PROTECTIVE ORDERS - 1 -

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1 A. Travis County Attorney s Office Travis County Attorney s Office (TCAO) formed its Protective Order division in 1986 with one attorney. Today, there are four attorneys, two paralegals, and three secretaries, along with the assistance of Victim/Witness Coordinators. B. What is a Protective Order and what are the different types of Protective Orders? A Protective Order is a civil court order designed to protect a victim of family violence, for up to two years, that prohibits a batterer from doing certain things and orders him/her to do certain activities designed to lessen the likelihood of future family violence. Three different types of Protective Orders exist: 1. Protective Order Two years in length. Issued by either District or County courts. Enforceable by arrest when violated, according to the Penal Code. Other provisions are enforceable by civil contempt. 2. Temporary Ex-Parte Protective Order (TXPO) Up to fourteen days in length in Travis County. Issued by either District or County Court. Granted in conjunction with filing of Application for two year Protective Order. May include a kick-out order for the Respondent to immediately vacate the residence, but only if violence occurred within the last 30 days and the Applicant and Respondent lived together within the last 30 days. Enforceable criminally or by civil contempt. 3. Emergency Protective Order or Magistrate s Order for Emergency Protection (EPO or MOEP) Up to 90 days in length. Issued by Municipal Court following the arrest of batterer. Enforceable by arrest. C. What does a Protective Order do? Orders Respondent to stay 200 yards away from the Applicant, children, other family members or household members of the Applicant as specifically listed in the Protective Order, their residence, place of employment, school, and daycare. Orders Respondent not to commit acts of violence against the listed protected persons. Orders Respondent not to communicate with Applicant/protected persons in a certain manner, either: No communication at all; No harassing or threatening communication; or No communication except in writing, or through attorneys, Kids Exchange, licensed therapist, etc. Orders Respondent not to possess firearms/ammunition, and provides for seizure of those weapons

2 Orders Respondent to get family violence counseling with a Battering Intervention Program and/or drug and alcohol treatment, as recommended by Travis County Counseling and Education Services. Orders Respondent to engage in any other measures as the court sees fit to reduce the likelihood of future violence. Examples: Psychological evaluations Parenting Classes Cooperate with Child Protective Services Sets up visitation and child support when there is an acknowledgement of paternity of the child by the father. Child Support will be withheld from payor s paycheck as required by the Texas Family Code and sent through the Child Support State Disbursement Unit If the parents are meeting in public places to exchange the children, there will be an exception to the stay-away order for that to occur. Under a Protective Order, the parents cannot agree to change the exchange location and the Respondent cannot go to the Applicant s house to pick up the children unless the Protective Order actually specifies Respondent may do so. D. Who qualifies for a Protective Order? Anyone against whom family violence has been committed. The Texas Family Code defines family to include: Spouses. Ex-spouses. Parents of same child without regard to marriage. Individuals related by consanguinity or affinity, within three degrees. Examples: parent-child, siblings, aunt/nephew, grandparent-grandchild. Foster child/foster parent. Members of same household, or former members of same household. Roommates are acceptable; they need not be involved in a romantic or intimate relationship. Victims of sexual assault without regard to relationship Dating relationships. Section of the Texas Family Code defines a dating relationship as individuals who have a continuing relationship of a romantic or intimate nature, based on its length, nature and frequency and the type of interaction between parties. Teen dating relationships qualify under current law, as long as an adult applies on behalf of the minor

3 E. How do victims get a Protective Order? An Application for Protective Order must be filed with the Court. Can be done pro se (without the assistance of an attorney), through a private attorney hired by the victim, or through TCAO. The Texas Family Code prohibits the court from charging Applicants any court costs for the Protective Order. Respondent may be assessed these costs per the Family Code. TCAO does not charge Applicants for their services. A private attorney most likely will charge for their services. Both TCAO and private attorneys may ask the Court to order the Respondent to pay for their attorney s fees. If apply with TCAO: Applicants will fill out an affidavit alleging the Respondent committed family violence, detailing what happened and why it is likely to happen again. They must also fill out forms related to service on Respondent. Can be done any time, without an appointment, Monday-Friday 8:00 am-5:00 pm at the Granger Building, 3 rd Floor, 315 West 11 th Street. Generally takes 2-3 hours. Special needs (Spanish speaking, deaf, etc.) will take longer. After forms are prepared with the assistance of a Victim/Witness Coordinator, the Applicant will meet with an attorney. At the next available uncontested docket (which is at 8:30 a.m. and 1:30 p.m.), we will file the application for Protective Order and have a TXPO signed by a judge and set the Protective Order hearing for a date within two weeks. F. What is court like? Numerous Protective Order cases are set on the same day. TCAO sets all District Court cases (those cases involving children) on Tuesdays with an Associate Judge and all County Court cases (those cases where the parties do not share a child) with Judge Mike Denton on Fridays. SafePlace Legal Advocates and volunteers assist TCAO with their Applicants in Court. The Protective Order hearing will require testimony from the Applicant and other witnesses if the Respondent contests the entry of the Protective Order. The average hearing will last about one hour, but they can be lengthy, heated battles, and some have lasted four-five days. To obtain a Protective Order, the Court must decide whether family violence occurred and whether it is likely to occur in the future. This can be done with one incident, but proving the likelihood of future violence may be difficult when only one incident occurred. There is no time line for the violence - it may have occurred last week, last month, or two years ago. But if only one incident occurred two years ago, it will be difficult to prove a likelihood of future violence. Often, there is very little evidence to prove the violence, other than the sworn testimony of the parties. This is due to the nature of domestic violence, and the fact that it occurs behind closed doors when no one else is around. Evidence - 3 -

