Protective Orders and Family Violence

PROTECTIVE ORDERS AND FAMILY VIOLENCE

I. WHAT IS A PROTECTIVE ORDER?

A Protective Order is a restraining order which prohibits family violence from occurring in the future where there are signs that either physical abuse or threats of imminent bodily injury have occurred.

A Protective Order is quasi-criminal in nature because a violation of a Protective Order does not only have civil consequence but also criminal consequences.

A protective order may last for two (2) years or for a lifetime in cases of sexual assault.

Family violence has reached epidemic proportions in Texas and in the nation as a whole. One out of every four American women reports that she has been physically or sexually assaulted by a husband or boyfriend at some point of her life. Prevalence, Incidence, and consequences of Violence Against Women: Findings from the National Violence Against Women Survey, National Institute of Justice and Centers for Disease Control and Prevention. November 1998.

II. WHAT DOES A PROTECTIVE ORDER DO? Texas Family Code Subchapter B. Contents of Protective Order, § 85.021 & § 85.022

Respondent and/or Respondent’s Agents can be Prohibited from:

. Committing acts of family violence; . Communicating or threatening the applicant a member of the family or household; . Going within 200 yards of those persons and places set out in the order; . Removing any children named in the order from the Applicant’s possession; . Disposing of property; . Harassing, threatening or harming the applicant or his/her family or members of household; . Possessing a firearm (with exceptions) (also affected by state/federal laws); and . Harming, threatening, or interfering with the care, custody, or control of a pet, companion animal, or assistance animal that is possessed by or is in the actual or constructive care of a person protected by an order or by a member of the family or household of a person protected by an order.

Protective Orders p1 Last update 8-23-2013 A Respondent can be Arrested and Confined in Jail for Violating a Protective Order.

A Respondent can be punished for contempt of court for violating a Temporary Ex Parte Order by a fine as much as $500.00 or by confinement in jail for as long as six months, or both.

A Respondent can also be criminally punished for a violation of a Final Protective Order by a fine of as much as $4,000.00 or by confinement in jail for as long as one year, or both.

An act 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.

Statistics have shown that the risk of violent assaults increase whenever a victim takes action that challenges the abuser’s control. Wilson and Daly, Spousal Homicide Risk and Estrangement: Violence and Victims, 1993.

III. WHERE CAN A PROTECTIVE ORDER BE FILED? Texas Family Code Subchapter B. Venue, § 82.003

A Protective Order can be filed by the District Attorney or Private Attorney in the county in which the applicant resides; or the county in which the respondent resides.

This allows victims of family violence to flee their abusers and still be able to file a Protective Order in the new county in which they have sought safety.

Eff. 6-14-2013 An application for a protective order may be filed in any county in which the family violence is alleged to have occurred.

Eff. 6/14/2013 there is no legal conflict of interest when a prosecutor representing DFPS also assists that party with obtaining a protective order, subject to the Texas Disciplinary Rules of Professional Conduct.

Over half of the murders of women by an intimate partner in Texas in 1998 occurred after separation or while she was attempting to leave. Grim Tally, Texas Council on Family Violence, 1998.

Protective Orders p2 Last update 8-23-2013 IV. WHAT NEEDS TO BE IN THE APPLICATION? Texas Family Code Subchapter B. Contents of Application, § 85.004

Name and County of residence of each applicant

Name and County of residence of each individual alleged to have committed family violence

The Relationship between the applicants and the respondent

A request for one or more Protective Orders

Eff. 9/1/2013 the application must state whether the applicant is receiving child support services from the attorney general’s office and, if known, that agency’s case number for each open case.

V. WHERE IS THE APPLICATION FILED? Texas Family Code Subchapter B. Application filed during suit of Divorce or SAPCR, § 85.005, § 85.006, §85.007

If a Divorce case or SAPCR is pending it is filed in the same Court.

If a Child is the subject of the Protective Order and is under a Continuing Jurisdiction it is filed in that Court.

VI. WHO QUALIFIES FOR A PROTECTIVE ORDER?

Family Members [Related by consanguinity (by blood) or affinity (by marriage).]

Spouses (including common-law marriages) Former spouses Biological parents of the same child Person related by blood Foster child Foster parent A spouse’s relative by consanguinity.

The ending of a marriage by divorce or the death of a spouse ends a relationship by affinity created by that marriage unless a child of that marriage is living, in which case the marriage is considered to continue as long as a child of the marriage lives. 573.024 Government Code

Members of the Same Household

Persons living together in the same dwelling without regard to whether they live together and persons who previously lived in the same household.

Protective Orders p3 Last update 8-23-2013 Individuals in a Dating Relationship

“Dating Violence” means an act, other than a defensive measure to protect oneself; by an actor that: is committed against a victim  With whom the actor has or has had a dating relationship; or  Because of the victim’s marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonable places the victim in ear of imminent physical harm, bodily injury, assault, or sexual assault.

