Volume 12 JULY 2003 No. 5 ©2003 Texas Municipal Courts Education Center, Austin. Funded by a grant from the Court of Criminal Appeals. Magistrate’s Order After the MOEP: What for Emergency Happens Next? Protection By Robert J. Gradel, Municipal Judge, Lampasas By Kimberly A.F. Piechowiak, Assistant City Attorney II You head down to the jail on Sunday morning about 8:00 Family Violence Prosecutor, San Antonio a.m. Eleven people have been arrested overnight, and your Sunday School class begins at 9:00 a.m., so you have no In cases of domestic violence, victim safety should be a time to waste. Waiting for you is a woman (and her primary concern. State law has been crafted to emphasize mother) who wants an emergency protective order. She this priority, not only for law enforcement personnel and tells you that her husband has an alcohol abuse problem. prosecutors, but also for judicial officers. Article 5.01(b) of Last night, he clenched his fists like he was going to hit her, the Texas Code of Criminal Procedure states: called her bad names, threatened her, pushed her, and In any law enforcement, prosecutorial, or judicial threw the remote at her, all in front of the children. She response to allegations of family violence, the has no visible red marks, bruises, or abrasions. He has responding law enforcement or judicial officers shall done this before, but she never called the police. They have protect the victim, without regard to the relationship been married 10 years and have three children. The police between the alleged offender and victim. officer who answered the call and made the arrest got off To assist a magistrate in fulfillment of this goal, Section at 6:00 a.m. On his sketchy report, he indicated that he 17.292 of the Code of Criminal Procedure allows for a thought you should consider granting a protective order. Magistrate’s Order for Emergency Protection (MOEP). The husband admits calling her bad names and having a MOEP continued on page 5 After the MOEP continued on page 6

FAQs about MOEPs INSIDE THIS ISSUE By Karrie Key, Associate Judge, Austin Articles: Why do we need to worry about After the MOEP: What Happens Next? your own motion. Practice tip: On the by Robert J. Gradel ...... 1 MOEP’s? Because the Code of MOEP itself, never recite that the FAQs about MOEPs by Karrie Key .... 1 Criminal Procedure instructs judges to victim requested the MOEP. Remember, extend maximum protection to victims the defendant receives a copy. Given Magistrate’s Order for Emergency Protection by Kimberly A.F. Piechowiak ...... 1 of family violence. Art. 5.01, C.C.P. possibly volatile circumstances, I Do I need a motion from the wouldn’t alert the defendant that the Columns: arresting officer or the victim victim requested a MOEP. Around the State ...... 2 before I can issue a MOEP? No. You Do I need a reason to issue a Clerks Corner ...... 18 may accept motions from a peace MOEP? This is a great question. From the General Counsel ...... 3 officer, the alleged victim, a prosecutor, The statutes don’t really address this Insights into Diversity...... 19 or the guardian of the alleged victim. Resources for Your Court ...... 15 However, you may issue a MOEP on FAQs continued on page 8 Texas Municipal Courts Education Center

1609 Shoal Creek Boulevard, Suite 302 AROUND THE STATE Austin, Texas 78701 512/320-8274 or 800/252-3718 Fax: 512/435-6118 Web site: www.tmcec.com FY03 TMCEC Legislative Update TMCA Officers President: Joe Pirtle, Seabrook TMCEC has added a Lubbock Legislative Update to its schedule of summer President-Elect: Sharon Hatten, Midland programs. It will be held on August 13 (Wednesday) at the Lubbock Holiday Inn 1st V.P.: Vacant Hotel & Towers (801 Avenue Q). 2nd V.P.: Edwin L. Presley, Benbrook Secretary: Luane Turvey, Webster A limited number of sleeping rooms will be provided at grant expense. Please Treasurer: Robert Richter, Missouri City call TMCEC if you do not have a registration form. A check for $50, payable to Past-President: Robert Kubena, TMCEC, should be submitted with the registration form. Hallesttsville Directors Note: The Lubbock Update is the only TMCEC Legislative seminar that is still open. Both Houston and Austin have wait lists. Robert Doty, Lubbock . Ninfa Mares, Fort Worth . Vicki Gerhardt, New London . Robin Smith, Midland . Dan Francis, Robinson . David Perkins, New Braunfels . Miles Whittington, Kemah . George Bill Robinson, Yorktown . Robin Ramsay, Looking Ahead: Fall Conferences Denton . Robert Barfield, Pasadena Staff September 18-20, 2003 Annual Meeting of the Texas Municipal Courts Association, Galveston, San Luis Resort Spa. For more information, contact Judge Robert · Hope Lochridge, Executive Director Richter, 281/333-9229 (www.txmca.com). · W. Clay Abbott, General Counsel · Ryan Kellus Turner, Program Attorney & October 5-8, 2003 Annual Conference of the Texas Court Clerks Association, San Deputy Counsel Antonio, Holiday Inn Riverwalk. Contact David Preciado, 210/207-7109 for · Margaret Robbins, Program Director · Jo Dale Bearden, Program Coordinator more information (www.courtclerks.org). · Margaret Danforth, Admin. Director November 11-14, 2003 Texas Teen Court Conference, Wichita Falls. Contact Myra · Patricia Russo, Program Assistant II · Rey Guzman, Multimedia Specialist Weeks, Wichita County Teen Court, 940/716-8575 for more information · Beatrice Flores, Registration Coordinator (www.tcat.com). · Lidia Ball, Research Assistant · Courtney Barajas, Publications Coordi- November 19-22, 2003 Texas Municipal League Annual Conference, San Antonio. nator/Administrative Assistant Contact TML for more information: 512/719-6300 (www.tml.org).

Published by the Texas Municipal Courts Education Center through a grant from the Texas Court of Criminal Appeals. Sub- scriptions are free to all municipal judges, clerks, prosecutors, and support personnel Certification Program Affiliates with employed by the municipal court. Others may purchase an annual subscriptions for Southwest Texas University $50. The Clerks Certification Program is now officially affiliated with South West Articles and items of interest not otherwise Texas University. Faculty from SWT will participate in the governing committees copyrighted may be reprinted with attribu- tion as follows: “Reprinted from the for the program and as instructors in the training sessions. Special appreciation is Municipal Court Recorder with permission shown to Dr. Quint Thurman, Chair of the Criminal Justice Department, and of the Texas Municipal Courts Education Judge David Perkins of New Braunfels who is also a Professor in the CJ Center.” Department. The University will change its name in the fall to Texas State The views expressed are solely those of the University - San Marcos. authors and are not those of the TMCA Board of Directors or the staff of TMCEC.

Page 2 Municipal Court Recorder July 2003 FROM THE GENERAL COUNSEL W. Clay Abbott

Constitutional & Statutory Victims’ Rights Many concerns about the impact of (2) the right to be present at all or a lack of concern. Magistrate’s Order for Emergency public court proceedings The other right that must always be Protection (MOEPs) on divorce and related to the offense, unless provided is the right to be secure in child custody cases are addressed by the the victim is to testify and the the criminal justice process. If victims recently passed changes to MOEPs in court determines that the victim’s testimony would be are harmed, threatened, or intimidated HB 297. A summary of that bill materially affected if the in our courtrooms and courthouses, appears on page 8 in this newsletter. victim hears other testimony then we have failed and need to close Due to the nature of the offenses that at the trial; up our doors and go do something come before the municipal court, we (3) the right to confer with a else. If a court of law is not a safe deal with victims far less than our representative of the refuge, then there is no safe place; the counterparts in the higher courts. We prosecutor’s office; victimizers win and “justice,” “order,” are, however, obligated to follow the (4) the right to restitution; and and “the rule of law” are meaningless Texas Constitution and Code of phrases. Good security does not just Criminal Procedure in dealing with (5) the right to information about happen. It is planned, carefully victims of crime when they come the conviction, sentence, executed, and vigilantly enforced. imprisonment, and release of before our courts. As magistrates, the the accused. The rights due a victim on request are victim is rarely in attendance at a 15.17 generally the right to notice, the right hearing but, again, the rights provided The rights due to a victim fall into two to be present, and the right to to victims by the State Constitution and categories: rights that must be information. The prosecutor has a laws apply to the magistrate as well. provided regardless of a request and specific duty to confer with the victim. rights guaranteed upon a request of Article I, Section 30, Texas The prosecutor represents the State of the victim. A victim has the same right Constitution, provides to the victim of Texas and not the victim, but has an as a defendant to be treated with a criminal offense certain rights in the obligation to hear the victim’s entreaty fairness, dignity, and respect. The criminal justice system. A portion of and provide him or her information. victim is also provided with a right to that section is set out below: The court also must be open to a privacy. This right to privacy must victim and be free with information (a) A crime victim has the following clearly be balanced with the about the proceedings, procedure, and rights: defendant’s rights to notice and other rulings of the court. The victim is still due process. It should not, however, (1) the right to be treated with a witness and can be excluded from be violated for the sake of expediency fairness and with respect for hearing testimony to protect the the victim’s dignity and privacy throughout the criminal justice process; and Recent CCA Opinion (2) the right to be reasonably protected from the accused If you are engaged in hearings or objections to Lidar or Radar under the throughout the criminal Daubert or Kelly cases then you will want to take a look at Hernandez v. justice process. Texas No. 2053-01. The Court of Criminal Appeals returned the case on (b) On the request of a crime victim, June 4, 2003. It can be found at www.cca.courts.state.tx.us/opinions/ the crime victim has the following 205301a.html. There are several opinions that can be found as 205301 rights: (b)-(d). The opinion concerns urinalysis and addresses judicial notice and the record necessary to take notice. The case’s impact on Lidar and Radar (1) the right to notification of court proceedings; objections is significant, if not a little confusing, due to the number of opinions.

