on ■ Effects and enforcement of specific terms of protection how specific and comprehensive the orders are and how orders. well they are enforced. Recent National Institute of Justice ■ Actions of police and prosecutors. (NIJ)-sponsored research, conducted by the National Center for State Courts (NCSC) and involving interviews with women Research design who filed protection orders, concluded that victims’ views on Initiated in 1994, after a wave of reform across the country the effectiveness of protection orders vary with how acces- had expanded the availability and scope of relief provided in sible the courts are for victims and how well established the civil protection orders, the project selected for the study links are between public and private services and support three jurisdictions using disparate processes and service resources for victims. In addition, violations of the protection models for providing protection orders: the Family Court in order increase and reported effectiveness decreases as the Wilmington, Delaware; the County Court in Denver, Colo- criminal record of the abuser becomes more serious. rado; and the District of Columbia Superior Court.

In the majority of cases, victims felt that civil protection or- Two primary measures of effectiveness were applied. First ders protected them against repeated incidents of physical was self-reported improvement in quality of life after obtain- and psychological abuse and were valuable in helping them ing the order. Second were the extent and types of problems regain a sense of well-being. A protection order alone, how- related to the protection order reported by the women, in- ever, was not as likely to be effective against abusers with a cluding repeated physical or psychological abuse and con- history of violent offenses; women in these cases were more tinued attempts by the abuser to contact the women at work likely to report a greater number of problems with violations or home. of the protection order. The researchers noted that criminal prosecution of these individuals may be required to curb Four data sources were used in the study: telephone inter- such behavior. views conducted with 285 women petitioners for protection orders approximately 1 month after they received a protec- The study confirmed previous research showing a strong tion order (temporary or permanent), followup interviews correlation between the severity and duration of abuse—the with 177 of these same women 6 months later, the civil case longer women experience abuse, the more intense the be- records of these women, and criminal history records of men havior is likely to become and the more likely women are to named in the orders. be severely injured by their abusers. These findings led researchers to suggest: Key findings ■ Safety planning is of paramount importance at the Victims. Before receiving a protection order, study partici- earliest point of contact with the victim. pants experienced abuse ranging from intimidation to injury with a weapon. Researchers found that 37 percent of the vices, medical assistance, police protection, assistance from women had been threatened or injured with a weapon; more government services, counseling services, moral support than half had been beaten or choked; and 99 percent had and guidance from friends or relatives, support groups, and been intimidated through threats, stalking, and harassment. assistance from private community organizations. More than 40 percent experienced severe physical abuse at least every few months, and nearly one-quarter had suffered Overall, 78 percent of participants reported they had used at abusive behavior for more than 5 years. least one type of service. Assistance from friends and relatives was most frequently used, with 46 percent of partici- Abusers. Among men named in the protection orders filed pants seeking help from people they knew. Next were private by participants, 65 percent had an arrest history. Research- community services, such as battered women’s shelters and ers noted that many of these men appeared to be career victim advocacy services provided by universities and pri- criminals, with more than half having four or more arrests. vate agencies (32 percent). Charges included violent crimes, drug- and alcohol-related crimes, and property, traffic, and miscellaneous offenses. Of Researchers felt that more could be done to ensure that vic- the 129 abusers with any history of violent crime, 43 percent tims are provided with user-friendly information about avail- had 3 or more prior arrests for violent crimes other than do- able services as well as information regarding protection mestic violence. orders and their enforcement through the contempt process. They suggested that judges and police both make this a pri- Effects of protection orders. The act of applying for a civil ority when dealing with domestic violence victims. In addi- protection order was associated with helping participants to tion, a more centralized court process and direct assistance improve their sense of well-being. In the initial interviews, to petitioners make it more likely that victims will develop 72 percent of participants reported that their lives had im- safety plans and seek services. proved. During followup interviews, the proportion reporting life improvement increased to 85 percent, more than 90 per- In conclusion, the researchers noted that the Violence Against cent reported feeling better about themselves, and 80 per- Women Act offers a pivotal opportunity through changes in cent felt safer. current practice to increase awareness of and access to protection orders and to enhance enforcement strategies. They Seventy-two percent of participants in the initial interviews also emphasized, however, that civil protection orders are and 65 percent in the followup interviews reported no con- only one part of the fight against domestic violence. tinuing problems. In several areas, however, the proportion reporting problems rose between the two interviews: calls Susan L. Keilitz, Project Director; Courtenay Davis; from the abuser to the participant at home or work (16 per- Hillery S. Efkeman; Carol Flango; and Paula L. cent in the initial interview and 17 in the followup), stalking Hannaford conducted this study at the National Center the victim (4 percent and 7 percent), repeated physical for State Courts. This research was supported by NIJ abuse (3 percent and 8 percent), and repeated psychologi- grant number 93–IJ–CX–0035. cal abuse (4 percent and 13 percent).

Victim services. The study also looked at the use of services Points of view in this document do not necessarily reflect the official by participants before and after obtaining a protection order. position of the U.S. Department of Justice. These were grouped into eight categories: private legal ser- FS 000191

U.S. Department of Justice BULK RATE Office of Justice Programs POSTAGE & FEES PAID National Institute of Justice DOJ/NIJ Permit No. G–91 Washington, DC 20531

Official Business Penalty for Private Use $300

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Attachment B

Magistrates Order For Emergency Protection Spanish - Magistrates Order For Emergency Protection Victim Notification Order Application for Further Detention Order for Further Dentention

NO. ______

THE STATE OF TEXAS § IN THE ______COURT § § § VS. § OF § § ______§ Defendant § ______COUNTY, TEXAS

MAGISTRATE’S ORDER FOR EMERGENCY PROTECTION

On this day, Defendant, ______, appeared before the Court after arrest for an offense involving: _____ family violence _____stalking under Section 42.072 of the Texas Penal Code. The Court considered entering a Magistrates Order for Emergency Protection pursuant to Art. 17.292 of the Texas Criminal Procedure -- Code and Rules: _____ on its own motion; _____ at the request of the: _____ victim, ______; _____ guardian of the victim, ______; _____ peace officer, ______; or _____ attorney representing the State, ______; or _____ as a matter of law after the Court’s finding that the Defendant has been arrested for an offense that also involves: _____ serious bodily injury to the victim; _____ the use of exhibition of a deadly weapon during the commission of an assault. Protected Person(s): Based on the information presented, this Court enters this Order for Emergency Protection on behalf of the following persons: ______.

Magistrates Order for Emergency Protection Page 1 of 4

Prohibited Acts: IT IS HEREBY ORDERED that effective immediately Defendant (date of birth: ______, driver’s license no. ______) is prohibited from: _____ committing family violence or an assault on the person protected under the order; _____ an act in furtherance of an offense under Section 42.072, Penal Code (stalking); _____ communicating directly with a member of the family or household or with the person(s) protected under the order in a threatening or harassing manner; _____ communicating a threat through any person to a member of the family or household or to the person protected under the order; _____ going within ______(specify minimum distance) of the residence, ______(put address here unless requesting confidentiality), place of employment, ______(put address here unless requesting confidentiality), or business, ______(put address here unless requesting confidentiality), of a member of the family or household or of the person protected under the order; _____ going within ______(specify minimum distance) the residence, ______(put address here unless requesting confidentiality), child care facility, ______(put address here unless requesting confidentiality), or school, ______(put address here unless requesting confidentiality), where a child protected under the order resides or attends. Confidentiality of Addresses: _____ Based on the facts presented, the Court further finds that for the safety of the person or persons protected under this order, the addresses and specific locations of the person or persons protected by the order remain confidential and shall be omitted from the order. Delivery of Order: IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this order: _____ to the Chief of Police in the municipality where the member of the family or household or individual protected by the order resides; _____ to the Sheriff of the county where the member of the family or household or individual protected by the order resides; _____ to the principal, director, or person in charge of the school or childcare facility attended by a person protected by the order and named herein.

Magistrates Order for Emergency Protection Page 2 of 4

_____ to the victim (if not present at hearing). Notice to the Victim: IT IS FURTHER ORDERED that a law enforcement officer shall make a good faith effort to notify, within 24 hours, the victim that this order has been issued by calling the victim’s residence and place of employment. Suspension of Concealed Handgun License:

IT IS ORDERED that the license to carry a concealed handgun of ______, Defendant, is suspended for the duration of this order. A copy of this order shall be forwarded to the ______Division of the Department of Public Safety. On receipt of this order suspending the license to carry a concealed handgun, the department shall record suspension of the license, report the suspension to the local law enforcement agencies, as appropriate, and demand surrender of the suspended license from the license holder. Duration of Order: This Order is effective upon issuance and shall remain in full force and effect until midnight on ______,____ (this date should be no less than 31 and up to 61 days from the date of issuance).

Signed at ______a.m./p.m. on this day of ______, ______.

______Judge Presiding, ______

WARNING

A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT RESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS.

NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER.

Magistrates Order for Emergency Protection Page 3 of 4

WARNINGS UNDER FEDERAL LAW

THIS ORDER IS ENFORCEABLE IN ALL FIFTY STATES, THE DISTRICT OF COLUMBIA, TRIBAL LANDS AND U.S. TERRITORIES. 18 U.S.C. §2265

INTERSTATE VIOLATION OF THIS ORDER MAY SUBJECT THE RESPONDENT TO FEDERAL CRIMINAL PENALTIES. 18 U.S.C. §§ 2261, 2262

POSSESSION, TRANSPORTATION OR RECEIPT OF A FIREARM WHILE THIS ORDER REMAINS IN EFFECT MAY BE A FELONY UNDER FEDERAL LAW PUNISHABLE BY UP TO TEN YEARS IN PRISON AND/OR A FINE.

IT IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A FIREARM OR AMMUNITION.

RESPONDENT’S ACKNOWLEDGEMENT OF RECEIPT OF ORDER

I, ______(name of Defendant), the Defendant in this case received a copy of the Magistrate’s Order For Emergency Protection in open court, on ______.

______Defendant

STATEMENT OF SERVICE

I the undersigned hereby state that I gave a copy of the Magistrate’s Order for Emergency Protection attached hereto to the Defendant named above at ______a.m./p.m. on ______.

______Name Title

Magistrates Order for Emergency Protection Page 4 of 4

NO. ______

EL ESTADO DE TEXAS § EN LA CORTE______§ § § CONTRA § DE § § ______§ Acusado § CONDADO______, TEXAS

ORDEN DE EMERGENCIA DE PROTECCIÓN DEL MAGISTRADO

En este día, el Acusado, ______, se presentó enfrente de esta Corte después de haber sido arrestado por una ofensa que involucra: [ ] violencia familiar [ ] acechando bajo la sección 42.072 del Código Penal de Texas. La Corte ha considerado una Orden de Emergencia de Protección del Magistrado como seguimiento al Artículo 17.292 de los Procedimientos Criminales de Códigos y Reglamentos de Texas: [ ] por su propia moción; [ ] requerido por: [ ] víctima, ______[ ] tutor de la víctima, ______[ ] oficial de la paz, ______[ ] fiscal representando al Estado, ______; o

[ ] como asunto de la ley después de que la Corte haya encontrado que el Acusado fue arrestado por una ofensa que involucró: [ ] serios daños físicos a la víctima; o [ ] exhibición de un arma de gravedad durante un acto de agresión. Persona(s) Protegida(s): Basado en la información que fue presentada, esta Corte otorga una Orden de Emergencia de Protección para las personas nombradas a continuación: ______.

Orden de Emergencia de Protección del Magistrado Page 1 of 4 2003 Actos Prohibidos: POR ESTE MEDIO ESTÁ ORDENADO que queda en efecto de manera inmediata, que el Acusado (fecha de nacimiento: ______, número de licencia de conducción ______) tiene prohibido: [ ] cometer actos de violencia familiar o agredir a la persona protegida bajo la orden; [ ] cometer un acto que implique una ofensa de violencia familiar bajo la Sección 42.072, del Código Penal (acecho); [ ] comunicándose directamente con un miembro de la familia o de la vivienda o con la persona protegida bajo la orden de una manera amenazante o de manera acosante; [ ] comunicando una amenaza a través de cualquier persona, hacia algún miembro de la familia de la vivienda o con la persona protegida bajo la orden; [ ] acercándose ______(especifique distancia mínima) a la residencia localizada en ______; o lugar de trabajo localizado en ______a un miembro de la familia o de la vivienda o con la persona protegida bajo la orden; [ ] acercándose______(especifique distancia mínima) a la residencia localizada en ______; guardería localizada en ______; o escuela localizada en ______, donde un niño protegido bajo esta orden atiende o vive, y [ ] posesión de un arma de fuego. Confidencia del Domicilio: [ ] Basado en los hechos presentados, la Corte encuentra que para mantener la seguridad de la persona o personas protegidas bajo esta orden, los domicilios y localidades específicas de la persona o personas protegidas por esta orden se mantendrán de manera confidencial y serán excluidas en la orden. Entrega de la Orden: ESTA ORDENADO que el Funcionario de la Corte deberá mandar una copia de esta orden a : [ ] el Jefe de Policía del municipio donde reside la persona o personas protegidas bajo esta orden. [ ] al Alguacil o Agente del condado donde reside la persona o personas protegidas bajo esta orden.

Orden de Emergencia de Protección del Magistrado Page 2 of 4 2003 [ ] al director o a la persona encargada de la escuela o guardería donde atiende una de las personas protegida y nombrada bajo esta orden.. [ ] a la víctima (sino está presente en el tribunal). Aviso a la Víctima: QUEDA ORDENADO que un oficial de la ley deberá en buena fe hacer un esfuerzo para notificarle a la víctima por medio de una llamada a su hogar o lugar de empleo, en un periodo de 24 horas, que esta orden ha sido entregada. Suspensión de la Licencia Para Portar un Arma de Fuego Ocultada:

QUEDA ORDENADO que la licencia para portar un arma de fuego ocultada de ______, Acusado, queda suspendida por la duración de esta orden. Una copia de esta orden será enviada a: Concealed Handgun Licensing Unit, Department of Public Safety, P.O. Box 4143, Austin, and Texas 78765-4143. En el momento que dicho departamento recibe la orden de suspensión de la licencia para portar armas de fuego, el departamento debe de documentar la suspensión de la licencia, reportar la suspensión a las agencias locales que hacen cumplir la ley, y pedir el rendimiento de la licencia al dueño. Duración de la Orden: Esta orden toma efecto en el momento que es emitida y se mantendrá válida hasta la media noche del día ______, 20____ (no menos de 31 y no más de 61 días de la fecha que fue emitida).

Firmada a la(s) ______a.m./p.m. en este día de ______, ______.

______

Juez Presidiendo, ______

ADVERTENCIA

ES UNA VIOLACIÓN DE ESTA ORDEN COMETER UN ACTO PROHIBIDO POR LA ORDEN, Y PUEDE SER CASTIGADO CON UNA MULTA DE NO MÁS DE $4,000 O SIENDO ENCARCELADO POR UN PERIODO DE NO MÁS DE UN AÑO O AMBOS. UN ACTO QUE RESULTA EN VIOLENCIA FAMILIAR O UNA OFENZA DE ACECHAMIENTO, PUEDE SER ENJUICIADO POR SEPARADO COMO UN DELITO MENOR O UN DELITO GRAVE. SI UN ACTO ES ENJUICIADO COMO UN DELITO GRAVE POR SEPARADO, SERÁ CASTIGADO CON ENCARCELAMIENTO EN UNA PRISIÓN POR UN PERIODO DE NO MENOS DE DOS AÑOS. POSESIÓN DE UN ARMA DE FUEGO POR UNA PERSONA QUE NO SEA UN OFICIAL DE LA PAZ, COMO ES DEFINIDO EN LA SECCIÓN 1.07, DEL CÓDIGO PENAL, QUE ESTÁ PARTICIPANDO

Orden de Emergencia de Protección del Magistrado Page 3 of 4 2003 DE MANERA ACTIVA COMO EMPLEADO DE TIEMPO COMPLETO DE UNA AGENCIA ESTATAL O UNA SUBDIVISIÓN POLÍTICA, QUE HAYA SIDO JURADO BAJO LA LEY, QUE ES SUJETO A ESTA ORDEN, PUEDE SER ENJUICIADO CON UNA OFENSA POR SEPARADO Y CASTIGADA CON ENCARCELAMIENTO.

NINGUNA PERSONA, INCLUYENDO A LA PERSONA QUE ES PROTEGIDA BAJO ESTA ORDEN, PUEDE DAR PERMISO QUE ALGUIEN IGNORE O VIOLE CUALQUIER PROVISIÓN DE ESTA ORDEN. DURANTE EL PERIODO QUE ESTA ORDEN ES VÁLIDA, TODAS LAS PROVISIONES DE ESTA ORDEN SERÁN TOTALMENTE ENFORZADAS A MENOS QUE LA CORTE CAMBIE LA ORDEN.

ADVERTENSIA BAJO LA LEY FEDERAL

ESTA ORDEN ES ENFORZADA EN LOS CINCUENTA ESTADOS, EL DISTRITO DE COLUMBIA, TIERRAS TRIBALES Y TERRITORIOS DE LOS ESTADOS UNIDOS. 18 U.S.C. §2265

VIOLACIÓN ENTRE-ESTATAL DE ESTA ORDEN PUEDE SOMETER AL ACUSADO A CRIMENES PENALES EN EL ÁMBITO FEDERAL. 18 U.S.C. §§ 2261, 2262

POSESIÓN, TRANSPORTACIÓN O RECIBIMIENTO DE UN ARMA DE FUEGO MIENTRAS ESTA ORDEN ESTÁ EN EFECTO PUEDE SER UN DELITO GRAVE BAJO LA LEY FEDERAL, Y CASTIGADA CON ENCARCELAMIENTO DE UN PERIODO DE NO MÁS DE DIES AÑOS Y/O UNA MULTA.

ES ENCONTRA DE LA LEY QUE UNA PERSONA QUE SEA SUJETO EN UNA ORDEN DE PROTECCIÓN, TENGA UNA ARMA DE FUEGO O MUNICIONES. 18 U.S.C. §922(G)(8)

RECONOCIMIENTO DEL ACUSADO DE HABER RECIBIDO LA ORDEN

Yo, ______(nombre del Acusado), el Acusado en este caso recibí una copia de la Orden de Emergencia de Protección del Magistrado en un tribunal abierto, el ______, 20___.

______Acusado

DECLARACIÓN DE SERVICIO

Yo con mi firma a continuación, estoy declarando que le di una copia aquí adjunta de la Orden de Emergencia de Protección del Magistrado al Acusado nombrado anteriormente, a la(s) ______a.m./p.m. el ______, 20___.

______Nombre Título

Orden de Emergencia de Protección del Magistrado Page 4 of 4 2003 NO: ______

STATE OF TEXAS § IN THE ______COURT

VS. § CITY OF ______

______§ ______COUNTY, TEXAS DEFENDANT

VICTIM NOTIFICATION ORDER

Pursuant to Art. 17.29 of the Texas Code of Criminal Procedure, the court finds that Defendant stands accused of: ______an offense involving family violence;

______stalking under Section 42.072 of the Texas Penal Code and HEREBY ORDERS the law enforcement agency holding the Defendant:

BEFORE RELEASING DEFENDANT:

1. To make a reasonable attempt to give personal notice of Defendant’s imminent release to the Victim(s) of the offense alleged; OR

2. To make a reasonable attempt to give notice of Defendant’s imminent release to a person designated by the Victim(s);

3. Notice of Defendant’s imminent release should be made by contacting Victim(s) at the Victim’s last known address or telephone number or by contacting Victim’s designated person at the designee’s last known telephone number or address as shown on the records of the agency.

THIS ORDER is issued in conformity with the legislative intent codified in Art. 17.29 TCCP to protect family violence victims form further harm upon the release from jail of accused violent offenders.

IT IS SO ORDERED.

Signed at ______a.m./p.m. on this ______day of ______, 200__.

______

Judge Presiding ______

Victim Notification Order Page 1 of 1 NO: ______

STATE OF TEXAS § IN THE ______COURT

VS. § CITY OF ______

______§ ______COUNTY, TEXAS DEFENDANT

APPLICATION FOR FURTHER DETENTION

Pursuant to Art. 17.291 of the Texas Code of Criminal Procedure, the undersigned applicant requests that the above named defendant be detained for ______(insert period of time not to exceed 48 hours) after bond is posted in the above referenced cause.

The defendant has been arrested in the prevention of family violence and based upon the following facts, there is probable cause to believe that the violence will continue if the defendant is released immediately upon posting bond.

______

Date: ______

______Applicant

Note: Effective September 1, 1999, if the additional period exceeds 24 hours, probable cause must exist to believe that the person committed the instant offense and during the 10 year period preceding the date the person has been arrested (check the applicable offense and attach copies of supporting documentation of requisite probable cause):

∀ on more than one occasion for an offense involving family violence; or

∀ for any other offense, if a deadly weapon, as defined in by Section 1.07 of the Penal Code, was used or exhibited during the commission of the offense or during immediate flight after the offense.

Application for Further Detention Page 1 of 1 NO: ______

STATE OF TEXAS § IN THE ______COURT

VS. § CITY OF ______

______§ ______COUNTY, TEXAS DEFENDANT

ORDER FOR FURTHER DETENTION

THIS MATTER having come before the Court on the ______day of ______, 200__, and, pursuant to Article 17.291 of the Texas Code of Criminal Procedure, the Court having considered the circumstances;

[ADDITIONAL 24-HOUR DETENTION]

THE COURT FINDS THAT:

______1. Defendant has been arrested for an offense involving family violence, AND ______2. the violence may continue if Defendant is released immediately. THEREFORE:

THE COURT ORDERS Defendant to be held in jail an additional ______hours (up to 24 hours) after the posting of the requisite bond, if any.