4 that is helpful for the Court: photos, tape recordings, letters/ s, and excited utterances made to 3 rd parties, such as police. After the evidence has been heard, the judge makes her decision. If a Protective Order is entered, the Protective Order is signed in court and served on both parties in open court, on the record. Only when a default has occurred (the Respondent failed to appear in Court after having been served with notice to appear), does the Respondent not receive a copy in court, and must later be served by a process server. But if the Respondent is present in court, he receives a copy of the Order, which the Judge then goes over with the Respondent on the record. G. Why should a victim of family violence seek a Protective Order? A Protective Order is more than just a stay-away order. It is a court order that orders the Respondent to do certain things that will decrease the likelihood of future violence. For example, ordering the Respondent to pay child support to the Applicant is crucial, as one of the main reasons why a victim returns to a batterer is because she cannot afford to be on her own without his financial support. The court hearing the criminal case against the batterer can only concentrate on the one act of violence for which the batterer was arrested. In a Protective Order hearing, the court will focus on the whole picture, and hear evidence on all the acts of violence that have occurred in their relationship, including non-physical abuse (such as emotional abuse or financial abuse). The Court will thus create an order that goes above and beyond what the criminal courts may be able to do like child support, or setting up exchanges of the children so he doesn t keep coming over to her house to pick up kids or calling her over and over about letting him see the kids. It is often easier to obtain a Protective Order than to prove a criminal act, since the burden of proof for a civil case is lower than in a criminal case. For a Protective Order to be issued, we need only prove an act of violence occurred by a preponderance of the evidence, as opposed to beyond a reasonable doubt. A Protective Order provides immediate relief for victims. In the criminal courts, it may be years before the batterer finally gets sent to jail. A Protective Order must be heard within 14 days of the Application being filed (and if it is re-set, it can only be re-set for 14 days). Thus, the Protective Order will help break the cycle of violence at the stage where it is most needed. H. Consequences of violating a Protective Order 1. Criminal Fines of up to $4000 and two years in jail, depending on whether the violation is a misdemeanor or a felony. Can only be prosecuted for what is included in the Penal Code: Committing acts of violence against Applicant. Communicating with Applicant in the prohibited manner as listed in the Protective Order. Going within 200 yards of Applicant s residence/place of employment /school/daycare of children

5 This does not include going within 200 yards of the Applicant/children at all times, as the Protective Order will state. If the Respondent goes within 200 yards of the Applicant at a bar or any public place (including a probation office), or is in a car or hotel together, it is only enforceable by civil contempt, and not arrest. Possessing firearms and ammunition 2. Civil Fine of up to $500 and/or six months in jail for all other violations. Examples are: Failure to attend Battering Intervention Program and/or drug and alcohol counseling. Failure to pay child support. Failure to pay court costs. Failure to return child as specified in Protective Order. Failure to stay 200 yards away from Applicant/children in public places. I. What happens when a violation of the Protective Order occurs? TCAO instructs Applicants to call law enforcement and report the violation immediately, and once they are safe, to call TCAO and let us know. Sometimes, an immediate arrest can be made. Most of the time, a detective will have to investigate and the Applicant will be given an offense report number. We ask the Applicant to call us with their offense report numbers so we can help follow up. If for some reason it is not criminally enforceable, we can file a civil contempt on the violation. Applicants do not need to have a copy of their Protective Order for an arrest to be made. All Protective Orders are entered into TCIC, a statewide database. Occasionally, Applicants may appear to have invited the Respondent to violate the Protective Order and reconcile with the Respondent. All Respondents are told in court on the record by the judge that the Applicant cannot give them permission to violate the Protective Order. The court order also says, in bold-faced capital letters underlined, NO ONE, INCLUDING THE PERSON PROTECTED BY THIS ORDER, CAN GIVE ANYONE PERMISSION TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. Only the Respondent can violate the Protective Order; the Family Code prohibits mutual protective orders so the Protective Order will only prohibit the Respondent from doing anything. J. What if an Applicant changes her mind and no longer wants the Protective Order? Before Protective Order entered - TCAO does not dismiss the Protective Order application; we go forward and hold a contested hearing. The Applicant is able to explain why she has changed her mind, but TCAO still requests that the judge put the Protective Order in place. The judge may dismiss the Protective Order at this time, but generally the judges still grant the Protective Order, usually with a review date in a few months to check back in and see how Respondent s counseling is going, and if changes to the Protective Order are needed

6 After Protective Order entered Applicant has options. She can hire her own attorney to bring her dismissal request, or she can go through TCAO. If she uses TCAO, before we will set a hearing on her request to dismiss, we have the Applicant: 1. Attend Project Options; 2. Meet with the Safe Place Legal Advocate (currently Joan Carter) housed at TCAO; and 3. In district court cases, meet with the Protective Order Guardian Ad Litem. 4. After these steps have been completed, we set a hearing date for the Applicant to bring her oral request to vacate the Protective Order. 5. We always check compliance with the Protective Order and will file a Motion for Contempt if the Respondent has not complied with the order (i.e., child support, counseling, etc). TCAO does not dismiss a Protective Order simply because the Applicant requests it be dropped. We can never be certain if the Applicant truly wants this or not, or is simply doing so because the Respondent is making her. Therefore, we always contest the dropping of a Protective Order to ensure the safety of the Applicant and the children. The Respondent can file a Motion to Vacate after one year has passed, but not prior, according to the Texas Family Code. Please contact a Protective Order Attorney at the Travis County Attorney s Office with any questions you may have at Erin Martinson Linda Magee Marion Damen Hilary Riley - 6 -