July 2003 Municipal Court Recorder Page 3 defendant’s right to a fair trial, but the (2) the right to have the (9) the right to prompt return of court’s rulings should be thoughtfully magistrate take the safety any property of the victim made based on the individual of the victim or his family that is held by a law circumstances and provide as much into consideration as an enforcement agency or the element in fixing the attorney for the state as access to the victim as due process will amount of bail for the evidence when the allow. accused; property is no longer required for that purpose; The Texas Constitution also allows the (3) the right, if requested, to Legislature to define what a “victim” be informed: (10) the right to have the is, and the Legislature has done so in attorney for the state notify (A) by the attorney Article 56.01(3), Code of Criminal the employer of the victim, representing the state if requested, of the Procedure. In that article, victim is of relevant court necessity of the victim’s defined as: proceedings, including cooperation and testimony appellate proceedings, a person who is the victim of in a proceeding that may and to be informed if sexual assault, kidnapping, or necessitate the absence of those proceedings aggravated robbery or who has the victim from work for have been canceled or suffered bodily injury or death good cause; as a result of the criminal rescheduled prior to conduct of another. the event; and . . . This definition excludes many . . . (b) A victim, guardian of a victim, or close relative of a deceased “victims” that come into municipal (4) the right to be informed, victim is entitled to the right to be when requested, by a court. Yet, while a person may not present at all public court peace officer concerning qualify as a victim in a case in proceedings related to the the defendant’s right to bail municipal court, he or she may qualify offense, subject to the approval and the procedures in as a victim in cases pending in a higher of the judge in the case. criminal investigations and court. In that event, municipal courts by the district attorney’s (c) The office of the attorney do have a constitutional and statutory office concerning the representing the state, and the obligation to provide information, general procedures in the sheriff, police, and other law notice, and access. The interest of criminal justice system, enforcement agencies shall those citizens excluded from this including general ensure to the extent practicable definition should still be carefully procedures in guilty plea that a victim, guardian of a guarded if our courts are to be courts negotiations and victim, or close relative of a of the people. In addition, the arrangements, restitution, deceased victim is afforded the municipal judge as a magistrate will and the appeals and rights granted by Subsection (a) routinely interact with and impact parole process; of this article and, on request, an explanation of those rights. persons defined by law as victims. . . . (d) A judge, attorney for the state, (8) the right to be provided More significant details about a peace officer, or law enforcement with a waiting area, victim’s rights are provided in Article agency is not liable for a failure separate or secure from 56.02, Code of Criminal Procedure. or inability to provide a right other witnesses, including Portions of that article are set out enumerated in this article. The the offender and relatives below: failure or inability of any person of the offender, before to provide a right or service (a) A victim, guardian of a victim, or testifying in any enumerated in this article may close relative of a deceased proceeding concerning the not be used by a defendant in a victim is entitled to the following offender; if a separate criminal case as a ground for rights within the criminal justice waiting area is not appeal, a ground to set aside the system: available, other safeguards conviction or sentence, or a should be taken to (1) the right to receive from ground in a habeas corpus minimize the victim’s law enforcement agencies petition. A victim, guardian of a contact with the offender adequate protection from victim, or close relative of a and the offender’s relatives harm and threats of harm deceased victim does not have and witnesses, before and arising from cooperation standing to participate as a party during court proceedings; with prosecution efforts; in a criminal proceeding or to

Page 4 Municipal Court Recorder July 2003 contest the disposition of any waiting room from the defendant and The victims, should they request, are charge. defense witnesses. Common sense and entitled to be present at all public Prosecutors and peace officers rudimentary security analysis should court proceedings in the case in which obviously have the greatest duty owed also mandate this. The prosecutor, if they are involved. This would include to the crime victim. Their duty is to requested, has a duty to keep the 15.17 hearings in the jail. Obviously, protect, inform, notify, and listen. victim informed of court dates, this may pose security and logistical However, neither the police nor the procedures, continuances, or delays. problems. This right is “subject to the approval of the judge in the case.” prosecutor becomes the advocate for Magistrates have two important duties While it may not always be possible to the victim. The police may not act as a to a victim. The first is to take the accommodate, a blanket ban is also legal advocate without violating rules safety of the victim and his or her not appropriate. The magistrate should against Unauthorized Practice of Law. family into consideration as an make every effort to provide for the The prosecutor’s duty is to the State element in fixing the amount of bail rights and security of all persons of Texas and must “see that justice is for the accused. Traditionally, the only affected. done,” rather than simply advocate the bail issue was the amount necessary to victim’s position. Both of these secure the defendant’s appearance. It is an important task judges and court executive agents must, however, be Now, the safety of the victim and the staff serve in protecting the rights of available to victims to listen, consider, public are factors that must be those accused of fine-only offenses. It and explain. incorporated into the magistrate’s is important that the security and rights There are several specific items that determination of bail amounts. The of victims be protected as well. A may be overlooked in municipal court. second duty may be harder to justice system that fails to protect, The victim is entitled to a separate accommodate as a practical matter. inform, and provide access to defendants or victims is not just.B

MOEP continued from page 1 victims is not nearly as high as some the issuance of a MOEP is viewed as a In the ten years that I have been would have you believe. In fact, “helpful indicator” rather than the final involved in family violence prosecu- according to San Diego Sgt. Anne consideration when making their tion, first with the Bexar County O’Dell (retired), there is no greater rate decisions. District Attorney’s Office and now the of false reporting for crimes involving Since the safety and security of San Antonio City Attorney’s Office, I domestic violence than for any other children is so important, many types have dealt with literally thousands of types of crimes. According to the of evidence are, by necessity, taken domestic violence complainants. It has Texas Council on Family Violence, the into account. The presence of been my experience that the majority rate of false reports for all crimes is violence in the home is considered for of family violence victims not only approximately three percent. both its direct impact on the physical reconcile with their batterer, they often In cases of family violence, the suspect safety of children (who often attempt to drop charges and/or recant and the victim are usually married, live physically intervene when one parent is their original statements to police together, and/or have children to- assaulting another), as well as its officers. A petition for divorce and/or gether. A violent situation is compli- indirect effect on the child’s future as a custody is rarely pursued. cated by the familiarity of the parties. perpetrator or victim of violence. Given the dynamics of domestic If either party initiates divorce, Children who merely witness domestic violence, such behavior is not surpris- custody, and/or visitation proceedings, violence are six times more likely to ing and is also not usually an indicator the paramount concern of the Family commit suicide, and 24 times more that the violence did not occur. It is, Court is to order custody and visitation likely to commit sexual assault than more often than not, a symptom of the that is in the best interest of the child. children who have not been exposed insidious nature of the crime and the While the potential exists that a to such abuse. According to the fact that family violence perpetrators MOEP can play a role in such determi- American Bar Association, children of have an inordinate amount of control nations, it is rare for such an order to battered women are 15 times more over their victims. That being said, not be the sole determining factor. I have likely than children from the general every self-proclaimed victim of conferred with local district court population to also be physically 1 domestic violence is a true victim. judges who routinely hear family law abused. While there is no question However, the percentage of false cases, and they seemed to agree that that conditions ordered by a court