[ADDITIONAL 48-HOUR DETENTION]

THE COURT FINDS THAT:

______1. Probable Cause exists that during the 10-year period preceding the date of the instant offense, Defendant has been arrested on more than one occasion for an offense involving family violence; OR ______2. Probable Cause exists that during the 10-year period preceding the date of the instant offense, Defendant has been arrested for any other offense, if a deadly weapon (as defined by Section 1.07 Texas Penal Code) was used or exhibited during commission of the offense or during immediate flight after commission of the offense. THEREFORE:

THE COURT ORDERS Defendant to be held in jail an additional ______hours (up to 48 hours) after the posting of the requisite bond, if any. IT IS SO ORDERED.

Signed at ______a.m./p.m. on this ______day of ______, 200__.

______Judge Presiding

Order for Further Detention Page 1 of 1

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Attachment C

Temporary Ex Parte Protective Order and Show Cause Order Temporary Ex Parte Protective Order and Show Cause Order with Exclusion from Residence Motion and Order For Extension of Temporary Ex Parte Protective Order

No. STATE OF TEXAS FOR THE PROTECTION OF

, § IN THE DISTRICT COURT Applicant vs. § JUDICIAL DISTRICT

, § COUNTY, TEXAS Respondent TEMPORARY EX PARTE PROTECTIVE ORDER AND SHOW CAUSE ORDER

On this day the Application of Applicant for an Ex Parte Protective Order was presented to the Court.

The Court, having examined the pleadings and supporting affidavit of the Applicant, and having heard testimony of the Applicant, finds that:

(a) There is a clear and present danger that acts of family violence will be committed by Respondent before a full hearing can be held upon Applicant's request for Protective Order.

(b) Applicant and/or the other members of the family or household who are affected by this suit will suffer immediate and irreparable injury, loss, or damage for which there is no adequate remedy at law unless Respondent is immediately prohibited from the acts set forth below:

(d) Respondent has committed family violence against a member of the household within 30 days prior to the filing of the Application.

(e) There is a clear and present danger that the Respondent is likely to commit family violence against a member of the household in the foreseeable future.

I. IT IS THEREFORE ORDERED that the Clerk of this Court issue a TEMPORARY EX PARTE PROTECTIVE ORDER prohibiting Respondent, and Respondent is hereby immediately prohibited from:

(a) Committing acts of family violence;

(b) Communicating in a threatening or harassing manner with the Applicant or any member of the Applicant's family or household; Temporary Ex Parte Protective Order and Show Cause Order Page 1 of 4

(e) Damaging, transferring, encumbering, or otherwise disposing of any property owned or leased by the parties, except in the ordinary course of business, including, but not limited to removing or disabling any vehicle owned individually by the Applicant or jointly by the parties (whether so titled or not);

(f) Interfering with the exclusive use of Applicant's residence, including, but not limited to disconnecting utilities or telephone service at Applicant's residence or causing them to be disconnected;

(g) Injuring, harassing, threatening, or harming Applicant or the children or other persons named herein;

(h) Engaging in conduct directed specifically toward a person who is a member of the family or household, including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass that person, or stalking the Applicant, as stalking is defined by Section 42.072, Texas Penal Code.

(i) Harming or causing harm to come to, or removing from the possession of the Applicant or any member of the Applicant's family or household, any pets owned jointly or individually by the Applicant or in the possession of Applicant or any member of Applicant's family.

Applicant’s Name:

Residence: Street City State Zip

Place of Work: Name of Business

Street City State Zip Temporary Ex Parte Protective Order and Show Cause Order Page 2 of 4

Name of Child: D.O.B.

Name of Facility:

Location of Facility: Street City State Zip

Name of Child: D.O.B.

Name of Facility:

Location of Facility: Street City State Zip

Name of Child: D.O.B.

Name of Facility:

Location of Facility: Street City State Zip

Name of Child: D.O.B.

Name of Facility:

Location of Facility: Street City State Zip

Name of Other: D.O.B.

Relationship:

Location: Street City State Zip

II. IT IS ORDERED that the Respondent vacate Applicant's residence immediately upon receipt of this Order.

Temporary Ex Parte Protective Order and Show Cause Order Page 3 of 4

III. IT IS FURTHER ORDERED that the County Constable, Precinct , provide a law enforcement officer to accompany the Applicant to the residence covered by the order, inform the Respondent of the order to vacate, protect the Applicant while the Applicant takes possession of the residence, and protect the Applicant if Respondent refuses to vacate while Applicant takes possession of Applicant's necessary personal property, pursuant to § 86.003, Texas Family Code.

These TEMPORARY EX PARTE PROTECTIVE ORDERS shall be effective immediately and are binding on the Respondent and shall continue in full force and effect until the day of , 20 .

The requirement of a bond is hereby waived pursuant to Section 83.003, Texas Family Code.

IT IS FURTHER ORDERED that the Clerk shall issue notice ordering Respondent to appear, and Respondent is ordered to appear before this Court in the County Courthouse located at , , Texas Court, floor, room / suite on the day of , 20 , at o'clock m., to show cause why during the pendency of this case:

The Temporary Ex Parte Protective Order granted herein should not be made into a final Protective Order; the additional relief requested by the Applicant should not be granted; and the Court should not make such other and further orders respecting the parties as deemed necessary and equitable.

A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500.00 OR BY CONFINEMENT IN JAIL FOR AS LONG AS SIX MONTHS, OR BOTH. NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER.

SIGNED this day of 20 .

Judge Presiding

Temporary Ex Parte Protective Order and Show Cause Order Page 4 of 4

No. STATE OF TEXAS FOR THE PROTECTION OF

, § IN THE DISTRICT COURT Applicant vs. § JUDICIAL DISTRICT

, § COUNTY, TEXAS Respondent

TEMPORARY EX PARTE PROTECTIVE ORDER AND SHOW CAUSE ORDER

On this day the Application of Applicant for an Ex Parte Protective Order was presented to the Court.

The Court, having examined the pleadings and supporting affidavit of Applicant, finds that:

(a) There is a clear and present danger that acts of family violence will be committed by Respondent before a full hearing can be held upon Applicant's request for Protective Order.

I. IT IS THEREFORE ORDERED that the Clerk of this Court issue a TEMPORARY EX-PARTE PROTECTIVE ORDER prohibiting Respondent, and Respondent is hereby immediately prohibited from:

(a) Committing acts of family violence;

(b) Communicating in a threatening or harassing manner with the Applicant or any member of the Applicant's family or household;

Temporary Ex Parte Protective Order and Show Cause Order Page 1 of 4 County, Texas;

(g) Injuring, harassing, threatening, or harming Applicant or the children or other persons named herein;

(h) Engaging in conduct directed specifically toward a person who is a member of the family or household, including following the person, that is reasonably likely to harass, annoy alarm, abuse, torment, or embarrass that person, or stalking the Applicant, as stalking is defined by Section 42.072, Texas Penal Code.

Applicant’s Name:

Residence: Street City State Zip

Place of Work: Name of Business

Street City State Zip

Temporary Ex Parte Protective Order and Show Cause Order Page 2 of 4

Name of Child: D.O.B.

Name of Facility:

Location of Facility: Street City State Zip

Name of Child: D.O.B.

Name of Facility:

Location of Facility: Street City State Zip

Name of Child: D.O.B.

Name of Facility:

Location of Facility: Street City State Zip

Name of Child: D.O.B.

Name of Facility:

Location of Facility: Street City State Zip

Name of Other: D.O.B.

Relationship:

Location: Street City State Zip Temporary Ex Parte Protective Order and Show Cause Order Page 3 of 4

These TEMPORARY EX PARTE PROTECTIVE ORDERS shall be effective immediately and are binding on the Respondent and shall continue in full force and effect until the day of , 20 .

The requirement of a bond is hereby waived pursuant to Section 83.003, Texas Family Code.

SIGNED this day of 20 .

Judge Presiding

Temporary Ex Parte Protective Order and Show Cause Order Page 4 of 4 No. STATE OF TEXAS FOR THE PROTECTION OF

, § IN THE DISTRICT COURT Applicant vs. § JUDICIAL DISTRICT

, § COUNTY, TEXAS Respondent MOTION FOR EXTENSION OF TEMPORARY EX PARTE PROTECTIVE ORDER COMES NOW the State of Texas for the protection of Applicant in the above entitled and numbered cause, and files this, its Motion for Extension of a Temporary Ex Parte Protective Order, and for cause would respectfully show the following: I. , Respondent herein, may be served with citation and notice at . II. The court previously entered a Temporary Ex Parte Protective Order on . Pursuant to and in accordance with Texas Family Code § 84.003, Applicant now seeks an extension of said order because Respondent has not received notice and citation as required. WHEREFORE, PREMISES CONSIDERED, Applicant prays to the honorable Court to issue the following orders: Applicant prays that citation and notice be issued as required by law, and that the court enter the Order for Extension of Temporary Ex Parte Protective Order as requested above. Applicant prays that a hearing be held no later than fourteen (14) days from the filing of this motion; that upon notice and hearing the Court grant the relief requested; and that the Court dispense with the necessity of a bond. Applicant prays for such relief in law and in equity to which the Applicant shows just entitlement. Applicant prays for general relief.

Respectfully submitted,

Attorney for the State of Texas Name: Address: , Texas 7 Phone: ( ) - Fax: ( ) - SBN#

Order for Extension of Temporary Ex Parte Protective Order Page 1 of 1 No. STATE OF TEXAS FOR THE PROTECTION OF

, § IN THE DISTRICT COURT Applicant vs. § JUDICIAL DISTRICT

, § COUNTY, TEXAS Respondent

ORDER FOR EXTENSION OF TEMPORARY EX PARTE PROTECTIVE ORDER

On this day came on to be heard Applicant's Motion for Extension of Temporary Ex Parte Protective Order. The Applicant's motion is granted on this day. The requirement of a bond is hereby waived pursuant to § 83.003, Texas Family Code. It is hereby ordered that the order granted on the day of , 20 titled Temporary Ex Parte Protective Order, is extended the day of 20 , at 11:59 o'clock p.m. IT IS FURTHER ORDERED that the clerk shall issue a notice ordering the Respondent to appear, and Respondent is hereby ordered to appear before the Court, room , County Courthouse located at Texas, on the day of , 20 , at o'clock m., to show cause why during the pendency of the case: The Temporary Ex Parte Protective Order granted herein should not be made into a final protective order. The Court should make such other and further orders respecting the parties as deemed necessary and equitable.

Signed this day of , 20 .

Judge Presiding

Order for Extension of Temporary Ex Parte Protective Order Page 1 of 1

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Attachment D Senate Bill 433: Protective Order for Sexual Assault Victims

S.B.ANo.A433

1 AN ACT

2 relating to the issuance and enforcement of protective orders to

3 protect victims of sexual assault; providing criminal penalties.

4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

5 SECTIONA1.AATitle 1, Code of Criminal Procedure, is amended

6 by adding Chapter 7A to read as follows:

7 CHAPTERA7A. PROTECTIVE ORDER FOR VICTIM OF SEXUAL ASSAULT

8 Art.A7A.01.AAAPPLICATION FOR PROTECTIVE ORDER. (a)AAA

9 person who is the victim of an offense under Section 22.011 or

10 22.021, Penal Code, or a prosecuting attorney acting on behalf of

11 the person, may file an application for a protective order under

12 this chapter without regard to the relationship between the

13 applicant and the alleged offender.

14 (b)AAAn application for a protective order under this chapter

15 may be filed in a district court, juvenile court having the

16 jurisdiction of a district court, statutory county court, or

17 constitutional county court in:

18 (1)AAthe county in which the applicant resides; or

19 (2)AAthe county in which the alleged offender resides.

20 Art.A7A.02.AATEMPORARY EX PARTE ORDER. If the court finds

21 from the information contained in an application for a protective

22 order that there is a clear and present danger of a sexual assault

23 or other harm to the applicant, the court, without further notice to

24 the alleged offender and without a hearing, may enter a temporary ex

1 S.B.ANo.A433

1 parte order for the protection of the applicant or any other member

2 of the applicant ’s family or household.

3 Art.A7A.03.AAREQUIRED FINDINGS; ISSUANCE OF PROTECTIVE

4 ORDER. (a)AAAt the close of a hearing on an application for a

5 protective order under this chapter, the court shall find whether

6 there are reasonable grounds to believe that the applicant is:

7 (1)AAthe victim of a sexual assault; and

8 (2)AAthe subject of a threat that reasonably places the

9 applicant in fear of further harm from the alleged offender.

10 (b)AAIf the court finds reasonable grounds to believe that

11 the applicant is the victim of a sexual assault and is the subject

12 of a threat that reasonably places the applicant in fear of further

13 harm from the alleged offender, the court shall issue a protective

14 order that includes a statement of the required findings.

15 Art.A7A.04.AAAPPLICATION OF OTHER LAW. To the extent

16 applicable, except as otherwise provided by this chapter, Title 4,

17 Family Code, applies to a protective order issued under this

18 chapter.

19 Art.A7A.05.AACONDITIONS SPECIFIED BY ORDER. (a)AAIn a

20 protective order issued under this chapter, the court may:

21 (1)AAorder the alleged offender to take action as

22 specified by the court that the court determines is necessary or

23 appropriate to prevent or reduce the likelihood of future harm to

24 the applicant or a member of the applicant ’s family or household; or

25 (2)AAprohibit the alleged offender from:

26 (A)AAcommunicating directly or indirectly with

27 the applicant or any member of the applicant ’s family or household

2 S.B.ANo.A433

1 in a threatening or harassing manner;

2 (B)AAgoing to or near the residence, place of

3 employment or business, or child-care facility or school of the

4 applicant or any member of the applicant ’s family or household;

5 (C)AAengaging in conduct directed specifically

6 toward the applicant or any member of the applicant ’s family or

7 household, including following the person, that is reasonably

8 likely to harass, annoy, alarm, abuse, torment, or embarrass the

9 person; and

10 (D)AApossessing a firearm, unless the alleged

11 offender is a peace officer, as defined by Section 1.07, Penal Code,

12 actively engaged in employment as a sworn, full-time paid employee

13 of a state agency or political subdivision.

14 (b)AAIn an order under Subsection (a)(2)(B), the court shall

15 specifically describe each prohibited location and the minimum

16 distance from the location, if any, that the alleged offender must

17 maintain. This subsection does not apply to an order with respect

18 to which the court has received a request to maintain

19 confidentiality of information revealing the locations.

20 (c)AAIn a protective order, the court may suspend a license

21 to carry a concealed handgun issued under Section 411.177,

22 Government Code, that is held by the alleged offender.

23 Art.A7A.06.AAWARNING ON PROTECTIVE ORDER. (a)AAEach

24 protective order issued under this chapter, including a temporary

25 ex parte order, must contain the following prominently displayed

26 statements in boldfaced type, capital letters, or underlined:

27 "A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR

3 S.B.ANo.A433

1 CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500 OR BY CONFINEMENT IN

2 JAIL FOR AS LONG AS SIX MONTHS, OR BOTH."

3 "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS

4 ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY

5 PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS

6 VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT

7 UNLESS A COURT CHANGES THE ORDER."

8 "IT IS UNLAWFUL FOR ANY PERSON, OTHER THAN A PEACE OFFICER, AS

9 DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT

10 AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL

11 SUBDIVISION, WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A

12 FIREARM OR AMMUNITION."

13 (b)AAEach protective order issued under this chapter, except

14 for a temporary ex parte order, must contain the following

15 prominently displayed statement in boldfaced type, capital

16 letters, or underlined:

17 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED

18 BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY

19 CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH. AN ACT THAT

20 RESULTS IN A SEPARATE OFFENSE MAY BE PROSECUTED AS A SEPARATE

21 OFFENSE IN ADDITION TO A VIOLATION OF THIS ORDER."

22 SECTIONA2.AASubsections (a), (b), and (c), Article 14.03,

23 Code of Criminal Procedure, are amended to read as follows:

24 (a)AAAny peace officer may arrest, without warrant:

25 (1)AApersons found in suspicious places and under

26 circumstances which reasonably show that such persons have been

27 guilty of some felony, violation of Title 9, Chapter 42, Penal Code,

4 S.B.ANo.A433

1 breach of the peace, or offense under Section 49.02, Penal Code, or

2 threaten, or are about to commit some offense against the laws;

3 (2)AApersons who the peace officer has probable cause

4 to believe have committed an assault resulting in bodily injury to

5 another person and the peace officer has probable cause to believe

6 that there is danger of further bodily injury to that person;

7 (3)AApersons who the peace officer has probable cause

8 to believe have committed an [the] offense defined by Section

9 25.07, Penal Code (violation of Protective Order), or by Section

10 38.112, Penal Code (violation of Protective Order issued on basis

11 of sexual assault), if the offense is not committed in the presence

12 of the peace officer; or

13 (4)AApersons who the peace officer has probable cause

14 to believe have committed an assault resulting in bodily injury to a

15 member of the person ’s family or household.

16 (b)AAA peace officer shall arrest, without a warrant, a

17 person the peace officer has probable cause to believe has

18 committed an offense under Section 25.07, Penal Code (violation of

19 Protective Order), or Section 38.112, Penal Code (violation of

20 Protective Order issued on basis of sexual assault), if the offense

21 is committed in the presence of the peace officer.

22 (c)AAIf reasonably necessary to verify an allegation of a

23 violation of a protective order or of the commission of an assault

24 against a member of the family or household, a peace officer shall

25 remain at the scene of the investigation to verify the allegation

26 and to prevent the further commission of the violation or of family

27 violence.

5 S.B.ANo.A433

1 SECTIONA3.AAChapter 38, Penal Code, is amended by adding

2 Section 38.112 to read as follows:

3 Sec.A38.112.AAVIOLATION OF PROTECTIVE ORDER ISSUED ON BASIS

4 OF SEXUAL ASSAULT. (a)AAA person commits an offense if, in

5 violation of an order issued under Chapter 7A, Code of Criminal

6 Procedure, the person knowingly:

7 (1)AAcommunicates directly or indirectly with the

8 applicant or any member of the applicant ’s family or household in a

9 threatening or harassing manner;

10 (2)AAgoes to or near the residence, place of employment

11 or business, or child-care facility or school of the applicant or

12 any member of the applicant ’s family or household; or

13 (3)AApossesses a firearm.

14 (b)AAIf conduct constituting an offense under this section

15 also constitutes an offense under another section of this code, the

16 actor may be prosecuted under either section or under both

17 sections.

18 (c)AAAn offense under this section is a Class A misdemeanor.

19 SECTIONA4.AASubsection (c), Section 46.04, Penal Code, is

20 amended to read as follows:

21 (c)AAA person, other than a peace officer, as defined by

22 Section 1.07, actively engaged in employment as a sworn, full-time

23 paid employee of a state agency or political subdivision, who is

24 subject to an order issued under Section 6.504 or Chapter 85, Family

25 Code, under Article 17.292 or Chapter 7A, Code of Criminal

26 Procedure, or by another jurisdiction as provided by Chapter 88,

27 Family Code, commits an offense if the person possesses a firearm

6 S.B.ANo.A433

1 after receiving notice of the order and before expiration of the

2 order.

3 SECTIONA5.AAThis Act takes effect September 1, 2003.

______President of the SenateAAAAAAAAAAAAASpeaker of the House

I hereby certify that S.B.ANo.A433 passed the Senate on

AprilA3,A2003, by the following vote:AAYeasA31, NaysA0.

______AAAASecretary of the Senate

I hereby certify that S.B.ANo.A433 passed the House on

MayA20,A2003, by a non-record vote.

