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.