July 2003 Municipal Court Recorder Page 5 MOEP continued from page 5 It is important to remember that the Frequent training is also extremely magistrate can review the officer’s important for all criminal justice such as batterers’ intervention, alcohol determination of probable cause to personnel, as are carefully enforced classes, and special exchange arrest and require further information “no-drop” prosecution policies, such provisions can be difficult on children, before issuance of the MOEP, such as as we have here at the San Antonio the trauma of continued exposure to having the arresting officer report back City Attorney’s Office. The message domestic violence cannot be ignored. to the court so that the magistrate can must be sent to perpetrators that they Taking into account the emphasis that make appropriate inquiries. Lack of can no longer control the system by has been placed on victim safety by physical injuries does not mean that intimidating victims into dropping the the Texas Legislature, the potential the situation is not potentially lethal. charges. Due to the very real danger of benefits of issuing a MOEP must be The cycle of abuse leading up to retaliation against a victim for pursuing acknowledged. A MOEP can help to serious injury often begins with criminal justice intervention, it is immediately calm a heated and assaults during which there is little to important for all system participants to dangerous situation while allowing the no injury. utilize whatever tools are available parties to regroup and explore Since many victims of domestic under the law, and not depend on the options. As previously stated, many violence neither pursue legal remedies victims for enforcement. It is up to victims do not pursue other legal nor report the crimes to police, they the participants in the criminal justice remedies at all. Others may use the system to make the law keep its and their families do not receive B allotted time period to apply for a available assistance and protection. promise. permanent protective order, during Many feel they will not be believed or ______which the suspect is entitled to a full that they cannot handle the stress of 1Due to the breadth of statistical and hearing. Either way, the MOEP navigating a system that has not expires no later than up to the 61st day other information that is currently traditionally been progressive in available on this issue, it is difficult to after the day of issuance. After that, providing the safety that the law has adequately discuss it at length in this the existence of a permanent promised. MOEPs are among the article. However, for more information, protective order determines the tools that judicial officers have at their please contact the Texas Council on allowable contact between the parties. disposal to provide that safety. Family Violence at www.tcfv.org or 512/ 794-1133.

After the MOEP continued from page 1 children. The family violence The public policy of the State of accusations often occur in a context in Texas is that children should have few beers, but denies he was trying to which the parties are either married continuing and frequent contact with hurt her when he threw the remote (he and/or have children together. When their parents (Section 153.001(a), didn’t hit her anyway), and also denies the magistrate sees the couple at the Family Code). This is, of course, he threatened her or clenched his fists jail the morning after one of them has conditioned on the parent providing a at her. His mother-in-law confirms been arrested for prevention of family safe, stable, and nonviolent that he has not been treating her violence and assault, it is possible that environment for the child. The best daughter right, but has never witnessed some kind of family law litigation has interest of the child is always the any violence towards her or the already begun, or will shortly court’s primary consideration (Section children. What are you going to do? thereafter. After a divorce or Suit 153.002, F.C.). It is presumed that a parent should be appointed a Joint Issuance of Magistrate’s Order for Affecting the Parent Child Managing Conservator (JMC) of his/ Emergency Protection (MOEPs) are a Relationship (SAPCR) case has been filed, there is usually a temporary her child (Section 153.131, F.C.). JMC common occurrence for magistrates will give the absent parent the right to who set bonds for inmates at the local hearing in which the trial court make many important decisions for jails every morning. That encounter is determines the primary residence of the child, and usually results in usually very brief, and may be the last the parties and children, and sets the restrictions on the custodial parent time the magistrate will see either of child support and visitation with the absent parent. The existence of a being allowed to relocate with the child the individuals. But after the MOEP is to cities far away from the absent issued, there can be far reaching MOEP gives the victim a huge stick parent (Section 156.136, F.C.). Both ramifications in the criminal and family with which to figuratively beat up the the father and the mother have equal law arenas for the parties and the other side at the next court hearing.

Page 6 Municipal Court Recorder July 2003 legal standing when it comes to getting person, and the court may recess the force against such custody of the children (Section hearing to contact the respondent intimate partner or child 153.003, F.C.). (Sections 83.006, 83.007, F.C.). This is that would reasonably be a big hassle. If a person was of a mind expected to cause bodily The Standard Possession Order (SPO) to abuse the system to get a “leg up” injury; visitation is presumed to be the in the litigation, or to undo an adverse . . . minimum that a parent should receive ruling in a previous hearing, the to ship or transport in (Section 153.252, F.C.). The SPO, MOEP is very quick, cheap, and interstate or foreign when all alternative visitation periods effective. commerce, or possess in or are elected, results in the children affecting commerce, any spending about one-third of the time In the criminal context, a Texas firearm or ammunition; or to with the absent parent. Court orders resident is not eligible for a license to receive any firearm or pertaining to possession and access to carry a concealed handgun if the ammunition which has been the abuser’s children are restricted by person is restricted by a court shipped or transported in Section 153.004(c), F.C. If there is protective order, or subject to a interstate or foreign evidence of family violence within a restraining order affecting the spousal commerce. two year period, the court is directed relationship. Section 46.06(6) of the Once the person is under a protective to consider that evidence in deciding Penal Code prohibits a person from order, mere possession of ammunition whether to make the parties JMCs. If purchasing a handgun while under a subjects that person to prosecution, the court finds that there has been protective order (Section the 2nd Amendment notwithstanding abuse, it is prohibited from making the 411.172(a)(13), Government Code). United States v. Emerson, 270 F.3rd 203 parents JMCs of the children (Section But the big net is cast by 18 U.S.C Sec (2001). 153.004(b), F.C.). This effectively 922(g)(8), which states: One cannot underestimate the eliminates the abuser from any chance (g) It shall be unlawful for any of obtaining custody of the children. pressures that magistrates face when person there is a request for a MOEP by a The court is further directed to make . . . findings concerning access to the person who claims they were abused. (8) who is subject to a court The last thing the magistrate needs is children by the abuser. The court can order that either (a) find that access would not to have a correspondent from the (A) was issued after a endanger the children (not very likely); Dallas Morning News call for a comment hearing of which such person after a request for a MOEP was (b) enter an order completely received actual notice, and at denied, and the applicant was promptly eliminating visitation with the abuser which such person had an (not too likely); or (c) render an order opportunity to participate; killed by the abuser. But at the same that includes supervised visitation, (B) restrains such person time, family law litigants are becoming exchange of the children in a from harassing, stalking, or very savvy to the leverage a MOEP protective setting, alcohol counseling, threatening an intimate provides. Most magistrates are poorly and battering prevention classes (very partner of such person or equipped to deal with the request for likely). These orders are difficult on all child of such intimate partner issuance of a MOEP at the jail the the parties and their children, and or person, or engaging in morning after an arrest. The victim has other conduct that would dramatically reduce visitation with the obviously convinced the police officer place an intimate partner in absent parent. that some action was necessary, but reasonable fear of bodily the police officer is rarely available, When a divorce is filed, the ex parte injury to the partner or child; and the respondent has had no and temporary order may not kick the opportunity to consult with an spouse out of the house without a (C)(i) includes a finding that attorney or produce witnesses. As such person represents a hearing, unless there is also a magistrates, we need to be sensitive to protective order (Section 6.502, F.C.). credible threat to the physical safety of such the potential for abuse, and make a Under the Family Code, an ex parte intimate partner or child; serious inquiry before issuing a MOEP. “kick-out” order is difficult to get or When I confronted the situation from a divorce judge. Affidavits must (ii) by its terms explicitly outlined in the first paragraph, I issued be prepared and filed, the family prohibits the use, the protective order. I have had doubts violence must be recent, the victim attempted use, or about whether I made the right must appear before the judge in threatened use of physical decision.B