______AAAAChief Clerk of the House

Approved:

______AAAAAAAAAAAAADate

______AAAAAAAAAAAGovernor

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Attachment E Recent Case Law on Protective Orders

RECENT CASE LAW ON PROTECTIVE ORDERS

Updated by Nancy Flores, JD, Public Policy Specialist, Texas Council on Family Violence Original text by Sharon Brooks, J.D., Chief, Protective Orders Division, Travis County Attorney’s Office

(NEW) Validity of Magistrate’s such statutory provisions to satisfy Orders of Emergency Protection constitutional scrutiny; (3) the availability In an appellate case decided on July 25, of the writ of habeus corpus procedure 2003, Ex Parte Roberto Flores, the Court affords one the opportunity to obtain an of Appeals, Eighth District of Texas in El adversarial hearing to contest the Paso affirmed the case of Roberto Flores. emergency protective order which The appellate court determined that ameliorates the ex parte nature of the MOEPs are constitutionally valid and that procedure. it is the temporary and emergency nature of these orders that allows them to pass Although no court in this state had constitutional muster. determined the constitutionality of Article 17.292, courts in other jurisdictions have Flores challenged the constitutionality and ruled on the constitutionality of statutes validity of Magistrate’s Orders of similar to the one that was under Emergency Protection (MOEP). Flores consideration in Flores. Previously, an alleged that his constitutional rights Illinois appellate court in Sanders v. including the right to a jury trial, Shephard held that an emergency entitlement to counsel, the right to due protective order issued pursuant to a course of law and the ability to petition for domestic violence act met procedural due redress of grievances found in the Texas process requirements because evidence of Constitution were violated by Article domestic violence constitutes a showing of 17.292 of the Texas Code of Criminal exigent circumstances (Ill.App.Dist.1989). Procedure. He claimed that he was not Similarly, the New York District Court in afforded any of these rights by being People v. Koertge upheld the issuance of subjected to a MOEP. protective orders without benefit of an adversarial hearing (N.Y.Dist.Ct1998). The court of appeals affirmed the trial Furthermore, in State v. John Doe, the court’s decision denying Flores’ request Connecticut Superior Court reasoned that for a writ of habeus corpus. The Court the need for prompt assumption of judicial affirmed that (1) appellant did not raise control following a family violence arrest the “as-applied” challenge to the outweighed the need for adversary constitutionality of a statute; (2) although procedures and held that the protective due process requires that when a order was constitutionally entered governmental entity seeks to terminate a (Conn.Super.2000). protected interest, it must afford notice and opportunity for a hearing before the Appealabilty of Protective Orders termination becomes effective, it is the There is a split of opinion among the Texas temporary and emergency nature of Courts of Appeals over whether a emergency protective orders that allows protective order is an appealable order. In Normand v. Fox, 940 S.W.2d 401 (Tex App.—Waco, 1997, no writ), the Court of Appeals in Waco held that a protective In re Cummings, 13 S.W.3d 472 (Tex. order is not an appealable order because App.—Corpus Christi, 2000, no pet.), the the trial court retains the power to modify Court held that a protective order is a final, the protective order, thereby “clouding” its appealable judgment because it does finality. The Court noted that although the dispose of all issues and parties, and Family Code designates a modification of because the duration of the injunctive relief a Suit Affecting the Parent Child it provides does not depend upon further Relationship as a new suit, it does not order of the court. The Court went further, designate a protective order modification addressing the issue of whether the appeal to be a new suit. The Court found that was moot because the protective order had because of a trial court’s ongoing power expired during the appeal process. The and the ability to revise a protective order Court held that it was not moot even if the at any time, the court does not finally underlying order had expired, because a dispose of all issues and parties in a protective order carries a “significant protective order, and therefore, the social stigma,” as well as legal protective order is an interlocutory order. repercussions that include the requirement As interlocutory orders may only be that a court consider a history of family appealed if there is specific legislative violence in child custody determinations. authority to do so, the lack of such specific The Court followed its own ruling in authority regarding protective orders Streidel v. Streidel, 15 S.W.3d 163 (Tex. precludes their appeal. The Waco court’s App.—Corpus Christi, 2000, no pet.), holding has been followed by the Third holding in that case that a protective order Court of Appeals in Austin, which, in an is appealable, and finding that it was abuse unpublished opinion, declined to entertain of judicial discretion not to allow the appeal of a protective order for the same respondent an opportunity to present reasons. evidence as to the occurrence of family violence and the probability of future Part of the difficulty in appealing violence. (Note: In Streidel, the Court protective orders has been the transitive also stated in dicta, although it was not an nature of protective orders, which are issue before the Court, that even though a effective for just a short period of time protective order case is a civil case, a (now up to two years, but until September respondent may have a right to appointed 1999, for a maximum of one year). The counsel because the respondent may lose Legislature has entertained specific personal freedom if the protective order is legislation establishing an expedited granted, and s/he faces incarceration for process for appeal of protective orders in failure to abide by the terms of the order.) several recent legislative sessions Family Relationship In James v Hubbard, 21 S.W.3d 558 (Tex. (including the 2001 legislative session), App.—San Antonio, 2000, no pet.), the but the legislation has not passed. San Antonio Court of Appeals held that an appeal of a protective order does not However, recently, several Courts of become moot because the protective order Appeals, including Corpus Christi, San has expired, as collateral consequences of Antonio, and Fort Worth, have held that the protective order include a significant protective orders are appealable orders. In social stigma. The issue appealed in James

© Texas Council on Family Violence, 2003 2 was whether the family relationship future, the court must enter a protective necessary to obtain a protective order, if it order. The Fort Worth Court reasoned that had been established by marriage, was by the plain and common meaning of the terminated by divorce. The Court held that language in the statute, the trial court is the relationship is terminated by divorce, designated as the sole finder of fact in a but not until the divorce is clearly protective order case. The Court noted announced in open court or a written further that although “court” is defined, judgment is signed. (Note, however, that there is no reference to a jury or trier of none of the relationships by affinity that fact in Chapters 71 through 85 of the are created by a marriage are terminated by Family Code, the chapters which govern divorce or even by death if a child of the protective orders. Finally, the Court stated marriage is living. In that case, for that as it was not possible to comply with purposes of relationship, the marriage is the protective order statute’s mandate to considered to continue as long as a child of hold the hearing within 14 days (Tex. Fam. the marriage is alive. Tex. Gov’t Code Code, sec. 84.001 (a)) and also comply Ann. Sec. 573.024 (Vernon 1994 & Supp. with the rule that requires filing of a 2001)). The San Antonio Court had written request for a jury trial not less than previously determined that a protective 30 days in advance of trial (Tex. R. Civ. P. order issued pursuant to section 81.001 of 216 (a)), and as all statutes are presumed to the Texas Family Code was a final, be enacted by the legislature with full appealable judgment. See James v. knowledge of existing law and are to be Hubbard, 985 S.W.2d 516, (Tex. App.— construed in harmony with existing law, San Antonio 1998, no pet.). the clear, direct, and unambiguous interpretation of these statutes requires the finding that there is no right to a jury trial Right to Jury Trial in a protective order case. The Fort Worth Court of Appeals, in Winsett v. Edgar, 22 S.W.3d 510 (Tex. App.—Fort Worth, 2000, pet. den.), held Double Jeopardy that a protective order is a final, appealable The issue of whether or not the protection order because it disposes of all the issues of the Double Jeopardy Clause of the and parties in the underlying proceeding. United States Constitution attaches in The issue before the Court in Winsett was criminal contempt prosecutions was whether the respondent in a protective addressed by the United States Supreme order case was entitled to a jury trial. In Court in United States v. Dixon, 509 U.S. holding that there is no entitlement to a 688 (1993). In one of the two consolidated jury trial in protective order cases, the cases addressed in Dixon, the defendant Court followed its own ruling in Williams had been found guilty on four counts of v Williams, 19 S.W.3d 544, (Tex. App.— criminal contempt for physically assaulting Fort Worth, 2000, pet. den.). In Williams, his wife and otherwise violating two the Court stated that section 85.001 of the protective orders. He was subsequently Texas Family Code states clearly and indicted for assault, assault with intent to unambiguously that at the close of a kill, and three counts of threatening to hearing on a protective order application, if injure another, all based on the events at the court finds that family violence has issue in the contempt proceeding. A occurred and is likely to occur in the majority of the Court found that the “same

© Texas Council on Family Violence, 2003 3 elements” test of Blockburger v. United Court of Criminal Appeals held that States, 284 U.S. 299 (1932), should be the prosecution for criminal interference with primary test used in evaluating double child custody was barred by double jeopardy claims, although they could not jeopardy because the defendant had been agree on how the test should be applied. convicted of criminal contempt based on Under Blockburger, where the same act or the same conduct (taking the child to live transaction constitutes a violation of two in another country without court approval). distinct statutory provisions, the test to be In Ex parte Arenivas, 6 S.W.3d 631 (Tex. applied to determine whether there are two App.—El Paso, 1999, no pet.), the El Paso offenses or only one is whether each Court of Appeals held that a contempt provision requires proof of an additional conviction for violation of a protective fact which the other does not. The Court order by assaulting the applicant and her in Dixon held, in a fractured plurality child did not bar subsequent criminal opinion, that double jeopardy protections prosecution for injury to a child. The apply to criminal contempt prosecutions, Court reasoned that even though the and that double jeopardy barred criminal “knowing” culpable mental state and prosecution for assault following assaultive elements were the same in each prosecution for criminal contempt for offense, the injury to a child offense violating a civil protective order which required that the State prove an element prohibited assault on the victim. However, not found in the contempt offense (that the the Court found that the contempt victim was under the age of fourteen), and prosecution did not bar subsequent the contempt offense required the movant criminal prosecutions for assault with to prove several elements not found in the intent to kill and threatening to kidnap or criminal offense (that the defendant and injure another, as those offenses required victim were members of the same family proof of elements not required to be or household, and that the defendant knew proven in the contempt offense his conduct violated a court order). More (respectively, proof of specific intent to recently, the Austin Court of Appeals held kill and proof of specific threats to kidnap, in Ex parte Reese, 23 S.W.3d 54 (Tex. to inflict bodily injury, or to damage App.—Austin, 2000, pet. ref’d.), that the property), and the contempt offense defendant’s conviction for criminal required proof of elements not required to contempt of a protective order by going be proven in those criminal offenses (proof within 200 yards of the applicant did not of knowledge of the protective order and bar criminal prosecution for stalking that willful violation of the protective order). arose out of the same incident. In applying the Blockburger same elements test, the Prior to Dixon, Texas courts had Court first considered whether to focus on consistently held that a criminal contempt the elements of the penal statute, as federal action did not prohibit a subsequent courts generally do, or whether to follow criminal prosecution based on the same the tradition of Texas courts and focus on conduct. See Ex parte Williams, 799 S.W. the elements alleged in the charging 2d 304 (Tex. Crim. App. 1990). However, instrument. The Court, following Parrish following Dixon, there have been several v. State, 869 S.W.2d 352, 354 (Tex. Crim. cases in Texas in which the issue has been App. 1994), decided that the focus should addressed. In Ex parte Rhodes, 974 be on the elements alleged in the charging S.W.2d 735 (Tex. Crim. App. 1998), the instrument. The Court reasoned that the

© Texas Council on Family Violence, 2003 4 criminal stalking prosecution was not The Court noted that the contempt order barred because failure to stay a specified only addressed outward conduct and did distance away from the applicant’s not go at all to the mental state of the residence was not an element of the defendant with respect to the effect of his stalking indictment, and the stalking conduct on the applicant. The Court also indictment contained many elements that found that the stalking indictment charged were not part of the contempt offense, that the defendant’s conduct caused the including that the defendant shot out a victim to be placed in fear of bodily injury window in the victim’s residence (a factual or death, an additional element that was allegation), and that the defendant engaged not contained in the contempt order (a in conduct that he knew or reasonably causation element). believed the victim would regard as threatening bodily injury or death (a mental element).

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Attachment F

Protective Order Intake Form Application for Protective Order Affidavit in Support of Protective Order Application Order or Show Cause Hearing on Application for Protective Order Order Withholding from Earnings for Child Support Final Protective Order with Attachments

PROTECTIVE ORDER INTAKE FORM

I. APPLICANT’S INFORMATION: DL #: State # Applicant’s Name: Date of Birth: / / Age: Social Security Number: - - Race: Sex: Home Address: City: Zip Code: Home Phone #: Mailing Address: Applicant’s Place of Employment and Work Address: Work Phone #: Applicant’s cell phone # Pager #: Other Address to contact Applicant:

Do you currently live with Respondent? YES / NO Is Applicant’s residence or work address or telephone # to be kept confidential from Respondent? Y / N If yes, please specify which one or both

II. RESPONDENT’S INFORMATION: DL #: State # Respondent’s Name: Date of Birth: / / Age: Social Security Number: - - Race/Ethnicity Sex: Height: Weight: Build: Eyes: Hair: Skin: Marital Status: Is Respondent a United States Citizen? Y / N Home Address: City: Zip Code: Home Phone #: Respondent’s Place of Employment and Work Address: Work Phone #: Name of Supervisor: Work Hours: Where else might respondent be found?______Who else lives there?______

Is the respondent on Probation or Parole? YES / NO If yes, name of Probation/Parole Officer: Phone #: For which offense is the respondent on Probation/Parole?

Protective Order Intake Form Page 1 of 6 PROTECTIVE ORDER INTAKE FORM

Other known arrests/convictions______Outstanding warrants? Y / N If yes, for what offense?______Respondent’s vehicle license plate #______, state______, expiration______VIN # ______Year______Make______Model______Style______Color______

III. INFORMATION REGARDING CHILDREN OF THE MARRIAGE/RELATIONSHIP A. List the names of minor children of this marriage/relationship, including their dates of birth and social security numbers:

NAME DATE OF BIRTH SOCIAL SECURITY NUMBER / / - - / / - - / / - - / / - - / / - -

Do these children live with you? YES / NO If not, with whom do they live?

B. List the names and ages of the minor children of other marriages/relationship(s):

NAME DATE OF BIRTH SOCIAL SECURITY NUMBER / / - - / / - - / / - - / / - - / / - -

Do these children live with you? YES / NO If not, with whom do they live?

IV. WHAT IS THE RELATIONSHIP BETWEEN THE APPLICANT AND THE RESPONDENT? Spouse Member of household Former member of household

Protective Order Intake Form Page 2 of 6 PROTECTIVE ORDER INTAKE FORM Biological parents of same child Family member by blood or marriage Divorced Other:

V. MARITAL STATUS AND DIVORCE PROCEEDINGS

If you are presently married (legally or by common-law), has a divorce been filed? YES / NO If yes, what is the cause number? If yes, who is your attorney in the divorce case? If yes, when was the divorce filed? If you were married to the respondent in the past, when was the divorce finalized? In what county was your divorce finalized?

VI. COURT ORDERS OR PROCEEDINGS REGARDING CHILDREN Are there any court orders or court proceedings regarding your children (for example, child support/visitation,

Attorney General Case, paternity suit, Child Protective Services case)? YES / NO If yes, what is the cause number? Who was your attorney?

VII. HOUSEHOLD RESIDENCY

Are you requesting an order excluding the respondent from the home until the day of hearing? YES / NO

Have you resided at that address in the past 30 days? YES / NO

Has the respondent committed family violence within the last 30 days? YES / NO Do you own or lease the home? Whose name is on the lease/deed? Yours / respondent’s / both / other ______(specify)

How long would you like the final Protective Order to be in effect? ONE YEAR / TWO YEARS

VIII. PROHIBITED LOCATIONS AND MINIMUM DISTANCES Are you requesting an order prohibiting the respondent from going within a certain distance

of you or a member of the household or family? YES / NO If so, list the persons and/or places (include residence & work addresses as well as, children’s schools or daycares if applicable).

Protective Order Intake Form Page 3 of 6 PROTECTIVE ORDER INTAKE FORM Name Relationship Address City State

IX. FAMILY VIOLENCE HISTORY

A. Was there a weapon involved in the most recent incident of abuse? YES / NO If yes, what type of weapon?

B. Was Respondent under the influence of drugs, alcohol or chemical intoxicants

when abuse occurred? YES / NO If yes, what kind?

C. Is Respondent active duty military? YES / NO Name and Telephone Number of Unit and Commander:

D. Was medical treatment received as a result of this incident? YES / NO If so, was it: EMS Date of treatment: Hospital Date of treatment: Doctor Date of treatment:

Have you ever received medical treatment as a result of respondent’s violence? YES / NO If yes, where and when?

Protective Order Intake Form Page 4 of 6 PROTECTIVE ORDER INTAKE FORM

E. Was law enforcement called as a result of this incident of violence? YES / NO If yes, what department responded? If yes, what is the case number? If not, why not?

Did you make a complaint to law enforcement? YES / NO

Were criminal charges filed as a result of this incident? YES / NO

Was the respondent arrested? YES / NO

Was a Magistrate’s Order for Emergency Protection (MOEP) issued? YES / NO Have charges ever been filed against the respondent as a result of

family violence to Applicant or anyone? YES / NO If yes, when and what happened to the case?

F. Do you believe Respondent has a drug or alcohol problem? YES / NO If yes, why do you believe this?

G. Has the Respondent ever been abusive to your children? YES / NO If yes, when and in what way?______

Was the abuse reported to Child Protective Services? YES / NO

Protective Order Intake Form Page 5 of 6 PROTECTIVE ORDER INTAKE FORM

H. Has the Respondent ever been abusive to animals? YES / NO If yes, when and in what way? ______

X. PHOTO DOCUMENTATION

Were photos taken of your injuries? YES / NO If yes, who took them?

XI. PROPERTY

Do you have property the respondent may want? YES / NO

Does the respondent have property that you want? YES / NO

XII. FIREARMS

Does Respondent have a license to carry a concealed handgun? YES / NO

If yes, are you asking that the court suspend this license? YES / NO

Does Respondent have any firearms? YES / NO

If yes, are you asking that the court order respondent to surrender firearms? YES / NO To whom should the respondent surrender them?

XIII. TEMPORARY FINANCIAL SUPPORT Are you requesting temporary support from Respondent for: Applicant Child(ren) Other If support is requested, Respondent’s monthly income after taxes: $

Do you have proof of Respondent’s income? YES / NO

Protective Order Intake Form Page 6 of 6

NO.______

IN THE MATTER OF § IN THE ______

______, APPLICANT § COURT OF

AND § ______

______, RESPONDENT § COUNTY, TEXAS

APPLICATION FOR PROTECTIVE ORDER

TO THE HONORABLE JUDGE OF SAID COURT

[COUNTY, DISTRICT OR PRIVATE ATTORNEY’S OFFICE OR NAME] is making this Application for a Protective Order on behalf of Applicant for the protection of and in the best interest of person (s) alleged to be victims of family violence.

PARTIES AND RESIDENCE

Applicant is [APPLICANT’S NAME], a resident of ______County, Texas, who resides at

#1 [APPLICANT’S ADDRESS] or

#2 a location which Applicant requests remain confidential for reasons of safety.

Respondent is [RESPONDENT’S NAME], whose address for service of process is [RESPONDENT’S ADDRESS].

Applicant requests that this Protective Order prohibit conduct by the Respondent against the following minor children: [NAMES OF CHILDREN]

Applicant further requests that this Protective Order prohibit conduct by the Respondent against the following persons who are members of the Applicant’s family or household:

[OTHER NAMES OF INDIVIDUALS IN APPLICANTS HOUSEHOLD]

RELATIONSHIP OF PARTIES

The relationship between Applicant and Respondent is that of: #1 husband and wife

Application for Protective Order Page 1 of 5

#2 former spouses of each other

#3 current household members

#4 former household members

#5 individuals related by blood or marriage

#6 individuals who are parents of the same child

#7 individuals who are or who have been in a dating relationship, as defined in section 71.0021, Family Code.

IF DIVORCED

The decree required pursuant to Section 82.006 of the Family Code is attached to this application; or

The decree required pursuant to Section 82.006 of the Family Code is not attached due to the immediacy of this Application and the unavailability of documentation. Any decree which may be required will be filed with this Court prior to the hearing of this Application.

IF APPLICATION IS BASED ON VIOLATION OF PREVIOUS PROTECTIVE ORDER

The copy required pursuant to Section 82.008 (or 82.009) of the Family Code is attached to this application; or

The copy required pursuant to Section 82.008 (or 82.009) of the Family Code is not attached due to the immediacy of this application and unavailability of documentation, but will be filed with this court prior to the hearing of this application.

GROUNDS

Applicant alleges that Respondent has committed acts of family violence as defined in Section 71.004, Family Code, and that family violence is likely to occur in the future.

Application for Protective Order Page 2 of 5 REQUEST FOR PROTECTIVE ORDER

WHEREFORE, PREMISES CONSIDERED, Applicant requests that citation and notice be issued as required by law and, that after notice and hearing, a protective order is issued prohibiting Respondent from:

(a) going within ______yards of the following places: APPLICANT’S RESIDENCE, whether specifically identified herein or not; [APPLICANT’S ADDRESS] APPLICANT’S PLACE OF EMPLOYMENT, whether specifically identified herein or not; [APPLICAN’T WORK ADDRESS] CHILDREN’S SCHOOLS OR DAY CARE, whether specifically identified herein or not; [LIST ALL SCHOOL AND/OR DAY CARE NAMES AND ADDRESSES] (b) committing acts of family violence; (c) communicating directly or through any person in a threatening or harassing manner with any member of the Applicant's family or household or with the person on whose behalf this Application is brought; (d) engaging in conduct directed specifically toward a person who is a member of the family or household, including following the person that is reasonably likely to harass, annoy, alarm, abuse, torment or embarrass that person; (e) possessing a firearm; (f) suspending Respondent’s license to carry a concealed handgun; Applicant further requests that the following orders be entered: (a) Applicant is granted exclusive use and possession of the residence and personal property located at: ______; (b) Applicant is granted possession of the children, ______; (c) Respondent is ordered to pay support to Applicant for the children, ______; (d) Respondent is to complete a battering intervention and prevention program; (e) removing the child(ren) named herein from the possession of the Applicant, or from ______County, Texas; (f) transferring, encumbering or otherwise disposing of any property owned or leased by Applicant and Respondent except in the normal course of business; (g) Respondent is ordered to perform acts determined by the court as necessary or appropriate to prevent or reduce the likelihood of family violence.

Application for Protective Order Page 3 of 5

REQUEST FOR TEMPORARY EX PARTE PROTECTIVE ORDER

Based on the conduct of Respondent as alleged in Applicant’s sworn affidavit, Applicant reasonably fears that there is a clear and present danger of family violence, which will cause applicant immediate and irreparable injury, loss and damage, for which Applicant has no adequate remedy at law. Applicant, therefore, requests the Court, immediately and without hearing, to issue a Temporary Ex Parte Protective Order for the protection of Applicant in accordance with the above.

[IF EXCLUSION FROM RESIDENCE IS REQUESTED ADD THE FOLLOWING:] REQUEST FOR EXCLUSION In accordance with the attached sworn affidavit, Applicant asks the Court to order Respondent to vacate the residence located at [APPLICANT’S ADDRESS] immediately upon receipt of the Temporary Ex Parte Protective Order and grant Applicant exclusive use and possession of the residence pending further order of the court. In addition, as part of this Temporary Ex Parte Protective Order, Applicant seeks an order of the Court directing the [COUNTY SHERIFF’S DEPARTMENT, MUNICIPAL POLICE DEPARTMENT, OTHER LAW ENFORCEMENT AGENCY] to: a. accompany Applicant to the residence covered by the order; b. inform the Respondent that the court has ordered that the Respondent be excluded from the residence; c. protect the Applicant while the Applicant takes possession of the residence and the Respondent takes possession of the Respondent’s necessary personal property.

