PROTECTIVE ORDERS AND FAMILY VIOLENCE

Transcription

1 PROTECTIVE ORDERS AND FAMILY VIOLENCE Kathryn J. Murphy Goranson Bain, PLLC 6900 N. Dallas Parkway, Suite 400 Plano, Texas October 9, 2014

2 KATHRYN J. MURPHY GORANSON BAIN, PLLC 6900 North Dallas Parkway, Suite 400 Plano, Texas (214) Website: EDUCATION: J.D Southern Methodist University, Dallas, Texas B.A University of Texas at Tyler, Tyler, Texas PROFESSIONAL ACTIVITIES AND AFFILIATIONS: Partner - Goranson Bain, PLLC Board Certified Family Law - Texas Board of Legal Specialization Fellow - American Academy of Matrimonial Lawyers Fellow - Texas Chapter of the Academy of Matrimonial Lawyers (President ) Member - Texas Academy of Family Law Specialists Member - Family Law Council, State Bar of Texas (2005-Present)(Executive Committee) Member - The Collaborative Alliance Member - Collaborative Law Institute of Texas Member - International Academy of Collaborative Professionals Member - State Bar of Texas (Family Law Section) Member - American Bar Association (Family Law Section) Member - College of the State Bar of Texas Member - Dallas Bar Association (Family Law Section) Member - Collin County Bar Association (Family Law Section) Member - Denton County Bar Association Member - Plano Bar Association Co-Chair - DAYL People s Law School (1995 & 1996) Instructor - Southeastern Paralegal Institute ( ) Member - Fee Dispute Committee - Dallas Bar Association ( ) Fellow - Collin County Bench Bar Foundation Lifetime Fellow Texas Family Law Foundation (State Bar of Texas) Fellow - Texas Bar Foundation Nominating Committee Member Chairman - Program Committee, Collin County Bench Bar Conference, 2000 Board Member- Advisory Board in CASA of Collin County Member - Grievance Committee, District 1A ( ); (Chair ) Certificate - Advanced Mediation - Family Law (1995) Member - Annette Stewart Inn of Court (Board Member )

3 SPECIAL RECOGNITIONS AND HONORS: Named the Best Lawyers in America 2015 Family Law Lawyer of the Year in Dallas only a single lawyer in each practice area within a community is honored with this distinction. Listed in D Magazine "Best Lawyers in Dallas" Family Law (2001, 2005, 2006, 2007, 2008, 2009, 2010). Listed in D Magazine Best Female Lawyers in Dallas (2010). Listed in D Magazine Best Personal Lawyers in Dallas (2009). Listed in The Best Lawyers in America Woodward and White Press ( present). Listed in Texas Monthly Top 50 Women Texas Super Lawyers ( ). Listed in Texas Monthly Top 100 Texas Super Lawyers ( ; 2011; ). Listed in Texas Monthly Top 100 Dallas/Fort Worth Super Lawyers ( ; ). Listed in Texas Monthly Texas Super Lawyer in the area of Family Law ( ). Best Family Law CLE Article, State Bar of Texas, Annette Stewart Inn of Court, Serjeant of the Inn Award January PUBLICATIONS: Co-Author, West Publishing Company, TEXAS FAMILY LAW PRACTICE GUIDE (published March 2000, supplemented each year to the present). Primary Author, PROTECTING YOUR ASSETS FROM A TEXAS DIVORCE, Professional Solutions Group (2005). Co-Author, Protecting Children From Incompetent Forensic Evaluations and Expert Testimony, Journal of the American Academy of Matrimonial Lawyers (2006). CONTINUING LEGAL EDUCATION LEADERSHIP th CO-COURSE DIRECTOR, 39 Annual Advanced Family Law Course, State Bar of Texas (August 2013) CO-COURSE DIRECTOR, INNOVATIONS BREAKING BOUNDARIES IN CUSTODY LITIGATION, The University of Texas School of Law (January 2012) COURSE DIRECTOR, Collaborative Law Course, State Bar of Texas (March 2011) CO-COURSE DIRECTOR, New Frontiers in Marital Property Law, State Bar of Texas (October 2010) ASSISTANT COURSE DIRECTOR, Collaborative Law Course, State Bar of Texas (2010) MODERATOR, Collin County Bench/Bar Conference (2000)