July 2003 Municipal Court Recorder Page 7 FAQs continued from page 1 order by signature. I do not ask for the statute does not authorize a general defendant’s side of the story. Some “stay-away” order. Accordingly, the issue (and there is no case law on judges do. In my opinion, the better defendant and the victim may meet in a point). The only statutory guidance is practice is to tell the defendant that restaurant, a therapist’s office, a lawyer’s found in the statute referred to in you are issuing the order based on your office, and so forth. Of course, if the Article 5.01, C.C.P.—judges should assessment of the circumstances. I defendant engages in any harassing, extend maximum protection to victims always tell them that I do not know if threatening, or assaultive conduct, the of family violence. Consider the they are not guilty or guilty, and the defendant may be arrested for that position you are in: You have signed MOEP has no impact on that conduct and for violating the MOEP. the probable cause affidavit, which question. means that probably family violence If you feel it is appropriate, you may occurred. Should you always issue a Doesn’t a MOEP contain a require a “no contact with victim” as a MOEP? I don’t. Magistrates could general “stay-away” provision? condition of release on bond. You may issue a MOEP in every case, but not No. The MOEP statute allows a also add home curfew and electronic necessarily order the defendant to stay magistrate to order a defendant to stay monitoring as a condition of release. away from a shared residence. away from the victim’s (and/or a See, Art. 17.34, C.C.P. member of his or her her family or Is a MOEP ever mandatory? Under what circumstances may household) home, work place, school, I modify a MOEP?* You may You must issue a MOEP in cases day care, and college campus. In other alleging serious bodily injury or when a modify the protective order on your words, the MOEP’s “stay-away” own motion, the defendant’s motion, deadly weapon is used. provisions are place-specific. The Isn’t it true that I may issue a FAQs continued on page 10 MOEP only in assault cases? You may issue a MOEP in a case *New Legislation Concerning Modifying MOEPs involving family violence or dating violence. Family violence includes any Subject: MOEP Conflicts, Modifications, and Transfers conduct that is intended to result in HB 297 physical harm, bodily injury, assault, Effective Date: September 1, 2003 sexual assault, or a threat that reasonably places a victim in fear of Act amends Article 17.292, Code of Criminal Procedure, by adding two new imminent physical harm, bodily injury, sections and amending a third. The addition of subsections (f-1) and (f-2) clarify assault or sexual assault. Dating that a protective order subsequently issued by a family law court after a hearing violence carries the same definition, (Chapter 85, Subtitle B, Title 4, Family Code, or under Title 1 or Title 5, F.C.) with the additional requirement that the controls over the Magistrate’s Order for Emergency Protection (MOEP). A victim and the defendant has or had a temporary ex parte order issued by the family court (Chapter 83, Subtitle B, Title dating relationship. See, Section 71.003, 4, F.C.) does not control over the magistrate’s order, unless the judge making et seq Family Code. So, depending on such an order is informed of the existence of the MOEP and specifically the facts, you could issue a MOEP in dictates that the new order supercedes the MOEP. offenses including but not limited to Perhaps more importantly, amendments to Article 17.292(j), Code of Criminal criminal trespass, criminal mischief, Procedure, allow the issuing magistrate to modify the MOEP after notice and a burglary, sexual assault, injury to an hearing. To make the modification the magistrate must find: (1) the order as elderly individual, injury to a child, and originally issued is unworkable; (2) the modification will not place the victim of indecency with a child. the offense at greater risk than did the original order; and (3) the modification will not in any way endanger a person protected under the order. All three In terms of timing, when must findings must be established at a hearing after notification of every affected I issue a MOEP? You issue the party. This would include both the protected parties and the prosecutor. MOEP when the defendant appears before you shortly after arrest. Each Finally, the act goes on to allow transfer of the MOEP to the trial court with judge conducts the hearing a bit jurisdiction of the offense which gave rise to the MOEP. The transfer can only differently, but MOEPs are emergency, take place upon agreement of the parties—presumptively the Defendant and ex parte orders. The defendant need the State—or upon a motion, notice and a hearing. Since the action is a transfer only listen to your instructions, ask to the trial court, the motion and the hearing should be before the magistrate. questions about the terms of the The change in law applies only to a MOEP issued after September 1, 2003. order, and acknowledge receipt of the Page 8 Municipal Court Recorder July 2003 Domestic and Family Violence: Vicarious Trauma and Judges By Peter Jaffe, PhD Over the past decade, there has been “facts” of a case before their findings criminal or civil bench, and some increasing recognition of the impact and ultimate decision. specialize in domestic violence courts. With very few exceptions, judges can of working with trauma victims on the As a forensic psychologist with close relate to the impact of traumatic helpers themselves. The term vicarious to 30 years of experience working material on themselves and their trauma, (or secondary trauma, or with the justice system in the areas of colleagues. Domestic homicides, compassion fatigue), describes this domestic violence, child abuse, and horrific assaults, and sexual impact in which the helper develops child custody litigation, I have gained exploitation of children relived in symptoms that parallel the symptoms some insight into the plight of many court by 911 tapes, graphic of the trauma victim. In fact, the DSM judges in this area. Although photographs, and victim-impact IV (Diagnostic and Statistical Manual) community members may perceive statements are examples of traumatic of the American Psychiatric judges as privileged in their power and material. Association suggests that the prestige, their suffering is no less development of post-traumatic stress significant, both personally and to the Vicarious trauma may be exhibited by disorder (PTSD) can happen from administration of justice itself. Their a wide variety of symptoms that are witnessing or hearing graphic details physical and emotional health is emotional, interpersonal, cognitive, of life threatening events. essential for an accessible and behavioral, and even spiritual. Judges When the term helper is used, we most effective courtroom. have described how the nature of what they see and hear in the often picture a therapist for sexually In my work as a consultant to the courtroom can shake their very faith abused children, an emergency room National Council of Juvenile and in humanity. Along the way they doctor, or a police officer investigating Family Court Judges and the Family describe depression, anxiety, sleep a homicide. However, judges face the Violence Prevention Fund in their disturbances, hypervigilance, same challenges in the courtroom (as program for judges entitled Enhancing nightmares, and withdrawal from do prosecutors and other lawyers). Judicial Skills in Domestic Violence Cases, family and friends. The impact may be Judges may face greater obstacles in I have begun to survey participant mild and short term or last for years confronting these problems because judges on the impact of their work. and require mental health they are supposed to remain neutral Many of the participants sit on the and unemotional in reviewing the continued

Amicus Curiae

The Amicus Curiae program is Amicus Curiae translates as “friend of resources that can help identify and designed to identify and assist the court.” The program is the first of treat impairments that may be members of the judiciary who have its kind in the United States. The affecting their personal lives and their impairments and to provide a program is voluntary and confidential. performance on the bench. confidential resource for those judges Amicus locates treatment resources, For further information, contact to seek help. Impairments include refers judges to needed services, Elaine Thompson (Program Manager) substance abuse, addictions, and monitors judges through appropriate at the State Commission on Judicial mental or emotional disorders. This recovery programs, and provides them Conduct, P.O. Box 12265, Austin, TX program operates within the with motivation and support 78711, 512/463-8138 or 877/228- disciplinary role of the State throughout their recovery process. Its 5750 (toll free). Commission on Judicial Conduct. goal is to assist judges in locating