ATTORNEY’S FEES AND COSTS OF COURT

It was necessary for the [COUNTY, DISTRICT OR PRIVATE ATTORNEY], to present this action on behalf of Applicant. Pursuant to Section 71.041, Family Code, reasonable attorney's fees and costs of court should be assessed against Respondent, a party to this action or a person who has committed family violence, and judgment should be rendered in favor of this attorney, and against Respondent. Said fees should be payable to ______, located at ______, on or before ______, 20__.

PRAYER Applicant prays that the court:

Application for Protective Order Page 4 of 5 1. dispense with the necessity of a bond; 2. that a hearing be held on this Application for Protective Order and, after notice and hearing, enter the Protective Order requested above; 3. immediately issue a Temporary Ex Parte Protective Order in conformity with the allegations herein prohibiting Respondent from the acts enumerated herein until a hearing can be held; 4. that citation and notice be issued to Respondent as required by law; 5. that the Respondent be ordered to pay the filing fees and all other costs of court to the clerk of court and reasonable attorney's fees. 6. for general relief in law or in equity to which Applicant shows just entitlement.

Applicant prays for general relief.

Respectfully submitted,

______SBOT: ______

Application for Protective Order Page 5 of 5 AFFIDAVIT IN SUPPORT OF PROTECTIVE ORDER

My name is

On at approximately a.m./p.m. at (date of recent incident) (time) (location of incident)

, Texas / assaulted or threatened (County) (Name of Respondent) (relationship)

me by (describe specifically – including injuries, what part of body was struck and with what)

Provide detailed account of what led up to this violence or threat and describe resulting injuries:

Affidavit in Support of Protective Order Page 1 of 3 AFFIDAVIT IN SUPPORT OF PROTECTIVE ORDER LIST PAST INCIDENTS OF FAMILY VIOLENCE, EVEN IF NO POLICE REPORT WAS MADE.

1. When did the incident happen?

Where did the incident happen?

What happened? (Describe any injuries and on what part of the body they were suffered.)

Were the police called? YES / NO

2. When did the incident happen?

Where did the incident happen?

What happened? (Describe any injuries and on what part of the body they were suffered.)

Were the police called? YES / NO

Affidavit in Support of Protective Order Page 2 of 3 AFFIDAVIT IN SUPPORT OF PROTECTIVE ORDER

3. When did the incident happen?

Where did the incident happen?

What happened? (Describe any injuries and on what part of the body they were suffered.)

Were the police called? YES / NO

I am afraid that Respondent will continue this violent behavior or will carry out these threats and I

therefore request a protective order.

SIGNED this the ______day of ______, 20___.

Applicant’s signature (victim)

SUBSCRIBED AND SWORN to before me, the undersigned authority this the ____ day of ______, 20__.

______Notary Public State of Texas My commission expires on ______.

Affidavit in Support of Protective Order Page 3 of 3 No. STATE OF TEXAS FOR THE PROTECTION OF

, § IN THE DISTRICT COURT Applicant vs. § JUDICIAL DISTRICT

, § COUNTY, TEXAS Respondent

ORDER FOR SHOW CAUSE HEARING ON APPLICATION FOR PROTECTIVE ORDER

On the day of , 20 , came to be heard the Application of , Applicant, for a Protective Order against , Respondent. It is hereby ordered that the clerk shall issue notice ordering Respondent to appear, and Respondent is hereby ordered to appear before the Court, room , County Courthouse located at , , Texas, on the day of , 20 , at o'clock m. to show just cause why:

A Protective Order should not be entered in this cause; and The Court should make such other further orders respecting the parties as is deemed necessary and equitable.

SIGNED this the day of , 20 .

Presiding Judge

Order for Show Cause Hearing on Application for Protective Order Page 1 of 1

TO:

Employer: , and any subsequent Employer Address: City, State, Zip:

No. STATE OF TEXAS FOR THE PROTECTION OF

, § IN THE DISTRICT COURT Applicant vs. § JUDICIAL DISTRICT

, § COUNTY, TEXAS Respondent

ORDER WITHHOLDING FROM EARNINGS FOR CHILD SUPPORT

The Court ORDERS you, the present employer of the Obligor and any subsequent employer, to withhold income from the Obligor's disposable earnings as follows:

OBLIGOR: OBLIGEE:

Name: Name: Address: Address: City, State, Zip: City, State, Zip: Social Security #: Social Security #:

CHILDREN

Name: Name: Address: With Obligee Address: With Obligee Social Security #: Social Security #: D.O.B.: D.O.B.: Order Withholding From Earnings for Child Support Page 1 of 4

Name: Name: Address: With Obligee Address: With Obligee Social Security #: Social Security #: D.O.B.: D.O.B.:

The Court ORDERS that the ABOVE NAMED EMPLOYER and ANY SUBSEQUENT EMPLOYERS of the Obligor shall begin withholding from Obligor's disposable earning NO LATER than the first pay day following the date this order was served on the employer the amount set forth immediately below for current child support.

WITHHOLDING FROM EARNINGS FOR CURRENT CHILD SUPPORT It is therefore ORDERED that the Obligor's employer, and any subsequent employers, shall withhold the following amount of earnings as current child support until , or until further order of the Court:

(1) $ if the obligor is paid monthly.

(2) $ if the obligor is paid twice monthly (this figure is arrived at by multiplying the monthly amount by 50% or dividing the monthly amount by 2).

(3) $ if the obligor is paid every other week (this figure is arrived at by multiplying the monthly amount by 46.15% or by multiplying the monthly amount by 12 and dividing that figure by 26).

(4) $ if the obligor is paid weekly (this figure is arrived at by multiplying the monthly amount by 12 and dividing that figure by 52).

It is therefore ORDERED that the Obligor's employer shall withhold from the earnings of the Obligor for each pay period the total amount of current child support until the youngest child reaches eighteen (18) years of age and until the end of the school year in which said child graduates with a high school diploma from an accredited primary or secondary school, provided said child is fully enrolled therein, or until further order of the Court.

Order Withholding From Earnings for Child Support Page 2 of 4

MAXIMUM AMOUNT WITHHELD The maximum amount to be withheld SHALL NOT EXCEED fifty percent (50%) of the Obligor's disposable earnings.

METHOD OF PAYMENT The Court ORDERS the employer to pay the total amount withheld for each regular pay day by check made payable to Obligee, , Child Support Account Number and forwarded immediately to the COUNTY DOMESTIC RELATIONS DIVISION located at , TEXAS 7 . Each such check shall have written clearly on its face the Child Support Account Number.

CALCULATING DISPOSABLE EARNINGS The employer shall calculate the Obligor's disposable earnings which are subject to withholding for child support, as follows:

a. Determine the "earnings of the Obligor", which means compensation paid or payable for personal services, whether denominated as wages, salary, compensation received as an independent contractor, overtime pay, severance pay, commission, bonus, or otherwise, including periodic payments pursuant to a pension, annuity, worker's compensation, disability and retirement program and unemployment benefits.

b. Subtract the following sums to calculate the Obligor's "disposable earnings": any amounts

(1) required by law to be withheld, i.e., Federal Income Tax and FICA or OSAI Tax (Social Security), Railroad Retirement Act contributions; (2) union dues; (3) non-discretionary retirement contributions by the Obligor; and (4) medical, hospitalization, and disability insurance coverage for the Obligor and his or her children.

MORE THAN ONE WITHHOLDING If the employer is served with an Order or Writ Withholding from Earnings for Child Support relating to this Obligor in another case, the Court ORDERS the employer to withhold equal amounts on all orders or writs until each Order or Writ is fully complied with or until the maximum amount to be withheld from the Order Withholding From Earnings for Child Support Page 3 of 4 Obligor's disposable earnings is reached, whichever occurs first.

NOTICE OF CHANGE OF EMPLOYMENT The Court ORDERS Obligor's employer to notify this Court and Obligee by written notice to the County Domestic Relations Division WITHIN SEVEN (7) DAYS of the date that the Obligor terminates employment. The employer is ORDERED to provide the Obligor's last known address, and the name and address of the Obligor's new employer, if known.

NOTICE OF TERMINATION OF ORDER OR WRIT WITHHOLDING The Court further finds that it is not the obligation of the County Domestic Relations Division to initiate notice to discontinue the withholding of income for child support to any Employer, Obligor or Obligee.

REFERENCE TO THE INCOME WITHHOLDING LAW Attached to this Order is a copy of the Texas Family Code Sections 158.201-158.211, which set forth rights, duties, and potential liabilities of employer, in addition to the provision of this Order.

INCOME WITHHOLDING ORDER DOES NOT MODIFY CHILD SUPPORT OBLIGATIONS OF OBLIGOR The Court further finds that the purpose of this Income Withholding Order is to facilitate the payment and collection of child support and does not modify the amount or dates of payment of the child support obligation of the Obligor as set forth in the last order of the Court in which the Obligor is ordered to pay child support.

SIGNED on the day of , 20

PRESIDING JUDGE

Order Withholding From Earnings for Child Support Page 4 of 4 NO.______

IN THE MATTER OF § IN THE ______

______, APPLICANT § COURT OF

AND § ______

______, RESPONDENT § COUNTY, TEXAS

PROTECTIVE ORDER

On ______, 20___, the Court heard the Application for a Protective Order of ______, applicant.

1. Appearances

Applicant appeared in person represented by ______.

Respondent, ______, having been duly and properly cited, and after having been properly served with the application and notice of the hearing: [ ] appeared in person and by attorney, ______, and announced ready. [ ] appeared in person and announced ready. [ ] did not appear and wholly made default. [ ] a record of the proceedings was waived.

2. Jurisdiction

The court, having considered the pleadings and heard the evidence and argument of counsel, finds that all necessary prerequisites of the law have been satisfied pursuant to Title 4, Family Code, and that this court has jurisdiction over the parties and subject matter of this cause.

3. Findings

The Court finds that applicant and respondent: [ ] are members of the same family or household, or [ ] have or have had a dating relationship, as defined by Section 71.0021, Family Code.

Protective Order Current through 78th Legislative Session (2003) Page 1 of 14 The Court finds that: [ ] family violence, as defined by Section 71.004, Family Code, has occurred and is likely to occur in the future. [ ] the respondent violated a previous protective order while it was in effect. [ ] the parties have agreed to the terms of this protective order.

The Court finds that this protective order is in the best interest of the applicant, the family or household, or a member of the family or household.

The Court finds that applicant and ______are protected individuals under this order.

4. Orders Enforceable by Arrest

It is ordered that respondent is: a. Prohibited from committing family violence as defined in §71.004 Family Code or an act in furtherance of an offense under §42.072, Penal Code, against the applicant and other protected individuals. b. Prohibited from communicating directly with the applicant and other protected individuals in a threatening or harassing manner. c. Prohibited from communicating a threat through any person to the applicant or the other protected individuals. d. Prohibited from going within ______of the residence of the applicant or the other protected individuals located at ______. e. Prohibited from going within ______of the place of employment or business of the applicant or the other protected individuals located at ______. f. Prohibited from going within ______of the childcare facility and school(s) of ______, located at______. g. Prohibited from possessing a firearm. h. Prohibited from the use, attempted use, or threatened use of physical force against an intimate partner or child that would be reasonably expected to cause bodily injury. i. Prohibited from harassing, stalking or threatening a protected individual or engaging in conduct that would place a protected individual in reasonable fear of bodily injury to themself or a child protected under this order.

[ ] It is further ordered by the Court, after having found good cause, that respondent is prohibited from communicating in any manner with a member of the family or household except through ______, the party’s attorney, or person appointed by the Court.

Protective Order Current through 78th Legislative Session (2003) Page 2 of 14 [ ] It is further ordered that respondent is excluded from the residence located at ______, on or before ______, and the sheriff, constable or chief of police shall provide a law enforcement officer, who shall: a. accompany applicant to the residence covered by the order; b. inform the respondent that the court has ordered that the respondent be excluded from the residence; c. protect the applicant while the applicant takes possession of the residence and the respondent takes possession of the respondent’s necessary personal property; and d. if the respondent refuses to vacate the residence, remove the respondent and arrest the respondent for violating this order.

5. Orders Enforceable by Contempt

The Court hereby incorporates the following attached orders in this Protective Order: [ ] Attachment A: Orders Concerning Children. [ ] Attachment B: Orders Concerning Property. [ ] Attachment C: Orders Concerning Weapons. [ ] Attachment D: Orders to Reduce the Likelihood of Violence.

6. Confidentiality of Certain Information

Pursuant to a request by a member of the family or household, it is hereby ordered that the address and telephone number of the following persons and places be excluded from this order: [ ] a person protected by the order. [ ] the place of employment or business of a person protected by this order. [ ] the child-care facility or school a child protected by the order attends or in which the child resides.

The Clerk of the Court is hereby ordered to strike the information listed above from the public records of the Court, and to maintain a confidential record of the information above for use only by the Court.

7. Fees and Costs

It is ordered that respondent pay the following fees and costs: [ ] Costs of court, including the protective order fee, cost of service of this order, and all other expenses incurred in connection with this order, in the amount of ______, payable on or by ______, to ______.

Protective Order Current through 78th Legislative Session (2003) Page 3 of 14 [ ] Reasonable and necessary attorneys fees in the amount of ______, payable on or by ______, to ______.

8. Warnings

A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500 OR BY CONFINEMENT IN JAIL FOR AS LONG AS SIX MONTHS, OR BOTH.

A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH. AN ACT THAT RESULTS IN FAMILY VIOLENCE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS.

THIS PROTECTIVE ORDER IS ENFORCEABLE IN ALL 50 STATES, THE DISTRICT OF COLUMBIA, TRIBAL LANDS, AND U.S.TERRITORIES. 18 U.S.C. §2265. INTERSTATE VIOLATION OF THIS PROTECTIVE ORDER MAY SUBJECT RESPONDENT TO FEDERAL CRIMINAL PENALTIES. 18 U.S.C. §§2261, 2261A, AND 2262.

IT IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO A PROTECTIVE ORDER TO KNOWINGLY PURCHASE, RENT, LEASE OR RECEIVE AS A LOAN OR GIFT FROM ANOTHER A HANDGUN FOR THE DURATION OF THIS ORDER. SECTION 46.06, PENAL CODE.

IT IS UNLAWFUL FOR ANY PERSON, OTHER THAN A PEACE OFFICER AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A FIREARM OR AMMUNITION. 18 U.S.C. SECTION 922(g)(8); SECTION 46.04, PENAL CODE.

POSSESSION OF A FIREARM WHILE THIS PROTECTIVE ORDER IS IN EFFECT MAY BE A FELONY UNDER FEDERAL LAW PUNISHABLE BY UP TO TEN YEARS IN PRISON AND/OR A $250,000 FINE. 18 U.S.C. §922(g)(8).

Protective Order Current through 78th Legislative Session (2003) Page 4 of 14 9. Findings in Compliance with Federal Law

The court finds that: Respondent received actual notice of the hearing and had an opportunity to participate. Applicant and Respondent are intimate partners pursuant to Title 18, United States Code, Section 2266. The protected individual(s) listed in paragraph 5, ______, is a child/children of applicant or respondent. Respondent represents a credible threat to the physical safety of the applicant and any child of applicant who is listed as a protected individual in this order.

10. Order Forwarded

The clerk of this court is hereby ordered to forward a copy of this order to the Chief of Police of the City of ______, or, if respondent does not live in a municipality, the sheriff of ______County and the constable of ______County, Precinct ______, the child care facility and/or school in Section 4 of this Order, and the Texas Department of Public Safety, if the respondent is licensed to carry a concealed weapon.

11. Duration of Protective Order

This order is effective immediately and shall continue in effect until ______, 20___. If respondent is confined or imprisoned on the date this order would otherwise expire, the period of this order is hereby extended and the order expires on the first anniversary of the date respondent is released from confinement or imprisonment.

12. Service of Protective Order

This court finds that the order: [ ] has been served on respondent in open court; or [ ] shall be personally served on respondent in the same manner as a writ of injunction; or [ ] shall be served on respondent by registered or certified mail in accordance with Rule 21 A, Texas Rules of Civil Procedure.

Signed and entered on this the ______day of ______, 20____.

______

Judge, ______

Protective Order Current through 78th Legislative Session (2003) Page 5 of 14

APPROVED TO FORM AND CONTENT: [if applicable]

______Respondent Address: ______Date of Birth: ______SSN: ______TDL: ______

______Applicant Date of Birth: ______

APPROVED AS TO FORM ONLY:

______Respondent’s Attorney Address: ______Phone: ______Fax: ______SBOT: ______

______Attorney for applicant/state Address: ______Phone: ______Fax: ______SBOT: ______

Protective Order Current through 78th Legislative Session (2003) Page 6 of 14 CAUSE NO. ______

ATTACHMENT A – ORDERS CONCERNING CHILDREN Jurisdiction The Court finds that it has jurisdiction over the child(ren) in this cause and that this order is issued in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, §152.001 et seq., Family Code, and the Parental Kidnapping Prevention Act, 28 U.S.C.A. §1738A. Findings The Court FINDS that awarding Respondent access to the child(ren) will not endanger the child(ren)’s physical health or emotional welfare and would be in the best interest of the child(ren). Section 153.004(d), Family Code The Court FINDS that: [ ] it is not in the child(ren)’s best interest for Respondent to have unsupervised possession and access; or [ ] Respondent has rebutted the presumption set forth in Section 153.004(e) and it is in the child(ren)’s best interest for Respondent to have unsupervised possession and access. Periods of Possession:

IT IS ORDERED that Applicant shall have possession of the child(ren), ______, and Respondent is ORDERED to not remove the child(ren) from the possession of the Applicant except for the times set forth below. This possession schedule shall begin on ______. Respondent is to have possession of the child(ren) during the following periods:

[ ] On Saturday/Sunday of each week from until the same day.

[ ] On the first, third, and fifth weekends of each month from 6:00 p.m. on Friday until the Sunday immediately following at 6:00 p.m. The first, third, and fifth weekends of a month are those that begin on the first, third, and fifth Fridays of the month.

[ ] On Wednesday of each week during school, from 6:00 p.m. until 8:00 p.m.

[ ] If a weekend visit with the Respondent coincides with a school holiday during the regular school term or with a federal, state, or local holiday during the summer months when school is not in session, such weekend visit shall extend until

Protective Order Current through 78th Legislative Session (2003) Page 7 of 14 6:00 p.m. on the Monday holiday, or shall begin at 6:00 p.m. Thursday for a Friday holiday or school holiday.

The following provisions of this order will determine possession of the child(ren) for holidays and vacations, even if such a holiday or vacation provision conflicts with the weekend and Wednesday visitation set out above.

[ ] The Respondent shall have possession of the child(ren) from noon on December 26th until 6:00 p.m. on the day before school resumes.

[ ] The Respondent shall have possession of the child(ren) from 6:00 p.m. on the Wednesday before Thanksgiving until 6:00 p.m. on the following Sunday.

[ ] The Respondent shall have possession of the child(ren), if he/she gives the Applicant written notice by April 15 specifying an extended period or periods of summer possession, for 30 days beginning not earlier than the day after school is dismissed for summer vacation and ending not later than seven days before school resumes, to be exercised in no more than two separate periods of at least seven consecutive days each.

[ ] On Father's Day, the child(ren) shall visit the father from 9:00 a.m. until 6:00 p.m.

[ ] On Mother's Day, the child(ren) shall visit the mother from 9:00 a.m. until 6:00 p.m.

[ ] At any other reasonable times as may be agreed upon by the parties in advance in writing.

[ ] Other:

Respondent is ORDERED to not remove the child(ren) from the jurisdiction of the court. Pick Up and Return of Child(ren): Applicant, or designee, is ORDERED to surrender the child(ren) to Respondent at the beginning of each period of possession at the following location: ______. Respondent is ORDERED to return the child(ren) to Applicant, or designee, at the end of each period of possession at the following location: ______. Conditions of Periods of Possession:

Protective Order Current through 78th Legislative Session (2003) Page 8 of 14 [ ] Respondent is ordered not to consume any alcoholic beverages or illegal drugs within 24 hours prior to or at any time during a period of visitation.

[ ] Respondent is ordered not to remove the child(ren) from ______County without Applicant's prior written consent.

[ ] Respondent is ordered not to use corporal punishment in disciplining the child(ren).

Orders for Supervision: [ ] IT IS ORDERED that: [ ] all periods of possession shall be supervised by ______[ ] all exchanges shall be supervised by ______[ ] IT IS ORDERED that supervision of the possession and access by the Respondent shall be conducted by: ______. IT IS FURTHER ORDERED that Respondent shall pay all costs incurred for supervision services, including intake appointments. Respondent and Applicant shall follow all rules and regulations as set forth by the supervised visitation facility. Child Support: Respondent is ORDERED to pay $______per ______to Applicant as child support beginning on ______and continuing each ______thereafter for the term of this Order or until further order of this Court. Respondent is Ordered to make all payments for child support payable to the Applicant as named in this Order and send all payments for support through:______. Respondent is Ordered to keep this agency informed of Respondent’s residence and work addresses. On this date, the Court signed an Order for Withholding from Earnings for Child Support ordering the employer and any subsequent employer of Respondent to withhold the above-ordered child support from Respondent’s earnings.

Protective Order Current through 78th Legislative Session (2003) Page 9 of 14 THE EXISTENCE OF THE ORDER FOR WITHHOLDING FROM EARNINGS FOR CHILD SUPPORT DOES NOT EXCUSE RESPONDENT FROM PERSONALLY MAKING ANY CHILD SUPPORT PAYMENT ORDERED HEREIN, EXCEPT TO THE EXTENT RESPONDENT'S EMPLOYER ACTUALLY MAKES THE PAYMENT ON BEHALF OF RESPONDENT.