Courts will consider length, nature, and the couple’s interaction in the relationship

Victims of Sexual Assault (Without regard to the relationship between the applicant and the alleged offender)

The Chapter 7A of the Code of Criminal Procedure to allow a victim of sexual assault to apply for a Protective Order without regard to the relationship between the applicant and the offender.

This code also includes victims of trafficking, compelled prostitution, and of sexual abuse.

An application maybe filed for the protection of any person alleged to be a victim of family violence by:  a prosecuting attorney,  the Department of Protective and Regulatory Services,  any adult member of the family or household,  an adult member of the dating relationship, or  any adult to protect a child from family violence.

In Texas, intimate partner homicide occurs at one of the highest rates in the country. Surveillance for Homicide Among Intimate partners, Center for Disease Control October 2001.

VII. HOW QUICKLY CAN A PROTECTIVE ORDER BE ORDERED?

Once an Application is filed the Court must set a date and time for the hearing no later than 14 days after the date the application is filed.

The Respondent may ask for a resetting if he was not personally served within 48 hours before the time set for the hearing.

The hearing may also be rescheduled for insufficient notice.

Protective Orders p4 Last update 8-23-2013 Temporary Ex Parte Orders

However, when applying for a Protective Order, the applicant may also apply for a Temporary Ex Parte Order that will protect the applicant up until the hearing.

The Temporary Ex Parte Order also protects the applicant even after the initial hearing if the hearing is rescheduled and it is requested that the order be extended.

Abuse victims who obtain a Protective Order are 60% less likely to have further contact with the perpetrator and 70% less likely to suffer further injury than victims who only made a report to the police. Am. J. Preventive Medicine, January 2003.

VIII. WHAT MUST A COURT FIND TO GRANT A PROTECTIVE ORDER?

A Court must find that 1. family violence has occurred; and 2. that family violence is likely to occur in the future.

Family violence is an act by a member of a family or household against another member that is intended to result in physical harm, bodily injury, assault, or sexual assault or a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself. Family violence also includes dating violence.

Generally, when showing a threat of physical force, immediacy needs to be inherent in the nature of the threat made by the respondent. A mere threat of physical force in the future is usually insufficient. To provide enough evidence to qualify a victim for a Protective Order it is necessary to show that the respondent intended immediate harm to result by some showing of aggression at the time the threat is made which requires retreat by the victim who is placed in fear of his/her safety.

Family violence also includes abuse as defined by § 261.001 (1)(C), (E) (G) Texas Family code, by a member of family or household toward a child of the family or household.

"Abuse" includes the following acts or omissions by a person:

(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;

Protective Orders p5 Last update 8-23-2013 (E) sexual conduct harmful to a child's mental, emotional, or physical welfare, including conduct that constitutes the offense of continuous sexual abuse of young child or children under Section 21.02, Penal Code, indecency with a child under Section 21.11, Penal Code, sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code;

(G) compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code, including conduct that constitutes an offense of trafficking of persons under Section 20A.02(a)(7) or (8), Penal Code, prostitution under Section 43.02(a)(2), Penal Code, or compelling prostitution under Section 43.05(a)(2), Penal Code;

Research has found young adults ages 16 to 24 experience the highest rate of intimate partner violence. Intimate Partner Violence, Bureau of Justice Statistics May 2000.

Delivery of Protective Order

Eff. 9/1/2013 a copy of a protective order must be sent to the attorney general’s office if the application indicates that the applicant is receiving child support services from that agency.

Eff. 9/1/2013 a copy of a protective order shall be sent to a respondent’s superior officer only if the applicant provides the clerk with the mailing address of the applicable official.

Pro Se

https://www.oag.state.tx.us/AG_Publications/pdfs/protectiveKit_dv.pdf

Other Available Options

Magistrate’s Order for Emergency Protection may be issued at the time of a defendant’s appearance before a magistrate after arrest for an offense involving family violence or a sexual assault. The order for emergency protection may be issued on the magistrate’s own motion or on the request of the victim; guardian of the victim; a peace officer; or the attorney representing the State.

A Magistrate’s Order for Emergency Protection may prohibit the arrested offender from committing any further acts of family violence, communicating with a member of the family or household or the person named in the order, or making any threats or going near the place of employment, household or business of a member of the household or of the person named. The offender may also be restricted from going near a school or day care facility. The victim does not have to be present in court when the order is issued.

Protective Orders p6 Last update 8-23-2013 A violation of this order may be punishable by a fine of as much as $4,000.00 or by confinement in jail for up to one year or both.

Even if ineligible for a protective order, you may be able to have the person arrested for assault, criminal trespass or stalking.

Condition of Bond

Restraining Order

Rule 680 et seq. of the Code of Civil Procedure

Protective Orders p7 Last update 8-23-2013