July 2003 Municipal Court Recorder Page 9 intervention. The clinical literature in from the bench, such as gardening and Noer, D.M. (1993). Healing the Wounds: this field stresses that these reactions antique collecting. Some judges seek Overcoming the Trauma of Layoffs and are normal in the context of the mentors and training opportunities Revitalizing Downsized Organizations. violence that is being considered on a that nourish their life-long learning and California: Jossey-Bass Inc. Publishers. daily basis. support from colleagues. Most judges Perlman, L.A. & Saakvitne (1995). wish someone had addressed this topic The impact of this trauma is unique Trauma and the Therapist. New York: prior to their election or appointment for each judge and interacts with a W.W. Norton & Co. or early in their career. Some judges number of factors such as their own St. James, Elaine (1996). Living the have begun discussions on this topic as background, personal circumstances, Simple Life. New York: Hyperion. part of regular judicial meetings and and perceived support for their role in build in more peer support or access to Wilson, J.P. & Lindy, J.D. (Eds.) (1994). the community. In general, judges who specialized counselors. Countertransference and the Treatment of have experienced abuse themselves in PTSD. New York: The Guilford Press. childhood or in their adult years may We are in the process of analyzing ______suffer greater vicarious trauma. Judges surveys from more than 100 judges who who are hearing cases of unspeakable identify their struggles with vicarious Dr. Peter Jaffe is presently the Director of abuse to young children the same ages trauma, as well as their coping strategies. the Centre for Children and Families in as their own children may experience We hope to write a more detailed article the Justice System of the London Family Court Clinic (London, Ontario, Canada), more profound effects. As well, judges for the field. From our work thus far, which is a children’s mental health centre who are struggling with life crises, such we believe that this issue needs to be specializing in issues that bring children as illness, may be impacted in more raised in judicial workshops and and families into the justice system. pronounced ways. meetings to provide understanding and support and to enhance the Reprinted with permission from NASJE Vicarious trauma also can be News, Spring 2003, avaliable at http:// effectiveness and well-being of judges. compounded by stress and burnout. nasje.unm.edu/current-newsletter/ The taxing expectations and demands Judges who are experiencing heavy resources-jaffe.htm. placed on our colleagues in the justice dockets, budget cutbacks, and lack of system leave us no option to ignore this resources may feel more hopeless FAQs continued from page 8 issue.B about the challenges presented by cases of domestic violence and child Suggested Readings or the victim’s motion. If the defendants calls you or files a motion abuse. The current budget crises Cerniss, Cary (1995). Beyond Burnout. to modify, my advice is that you tell across all states have forced judges to New York: Routledge. cope with greater volumes of cases the defendant that his or her attorney Covey, Stephen (1994). First Things without adequate court or community must contact you. If you are going to First. New York: Fireside. resources. Longer serving judges consider the defendant’s motion, and it describe more short and long-term Covey, Stephen (1989). The Seven Habits is unopposed by the protected person, symptoms. Female judges appear to of Highly Effective People. New York: try to ensure that the protected person have more symptoms, but this finding Fireside. has at least spoken to a victim may relate to gender differences in Figley, C.R. (1995). Compassion Fatigue: counselor. If they have not done so, expressing feelings and innermost Coping with Secondary Traumatic Stress try to find someone to counsel them. thoughts on this emotionally laden Disorder in Those Who Treat the If the protected person opposes the subject. Traumatized. New York: Brunner/ defendant’s motion, and you are Mazel Publishers. On a hopeful note, many judges considering granting the defense articulate key coping and prevention Hanb, Thick Nhat (1991). Peace is Every motion, conduct a hearing. Serve strategies that are supported by the Step: The Path of Mindfulness in Everyday notice on the parties and record the current research and clinical literature Life. New York: Bantam. hearing. in this field. The key elements appear Herman, Judith Lewis (1992). Trauma If the victim contacts you and requests to be a search for balance between the and Recovery: The Aftermath of Violence – modification, you can make your bench and a home life as well as play from Domestic Abuse to Political Terror. decision solely on her or his statement. and restful activities. An awareness of Basic Books. Or you can insist that the victim the importance of exercise and diet is Maslach, Christina (1982). Burnout: The receive some counseling before you essential to survival. Many judges Cost of Caring. Spectrum Books, even entertain the motion. If you are a stress the role of hobbies far removed Prentice-Hall. FAQs continued on page 14 Page 10 Municipal Court Recorder July 2003 NO. ______NO. ______THE STATE OF TEXAS § IN THE ______COURT EL ESTADO DE TEXAS § EN LA CORTE __ VS. § OF CONTRA § DE ______§ ______COUNTY, TEXAS ______§ CONDADO ____, Defendant Acusado TEXAS MAGISTRATE’S ORDER FOR EMERGENCY PROTECTION ORDEN DE EMERGENCIA DE PROTECCIÓN DEL MAGISTRADO

On this day, Defendant, ______, appeared before the Court after arrest for an En este día, el Acusado, ______, se presentó offense involving: enfrente de esta Corte después de haber sido arrestado por una ofensa que involucra: _____ family violence; or ___ violencia familiar; o _____stalking under Section 42.072 of the Texas Penal Code. ___ acechando bajo la sección 42.072 del Código Penal de Texas. The Court considered entering a Magistrates Order for Emergency Protection pursuant to Art. La Corte ha considerado una Orden de 17.292 of the Texas Criminal Procedure — Code and Rules: Emergencia de Protección del Magistrado como seguimiento al Artículo 17.292 de los _____ on its own motion; Procedimientos Criminales de Códigos y _____ at the request of the: Reglamentos de Texas: ___ por su propia moción; _____ victim, ______; ___ requerido por: ___ víctima, ______; _____ guardian of the victim, ______; ___ tutor de la víctima, ______; _____ peace officer, ______; ___ oficial de la paz, ______; ___ abogado representando al Estado, ____; o _____ attorney representing the State, ______; or ___ como asunto de la ley después de que la _____ as a matter of law after the Court’s finding that the Defendant has been arrested for an Corte haya encontrado que el Acusado fue offense that also involves: arrestado por una ofensa que involucró: ___ serios daños físicos a la víctima; _____ serious bodily injury to the victim; ___ exhibición de un arma de gravedad _____ the use of exhibition of a deadly weapon during the commission of an assault. durante un acto de agresión.

Protected Person(s): Persona(s) Protegida(s): Basado en la información que fue presentada, Based on the information presented, this Court enters this Order for Emergency Protection on esta Corte otorga una Orden de Emergencia de behalf of the following persons: ______. Protección para las personas nombradas a continuación: ______.

Prohibited Acts: Actos Prohibidos: POR ESTE MEDIO ESTÁ ORDENADO que IT IS HEREBY ORDERED that effective immediately Defendant (date of birth: ______, queda en efecto de manera inmediata, que el driver’s license no. ______) is prohibited from: Acusado (fecha de nacimiento: ______, número de licencia de conducción ______) _____ committing family violence or an assault on the person protected under the order; tiene prohibido: _____ committing an act in furtherance of an offense under Section 42.072, Penal Code (stalking); ___ cometer actos de violencia familiar o agredir a la persona protegida bajo la orden; _____ communicating directly with a member of the family or household or with the person(s) ___ cometer un acto que implique una ofensa protected under the order in a threatening or harassing manner; de violencia familiar bajo la Sección 42.072, del _____ communicating a threat through any person to a member of the family or household or to Código Penal (acecho); the person protected under the order; ___ comunicándose directamente con un miembro de la familia o de la vivienda o con la _____ going within ______(specify minimum distance) of the residence, persona protegida bajo la orden de una manera ______(put address here unless requesting confidentiality), place of amenazante o de manera acosante; employment, ______(put address here unless requesting confidentiality), or ___ comunicando una amenaza a través de business, ______(put address here unless requesting confidentiality), of a cualquier persona, hacia algún miembro de la member of the family or household or of the person protected under the order; familia de la vivienda o con la persona protegida _____ going within ______(specify minimum distance) the residence, bajo la orden; ______(put address here unless requesting confidentiality), ___ acercándose ______(especifique child care facility, ______(put address here unless requesting distancia mínima) a la residencia localizada en ______;

July 2003 Municipal Court Recorder Page 11 confidentiality), or school, ______(put address here unless requesting o lugar de trabajo localizado en ______confidentiality), where a child protected under the order resides or attends; and a un miembro de la familia o de la vivienda o con la persona protegida bajo la orden; _____ possession of a firearm. ___ 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.

Confidentiality of Addresses: Confidencia del Domicilio: _____ Based on the facts presented, the Court further finds that for the safety of the person or ___ Basado en los hechos presentados, la persons protected under this order, the addresses and specific locations of the person or persons Corte encuentra que para mantener la protected by the order remain confidential and shall be omitted from the order. 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.

Delivery of Order: Entrega de la Orden: IT IS ORDERED that the Clerk of the Court shall send a copy of this order to the: ESTA ORDENADO que el Funcionario de la Corte deberá mandar una copia de esta orden: _____ Chief of Police in the municipality where the member of the family or household or ___ al Jefe de Policía del municipio donde individual protected by the order resides. reside la persona o personas protegidas bajo esta orden. _____ Sheriff or Constable of the county where the member of the family or household or individual protected by the order resides. ___ al Alguacil o Agente del condado donde reside la persona o personas protegidas bajo _____ Principal, director, or person in charge of the school or childcare facility attended by a esta orden. person protected by the order and named herein. ___ al director o a la persona encargada de la _____ Victim (if not present at hearing). escuela o guardería donde atiende una de las personas protegida y nombrada bajo esta orden. ___ a la víctima (sino está presente en el tribunal).

Notice to the Victim: Aviso a la Víctima: IT IS ORDERED that a law enforcement officer shall make a good faith effort to notify, within QUEDA ORDENADO que un oficial de la 24 hours, the victim that this order has been issued by calling the victim’s residence and place of ley deberá en buena fe hacer un esfuerzo para employment. 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.

Suspension of Concealed Handgun License: Suspensión de la Licencia Para Portar un IT IS ORDERED that the license to carry a concealed handgun of ______, Arma de Fuego Ocultada: Defendant, is suspended for the duration of this order. A copy of this order shall be forwarded to QUEDA ORDENADO que la licencia para the Concealed Handgun Licensing Unit, Department of Public Safety, P.O. Box 4143, Austin, portar un arma de fuego ocultada de Texas 78765-4143. On receipt of this order suspending the license to carry a concealed handgun, ______, Acusado, queda suspendida por the department shall record suspension of the license, report the suspension to the local law la duración de esta orden. Una copia de esta enforcement agencies, as appropriate, and demand surrender of the suspended license from the orden será enviada a: Concealed Handgun license holder. 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.