Protective Order Current through 78th Legislative Session (2003) Page 10 of 14 CAUSE NO. ______

ATTACHMENT B – ORDERS CONCERNING PROPERTY IT IS ORDERED that Applicant shall have exclusive use and possession of the following property for the term of this Order or until further order of the court: [ ] automobile; make: ______, model: ______, state: ______, license plate number: ______[ ] residence located at: ______[ ] other:______IT IS ORDERED that Respondent shall have exclusive use and possession of the following property for the term of this Order or until further order of the court: [ ] automobile; make: ______, model: ______, state: ______, license plate number: ______[ ] residence located at: ______[ ] other:______IT IS FURTHER ORDERED that Applicant and Respondent shall not willfully nor intentionally damage, transfer, encumber, or otherwise dispose of any property owned or leased by the parties except in the ordinary course of business. Spousal Support: Respondent is ORDERED to pay $______per ______to Applicant as spousal support beginning on ______, ______; and continuing each ______thereafter for the term of this order or until further order of this court. Respondent is ORDERED to make all payments payable to the Applicant as named in this order and mail the support to the following address: ______.

Protective Order Current through 78th Legislative Session (2003) Page 11 of 14 CAUSE NO. ______

ATTACHMENT C – ORDERS CONCERNING FIREARMS

[ ] Suspension of Concealed Handgun License: IT IS ORDERED that the license to carry a concealed handgun of Respondent is suspended for the duration of this order. Notice to the Clerk of this Court: A copy of this order shall be forwarded to the Concealed Handgun Licensing Unit, Department of Public Safety, P.O. Box 4143, Austin, Texas 78765-4143. On receipt of this order suspending the license to carry a concealed handgun, the department shall record suspension of the license, report the suspension to the local law enforcement agencies, as appropriate, and demand surrender of the suspended license from the license holder.

[ ] Transfer of Firearms: Respondent is ORDERED to transfer firearms immediately to: ______.

WARNING IT IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO A PROTECTIVE ORDER TO KNOWINGLY PURCHASE, RENT, LEASE OR RECEIVE AS A LOAN OR GIFT FROM ANOTHER A HANDGUN FOR THE DURATION OF THIS ORDER. SECTION 46.06, TEXAS PENAL CODE

IT IS UNLAWFUL FOR ANY PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A FIREARM OR AMMUNITION. 18 U.S.C. SECTION 922 (g)(8), SECTION 46.04, TEXAS PENAL CODE

Protective Order Current through 78th Legislative Session (2003) Page 12 of 14 CAUSE NO. ______

ATTACHMENT D – ORDERS TO REDUCE THE LIKELIHOOD OF VIOLENCE

[ ] Battering Intervention Program: IT IS ORDERED that Respondent enter, meet attendance requirements, pay costs and complete the following program: course: ______location: ______telephone: ______Respondent is ORDERED to enter the program no later than ______and to complete the program by ______. IT IS FURTHER ORDERED that Respondent shall file with the Court an affidavit before the 60th day after the date this protective order is signed stating that Respondent has started the counseling or that the counseling is not available within a reasonable distance of Respondent's residence. Respondent shall file with the Court before the date the protective order expires a statement that Respondent completed the program not later than the 30th day before the expiration date of the protective order. The affidavit must be accompanied by a letter, notice, or certificate from the program that verifies the Respondent’s completion of the program. If Respondent fails to provide the affidavit as ordered, Respondent may be punished for contempt of court, as provided by section 21.002 of the Texas Government Code, by a fine not to exceed $500, by confinement in jail for a term not to exceed six months, or by both. Respondent is ORDERED to comply with any recommendation/referral for additional or alternate counseling within seven (7) days of the recommendation being made and ordered to complete the program as recommended. Respondent is ORDERED to sign a waiver for release of information upon registration so that ______may monitor participation in the program.

Protective Order Current through 78th Legislative Session (2003) Page 13 of 14 [ ] Drug and Alcohol Evaluation: IT IS ORDERED that Respondent shall submit to an alcohol and drug evaluation no later than ______at the following facility: name: ______location: ______telephone: ______Respondent shall enter all programs recommended by the counselor within seven (7) days of the recommendation being made, complete all program(s) and pay all costs connected with those program(s). Respondent is ordered to sign a waiver for release of information upon registration so that ______may monitor participation in the program. [ ] Parenting Education: IT IS FURTHER ORDERED that Respondent enter, meet attendance requirements, pay costs and complete the following course: course: ______location: ______telephone: ______Respondent is ORDERED to enter the program no later than ______and to complete the program by ______. Respondent shall comply with any recommendation or referral for counseling within seven (7) days of the recommendation being made, complete all program(s) and pay all costs connected with those program(s). Respondent is ordered to sign a waiver for release of information upon registration so that ______may monitor participation in the program. [ ] Other Orders to Reduce the Likelihood of Violence IT IS FURTHER ORDERED that Respondent shall: [ ] not go within ______yards of any location where the Applicant or the child(ren) protected by this order are known by the Respondent to be. [ ] other: ______

Protective Order Current through 78th Legislative Session (2003) Page 14 of 14

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Attachment G Do No Harm Protective Orders in Texas Brochure - English and Spanish

What is a protective order? Important Phone Numbers A protective order is a civil court order issued to prevent continuing acts of family violence. Police/Sheriff Protective order legislation was developed 911 to protect and preserve people and includes both criminally enforceable and civilly enforceable provisions. National Domestic Violence Hotline The main objective of a protective order is 800-799- SAFE (7233) to stop violence and to protect a person who is 800-787-3224 (TTY for the Deaf) being abused by a member or former member of the same household, extended family relationships, or of a dating relationship. Women’s Advocacy Project – Who is entitled to protection? Family Violence Legal Line In order to apply for a protective order, the 800-374-HOPE (4673) applicant must be: 1. A person who is related to the offender by blood or marriage (including a former Do No Harm: spouse). 2. A person who is currently living in the Protective Orders in Texas same household as the offender, or has lived in the same household as the of- Local Program Information fender at some point in the past. 3. A person who has had a child with the offender (including foster children). Name National Domestic Violence Hotline 4. A person who has or has had a continuing relationship of a romantic or intimate 800-799-SAFE (7233) nature with the offender. Address 800-787-3224 (TTY for the Deaf) Who can file for a protective order?

1. An adult family member on behalf of Telephone number themself or on behalf of another member of the family or household. 2. An adult member of the dating relationship. Hotline number 3. Any adult on behalf of a child. 4. Any prosecuting attorney. Additional information TEXAS COUNCIL ON FAMILY VIOLENCE, 2002 PO Box 161810 Austin, TX 78716 512-794-1133 What can a protective order do? Where can a protective order be filed? The order may be issued on the magistrate’s A protective order may prohibit the offender A protective order can be filed in the county own motion or on the request of: from committing the following criminally enforce- where the applicant resides or in the county • the victim of the offense; able acts: where the offender resides. • the guardian of the victim; • • Committing family violence An applicant can apply for a protective order a peace officer; or • • Communicating: through the district or county attorney, a private the attorney representing the state. - directly with a member of the family/ attorney, through legal aid or with a pro se A M.O.E.P. must be issued if an offender is household; packet, which is when a person files on their arrested for aggravated assault against a family - a threat through any person to a member own. member; these are offenses that involve serious of the family/household; bodily injury or the use or exhibition of a deadly - in any manner with a member of the What are the costs? weapon during the commission of the assault. family/household except through the No fees may be assessed against an The M.O.E.P. contains the same criminally party’s attorney or court appointed applicant for a protective order or a prosecutor enforceable provisions as a protective order. person. representing an applicant for a protective order. • Going to or near the residence, place of If an individual is found to have committed employment, business, child-care facility, or family violence, s/he will be ordered to pay the What if the protective order is violated? school where a protected person normally costs, except on a showing of good cause or resides. CALL THE POLICE! • indigence. Engaging in conduct directed towards a pro- Law enforcement agencies should have a tected person that is likely to harass, annoy, How long does it take to receive a protec- list of the protective orders issued in their area. alarm, abuse, torment, or embarrass the tive order and how long is it in effect? If an offender violates the order, notify law protected person. This includes following the A hearing for the protective order must be enforcement so they can act to arrest the person. held within 14 days of the application, unless the offender and seek to have charges filed. If a • Possessing a firearm. applicant requests a later date or the population person violates the order in the presence of law Protective orders may also include additional of the county is greater than 1.5 million. enforcement, the offender must be arrested provisions that are not criminally enforceable. An individual can request a temporary ex immediately. These provisions may include orders to: parte protective order at the time of application If a temporary ex parte protective order is • prohibit transfer or disposal of property; for the final protective order. The temporary ex violated the offender may be punished for • establish possession/visitation of a child; parte order is valid for 20 days and is not contempt of court by a fine of as much as $500 • pay child/spousal support ; criminally enforceable. or up to six months in jail or both. • attend mandatory counseling; The final protective order is good for up to If a protective order or magistrate’s order is • vacate the residence or other property. two years, and under certain circumstances can violated the offender may be punished by a fine be extended for an additional year. not to exceed $4,000 and/or jail for up to one What must the application include? year. 1. The name and county of residence of each If a person has been previously convicted of applicant. Magistrate’s order for emergency protec- violating a protective order or magistrate’s order 2. The name, address and county of residence tion two or more times, or has violated the order by of each person alleged to have committed committing an assault or stalking the offender family violence. The magistrate’s order for emergency may be punished by a fine not to exceed 3. The relationship between the applicant(s) (M.O.E.P.) protection is issued at the time of an $10,000 and/or imprisonment for two to 10 and the offender(s). arrest for an offense involving family violence or years. 4. A request for a protective order. stalking. A victim should apply for an order as soon after the incident as possible. ¿Que es una Orden de Protección? Una orden de protección es una orden Números Importantes de entregada por la corte civil para prevenir la continuación de actos de violencia familiar. Teléfono La legislación de ordenas de protección fueron desarrolladas para proteger y preservar el bien de Policia/Fiscal Del Condado la gente y imponen provisiones criminales y civiles. 911 El objeto de una orden de protección es acabar con la violencia y proteger la persona quien es abusada por algún miembro o un miembro anterior Línea Nacional Contra de la misma casa, un pariente de la familia o persona con la que sale. La Violencia Doméstica 800-799- SAFE (7233) ¿Quién tiene derecho hacer protegido? 800-787-3224 (TTY) Para hacer aplicación de una orden de protección, el solicitante debe ser: 1. Una persona relacionada al agresor por sangre Proyectó Para El Apoyo De Mujeres o unión (incluyendo ex-conyuge). Línea Legal Para La Violencia Familiar Orden De Protección: 2. Una persona que está viviendo actualmente en 800-374-HOPE (4673) el mismo hogar que el agresor o ha vivido en el mismo hogar que el agresor a cierto punto en el pasado. Protegiendo Víctimas 3. Una persona que tiene un niño(a) con el agresor (incluyendo un niño(a) adoptivo). de Violencia Familiar 4. Una persona que tiene o ha tenido continuamente una relación romántica o íntima Información Del Programa Local con el abusador. ¿Quién es elegible para sentar una orden de protección? Nombre Del Programa Línea Nacional Contra 1. Un miembro adulto de la familia por parte de si La Violencia Doméstica mismo o por parte de otro miembro del la Domicilio familia o hogar. 800-799-SAFE (7233) 2. Un miembro adulto con quien sale. 800-787-3224 (TTY) 3. Cualquier adulto por medio de un niño(a). Numero de Teléfono 4. Cualquier fiscal. 5. El Departamento de Servicios Protectores y Reguladores (DPRS). Numero De La Línea Nacional

Una victima debe ser solicitación para una Información Adicional orden de protección lo mas pronto posible TEXAS COUNCIL ON FAMILY VIOLENCE, 2002 después del incidente de abuso. PO Box 161810 Austin, TX 78716 512-794-1133 ¿Que puede hacer una orden de ¿Dónde se archiva la orden de protección? ser entregada por la moción magistral o la petición protección? Una orden de protección se puede sentar en el de: Una orden de protección prohíbe al agresor de condado donde el solicitante vive o en el condado - La víctima ; cometer los siguientes actos criminales: donde vive el agresor. - El guardián de la víctima; • Que siga cometiendo violencia familiar Un solicitante puede pedir una orden de - Un oficial de paz; • Que se comunique: protección a través del abogado del distrito o del - El abogado que representa el estado -directamente con un miembro de la familia o condado, de un abogado privado, a través de hogar; abogacía legal, o con un paquete de pro se, cual es Una orden de protección de emergencia -A través de amenazas con cualquier persona cuando una persona hace su propia solicitud. (M.O.E.P.) debe ser entregada al agresor si es o miembro de la familia o hogar; arrestado por un asalto agravado contra un -de cualquier manera con un miembro de la ¿Cuales son los costos? miembro de la familia; estas ofensas incluyen familia o hogar excepto a través del abogado Ningún costo se puede cobrar para la lesiones serias al cuerpo o el uso o de la víctima o la persona designada por la solicitación de una orden de protección a una demostración de una arma durante el asalto. corte. persona o al abogado que solicita una orden para • Que el agresor vaya o se acerque a la su cliente. La orden de protección de emergencia residencia, lugar de empleo, negocio, Si un individuo es encontrado culpable de (M.O.E.P.) contiene las mismas provisiones guardería, o escuela en donde normalmente violencia familiar, el agresor tendrá que pagar los criminales que una orden de protección. reside una persona protegida. costos, excepto en el caso que demuestre una • Que el agresor dirija conducta hacia cualquier buena causa o indigencia. persona protegida por la orden de protección ¿Que sucede si la orden es violada? que probablemente pueda ser acosada, Las agencias de ley deben tener una lista de molestada,alarmada, abusada, atormentada o ¿Cuánto tiempo se lleva para recibir las ordenes de protección publicadas en su área. avergonzada. Esto incluye persiguiendo una orden de protección y cuanto Si un agresor viola la orden, llame la policía para (acechando) a la persona. tiempo esta en efectivo? que arresten el agresor y usted pueda poner • cargos. Si la persona viola la orden en la Poseer un arma de fuego. Una audiencia para una orden de protección se presencia de la policía, el agresor debe ser debe llevar a cabo dentro de 14 días después de la arrestado inmediatamente. Ordenes de protección pueden incluir algunas solicitación, a menos que el solicitante pida una provisiones adicionales cuales no son fecha posterior o que la población del condado es Si una orden de protección temporal (ex parte) aplicables criminalmente. Estas provisiones mas que 1.5 millones de personas. es violada el agresor puede ser castigado al pueden incluir órdenes para: Una persona puede solicitar una orden de desprecio de la corte con una multa de $500 o • prohibir el cambio o el despacho de propiedad; protección temporal (ex parte) al tiempo que hasta seis meses encarcelado o ambos. • establecer posesión/visitas de un niño(a); solicite una orden de protección final. La orden Si se viola una orden de protección o una • pagar mantenimiento de un niño(a) /esposa; temporal (ex parte) es valida por 20 días pero no orden de protección de emergencia (M.O.E.P.), el • atender asesoramiento obligatorio; se puede ejecutar criminalmente. agresor puede ser castigado con una multa que no • desocupar la residencia o otra propiedad. exceda $4,000 y/o ser encarcelado hasta un año. La orden de protección final es valida por un tiempo de dos años, y en ciertas circunstancias Si han condenado la persona previamente por ¿Que se incluye en la solicitación? puede ser extendida por un año adicional. la violación de una orden protección o una orden 1. El nombre y el condado de residencia de cada de protección de emergencia (M.O.E.P.) dos o más solicitante. veces, o ha violado la orden a través de haber 2. El nombre, la dirección y el condado de Orden Magistral para protección de cometido un asalto o acecho, el agresor puede ser residencia de cada persona alegada de haber emergencia castigado con una multa que no exceda $10,000 y/ cometido violencia familiar. Una orden de protección de emergencia o ser encarcelado de 2 a 10 años. 3. La relación entre el solicitante y el agresor(es). (M.O.E.P.) por medio de un magistral es entregada 4. Solicitación de una orden de protección. durante el arresto de una ofensa que implica violencia familiar o de un acecha. La orden puede

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Attachment H Motion and Order to Modify Protective Order

No. STATE OF TEXAS FOR THE PROTECTION OF

, § IN THE DISTRICT COURT Applicant vs. § JUDICIAL DISTRICT

, § COUNTY, TEXAS Respondent

MOTION TO MODIFY PROTECTIVE ORDER

COMES NOW the State of Texas for the Protection of Applicant, in the above entitled and numbered cause and files this, its Motion to Modify Protective Order and for cause would respectfully show the following:

I. , Respondent herein, may be served with citation and notice at .

II. This Court previously entered a Protective Order herein on . Pursuant to and in accordance with Texas Family Code §87.001 Applicant now seeks to modify said Protective Order for the reason that:

Motion to Modify Protective Order Page 1 of 2 III. Applicant would show that the Protective Order should therefore be modified by inclusion of the following new item(s):

Applicant would show that the Protective Order should therefore be modified by deletion of the following item(s):

WHEREFORE, PREMISES CONSIDERED, Applicant prays to the Honorable Court to issue the following orders: Applicant prays that citation and notice be issued as required by law and that the Court enter the Protective Order Modifications as requested above. Applicant prays that the Court dispense with the necessity of a bond. Applicant prays for such relief in law and in equity to which the Applicant shows just entitlement. Applicant prays for general relief.

Respectfully submitted,

Name: County Attorney Address:

, Texas 7 Phone: ( ) - Fax: ( ) - Motion to Modify Protective Order Page 2 of 2 No. STATE OF TEXAS FOR THE PROTECTION OF

, § IN THE DISTRICT COURT Applicant vs. § JUDICIAL DISTRICT

, § COUNTY, TEXAS Respondent

ORDER FOR MODIFICATION OF PROTECTIVE ORDER

On this day came to be heard the Motion for Modification filed herein on the day of 20 . Applicant appeared in person and by and through the attorney for the State of Texas and announced ready. [ ] Respondent appeared in person, pro se, and announced ready. [ ] Respondent appeared in person and by and through his/her attorney, and announced ready. [ ] Respondent did not appear although duly served with citation and notice.

After examining all the pleadings and hearing all the evidence and arguments of counsel, the Court finds and now holds that this Court has jurisdiction of this proceeding and the parties thereto; that the Motion to Modify herein is in all respects proper and sufficient; that the Respondent was afforded due and proper notice of these proceedings as required by statute; and that the modifications as prayed for are necessary and proper.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, by this Court that the following modifications be and are in effect from the date of this signing:

All other provisions of the Protective Order entered on the day of 20 shall remain in full force and effect for the duration of the Protective Order or until further order of the Court.

SIGNED this day of , 20 .

Judge Presiding

Order for Modification of Protective Order Page 1 of 1

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Attachment I Family Violence and Custody in Texas

Family Violence and Custody

Did you know?....