Page 12 Municipal Court Recorder July 2003 Duration of Order: Duración de la Orden: Esta orden toma efecto en el momento que es This Order is effective upon issuance and shall remain in full force and effect until midnight on emitida y se mantendrá válida hasta la media ______,____ (this date should be no less than 31 and up to 61 days from the date of noche del día ______, 20____ (no menos de issuance). 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 Signed at ______a.m./p.m. on this day of ______, 20____. ____, 20__. ______Judge Presiding, ______Juez Presidiendo, ______WARNING ADVERTENCIA ES UNA VIOLACIÓN DE ESTA ORDEN A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT COMETER UN ACTO PROHIBIDO POR LA PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A ORDEN, Y PUEDE SER CASTIGADO CON FINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAIL UNA MULTA DE NO MÁS DE $4,000 O FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT SIENDO ENCARCELADO POR UN RESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSE PERIODO DE NO MÁS DE UN AÑO O MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR AMBOS. UN ACTO QUE RESULTA EN FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A VIOLENCIA FAMILIAR O UNA OFENZA SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY DE ACECHAMIENTO, PUEDE SER CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS. ENJUICIADO POR SEPARADO COMO UN THE POSSESSION OF A FIREARM BY A PERSON. OTHER DELITO MENOR O UN DELITO GRAVE. THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07, SI UN ACTO ES ENJUICIADO COMO UN PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS DELITO GRAVE POR SEPARADO, SERÁ A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE CASTIGADO CON ENCARCELAMIENTO AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO EN UNA PRISIÓN POR UN PERIODO DE THIS ORDER MAY BE PROSECUTED AS A SEPARATE NO MENOS DE DOS AÑOS. POSESIÓN OFFENSE PUNISHABLE BY CONFINEMENT OR IMPRISON- DE UN ARMA DE FUEGO POR UNA MENT. PERSONA QUE NO SEA UN OFICIAL DE LA PAZ, COMO ES DEFINIDO EN LA SECCIÓN 1.07, DEL CÓDIGO PENAL, QUE ESTÁ PARTICIPANDO DE MANERA NO PERSON, INCLUDING A PERSON WHO IS PROTECTED ACTIVA COMO EMPLEADO DE TIEMPO BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO COMPLETO DE UNA AGENCIA ESTATAL IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. O UNA SUBDIVISIÓN POLÍTICA, QUE DURING THE TIME IN WHICH THIS ORDER IS VALID, HAYA SIDO JURADO BAJO LA LEY, QUE EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND ES SUJETO A ESTA ORDEN, PUEDE SER EFFECT UNLESS A COURT CHANGES THE ORDER. 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 WARNING UNDER FEDERAL LAW LA LEY FEDERAL THIS ORDER IS ENFORCEABLE IN ALL FIFTY STATES, THE ESTA ORDEN ES ENFORZADA EN LOS DISTRICT OF COLUMBIA, TRIBAL LANDS AND U.S. CINCUENTA ESTADOS, EL DISTRITO TERRITORIES. 18 U.S.C. §2265 DE COLUMBIA, TIERRAS TRIBALES Y TERRITORIOS DE LOS ESTADOS INTERSTATE VIOLATION OF THIS ORDER MAY SUBJECT UNIDOS. 18 U.S.C. §2265 THE RESPONDENT TO FEDERAL CRIMINAL PENALTIES. 18 U.S.C. §§ 2261, 2262 VIOLACIÓN ENTRE-ESTATAL DE ESTA ORDEN PUEDE SOMETER AL POSSESSION, TRANSPORTATION OR RECEIPT OF A ACUSADO A CRIMENES PENALES EN FIREARM WHILE THIS ORDER REMAINS IN EFFECT MAY EL ÁMBITO FEDERAL. 18 U.S.C. §§ 2261, BE A FELONY UNDER FEDERAL LAW PUNISHABLE BY UP 2262 TO TEN YEARS IN PRISON AND/OR A FINE.

July 2003 Municipal Court Recorder Page 13 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. IT IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO A ES ENCONTRA DE LA LEY QUE UNA PROTECTIVE ORDER TO POSSESS A FIREARM OR PERSONA QUE SEA SUJETO EN UNA AMMUNITION. ORDEN DE PROTECCIÓN, TENGA UNA ARMA DE FUEGO O MUNICIONES. 18 U.S.C. §922(G)(8).

RESPONDENT’S ACKNOWLEDGEMENT OF RECEIPT OF ORDER RECONOCIMIENTO DEL ACUSADO DE HABER RECIBIDO LA ORDEN

Yo, ______(nombre del Acusado), el I, ______(name of Defendant), the Defendant in this case Acusado en este caso recibí una copia de la received a copy of the Magistrate’s Order For Emergency Protection in open court, on Orden de Emergencia de Protección del ______, 20___. Magistrado en un tribunal abierto, el ______, 20___.

______Defendant Acusado

STATEMENT OF SERVICE DECLARACIÓN DE SERVICIO Yo con mi firma a continuación, estoy I the undersigned hereby state that I gave a copy of the Magistrate’s Order for Emergency declarando que le di una copia aquí adjunta de Protection attached hereto to the Defendant named above at ______a.m./p.m. on la Orden de Emergencia de Protección del ______, 20___. Magistrado al Acusado nombrado anteriormente, a la(s) ____ a.m./p.m. el ______, 20___. ______Name Title ______Nombre Título

FAQs continued from page 10 influential. If you wish, you may he or she has the right to do so. court of record, conducting the express empathy for the victim’s stress What if the victim tells me that hearing on the record is always the and injuries, and assure him or her you she wants to move out of state better practice. will mobilize available resources. and just needs time to pack and Always let the victim know that while a A magistrate may, of course, modify move—can I issue a MOEP for two MOEP may offer some protection, it the MOEP on his or her own motion. weeks? Before September 1, 1999, the is not a shield. The victim should duration was no longer than 31 days. Do I need to talk to the victim prepare a safety plan (e.g., notifying In 1999, the statute was amended to before I issue a MOEP? No. In neighbors to call the police if provide that the MOEP may remain in some cases, the need for a MOEP is defendant is seen in the effect up to the 61st day of issue, but obvious or statutorily required. In the neighborhood.) Remind the victim that not less than 31 days after issue. I best of all possible worlds, a judge a MOEP cannot keep the defendant suppose modification would be an should have a victim counselor contact 200 feet away from his or her person, option under these facts. You could the victim. In Austin, we are lucky only away from work, school, and conduct an inquiry, make sure the enough to have MOEP attorneys home. victim is relocated and safe, and then (typically a volunteer attorney) who What if the victim wants to modify. call victims. However, late nights and come to the MOEP hearing? some weekends, I do contact victims. If you have questions or comments, Assure the victim that he or she will If you choose to speak to the victim, send Judge Key an email: receive a copy in the mail. However, if your judicial demeanor is very [email protected] he or she wants to come to the hearing,

Page 14 Municipal Court Recorder July 2003

RESOURCES FOR YOUR COURT

DPS Forms Purchase Family The Department of Public Safety (DPS) will no longer Violence Materials accept requests for driving records that are not on the required DR-1 form designed by the DPS. Forms created The Texas Council on Family Violence (TCFV) offers a by other entities do not include all the information variety of materials to conduct domestic violence training. required by statute to produce a driving record. All Materials available from TCFV (shown on pages 15 & 17) driving record requests received not utilizing this are helpful in promoting a violence-free society and the form will not be processed and will be returned to the message that family violence is everyone’s business. requestor. If you have any forms on hand with a revision Circle of Accountability date prior to 9/01, please destroy. “Circle of Accountability” is a 17-minute video about the These forms may be reproduced on a standard 8½ X 11 law enforcement and criminal justice response to the size paper. Or, you can visit the DPS web site at: crimes of family violence. Also featured are men who www.txdps.state.tx.us under the online services, downloadable forms and print the DR-1 form. TCFV Materials continued on page 17

Family Violence Policy Good for Workplace NCSC Creates Policy as Role Model for Courts