PUBLIC POLICY SOLE MANAGING CONSERVATORSHIP The public policy of the state is to “Credible evidence of a history or pattern provide a “safe, stable, and nonviolent of past or present” family violence environment” for the child. creates a rebuttable presumption that §153.001(a)(2) appointment of the perpetrator as sole EVIDENCE OF FAMILY VIOLENCE managing conservator is not in the child’s best interest. §153.004(b) Effective September 1, 2003: When determining whether there is “credible POSSESSION, ACCESS AND VISITATION evidence of a history or pattern of family The court must consider the “commission violence,” the court must consider a of family violence” when determining protective order rendered against the whether to limit possession of a child. parent within the prior two years. §153.004(c) §153.004(f) The court may not allow access to a child In making a conservatorship by a parent who has a history of determination, the court must consider committing family violence, unless the evidence of “the intentional use of court: (1) makes a finding that doing so abusive physical force” by a party against would not endanger the child, and (2) their spouse, a parent of the child or any renders a possession order designed to child within two years prior to, or during, protect the safety of the child and the the suit. §153.004(a) adult victim of family violence. §153.004(d) JOINT MANAGING CONSERVATORSHIP A history of family violence creates a The appointment of joint managing rebuttable presumption that it is not in the conservators is prohibited if “credible best interest of a child for the perpetrator evidence is presented of a history or to have unsupervised visitation. pattern of past or present” family §153.004(e) violence. §153.004(b) The court may also require that all A “finding of family violence” removes visitation is supervised or that exchanges the presumption that appointment of of the child are supervised. parents of a child as joint managing §153.004(d)(2) conservators is in the child’s best interest. §153.131(b) MEDIATION “Credible evidence of a history or pattern of A victim of family violence can be past or present” family violence creates a exempt from mandatory mediation by rebuttable presumption that appointment of the filing an “Objection to Mediation.” perpetrator, as the conservator who has the §153.0071(f) exclusive right to designate the child’s primary residence is not in the child’s best interest. §153.004(b)

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Attachment J Judicial Responses that Empower Survivors Power and Control Wheel

JUDICIAL RESPONSES THAT EMPOWER SURVIVORS

PRIORITIZING MAKING THE WOMEN’S SAFETY COURT HOSPITABLE Asking about women’s fears TO ABUSED WOMEN • asking about weapons Providing a separate • confiscating weapons restraining order office • training court personnel on • informing women of their battering • making a safe legal options • providing ADDRESSING space for women to translators making the SUPPORTIVE THE ECONOMIC wait for hearings building handicap JUDICIAL ASPECTS OF accessible DEMEANOR BATTERING Listening to abused women Asking whether women need child • asking questions • looking support • connecting women with women in the eye • recognizing community resources around JUDICIAL the complexity of women’s housing and financial assistance RESPONSES circumstances and choices THAT EMPOWER CONNECTING WOMEN IMPOSING SANCTIONS ON BATTERED WITH RESOURCES VIOLENT MEN WOMEN Imposing sanctions for violating Providing advocates or court orders • refusing to joke battered women • developing and bond with violent men relationships with shelters, • correcting institutional FOCUSING TAKING batterer’s programs, and bias toward men ON THE NEEDS THE VIOLENCE community services OF CHILDREN SERIOUSLY Demonstrating Communicating concern for the safety through words and of children • making space actions that the court in the courthouse for will not tolerate battering children • recognizing the • encouraging women to effects of battering return to the court if on children they need to

Texas Council on Family Violence P.O. Box 181610 • Austin, Texas 78716 512/794-1133 • Fax: 512/685-6396 www.tcfv.org

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Attachment K Judicial Responses that Reinforce Women’s Entrapment Power and Control Wheel

JUDICIAL RESPONSES THAT REINFORCE WOMEN’S ENTRAPMENT

NEGLECTING COURTROOM WOMEN’S FEARS INTIMIDATION Ignoring women’s fears Inattention to the impact of a • lack of safe waiting areas in courtroom on victims courthouse • lack of • bureaucratic and indifferent coordination with police treatment of abused women and probation • failure to provide women BLINDNESS • inadequate training with information CON- TO ECONOMIC of court about their DESCENDING OR ASPECTS OF personnel legal options HARSH DEMEANOR BATTERING Patronizing displays of Ignoring women’s requests authority • harsh or hostile for child support and restitution remarks • racist attitudes toward JUDICIAL • bias against women on welfare women of color • bias against RESPONSES unmarried women THAT COLLUDING WITH VIOLENT REINFORCE FURTHERING WOMEN’S MEN WOMEN’S ISOLATION Unwillingness to impose sanctions ENTRAPMENT Failure to provide advocates on batterers • showing greater • lack of resources for non-English concern for defendants than for speakers • lack of resources women seeking protection NEGLECTING MINIMIZING, for deaf and disabled • joking and bonding THE NEEDS DENYING, AND women • lack of co- with defendants OF CHILDREN BLAMING ordination with Failing to see how Mirroring batterers’ community batterers manipulate actions by making light members women through their of the abuse • saying the children • lack of concern for abuse didn’t happen • saying safety of children • no space she caused it • making her feel in the courthouse guilty • saying it’s just a for children “lovers’ quarrel”

Texas Council on Family Violence P.O. Box 181610 • Austin, Texas 78716 512/794-1133 • Fax: 512/685-6396 www.tcfv.org

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Attachment L You Be the Judge: Issuing and Enforcing Protective Orders

YOU BE THE JUDGE: ISSUING AND ENFORCING PROTECTIVE ORDERS

This card was created by the Texas Council on Family Violence. The goal is to help judges quickly SUGGESTED ADMONISHMENTS identify the laws and issues involved in issuing and enforcing protective orders in order to increase q Inform the parties orally and in writing that the enforceability, comply with full faith and credit order is enforceable in all 50 states, U.S. territo- statutes and help keep families safe. ries, tribal lands and the District of Columbia. q State that violation of the order may result in ISSUING COURT state, tribal or federal prosecution. q Advise the respondent of the federal prohibition against possession of firearms or ammunition ENSURING ENFORCEABILITY (18 U.S.C. §922 (g) (8)) and the Texas prohibi- To promote enforcement in Texas and throughout the tion against possession of firearms. Both apply United States, the protective order should clearly set for the duration of the order (Penal Code §46.04 forth the following: (c)). q The respondent was given “notice and an q Advise the protected individual to keep a certi- opportunity to be heard.” An ex-parte order fied copy of the order with them at all times. should state: “The respondent will be given q Explain that the protective order information notice and an opportunity to be heard within a will be entered into the DPS and FBI crime reasonable time, consistent with the require- information center computers for access by all ments of due process.” law enforcement officials. q The court had personal and subject matter q Give the protected individual the number for the jurisdiction over the parties and proceeding. National Domestic Violence Hotline, 24-hour q The court had jurisdiction to enter orders for information, referral and crisis line. (800-799- possession of the child/ren under the Parental SAFE (7233); or 800-787-3224 (TTY for the Kidnapping Prevention Act (PKPA) and Uni- Deaf). form Child Custody Jurisdiction and Enforce- ment Act (UCCJEA). q The order complies with the Uniform Enforce- FIREARMS ment of Protective Orders Act (Chapter 88, Family Code) and the Violence Against Women Act’s full faith and credit provision (18 U.S.C. Texas and federal law prohibit possession of firearms §2265). while subject to a qualifying protective order. Federal q The order meets the definition of a protection law also prohibits the possession of ammunition (8 order under 18 U.S.C. §2266: U.S.C. §922 (g) (8) and Penal Code §46.04 (c)). “any injunction or other order issued for the The Family Code (§85.022 (b) (6)) authorizes the purpose of preventing violent or threatening court to prohibit the person found to have committed acts or harassment against, or contact or family violence from: communication with or physical proximity to, “possessing a firearm, unless the person is a another person.” peace officer, as defined by Section 1.07, The court should also: Penal Code, actively engaged in employment q Have the respondent, if present at the hearing, as a sworn, full-time paid employee of a state sign an acknowledgement of service on the agency or political subdivision.” face of the order. REQUIRED W ARNING LANGUAGE ON TEXAS PROTECTIVE ORDERS ENFORCING COURT

The following warnings must be in boldfaced type, UNIFORM I NTERSTATE ENFORCEMENT capital letters or underlined (§85.026 Family Code): OF PROTECTIVE ORDERS A CT A person who violates this order may be punished for Pursuant to §88.003, Family Code, out-of-state contempt of court by a fine of as much as $500 or by protective orders must be enforced as follows: confinement in jail for as long as six months, or both. (a) The court shall enforce the terms of a foreign No person, including a person who is protected by protective order even if it includes terms that this order, may give permission to anyone to ignore would not otherwise be allowed under Texas law. or violate any provision of this order. During the time in which this order is valid, every provision of (b) The court shall enforce the provisions of posses- this order is in full force and effect unless a court sion and access to a child if the provisions were changes the order. issued in accordance with the jurisdictional requirements of the issuing state. It is unlawful for any person, other than a peace officer as defined by §1.07, Penal Code, actively (c) The court may enforce child support provisions if engaged in employment as a sworn, full-time paid the order was issued in accordance with the employee of a state agency or political subdivision, jurisdictional requirements of UIFSA, Chapter who is subject to a protective order to possess a 159 and the federal Full Faith And Credit For firearm or ammunition (18 U.S.C. §922(g)(8); Child Support Orders Act (28 U.S.C. §1738B). §46.04, Penal Code). (d) A foreign protective order is valid if it names the A violation of this order by commission of an act protected person(s) and the respondent; is cur- prohibited by the order may be punishable by a fine rently in effect; was rendered by a court that had of as much as $4,000 or by confinement in jail for as jurisdiction over the parties and the subject long as one year, or both. An act that results in matter; and was rendered after the respondent was family violence may be prosecuted as a separate given reasonable notice and an opportunity to be misdemeanor or felony offense. If the act is pros- heard consistent with the right to due process, ecuted as a separate felony offense, it is punishable either before the court issued the order or in the by confinement in prison for at least two years. case of an ex-parte order, within a reasonable time after the order was rendered To promote enforceability, TCFV suggests inclu- (e) A protected individual seeking enforcement of a sion of the following language: foreign protective order establishes a prima facie case for its validity by presenting an order that is This protective order is enforceable in all 50 states, valid on its face. the District of Columbia, tribal lands, and U.S.territories (18 U.S.C. §2265). Interstate viola- Mutual Out-of-state Protective Orders tion of this protective order may subject respondent to federal criminal penalties (18 U.S.C. §2261, Pursuant to §88.003 (g), Family Code: 2261a, and 2262). A Texas court may enforce the provisions of a mutual It is unlawful for any person who is subject to a out-of-state protective order that favor the respondent protective order to knowingly purchase, rent, lease or only if: receive as a loan or gift from another a handgun for (1) the respondent filed a written pleading seeking a the duration of this order (§46.06, Penal Code). protective order from the court of the issuing Possession of a firearm while this protective order is state; and (2) the court of the issuing state made specific in effect may be a felony under federal law punish- findings in favor of the respondent. able by up to ten years in prison and/or a $250,000 fine (18 U.S.C. §922(g)(8)).

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Attachment M Federal Firearms Language

Do No Harm: Protective Orders in Texas

Federal Firearms Language

Title 18, Section 922 of the United States Code (18 U.S.C. §922) states:

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person -

(1) for any person –

(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that –

(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and

(B) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(9) has been convicted in any court of a misdemeanor crime of domestic violence.

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Attachment N Motion for Contempt

No. STATE OF TEXAS FOR THE PROTECTION OF

, § IN THE DISTRICT COURT Applicant vs. § JUDICIAL DISTRICT

, § COUNTY, TEXAS Respondent

MOTION FOR CONTEMPT

1. This Motion for Contempt is brought by the State of Texas, Movant, who requests the Court to enforce by contempt a prior order in this cause.

2. Respondent is , who may be served with process at , his usual place of Movant is Applicant and Respondent is Respondent in the above described order. In support of this Motion, Movant would show the following:

3. On , this Court entered a Protective Order in the above styled and numbered cause, the relevant parts of which are set forth in the attached pertinent page(s) of said order, labeled Exhibit A, incorporated herein as if fully set forth verbatim for all purposes.

4. Respondent has violated the order described above by failing to make child support payments, by failing to pay court costs to the Clerk, by failing to pay attorney's fees, and by failing to attend counseling or file required affidavits.

Contempt Allegations and Payment Record

5. As of the date of the filing of this motion, Respondent has failed and refused to comply with said order and has willfully disobeyed the order of the Court as follows:

a. Child Support: Respondent has failed to make child support payments as ordered and is in arrears in excess of one (1) month by failing to pay and/or by failing to pay timely $ per as current child support through the Registry as ordered, as evidenced by the attached payment record, on the following dates:

Motion for Contempt Page 1 of 3 The amount of child support due by the terms of the above-cited order through the date of the filing of this motion is $ . The amount of child support paid through the Registry since the entry of the order is $ , leaving arrears in the amount of $ . A copy of the record of child-support payments maintained by the Domestic Relations Office is attached to this motion as Exhibit B.

b. Court Costs: Respondent has failed to make payment to the Clerk for court costs by , as ordered. Respondent is in arrears for court costs in the amount of $ .

c. Attorney's Fees: Respondent has failed to make payments to the County Attorney's Office for attorney's fees by as ordered. Respondent is in arrears for attorney's fees in the total amount of $ .

d. Counseling: Respondent has failed to enter counseling by attend, pay costs, or complete counseling by , and has not submitted any affidavit of compliance or unavailability to the Court as ordered.

6. Applicant requests that Respondent be held in contempt, jailed, and fined for each alleged above.

7. Applicant believes, based on the repeated past violations of the Court's order by Respondent, that Respondent will continue to fail to comply with the order. Applicant requests that Respondent be held in contempt, jailed, and fined for each failure to comply with the Court's order from the date of this filing to the date of the hearing on this motion, specifically Respondent's failure to pay or timely pay child support in the amount of $ due on .

8. Applicant requests that Respondent be confined in the county jail until Respondent complies with the order of the Court.

9. Respondent's total arrearage at the time of filing this motion is $ , which amount includes past due child support, court costs, and attorney's fees. Applicant requests confirmation of all arrearages shown at trial and rendition of judgment plus prejudgment and post-judgment interest, attorney's fees and costs.

Motion for Contempt Page 2 of 3

10. Respondent has been in arrears in payment of child support for 30 days or more for some portion of the amount due and is in arrears for an amount equal to at least one month's support. Applicant requests the Court to order income withheld for child support or order a bond or security.

11. Applicant requests that, if the Court finds that any part of the order sought to be enforced is not specific enough to be enforced by contempt, the Court enter a clarifying order, specify in its clarifying order the duties imposed on Respondent and a reasonable time within which compliance will be required, and grant all other relief permitted by law.

12. The County Attorney's Office has incurred expenses in assigning a licensed attorney to enforce and protect the rights of the Applicant and the children, the subjects of this suit. Respondent should be ordered to pay reasonable attorney's fees to be taxed as costs and ordered paid directly to the County Attorney's Office. Movant requests that Respondent be ordered to pay costs of court in this proceeding.

PRAYER Movant prays that the Respondent be ordered to appear and show cause why he/she not be held in contempt for disobedience of this Court's Order as alleged herein for each separate act of contempt and that punishment be fixed at a fine of not more than $500.00 or confinement in the county jail for not more than six months, or both. Movant prays that court costs and attorney's fees be assessed against the Respondent. Movant prays that the Court grant all other relief permitted by law.

Attorney for the State of Texas Name: Address: , Texas 7 Phone: ( ) - Fax: ( ) - SBN #:

Motion for Contempt Page 3 of 3

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Attachment O Obstacles in the Criminal Justice Process

OBSTACLES IN THE CRIMINAL JUSTICE PROCESS

THE VICTIM MAY… 1. Fear that the batterer knows where the victim is and will continue to intimidate the victim throughout the criminal proceedings. 2. Have been forced or threatened to rescind or request dismissal of charges in the past and may fear initiating proceedings again. 3. Have participated in the past and the criminal justice system failed to protect her, and/or failed to provide adequate intervention to hold the batterer accountable or stop the violence. 4. Be financially dependent upon the batterer and be forced to continue residing in the same household. 5. Have suffered consequences for involving the criminal justice system in the past (i.e., from batterer or law enforcement arrested them for defending themselves). 6. Lack valid information about the criminal justice process. 7. Feel pressure from their family and friends to not cooperate. 8. Lack assurance that the criminal justice system can provide safety for the victim from the batterer if the victim cooperates.

THE BATTERER MAY…

1. Interfere with the victim’s ability to appear in court by intercepting her mail, or misinforming the victim about court dates, etc. 2. Interfere by talking to the victim about the case, or by providing misinformation about the court process. 3. Threaten the victim and the victim’s family or friends to prevent the victim from cooperating.

Texas Council on Family Violence P.O. Box 181610 • Austin, Texas 78716 512/794-1133 • Fax: 512/685-6396 www.tcfv.org

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Attachment P Advice to Prosecuters: 15 Steps to Making Victims Safer

Battered Women’s Justice Project’s Advice to Prosecutors: 15 Steps to Making Victims Safer

1. Contact Victim Early and Often 2. Work With Advocates 3. Evaluate Risk Factors 4. Create a Safety Plan 5. Prepare Victim for Court 6. Institute Vertical Prosecution (one prosecutor handles the case throughout…from charging through trial and sentencing) 7. Assist With & Enforce Protection Orders and “No Contact” Provisions 8. Always Keep the Victim Informed 9. Place focus on the Offender of the System, Not on the Victim 10. DON’T Prosecute Victims for: - Contempt - Perjury - False Police Report 11. Collect & Share Data With Other Criminal Justice Agencies & Victim Support Groups 12. Start Public Awareness Initiatives 13. Don’t Minimize the Violence 14. Allow for “Real” Victim Input Into Process 15. Institutionalize These Practices Into Coordinated Community Response: - Policies - Procedures - Protocols - Practices - Forms Texas Council on Family Violence P.O. Box 181610 • Austin, Texas 78716 512/794-1133 • Fax: 512/685-6396 www.tcfv.org

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Attachment Q Article: Illegal Aliens in State Courts: To Be or Not to Be Reported to Immigration and Naturalization Service by Harry J. Joe, Texas Bar Journal, November 2000

Illegal Aliens in State Courts: To Be Or Not To Be Reported to Immigration and Naturalization Service? By Harry J. Joe This article originally appeared in the Texas Bar Journal, November 2000, Vol. 63, No. 10, p. 955-959, and has been reprinted with permission from the author and the Texas Bar Journal.

Our state civil and criminal district and county courts are seeing the appearance of an ever-increasing number of litigants and witnesses who are illegal or undocumented aliens. When the immigration status of such a person comes to the attention of the judge, an immediate issue comes to mind:

Is the judge obligated to notify the United States Immigration and Naturalization Service (INS) that such an alien is in the court?

The practice of calling the INS has occurred in various Texas district and county courts. There is widespread confusion about whether state judges are required or obligated to report to INS the presence of a party or a witness whose status as an undocumented alien or unlawful alien becomes known to the court. This article will shed light on this very sensitive issue that is increasingly confronting our judiciary in Texas. While judges may choose to make a report to the INS, this article establishes that judges in our state district and county courts are not required to report the presence of a party or witness who happens to be an undocumented or unlawful alien in the United States.

Who Is An Undocumented Alien? Typically, an undocumented or unlawful alien is one who is not a citizen of the United States and who entered the United States in violation of Section 275 of the Immigration and Nationality Act (INA), as amended, 8 U.S.C. § 1325. Such an alien is one who enters or attempts to enter the United States at any time or place other than as designated by the INS, or an alien who eludes examination or inspection by immigration officers, or an alien who attempts to enter or obtains entry into the United States by a willfully false or misleading representation or the willful concealment of a material fact.1 Hispanics make up the largest number of such undocumented aliens in Texas.

An alien who illegally enters the United States is subject to penalties when apprehended and convicted. For a first offense, the alien may be fined and/or imprisoned for not more than six months. For a subsequent commission of such an offense, the alien may be fined and/or imprisoned for not more than two years. In addition, the alien may be subject to a civil monetary penalty of at least $50 and not more than $250 for first commission and on subsequent commissions, twice the amount.2

Unlawful entry is not a continuing offense. The offense is completed at the time that the alien gains entry through an unlawful point and where he or she does not submit to examination and inspection. It is not one that continues as long as the alien remains in this country.3 Therefore, an undocumented alien’s presence in the United States after an unlawful entry is not a criminal offense, rather, it is the improper entry that is the violation.

An undocumented alien may also be one who had previously been denied admission into the United States, ordered to be excluded, deported, or removed from the United States, or who has departed the United States while under such an order and who thereafter is at any time found in the United States without prior authorization from the INS to reapply for admission or who could not otherwise establish that he or she was not required to obtain such advance authorization from the INS.4 Such an alien who enters in violation of this provision is subject to both fine and/or imprisonment. Moreover, the continuing presence in the United States of such an alien is deemed to be a continuing offense.5

No Mandated Obligation To Report Presence Federal and State Laws Neither federal nor state law mandate that a civil or criminal district or county court judge report to the INS the presence of an undocumented/unlawful alien who is present in the court and whose presence in the United States is in violation of 8 U.S.C. § 1325 or 1326. Aside from an exception for convicted criminal aliens, there is no provision in the Texas Code of Criminal Procedure, Code of Civil Procedure, Government Code, or Civil Practice and Remedies Code that requires a judge to make such a report to the INS.

Exception For Criminal Aliens However, convicted criminal aliens must be reported. Article 2.25 of the Texas Code of Criminal Procedure mandates that: A judge shall report to the United States Immigration and Naturalization Service a person who has been convicted in the judge’s court of a crime or has been placed on deferred adjudication for a felony and is an illegal criminal alien as defined by Section 493.015(a), Government Code. A judge’s obligation to report to the INS only arises when: (1) a person has been convicted in the judge’s court of a crime or has been placed on deferred adjudication for a felony; and (2) such person is an illegal criminal alien. An “illegal criminal alien” is one who has been convicted of a felony and is in the custody of the state and who entered the United States without inspection or at any time or any place other than as designated by the United States Attorney General or who was admitted as a nonimmigrant and before the date of the commission of the crime had failed to maintain nonimmigrant status, e.g., remained beyond the period of authorized stay.6

Texas Code Judicial Conduct On March 15, 1999, the Texas Center for the Judiciary issued Ethics Opinion No. 247 which squarely addressed the issue of whether the Code of Judicial Conduct required a judge to report to the INS the presence of a party or witness who is an undocumented alien. It also addressed whether the code prevented the judge from making such a report. In answering “No” to both questions, Ethics Opinion No. 247 concluded that Canon 3D of the Code of Judicial Conduct did not govern whether a judge was or was not obligated to make such a report.

Therefore, parties and witnesses in district and county courts who are undocumented aliens present in the United States in violation of 8 U.S.C. § 1325 or 1326 do not fall within the reporting requirement of Article 2.25, nor do they fall under the state Code of Judicial Conduct, absent conviction for a crime.

Rights of Undocumented Aliens to Bring Suits in State District and County Courts Undocumented aliens or aliens who unlawfully enter the United States may file and prosecute a suit in our state courts. Such a right is conferred under the 14th Amendment to the U.S. Constitution, set forth by statute in 42 U.S.C. § 1981, and established by caselaw.

Constitutionally-Protected Right An undocumented alien’s right to sue is based on the 5th and 14th Amendments to the U.S. Constitution.7 In Yick Wo v. Hopkins, it was said: The 14th Amendment to the Constitution is not confined to the protection of citizens. …nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law. These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality; and the equal protection of the laws is a pledge of the protection of equal laws.8

Right to Sue Established in 42 U.S.C. § 1981 42 U.S.C. § 1981 states: All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens… The U.S. Court of Appeals for the Fifth Circuit seriously questioned whether an alien’s entry into the United States in violation of 8 U.S.C. § 1325 could result in a withdrawal of the alien’s access to the federal court guaranteed all “persons” under the due process clause of the 14th Amendment as codified at 42 U.S.C. § 1981. In response to the argument that a party’s entry into the United States in violation of 8 U.S.C. § 1325 should bar the alien’s right of access to the court, Circuit Judge Gee stated: Even assuming that violations of the immigration laws by the Moreaus occurred, the remedy for these violations is, according to the statutes cited, criminal sanctions, not denial of access to the court. We seriously doubt whether illegal entry, standing alone, makes outlaws of individuals, permitting their contracts to be breached without legal accountability. According to the court in Moreau, undocumented aliens residing in the United States have access to the courts under the 14th Amendment to the U.S. Constitution and 42 U.S.C. § 1981.9

Right of Access Firmly Established by Case Law In addition to the court in Moreau, numerous other courts have held that undocumented aliens residing in the United States have the right to sue in federal and state courts.10 Courts in other jurisdictions have held that aliens residing within their jurisdiction may prosecute divorce proceedings.11

Conclusion An undocumented alien’s right of access to the state district and county courts is grounded in the 14th Amendment of the Constitution of the United States, codified in 42 U.S.C. § 1981, and established in numerous precedent decisions. There are no provisions in the Immigration and Nationality Act, as amended, the Texas Code of Criminal Procedure, Texas Rules of Civil Procedure, Texas Government Code, Texas Civil Practice and Remedies Code, or Code of Judicial Conduct that requires a district or county court judge to report to the INS the presence of a litigant or a witness who entered the United States unlawfully unless the alien is a convicted criminal alien as discussed above. Moreover, the only judicial ethics opinion to date on this subject has held that there is no obligation to make such a report. In view of the foregoing, district and county court judges are not legally required to report to the U.S. Immigration and Naturalization Service the presence or status of alien litigants and witnesses who have entered the United States unlawfully.

1. 8 U.S.C. § 1325(a). 2. 8 U.S.C. § 1325(a), (b). 3. United States v. Rincon-Jaminez, 595 F.2d 1192 (9th Cir. 1979); Gonzalez v. Peoria, 537 F.Supp. 793 (D. Ariz. 1982), aff’d., 722 F.2d 468 (9 Cir. 1983). 4. 8 U.S.C. § 1326. 5. See Rincon-Jimenez, 595 F.2d at 1194. 6. Tex. Gov’t Code Ann. § 493.015(a) (West, 1998). 7. Yick Wo. v. Hopkins, 118 U.S. 356 (1886); Wong Wing v. United States, 163 U.S. 228 (1896); and Graham v. Richardson, 403 U.S. 365 (1971). 8. See Wong Wing, Id. at 238. 9. Moreau v. Oppenheim, 663 F.2d 1300 (5th Cir. 1981) 10. See Arteaga v. Allen, 99 F.2d 509 (5th Cir. 1938) (estate of illegal alien could maintain wrongful death action); Martinez v. Fox Valley Bus Lines, 17 F.Supp. 576 (N.D. Ill. 1936) (illegal alien could maintain damages for personal injuries); Torrez v. State Farm Mut. Auto Ins. Co., 705 F.2d 1192 (10th Cir. 1982) (estate of illegal alien was not precluded from suing for damages resulting from his death in an automobile accident); Peterson v. Neme, 281 S.E.2d 869 (Va. 1981) (tort action by illegal alien permitted, damages can include loss of wages in employment not authorized under immigration laws); Alvarez v. Sanchez, 482 N.Y.S.2d 184 (1984) (undocumented maid could sue to recover wages that were unpaid or paid below minimum wage). 11. Bustamante v. Bustamante, 645 P.2d 40 (Utah 1982); Williams v. Williams, 328 F. Supp. 1380 (V.I. 1971).

Harry J. Joe is a shareholder and the Immigration Law Practice group leader at the Dallas-based law firm of Jenkins and Gilchrist, P.C. He received his J.D. from the Washington University School of Law in St. Louis in 1975. Since, 1980, he has been certified in immigration and nationality law by the Texas Board of Legal Specialization. He is a past president of the Dallas Asian American Bar Association. He served as an adjunct instructor of immigration law at Southern Methodist University School of Law in Dallas from 1982 to 1994.

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Attachment R

Specific Protective Order Provisions That May Be Used To Assist Immigrant Survivors

Do No Harm: Protective Orders in Texas

Specific Protective Order Provisions That May Be Used To Assist Immigrant Survivors

Adapted from Chapter 9 --Creative Use of Protection Orders in Battered Immigrant Cases -- Somewhere to Turn: Making Domestic Violence Services Accessible to Battered Immigrant Women written by the Immigrant Women Program of NOW Legal Defense and Education Fund

Protective orders can be used creatively to obtain some of the evidence that will be needed by the immigrant client to successfully pursue an immigration case. Moreover, creating a protective order that addresses the immigration concerns of the client will reduce the client’s fears of deportation and the likelihood of deportation actually taking place.

Protective orders also provide critical documentary evidence that violence has occurred for immigrant survivors who file for immigration benefits.

Creative Remedies for Immigrant Survivors

When requesting creative remedies for immigrant survivors, it is important to explain to the judge the need for such provisions and how they help stop the violence. It is also important to show how this relief will prevent future harm to the petitioner and enhance the petitioner’s ability to flee and live free from violence. The following provisions in protective orders can be particularly helpful to battered immigrant clients:

The respondent shall: 1. Give petitioner access to, or copies of, any documents supporting petitioner’s immigration application. 2. Take any and all action necessary to ensure that the petitioner’s application for permanent residency is approved. 3. Pay any and all fees associated with the petitioner’s and/or children’s immigration cases. 4. Pay to the petitioner through the court all costs associated with replacing documents destroyed, hidden, or claimed to be missing by the respondent, including the petitioner’s or the children’s passports, social security cards, alien registration cards, birth certificates, work permits, bank cards, or drivers’ licenses. 5. Sign a prepared FOIA (Freedom of Information Act) form with the results of this form to be sent to the petitioner or the petitioner’s attorney. (This will allow the petitioner to gain access to information about the status of the immigration petition that he may have filed on her behalf.) 6. Sign a document in open court in which he provides under oath, both orally on the official court record and in writing the following information: the state, county, and

Texas Council on Family Violence 2001 1

Do No Harm: Protective Orders in Texas

city of his birth, and the hospital in which he was born. The respondent shall sign the state form required to obtain a coy of his birth certificate in open court. (This will allow the petitioner to obtain a copy of the respondent’s birth certificate, which is needed to prove his citizenship for a VAWA immigration case.) 7. Under oath sign a document in open court stating whether he has been previously married and identifying the jurisdiction in which each prior marriage was terminated, including the date each prior divorce or annulment order was issued. He shall also state whether or not he has copies of his divorce or annulment decree(s) and shall turn over to the petitioner copies of each decree. (In order to qualify for relief under VAWA, immigrant survivors must prove to the BCIS, formerly the INS, that they are legally married to a U.S. citizen or lawful permanent resident.) 8. Sign a statement that will also be signed by the petitioner and the judge informing a (particular) embassy or consulate that it should not issue visitors’ visas or any other visa to the child of the parties absent an order of the court. (A copy of the order must then be filed by the petitioner with any potentially relevant consulates, embassies, passport offices, and airlines to prevent the issuance of a visa and the removal of the parties’ children from the United States.) The respondent shall not: 1. Withdraw the petition for alien relative, (this is the petition that begins the process of obtaining lawful permanent residence) which has been filed on petitioner’s behalf or any other immigration petition filed on petitioner’s behalf. 2. Contact BCIS, the (insert particular) Consulate, or the (insert particular) Embassy about petitioner’s immigration petition. 3. Remove the children from the court’s jurisdiction and/or the United States absent a court order and shall relinquish the children’s passports to the petitioner or the court. (When batterers remove children to other countries, it may be particularly difficult to trace or retrieve the children. A copy of this court order must be forwarded to the United States Department of State – Office of Passport Services to prevent the issuance of passports or duplicate passports for the children if the respondent attempts to obtain them.)

Texas Council on Family Violence 2001 2

Do No Harm: Protective Orders in Texas

Property and Documents: Protective Orders can also include language about items that a respondent needs to provide for the petitioner. This is especially crucial in cases involving battered immigrants, as many of the documents that are highlighted below are essential for an individual to gain immigration benefits under VAWA • The respondent shall immediately relinquish possession and/or use of and transfer to the petitioner the following items: - Petitioner’s Property (culturally and personally important items). Examples include photos, personal religious items, mementos from the petitioner’s home country, gifts, clothing, letters, or petitioner’s pocketbook. - Petitioner’s Property (needed to prove or attain legal status in the United States). Examples include the petitioner’s wok permit, ID card, bankcard, social security card, passport, or alien registration card or any other INS or State Department issued document. - Copies of Information about or Documents of the Respondent (VAWA related). Examples include the respondent’s passport, certificate of naturalization or citizenship, alien registration receipt or any other BCIS or State Department issued document, work permit, ID card, bank card, baptismal certificate, and Social Security card. Unless a battered immigrant spouse or child can prove that their abuser is a lawful permanent resident or citizen, they will not be granted immigration benefits under VAWA. By barring access to evidence of his immigration status, the abuser can continue to control his victim’s access to legal immigration status. - Evidence of a Good Faith Marriage. Examples include the parties’ marriage license application, marriage certificate, wedding photos, photos from family trips or events, letters exchanged, papers, documentation, or other objects relating to the marriage, copies of the respondent’s divorce certificates for any previous marriages and/or information about where such divorce decrees may be obtained. This documentation may be needed to prove that the battered spouse entered into a good faith marriage, one element of a VAWA immigration case. - Other Materials Needed by the BCIS that Establish that the Parties have Resided Together. This includes children’s school records, leases, rent receipts, utility bills, cancelled mail addresses to either or both of the parties at the same addresses, and income tax returns. This documentation may be needed to prove that the parties resided together and to establish the validity of the parties’ marriage.

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Do No Harm: Protective Orders in Texas

Warning Language:

The following language should be included in all protective orders. It highlights the potential immigration consequences of violating the order and committing domestic abuse:

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (as codified at 8 U.S.C. Sec. 1227(a)(2)(E)) makes a violation of this Order a deportable offense. If you are not a U.S. citizen, which includes being a lawful permanent resident or other lawfully present noncitizen, violation of this Order may result in your being deported.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 also makes a conviction for a crime of domestic violence, stalking, child abuse, child neglect, of child abandonment a deportable offense. If you are not a U.S. citizen, which includes being a lawful permanent resident or other lawfully present noncitizen, and you violate this order or are convicted for one of the above listed offenses, you may be deported.

Texas Council on Family Violence 2001 4

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Attachment S

What is Wrong with Mutual Orders of Protection

What Is Wrong with Mutual Orders of Protection?

by Joan Zorza

This article was originally published in Domestic Violence Report, * 1999 Civic Research Institute, Inc., 4490 US Route 27, Kingston NJ 08528, and is reprinted here with express permission. All rights reserved. Domestic Violence Report is a bimonthly professional report letter devoted to innovative programs, legal developments, and current services and research in the fight against domestic violence. For subscription information, write Civic Research Institute, 4490 U.S. Route 27, P.O. Box 585, Kingston, NJ 08528 or call 609-683-4450. Or click here to order on line [http://www.corrections.com/civic/subscribe.html].

Mutual orders of protection are protective orders issued against both of the parties to a dispute. Typically they occur within the same document, but they need not do so. Indeed, they could be issued by two different courts at different times, provided that they are both in effect simultaneously. Usually mutual orders are issued after only one of the parties has sought a protective order, particularly when they are issued within the same document. Regardless of how the mutual orders are granted, they have many problems. They often deny due process to one or both of the parties, and they are more dangerous to the victim than having no order at all.

Based on Misconceptions

Mutual orders are based on misconceptions, myths, gender bias and incorrect theories about domestic violence. Such misconceptions include: she pushes his buttons; she must have provoked the abuse; it is a family dynamic; it takes two to tango; the abuse will end when they get divorced; it couldn't have been that bad or she would have left long ago; it won't happen anymore because we have mediated all their disputes; it only occurs in dysfunctional families; or they are codependent on each other. Sometimes mutual orders are issued upon the consent of both parties, or after the case is sent to mediation, usually because the abuser (or the abuser's attorney) intimidates the victim, or the judge or victim's attorney is lazy or feels rushed and does not want to hold an evidentiary hearing about whether either party perpetrated abuse that was not justified. Domestic violence occurs by choice of the abuser, and when society does not hold the abuser fully accountable, the abuser benefits more by being abusive than he risks through societal sanctions. Almost never is abuse a mutual matter.

Mutual orders send everyone the wrong message. They encourage society to trivialize the abuse, to consider the abuse too minor to determine the identify of the real abuser. At the same time, such orders also encourage people to blame the victim rather than hold the abuser accountable. People believe that the court would not have issued mutual orders if only one party was abusive, so both must have been at blame. Mutual orders reinforce all the misconceptions that justify having granted mutual orders in the first place.

Confuses Children. These wrong messages are particularly unfortunate for the victim’s children, confusing the children about what the grownups and court system think is going on, what is acceptable behavior, who is at fault, what happens to those who abuse others, and what happens to victims who try to seek protection for themselves or their children. As a result, mutual orders contribute to perpetuating the intergenerational cycle of violence, the exact opposite of what domestic violence protection statutes are meant to accomplish.

Confuses and Further Empowers Abuser. Mutual orders reward the abuser and further empower him. They enable him to deny his actions and not take responsibility for them. Through mutual orders, the abuser is also able to get the entire system to focus on the victim. This is particularly true when the abuser falsely alleges, as abusers frequently do, that the victim abused him or violated the order. See Joan Zorza, "Batterer Manipulation and Retaliation in the Courts: A Largely Unrecognized Phenomenon Sometimes Encouraged by Court Practices," 3 DVR 67 (1998). He will be able to endlessly accuse her of having violated one or more terms of the protective order, or force her to bargain away her rights in exchange for him not bringing charges against her for violating the order.

Stigmatizes and Further Disempowers Victim. The wrong messages sent by a mutual orders stigmatize the victim. Instead of being empowered by such orders, they further disempower her. The enhancement of the power difference in the relationship, through the issuance of mutual orders, can only further confuse, exhaust and demoralize her.

Not Therapeutic. The stigmatization of the victim and enhancement of the abuser's power is not therapeutic for anyone. Without naming or recognizing the -6olence the victim cannot heal. Without holding the abuser accountable, the abuser cannot begin to heal. Children learn that violence works, that the abuser can largely (or completely) get away with the abuse, and that the system does virtually nothing to protect the victim. When the abuser's messages are reinforced by society, the children may feel safer if they take the abuser's side, even if this makes them feel guilty. If the children remain loyal to the victim, they worry about what the abuser will do and whether it is their fault. Mutual orders also prevent the children from understanding what is going on, and hence from beginning to heal.

Confuses the Community and Keeps Violence Private. Mutual orders reinforce society in ignoring domestic violence. The community is effectively told that domestic violence is a minor matter, one that is just between the parties involved, and that it is not important to know who abused whom or how serious the abuse was. Mutual orders keep the community as well as the family involved from recognizing the abuser's fault and holding him responsible. This judicial failure to hold the abuser accountable further encourages the community to not get involved and not help the -victim, thus, guaranteeing that society will continue to encourage domestic violence. Anthropologists have long told us that there are non-violent societies where men do not batter women. What distinguishes these societies is an atmosphere characterized by cooperation, commitment, sharing and equality. In societies where men do not beat women, women do not beat men, and although divorce is equally easy for both men and women to obtain, divorce is quite rare. If a woman is beaten in a nonviolent society, the entire community immediately intervenes, taking her side. David Levinson, Family Violence in Cross-Cultural Perspectives 103- 04 (Sage, 1989). The abuser gains nothing from his abuse, whereas his victim receives all of the support and sympathy, the exact opposite of what happens when mutual orders are issued. (Of course, a similar injustice happens if only one order is issued that is directed against the victim.)

Mutual Orders Are Worse Than No Order and Endanger the Victims

Confuses Police. Mutual orders confuse the police and give them no guidance on which party is guilty. Unless the police have witnessed the entire transaction, it is often impossible for them to know which party violated an order that directs both parties to stay away from each other, not interfere with the personal liberty of the other, and not contact the other. Usually such orders give the police no guidance on how to enforce the order, with the result that when police are summoned, they either do nothing, or threaten to or actually arrest both parties.

Police Confusion Results in Inappropriate Responses. When police are confused and do not know how to respond, the results are problematical. When police tell the real victim that no help will be given regardless of the abusiveness of the barterer, the victim learns that nobody will help her, no matter how serious the danger. This leaves the victim with no one to rely on. It also teaches the abuser that nobody cares about or is going to help the victim, reinforcing the abuser's belief that it is acceptable to beat and terrorize the victim. When police threaten to or do arrest both parties, the victim learns that help will only be given at an unfair and unacceptable price to the victim, i.e., the victim's arrest. Unfortunately, many batterers are quite willing to risk their own arrest if their victim will also incur punishment. For these abusers, arresting both parties is not a deterrence, but may actually encourage them to continue and even escalate their violence. This is a subversion of the legislature's intent in enacting the domestic violence statute.

Dual Arrests Are Much Harder on the Victim. When both parties are arrested, the victim is far more likely to spend more time in jail, particularly when the victim is female and the abuser is male. Victims are likely to have less money and less access to money than are abusers, and as a result are less able to be bailed out of jail. Victims are also less likely to have a support network of family or friends who can help bail them out of jail; abusers tend to isolate their victims from any potential emotional support by, for example, being inhospitable to those who might support the victim. Having less money, the victim is less likely to be able to afford a lawyer. Even if the victim is indigent, the court will not appoint a defense attorney before the arraignment. As most gender bias studies have shown, women's jails are usually located further from the courthouse than are those housing men. Most attorneys practicing criminal law have far more clients in the men’s jails and prisons, so it is usually less convenient for them to go see their imprisoned women clients. Partly as a result of the distance and inconvenience factors, attorneys spend considerably less time interviewing their jailed female clients than their jailed male clients facing similar charges. Given that battered women are more likely to languish in jail awaiting trial than their male batterers, their cases are likely to seriously suffer as a result of less preparation. In addition, those abusers who are out of jail while their victims remain locked up, are better suited to bolster their cases, threaten witnesses who might support the victims' side, or destroy exculpatory evidence. Because many attorneys do not take their female clients as seriously, they tend to believe the "mutual abuse" theory. Also, many attorneys become overconfident that a battered woman has a winning case, and as a result, they do not investigate or prepare the case and witnesses adequately. At the same time, fear for their children will make most battered women far more concerned about just ending the ordeal, even if that means pleading guilty. If a battered woman becomes depressed or suicidal or engages in other self-destructive behavior, her case is further damaged, as are her chances for custody of her children. As a result of all these factors, the victim is far more likely to plead guilty or be found guilty, again reinforcing the, 'mutual abuse" theory.

Mutual Orders Endanger the Children. In families with minor children, a mutual order will cause the victimized parent to lose her advantage in a custody case an advantage that the legislatures of more than 40 states have meant the victimized parent to have in a custody dispute with an abuser. judges in these states are required to consider domestic violence in their custody determinations, and to favor the non-battering parent. However, when mutual orders are issued, the battered parent is considered as culpable as the other parent, and is generally given no advantage. If the battered mother was jailed and later convicted, she is further jeopardized in the custody case, especially if the abuser was acquitted. When a battered mother is arrested, the children are likely to feel guilty, sabotaged and helpless, especially if one of the children called the police. When both parties are arrested, the children risk being placed in foster care. This is an emotionally devastating experience for children. While the police, child protection agency or courts are very quick to put children in foster care, it often takes months or years to return the children to their home. When just the victimized mother is arrested (or the abusive father is able to bail himself out quickly), the children are likely to end up in the care of their father. This is exactly the result that the legislature sought to avoid. It sends the wrong message to the children about which parent will be rewarded for the abuse. Also, it enables the abuser to have the children in his sole care if a divorce is filed, making it more likely that he will end up with permanent custody. Even if the state in which the family lives does not require its judges to consider domestic violence in making a custody decision, the issuance of a mutual order or the arrest of the abused victim may jeopardize the victim's ability to seek custody in another state that does consider domestic violence.

Mutual Orders Help Abusers Manipulate and Blame. Mutual orders give abusers another tool for harassing their victims. Because the abuser has an order against his victim, the abuser can intimidate or force the victim into a situation not in compliance with the order, or can falsely accuse the victim of violating the order in the hope that the police will arrest the victim or file charges in court against the victim. The abuser keeps shifting the blame back onto the -victim, never taking responsibility for any of the abuse. In this way, the abuser can exhaust, demoralize, drain, and retaliate against the victim (see Zorza, "Batterer Manipulation," supra), rewarding the abuser for false or spurious claims and further reinforcing the system's mistaken belief that its "mutual abuse" theory is true.

May Jeopardize Immigration Claim. An undocumented battered women married to a U.S. citizen or permanent resident alien may well lose the right to obtain her green card as a battered spouse if an order of protection, including one issued as part of a mutual order, has been entered against her.

Victim Risks No Full Faith and Credit. The victim also may lose full faith and credit recognition of her order of protection if she flees to another state. The police may refuse to enforce the victim's order. The police may even be justified in not enforcing the victim's order if the abuser initially sought the protection and the victim never filed for protection. Such is also the case if both the victim and abuser filed for protection, but the court never made findings as to whether the abuser perpetrated the abuse justifying the victim's order. See Joan Zorza, "The Implications for Full Faith and Credit for Protective Orders," 2 DVR 19 (1997). Even when the victim's order is entitled to enforcement, the state to which she fled may not understand its enforceability, due to insufficient facts or otherwise. Again, this puts the victim at risk for further abuse. Many mutual orders are issued because of (1) incorrect notions about mutual abuse, (2) gender bias against women, (3) laziness on the part of attorneys, mediators, or judges who do not want to go through the court case and make a proper decision, (4) failure of the victim to have any or decent representation or knowledge of the dangers of mutual orders, or (5) direct or indirect intimidation of the victim by the abuser. A problem with the lack of full faith and credit of mutual orders is that most battered women do not seek protection in other states unless they arc fleeing their abusers out of desperation, with the knowledge that they were not protected where they were. Although Congress wanted to see all victims of domestic violence protected throughout the country, Congress recognized that some orders are issued without complying with minimum legal standards, and as a result exempted these orders from receiving full faith and credit. Congress hoped and expected that these federal standards would be picked up as minimum standards throughout the country. 18 U.S.C. § 2265. However judges and law officers who are lazy or gender biased do not care, or may actively want to subvert battered women.