Continuing with its leadership role in policies to the workplace. although they see firsthand in their the field of domestic violence, the courtrooms every day the serious National Center for State Courts “By enacting this policy, it is our hope that courts and other agencies will be consequences that result from (NCSC) incorporated a domestic domestic violence. violence workplace policy to its encouraged to examine their own employee handbook, effective Jan. 1, internal staff-related policies and take The employee policy includes: steps to develop a domestic violence 2003. By doing so, NCSC becomes · Education Program. NCSC will workplace policy,” said Brenda Uekert, one of the first court organizations in provide training to increase NCSC senior research associate and a the country to enact such a policy. awareness of the problem, to member of the Family Violence identify available resources and The policy, developed by NCSC’s Community of Practice. NCSC how to access them, and to Family Violence Community of researchers can assist courts that are educate supervisors how to Practice, has two specific intentions: interested in developing a domestic support and counsel employees violence workplace policy specific to · To increase staff awareness of affected by family violence. how domestic violence can impact their needs, Uekert said. · Counseling Assistance/ employees and the workplace. A court implementing such a policy Intervention. NCSC will sends a signal that the court · To outline actions courts and staff maintain a registry of community understands the tremendous impact members can take to provide agencies and organizations for domestic violence can have on assistance and resources to those referral. The NCSC Human employees and the workplace. Only an affected by violence in the home. Resources Department will advise estimated five percent of companies employees how to access the In addition, the policy serves as a have a policy to address domestic resources covered by their model for state courts across the violence. That number is even smaller insurance plan. country in how to introduce such from courts and justice agencies,

July 2003 Municipal Court Recorder Page 15 · Performance Management. NCSC will provide a reasonable TMCEC PROGRAM AUDIOTAPES amount of time for employees to The following are audiotape recordings from TMCEC’s Midland Regional 12-Hour Judges and get assistance. Clerks Programs. Duplicates are available through the Center at no charge; one set per court.

Check here · Time Off. Recognizing that for specific employees experiencing family tapes violence may be required to take JUDGES PROGRAM: time off for medical, legal, and ___ The Law of Racial Profiling — W. Clay Abbott, General Counsel, TMCEC family matters, NCSC will work ___ Ethics — Robin Smith, Presiding Municipal Judge, Midland with the employee to create a work ___ Federal & State Case Law Update — Ryan Turner, Program Attorney and Deputy schedule that accommodates these Counsel, TMCEC matters. Possibilities include ___ The Importance of Diversity & Cultural Awareness in Municipal Court — Ana M. Otero, Municipal Judge, Houston flexible work schedules, family and ___ Working with Your Clerk — C. Victor Lander, Municipal Judge, Dallas medial leave, short-term disability, ___ Forms Clinic — Margaret Robbins, Program Director, TMCEC and personal leave of absence. ___ Fine Collections: Changing to a Proactive Approach — Jim Lehman, Collections · Confidentiality. Employees can Specialist, Office of Court Administration expect their disclosures to ___ Judgments & Enhancements — Ross Fischer, County Attorney, Kendall County supervisors and Human Resources ___ Personal Safety & Court Security — Robert Williams, ASTEP Seminars, Austin to remain confidential. ___ Dealing with the Media — W. Clay Abbott, General Counsel, TMCEC ___ Magistrate’s Order of Emergency Protection — Karrie Key, Municipal Judge, Austin Reprinted with permission from Center ___ Radar & Laser: The Law & Science — Robert Barfield, Municipal Judge, Pasadena Court, Williamsburg: National Center ___ Judicial Immunity — Ninfa Mares, Chief Municipal Judge, Fort Worth for State Courts, Vol. 6, No. 1, ___ Texas Fair Defense Act — Wesley Shackelford, Special Counsel - Task Force on www.ncsconline.org. Indigent Defnese, Office of Court Administration, Austin ___ Disqualification & Recusal — Linda Frank, Municipal Judge, Plano ___ Attorney General Opinion Update — Jeff Moore, Assistant Attorney General, Chief - Family Violence Online Municipal Affairs Division, Austin ___ Indigence & Enforcement — Ryan Turner, Program Attorney and Deputy Counsel, Newsletter TMCEC CLERKS PROGRAM: The Family Violence Community of ___ Ethics — Margaret Robbins, Program Director, TMCEC Practice newsletter is intended to share ___ Authority and Duties — W. Clay Abbott, General Counsel, TMCEC ideas and keep colleagues informed ___ Court Technology — Jo Dale Bearden, Program Coordinator, TMCEC about practices that improve the ___ Financial Management — Rene Henry, Collections Projects Manager, Research & Court Services, Office of Court Administration, Austin justice system’s response in family ___ Trial Processes — Margaret Robbins, Program Director, TMCEC violence cases. More resources can be ___ Court Security — Allen Gilbert, Municipal Judge, San Angelo found on the NCSC website at ___ Non-Contested Cases Workshop — Carol Gauntt, Court Administrator, Richland Hills www.ncsconline.org in the Court and Margaret Robbins, Program Director, TMCEC Information topic folder on Juvenile ___ Fine Collection — Jim Lehman, Collections Specialist, Office of Court Administration and Family Justice. Recent issues have ___ Juveniles — Robin Smith, Presiding Municipal Judge, Midland focused on elder abuse and family violence in the military. The newsletter Return order to 1609 Shoal Creek Blvd. #302, Austin, TX 78701 or fax to 512/435-6118. can be accessed online at Name: ______www.ncsconline.org/Projects_ Initiatives/index.htm. Scroll down to Title:______the Communities of Practice section Court: ______and click onto one of the newsletter Address: ______issues. City, State, Zip Code: ______

Telephone Number: ______

E-mail Address: ______

Page 16 Municipal Court Recorder July 2003 have been violent to women and have community, this 28-minute video will Home Away From Home changed their behaviors and attitudes help. The video focuses on women This 25-minute video, aimed at with the help of intervention who work in a rural clinic and are managers, supervisors, team leaders, programs. Awarded a Bronze Medal touched by a client who needs to and other organizational leaders, helps by the Houston International Video escape an abusive husband. The video build awareness about family violence Festival in 2002. The video was dubbed describes: and its financial, emotional, and into Spanish in December, 2001. · The nature of violent relationships medical costs to organizations. The I Had a Friend Named Hope between intimate partners; video emphasizes the importance of corporations adopting policies to Many of us have clients, coworkers, · How to recognize the signs of confront the effects of family violence neighbors, friends, or even family domestic abuse; on the workplace. The video members who are or have been victims · Why it is dangerous for women to demonstrates what happens when a of family violence. Most people want “just leave;” and business with no domestic violence to get involved, but are not sure how procedures or guidelines is confronted to help. If you are charged with the · How to be truly helpful when a with a domestic violence situation. It challenge of educating your client, friend, family member, or neighbor is in danger. TCFV Materials continued on page 20

Purchase Family Violence Materials Order Form Please fill out the following information and fax the form to: 512/794-1199 or mail to: Texas Council on Family Violence P.O. Box 161810 Austin, Texas 78716 ATTN: MAIL CLERK Name: ______Address: ______Telephone: ______Credit Card: ___ Mastercard ___ Visa ___ Discover ___ American Express Credit Card # ______Expiration Date: ______Name as it appears on Credit Card: ______

Circle of Accountability: Cost: $32.01 Quantity: _____ Total $______($24.95 per video + $5.00 shipping & handling per video* + $2.06 tax per video**) I Had A Friend Named Hope: Cost: $53.65 Quantity: _____ Total $______($44.95 per video + $5.00 shipping & handling per video* + $3.70 tax per video**) Home Away From Home: Cost: $42.89 for TCFV members Quantity: _____ Total $______($35.00 per video + $5.00 shipping & handling per video* + $2.89 tax per video**) $69.95 for nonprofit organizations Quantity: _____ Total $______($60.00 per video + $5.00 shipping & handling per video* + $4.95 tax per video**) Un Nuevo Amanecer (New Dawn): Cost: $53.65 Quantity: _____ Total $______($44.95 per video + $5.00 shipping & handling per video* + $3.70 tax per video**) Grand Total $______

*Shipping for multiple videos: $5 for up to 2 videos; $10 for up to 4 videos; $15 for up to 6 videos; $20 for 7 or more videos. **Send proof of tax exemption, if applicable.

July 2003 Municipal Court Recorder Page 17

Margaret Robbins

CLERK TMCEC Program Director CORNER Domestic Violence – What May a Clerk Do?