Mutual Orders Violate Due Process Mutual orders of protection violate the due process rights of the person against whom they are sought, when the pleadings requesting such orders are not served on the person in advance of the hearing, or when they do not state the basis on which they are sought. This is why Congress exempted most mutual orders in its full faith and credit provisions of the Violence Against Women Act, 18 U.S.C. § 2265. Every court that has ruled on the issue has struck down a mutual order issued against the original petitioner if issued without some pleading having been served on her, at least if the original petitioner objected at the hearing. The original petitioner's due process rights are violated because no advance notice is given of any allegations. Without notice of the alleged wrongdoing, adequate preparation of a defense is impossible. That is why every state's domestic violence statute requires the person initially seeking the order to state the supporting allegations in the petition or complaint, and then to serve the pleading on the person against whom the order is sought.

How Victim Can Fight a Mutual Order of Protection

If you have an attorney, let your attorney know in advance that you are not willing to be given a mutual order, and that you want him or her to oppose any attempt to make you accept a mutual order. If you are aware that the particular court involved often issues mutual orders, in your petition or complaint make a written request of the court to not issue a mutual order. Many judges know that it is not legal for them to issue such orders and if they have been asked not to do so, they will often not risk being overturned on appeal. Do not agree or let your lawyer agree to the issuance of a mutual order. If you do, you may have waived your right to contest the order. Remember that mutual orders are more dangerous than no order at all. If your abuser asks for a protective order, object if you were not served in advance with notice of his claim alleging what you supposedly did wrong, when you supposedly did it, how it harmed the abuser, and any other information that you were required to supply the court, such as whether it made the abuser afraid, whether it is likely to happen again, whether there were other incidents of abuse, etc. just how much advance notice will depend on the domestic violence statute in your state, but will typically be several days, though possibly as much as two to four weeks. Object if the judge tries to issue a mutual order. If no allegations have been made against you, inform the judge that it is a denial of your due process 'age-, fights to be deprived of any liberty when it was not alleged that you perpetrated a domestic violence act or offense. Female victims should also object that a mutual order constitutes gender bias, i.e., that the court is gender biased in allowing men to avoid the due process requirements, thus causing the due process rights of women to not be enforced. If you do not have an attorney, and are afraid to speak up in the courtroom, consider giving the judge a paper (with a copy to the abuser) stating that you object to any mutual order of protection, that it deprives you of due process, and that mutual orders are gender biased. If a mutual order is issued against you anyway, try to get the case appealed. Speak to your state domestic violence coalition, the National Coalition Against Domestic Violence, and other national domestic violence groups providing help. You will have to act quickly, as most states only give you a fairly short time in which to ask for an appeal (usually not longer than 30 days, and sometimes less). If your attorney agreed to a mutual order over your objection, you may want to file a complaint against your attorney with the attorney disciplinary board in your state.

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Attachment T

Data Entry Form for Texas Crime Information Center (TCIC)

PROTECTIVE ORDERS

Data Entry Form for TEXAS CRIME INFORMATION CENTER (TCIC)

The intent of this form is to aid court clerks with the collecting and providing to local law enforcement agencies pertinent information regarding protective orders for the purpose of entry into TCIC.

To be filled out by Criminal Justice/Law Enforcement Official:

ORI: ______(check one) PROTECTIVE ORDER: ______EMERGENCY PROTECTIVE ORDER: ______

OCA: ______PROTECTIVE ORDER NO: ______COURT IDENTIFIER: ______

ISSUE DATE: ______DATE OF EXPIRATION: ______DATE OF DISMISSAL: ______

*** RESPONDENT INFORMATION *** Items in ALL UPPERCASE LETTERS must be answered to allow entry into TCIC.

NAME OF RESPONDENT: ______SEX: (circle one) M F

RACE: (circle one) Indian Asian Black White Unknown Ethnicity: (circle one) Hispanic Non-Hispanic Unknown

Place of Birth: (State) ______DATE OF BIRTH: ______HEIGHT: ______WEIGHT: ______

Skin: (circle one) Albino Black Dark Dk Brown Fair Light Lt Brown Medium Med Brown Olive Ruddy Sallow Yellow Unknown

EYE COLOR: (circle one) Black Blue Brown Gray Green Hazel Maroon Pink Multi-Colored Unknown

HAIR COLOR: (circle one) Black Blond Brown Gray Red White Sandy Bald Unknown

Scars, Marks and/or Tattoos: (please describe in detail :______

RELATIONSHIP TO PROTECTED PERSON: ______

( PLEASE INCLUDE THE FOLLOWING NUMERIC IDENTIFIERS, IF AVAILABLE):

Texas I.D. No: ______Misc I.D. No: ______Social Security No: ______

Driver's License No: ______Driver's License State: ______Date of Expiration: ______

Respondent’s Address:

Street: ______City: ______State: ______Zip: ______COUNTY: ______

Respondent’s Vehicle Information:

License Plate No: ______L.P. State: ______L.P. Year Of Expiration: ______L.P. Type: ______

Vehicle I.D. #: ______Year: ______Make: ______Model: ______Style: ______Color: ______

To be filled out by Criminal Justice/Law Enforcement Official:

SID #: ______FBI #: ______FPC: ______MNU: ______

TEXAS DEPARTMENT OF PUBLIC SAFETY (JANUARY 1996) TCIC DATA ENTRY FORM FOR PROTECTIVE ORDERS RESPONDENT’S NAME: ______PAGE TWO

*** PROTECTED PERSON INFORMATION ***

NAME OF PROTECTED PERSON: ______SEX: (circle one) M F

RACE: (circle one) Indian Asian Black White Unknown Ethnicity: (circle one) Hispanic Non-Hispanic Unknown

DATE OF BIRTH: ______Address: ______City: ______

State: ______Zip: ______COUNTY: ______

Protected Person Employment Information: (use additional pages if necessary)

Place of Employment Name: ______Address: ______

______City: ______State: ______Zip: ______

Place of Employment Name: ______Address: ______

______City: ______State: ______Zip: ______

*** PROTECTED CHILD INFORMATION *** (Use additional pages if necessary)

Name of Protected Child: ______Sex: (circle one) M F

Race: (circle one) Indian Asian Black White Unknown Ethnicity: (circle one) Hispanic Non-Hispanic Unknown

Date of Birth: ______Child Care or School Facility Name: ______

Address: ______City: ______State: ______Zip: ______

Name of Protected Child: ______Sex: (circle one) M F

Race: (circle one) Indian Asian Black White Unknown Ethnicity: (circle one) Hispanic Non-Hispanic Unknown

Date of Birth: ______Child Care or School Facility Name: ______

Address: ______City: ______State: ______Zip: ______

Name of Protected Child: ______Sex: (circle one) M F

Race: (circle one) Indian Asian Black White Unknown Ethnicity: (circle one) Hispanic Non-Hispanic Unknown

Date of Birth: ______Child Care or School Facility Name: ______

Address: ______City: ______State: ______Zip: ______

Name of Protected Child: ______Sex: (circle one) M F

Race: (circle one) Indian Asian Black White Unknown Ethnicity: (circle one) Hispanic Non-Hispanic Unknown

Date of Birth: ______Child Care or School Facility Name: ______

Address: ______City: ______State: ______Zip: ______

TEXAS DEPARTMENT OF PUBLIC SAFETY (JANUARY 1996)

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Attachment U

Traveling Safely: Enforcing Protective Orders Throughout the United States Brochure – English and Spanish

Domestic Violence Coalitions Helpful Resources in Neighboring States Full Faith and Credit Technical Assistance Contact the following state domestic violence coalitions for questions regarding the enforcement of Texas Texas Council on Family Violence- protective orders in these states: Public Policy Department 800-525-1978 New Mexico State Coalition Against Domestic Violence Battered Women’s Justice Project 505-246-9240 800-903-0111 Oklahoma Coaltion Against Domestic Violence and International Association of Chiefs of Police Sexual Assault 800-The-IACP 405-848-1815 National Center on Full Faith and Credit Louisiana Coalition Against Domestic Violence 800-256-5883, #2 504-752-1296 Immigration Issues Arkansas Coalition Against Domestic Violence TRAVELING 501-812-0571 NOW Legal Defense and Education Fund, Immigrant Women Program 202-326-0040 Contact the Texas Council on Family Violence at 800- SAFELY: 525-1978 for information regarding other state domestic Family Violence Prevention Fund violence coalitions. 415-252-8900 Custody Issues Enforcing Protective Firearms National Council of Juvenile and Family Court Judges Orders Throughout (NCJFCJ) Texas and federal law prohibit possession of firearms 800-527-3223 while subject to a qualifying protective order. Federal The United States law also prohibits the possession of ammunition (8 U.S.C. Native American and Tribal Issues §922 (g) (8) and Penal Code §46.04 (c)). Sacred Circle 877-733-7623 State and federal law include an “official use exemption.” This exemption allows sworn, full-time paid employees of American Indian Law Center a state agency or political subdivision actively engaged in 505-277-5462 employment, to possess a firearm while on official duty. Mending the Sacred Hoop This exemption does not apply to second jobs, personal 888-305-1650 National Domestic Violence Hotline firearms or unpaid reserve officers. 800-799-SAFE (7233) Native American Reservations in Texas: 800-787-3224 (TTY for the Deaf) Federal law also says that anyone who has been convicted of an act involving domestic violence (including Class A Alabama-Coushatta, Polk County misdemeanors) can never possess ammunition or firearms. 936-563-4391 This permanent ban applies to everyone equally, even if they are law enforcement or military personnel. Kickapoo, Maverick County  , 2002 830-773-2105 TEXAS COUNCIL ON FAMILY VIOLENCE PO Box 161810 Tigua, El Paso County Austin, TX 78716 915-859-7913 512-794-1133 Protective Order Enforcement Tips for Safe Travel Tips For Advocates The federal Violence Against Women Act (VAWA) " Contact or encourage the victim to contact the state requires the enforcement of valid protective orders in all " You may need to do certain things to increase the domestic violence coalition in the victim’s new state states, territories and tribal nations, no matter where the likelihood that your Texas protective order will be to verify what rules apply to enforcing out-of-state order was issued. This part of the law is commonly called enforced in another state. Contact law enforcement protective orders. Though prohibited by federal “the full faith and credit provision” of VAWA. or the state domestic violence coalition in your new state to find out what rules apply to enforcing out- law, some states may require registration of the of-state protective orders. protective order before they will enforce it. Uniform Interstate Enforcement of Protective Orders Act (UIEPOA); Chapter 88, Family Code " Work with an advocate at a local domestic violence " Encourage victims to contact the local police or sheriff’s department in their new community The UIEPOA, states that law enforcement officers are program to develop a safety plan. Contact the regarding the protective order and to give them a required to enforce an out-of-state protective order as if it National Domestic Violence Hotline at 800-799- copy. were issued in Texas. Other important points of this law (SAFE) 7233 or 800-787-3224 (TTY for the Deaf) include: to find the program nearest you. " Contact your County and/or District Attorney’s 1. Probable cause that a valid protective order is in Office and encourage them to communicate with the effect is established if the protected individual " Take at least five (5) certified copies of your VAWA point of contact at the U.S. Attorney’s presents a protective order that identifies both the protective order with you to your new state or Office in their district. Texas and federal law protected individual and the respondent and is jurisdiction. You may need one for law enforce- prohibit possession of firearms while subject to a currently in effect. ment, the school, daycare, yourself and your qualifying protective order. Federal law also 2. A certified copy or registration of a protective order employer. prohibits the possession of ammunition (8 U.S.C. is not required for enforcement. §922 (g) (8) and Penal Code §46.04). Because it is 3. If a protected individual does not present a foreign " Carry a copy of the order with you at all times. against state and federal law, an offense can be protective order, an officer may determine probable investigated by the ATF and local law enforcement cause that a valid foreign protective order exists by " If it is safe to do so, tell the courts, the advocate or and prosecuted by the U.S. Attorney’s Office or relying on “any relevant information.” law enforcement if you know the abuser is in local prosecutor. Advocates should be familiar with 4. A law enforcement officer acting in good faith possession of firearms and/or ammunition. This is a the investigators and prosecutors and, when cannot be held civilly or criminally liable for violation of Texas and federal law and may be an appropriate, help facilitate communication between enforcing the order even if it is later determined that offense in your new state. Investigation and/or them and the protected person. the order was not valid. prosecution by state and/or federal authorities is possible. " What is known in Texas as a “protective order,” may The State That Issues the Protective Order Decides: be known in other states by a different name. Other " Above all, trust your instincts! If you do not feel ! Who is included as a protected person common names include: “no contact order;” safe, you probably are not! If you are in immediate (applicant, victim, other family members) “restraining order;” and “protection from abuse danger, call local law enforcement. Otherwise, order.” Despite different names, all valid protective contact the nearest domestic violence program or ! The terms and conditions of the order (required orders are entitled to enforcement. The key element the National Domestic Violence Hotline for distance, how long the order is valid) is that the order is designed to protect the victim assistance with safety planning. from the batterer’s violent, threatening or harassing The State That Responds to a Violation Decides: behavior. ! How law enforcement officers respond " When counseling victims, emphasize that the (arrest with or without a warrant, no arrest of the Child custody or support provisions in your Texas protective order may not be enforceable protective order is “just” a court order. A victim victim, type of charge) in another state. The laws regarding custody must still trust her instincts and follow her safety are very complicated and victims are strongly plan. ! How the criminal justice system responds encouraged to get the advice of an experienced (Length of time in jail, bond amount, and family law attorney. penalties) Asociaciones De Violencia Familiar Recursos Disponibles En Otros Estados Asistencia Técnica De Plena Fe y Crédito Llame a las siguientes asociaciones acerca de Violencia El Consejo Sobre la Violencia Familiar de Tejas de la Familia para preguntas con respecto a la El Departamento de Póliza Pública aplicación sobre las órdenes de protección de Tejas en 800-525-1978 los siguientes estados: ! La Asociación del Estado de Nuevo México Contra Proyecto de Justicia Para Mujeres Maltratadas la Violencia Doméstica 800-903-0111 505-246-9240 ! La Asociación del Estado de Oklahoma Contra la La Asociación Internacional de Jefes de la Policía Violencia Doméstica y Asalto Sexual 800-El-IACP 405-848-1815 Centro Nacional de Plena Fe y Crédito ! La Asociación del Estado de Louisiana Contra la 800-256-5883, #2 Violencia Doméstica 504-752-1296 ! La Asociación del Estado de Arkansas Contra la Temas de Inmigración VIAJE SEGURAMENTE: Violencia Doméstica Fondo NOW para la Defensa Legal y Educación 501-812-0571 Programa para Mujeres Inmigrantes Llame al Consejo Sobre la Violencia Familiar de Tejas 202-326-0040 El Cumplimiento de para información con respecto a otras asociaciones de la violencia familiar. Fondo de Prevención sobre la Violencia Familiar Ordenes de Protección En 415-252-8900 Armas de Fuego Temas sobre la Custodia Los Estados Unidos: Tejas y la ley federal prohiben la posesión de armas si Consejo Nacional de Jueces Sobre Cortes Juvenil y alguien esta sujeto a una orden de protección. La ley Familiar federal prohibe también la posesión de munición (8 800-527-3223 U.S.C. §922 (g)(8) y Código Penal §46.04(c)). Temas Indio Americano y Tribal Circulo Sagrado Línea Nacional Contra La La ley estatal y federal incluyen una « excepción 877-733-7623 oficial». Esta excepción permite empleados jurados, Violencia Doméstica pagados a tiempo completo por una agencia estatal o Centro De la Ley Indio Americano subdivisión político contratados activamente al empleo 505-277-5462 800-799-(SAFE) 7233 poseer una arma de fuego mientras cumple con Remendando el Circulo Sagrado 800-787-3224 (TTY) servicio oficial. La excepción no se aplica a los trabajos 888-305-1650 secundarios, a armas de fuego personales o a los oficiales de la reserva que no reciben salarios. Reservas para Indios Americanos En Texas:

La ley federal dice que también cualquiera que haya Alabama-Coushatta, Condado de Polk sido condenado de un acto de la violencia familiar, 936-563-4391 jamás se le permite tener munición o armas. Esto es Kickapoo, Condado de Maverick TEXAS COUNCIL ON FAMILY VIOLENCE, 2002 una prohibición permanente y aplica a todos T C F V 830-773-2105 PO Box 161810 igualmente aunque ellos sean policía o personas en el Austin, TX 78716 ejército. Tigua, Condado do El Paso 512-794-1133 915-859-7913 La Aplicación de Ordenas de Protección Puntos Para Viajar Con Seguridad Puntos Para Los Defensores " Usted debe hacer ciertas cosas para asegurar la " Llame o anime a la víctima que llame la coalición El Acto federal de Violencia Contra las Mujeres probabilidad que su orden de protección sea de la violencia doméstica en el estado nuevo para (VAWA) requiere la aplicación de órdenes válidas de aplicable en otro estado. Llame a la coalición verificar cuales reglas son aplicables a las órdenes protección en todos los estados, los territorios y las doméstica de la violencia en su estado nuevo y naciones tribales, a pesar donde la orden se publicó. de protección de otros estados. Algunas tienen pregunte cuales son las reglas para ordenes de Esta parte de la ley se llama comúnmente “la que ser registradas antes que sean aplicables protección. provisión de plena fe y crédito” de VAWA. aunque es prohibido por ley federal.

" Trabaje con un defensor del programa de la " Anime o aconseje la víctima que llame la policía El Actúa de la Aplicación Interestatal violencia domestica para desarrollar un plan de o el alguacil del condado en su comunidad nueva Uniforme a Ordenes de Protección, Capítulo seguridad. Llame a la Línea Nacional Contra La para avisarles y entregarles una copia de la orden 88, Código de Familia Violencia Doméstica al numero 800-799-7233 de protección. Las autoridades deben cumplir y aplicar órdenes de para localizar el programa mas cercano. protección de otros estados como si fueran publicadas " Llama al la Oficina del Procurador del Condado en Tejas. " Lleve por lo menos cinco (5) copias certificadas y/o Distrito y anímelos que hablen con una Otros puntos de importancia incluyen: de su orden de protección al nuevo estado o la persona del VAWA en la Oficina del Acusador 1. Causa probable que una orden de protección válida jurisdicción nueva. Se pueden necesitar una para Federal de los Estados Unidos. Tejas y ley federal está en efectivo si se establece que la persona la policía, la escuela, la guardería, su empleador y prohiben la posesión de armas o munición protegida entrega una orden que identifique la para usted misma. mientras es sujeto a un orden de protección. Ley persona protegida, al demandado y que la orden federal prohibe la posesión de munición (8 está actualmente en efecto. " Siempre cargue una copia de la orden con usted. U.S.C. §922(g) (8) y Código Penal §46.04). Es 2. Una copia certificada o registrada de la orden de una ofensa estatal y federal, se puede investigar protección no se requiere para que sea aplicada. " Si no es peligroso, avise al juez, abogado o la por el ATF o policía local y ser procesada por la 3. Si una persona protegida no entrega una orden de policía si usted sabe que el agresor está en la Oficina del Procurador de los Estados Unidos o protección extranjera, un oficial puede posesión de armas y/o munición. Esto es una un defensor local. Los abogados deben conocer al determinar causa probable que la orden extranjera violación de ley en Tejas y federal y puede ser procurador y cuando es apropiado, deben existe confiando en «información pertinente”. una ofensa en su nuevo estado. La investigación ayudarle a comunicarse con la persona protegida. 4. Un oficial que actúa para cumplir con la ley en y/o el procesamiento por el estado y/o autoridades federales es posible. buena fe no puede ser procesado civilmente ni " La “orden de protección” en Tejas puede tener criminalmente por aplicar una orden aunque otro nombre en algunos estados. Otros nombres " Sobre todo, confía en sus instintos! Si usted no después se determine que la orden no era válida. incluyen: “orden de no contacto”, “orden de se siente segura, probablemente no esta! Si usted refrena”, “orden sobre la protección del abuso”. está en peligro, llame inmediatamente a la policía El Estado Que Publica la Orden de Protección A pesar de nombres diferentes, todas las órdenes Decide: local. O avise al programa más cercano sobre la violencia doméstica o llame a la Línea Nacional de protección válidas deben ser aplicables. La ! Quién es incluida como persona protegida clave importante es que la orden es diseñada para (solicitante, la víctima, otros miembros de la familia) Contra La Violencia Doméstica para ayuda con un plan de seguridad. proteger a la víctima del comportamiento violente y ! Los términos y las condiciones de la orden (distancia amenazante del agresor. requerida, el tiempo que es valida) Puede ser, que custodia del niño o provisiones de apoyo en su orden de protección en Tejas Cuando aconseje una víctima, dígale que una orden de El Estado Que Responde a la Violación Decide: no sean aplicables en otro estado. Las leyes protección es “solamente” una orden de la corte. Una ! Cómo responde la policía (arresto con o sin con respecto a la custodia son complicadas y víctima siempre debe confiar en sus instintos y seguir las víctimas son animadas fuertemente a autorización, ningún arresto de la víctima). su plan de seguridad. ! Cómo responde el sistema criminal de justicia obtener consejos de un abogado con (plazo de tiempo en la cárcel, la cantidad de lazo, experiencia sobre la ley de la familia. tipos de cargos y castigos).