Municipal courts are part of the be aware of community resources for paperwork. The offenses associated communities in which they serve. referrals, such as victims’ advocates, with family violence include: assault; Therefore, courts should have some crisis centers, battering intervention, sexual assault; aggravated assault; understanding of community issues anger resolution, and private aggravated sexual assault; kidnapping; and problems. One of those problems counseling. Clerks should obtain injury to a child, elderly individual, or is domestic violence. In 2001, there information from these resources and invalid; abandoning or endangering a were over 180,000 incidents of make it available in the court lobby child; and violation of protective domestic violence reported in Texas.1 and restrooms. The information can orders. Although municipal courts do not include such things as: handle most domestic violence Because of the violence involved in · brochures on personal safety these types of offenses, courts should offenses, some of the offenses, such as plans; public intoxication, simple assault, and have security plans to deal with defendants who might become violent. disorderly conduct involve domestic · brochures explaining how the violence. Also, defendants charged criminal justice system works, Someone should periodically inspect with other Class C misdemeanors, specifically emergency protection and evaluate security hazards. This might be something as simple as such as traffic offenses, may be orders, if one is issued; and involved in a violent relationship. having a glass sitting on a counter or · literature about the location and desk that is within reach of a Hence, it is important that court clerks telephone number of shelters. understand what they may do. defendant or victim. Moreover, a Because municipal judges are also separate room should be available for Since many defendants in municipal magistrates, most of the cases victims to be kept separate from the court do not request trials, but opt for involving domestic violence seen by offender. This will help keep violence a driving safety course (DSC) or just from erupting. Since many clerks work municipal judges and court personnel want to pay their fines, municipal court involve powers as a magistrate. In this late hours and leave court facilities clerks see more defendants than their capacity, judges handle the warnings when it is dark, clerks should call the judges do. Consequently, there is a and clerks process the accompanying police department before departing high probability that a clerk assisting a defendant might be handling a person involved in domestic violence. Also, More Resources because of the high rate of domestic violence incidents, there is the In August 2002, TMCEC sent all municipal courts a copy of the Domestic possibility that co-workers or other Violence Service Directory, published by the Texas Council on Family Violence city employees are involved in a violent (TCFV). It is a comprehensive list of family violence shelters and service relationship. providers. Call TMCEC if you would like an additional copy or access the updated version at www.tcfv.org. Because the court, including court clerks, is neutral and cannot advocate Another excellent resources is the National Domestic Violence Hotline for someone in a domestic violence which is a project of the TCFV. The Hotline serves as a link between situation, what may a clerk do to help? individuals in need and community services. By calling the hotline, a caller Primarily, clerks can provide can get immediate help in English or Spanish, 24 hours a day, seven days a information to court users, such as week. Advocates provide crisis intervention, information, and referrals. defendants, witnesses, jurors, National Domestic Violence Hotline attorneys, and family members of 1/800-799-SAFE (7233) defendants. To do that, clerks should 1/800-787-3224 (TTY)

Page 18 Municipal Court Recorder July 2003 the building and have an officer in the officer notifies the victim of the order. conceal handgun licenses. Because the parking lot. Also, clerks should be When issuing a MOEP, if a magistrate Code of Judicial Conduct requires trained in what to do if attacked. orders the suspension of a concealed courts to remain neutral and impartial, Clerks should always keep in mind the handgun license, Article 17.293, C.C.P. clerks must be careful to not step over potential for violence. requires either the magistrate or the the line and advocate for a person clerk to immediately send a copy of In 1995, the Texas Legislature involved in domestic violence. the order to the appropriate division amended Chapter 17 of the Code of Nevertheless, clerks should be of the Department of Public Safety at Criminal Procedure and added Article prepared with information on its Austin headquarters. 17.292, which gave magistrates the community resources so that court authority to issue a magistrate’s order Clerks should coordinate procedures users or other city employees know for emergency protection (MOEP). with their judges to ensure compliance where to go for help. This will help That statute requires court clerks to with the law. Clerks should be given clerks to not become involved in send a copy of the emergency copies of the MOEP, name of the giving legal advice. Clerks can simply protection order to the victim if the victim, and notified if the judge point out the information on the victim was not present in court at the suspends a conceal handgun license. community resources. time the order was issued. Clerks are Clerks should have in place a process 1 Statistics from the Texas Council on required to do this even if a peace for notifying the victim and reporting Family Violence website: www.tcfv.org

INSIGHTS INTO DIVERSITY

Gender Bias in Court The Gender Bias Task Force was commissioned by the Texas Supreme Court to identify bias and implement strategies to bring about gender fairness in the Texas courts and practice of law. After a two-and-one-half year study, the Gender Bias Task Force discovered that many Texas women and men experience discriminatory or inequitable treatment in Texas courts simply because of their sex. Much of the gender bias documented by the Task Force occurs in the courtroom – in the exchanges among judges, attorneys, litigants, court personnel, and witnesses. Gender bias may be defined as the predisposition or tendency to think about and behave toward people mainly on the basis of their sex. Gender bias can be subtle and unintentional. The Gender Bias Task Force has created a guide, Guidelines for Practicing Neutral Courtroom Procedures, to help judges, attorneys, and court personnel identify gender fairness in Texas courts. The guide is in the process of revision and reprinting and will be available through TMCEC in Fall 2003. Shown below is an excerpt from the guide.

As to Domestic Violence and Sexual Assault Victims, the Task assault must not be subjected to unjust scrutiny because Force learned that domestic violence and sexual assault cases of the nature of the act(s) perpetrated against them. Their present special gender fairness problems. Gender biased testimony is no less credible because the alleged acts are behavior may include: sexual or occurred in a domestic context. · Viewing domestic violence and sexual assault as less One of the most striking findings of the Task Force was the serious than other criminal acts. significant gap between the perceptions of men and women concerning the extent of gender fairness. Although · Minimizing victim’s experiences, such as assuming that acquaintance rape is less traumatic than “stranger rape.” a majority of male attorneys and judges surveyed by the Task Force believed that bias against women does exist, · Questioning the credibility of female crime victims in ways most felt that it exists in only a few areas and involves a that the credibility of male crime victims is not questioned. few individuals. In contrast, more than half of the women · Blaming victims for causing the abuse or assault. respondents indicated that bias against female litigants not In a gender neutral court, special care is taken to treat all only exists, but that it is widespread. Most women also victims of crime with respect and sensitivity to the trauma they said gender bias is subtle and hard to detect rather than have experienced. Victims of domestic violence and sexual readily apparent.

July 2003 Municipal Court Recorder Page 19 TCFV Materials continued from page 17 the life of a Latina and the progression of domestic violence DHS Videos closes with suggested actions that though her everyday life (family, The Texas Department of Human employers can take to deal with the friends, work and other systems). Services (DHS) also offers family violence issue. The 25-minute video was made materials such as: Also included in the kit is a manual especially for public education, that guides you in effectively outreach and training, and support Helping The Battered Woman: A Guide For Family And Friends intervening when an employee is groups. Production of this video was experiencing family violence; made possible by the Texas Sad Is How You Feel When Mom Is Being Beat. educating corporate leadership about Department of Human Services in Domestic Violence: Understanding A the financial, emotional, and medical cooperation with TCFV’s Latina Community Problem. costs of family violence in your Task Force. workplace; creating a multi- To purchase any of the materials, use When Love Hurts: Resources for Battered department task force; and designing the order form shown on page 17. Women. an organizational action plan to TCFV also houses a lending library Family Violence and Addiction: Implications for combat the effects of family violence with thousands of domestic Treatment. in your workplace. violence-related resource materials. These pamphlets may be ordered in bulk Un Nuevo Amanecer (New Dawn) Information on the library is listed under the Family Violence for local distribution. For further A recent video from TCFV that was Information section of the TCFV information, contact DHS, P.O. Box conceived entirely in Spanish for website: ww.tcfv.org. 149030, Austin, Texas 78714-9030 (888/ Spanish speakers. The video portrays 834-7406). www.dhs.state.tx.us. The DHS website (www.dhs.state.tx.us:80/ programs/familyviolence/shelters.html) contains a list of family violence shelters across Texas.

TEXAS MUNICIPAL COURTS EDUCATION CENTER 1609 SHOAL CREEK BLVD., SUITE 302 AUSTIN, TX 78701 www.tmcec.com

TMCEC MISSION STATEMENT

To provide high quality judicial education, technical assistance, and the necessary resource ma- terial to assist municipal court judges, court support personnel, and prosecutors in obtaining and maintaining professional compe- tence.

Change Service Requested

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