4 CO-CHAIR, Collin County Bench/Bar Conference (2001) PUBLICATIONS AND PRESENTATIONS: PROTECTIVE ORDERS AND FAMILY VIOLENCE, Southern Methodist University School of Law (October 2014) th NEGOTIATION TECHNIQUES AND STRATEGIES, 40 Annual Advanced Family Law Course, State Bar of Texas (August 2014) EXPERTS, EXAMINATIONS AND ETHICS A GUIDE TO MENTAL HEALTH EXPERTS DIRECT AND CROSS, ATTACKING AND DEFENDING RECOMMENDATIONS, DAUBERT CHALLENGES AND PRACTICAL APPROACHES, Innovations Breaking Boundaries in Child Custody Litigation, The University of Texas School of Law (June 2014) USING A COMPUTER FORENSIC EXPERT, Family Law Technology Course, State Bar of Texas (December 2012) PROPERTY UPDATE, Advanced Family Law Course, State Bar of Texas (August 2012) TURBO CHARGE YOUR COLLABORATIVE PRACTICE, Advanced Family Law Course, State Bar of Texas (August 2012) ATTORNEY S FEES AGREEMENTS, Advanced Family Law Course, State Bar of Texas (August 2011) CHARACTERIZATION OF PROPERTY, Family Law on the Front Lines, The University of Texas School of Law (June 2011) ELECTRONIC EVIDENCE WORKSHOP, Advanced Family Law Course, State Bar of Texas (August 2009) THE ELECTRONIC EVIDENCE BIBLE, University of Texas School of Law (June 2009) CHARACTERIZATION, Marriage Dissolution Institute, State Bar of Texas (April 2009) PREMARITAL AGREEMENTS, Collin County Bar Association (February 2009) ELECTRONIC EVIDENCE CIVIL AND ETHICAL IMPLICATIONS, University of Texas School of Law, Parent-Child Relationships; Critical Thinking for Critical Issues (January 2009) PREMARITAL AGREEMENTS, Collin County Bar Association, Estate Planning Section (September 2008)

5 RELOCATION, Advanced Family Law Course, State Bar of Texas (August 2006) TEMPORARY SUPPORT, MAINTENANCE AND ALIMONY, Marriage Dissolution Institute, State Bar of Texas (April 2006) CHILD SUPPORT UPDATE: WITHIN AND OUTSIDE THE GUIDELINES, Marriage Dissolution Institute (April 2006) RELOCATION, American Bar Association, Section of Family Law, Spring CLE Conference, Washington D.C. (May 2006) COLLABORATIVE LAW, A Panel of Texas Authors on Texas Collaborative Law (April 2006) MARITAL PROPERTY 101, State Bar College Spring Training 2006, State Bar College (March 2006) HIGH TECH EVIDENCE, Collin County Bar Association, Family Law Section (December 2006) HIGH TECH EVIDENCE, WEBSITES, HARDDRIVES, S, ETC., Advanced Family Law Drafting Course (December 2006) PROTECTIVE ORDERS AND FAMILY VIOLENCE, The Family Place (2005) st CHILD SUPPORT, 31 Annual Advanced Family Law Course, State Bar of Texas (August 2005) PSYCHOLOGICAL TESTING, American Academy of Matrimonial Lawyers (March 2005) RELOCATION, Dallas Volunteer Attorney Program and Family Law Section, Nuts and Bolts Family Law Training (February 2005) OPENING STATEMENTS AND CLOSING ARGUMENTS, Ultimate Trial Notebook Family Law, State Bar of Texas (December 2004) HIGH TECH EVIDENCE, WEBSITES, HARDDRIVES, S, ETC., Williamson County (October 2004) th RELOCATION DEBATE, 30 Annual Advanced Family Law Course, State Bar of Texas (August 2004) COLLABORATIVE LAW PANEL, Collaborative Law Spring Retreat (March 2004) th HIGH TECH EVIDENCE, WEBSITES, HARDDRIVES, S, ETC., 29 Annual Advanced Family Law Course, State Bar of Texas (August 2003) FAMILY LAW EVIDENCE, Collin County Bench Bar Conference (May 2003)

6 th FAMILY LAW EVIDENTIARY ISSUES, 16 Annual Advanced Evidence & Discovery Course, State Bar of Texas (March 2003) PARENTAGE: ESTABLISHING, ATTACKING & UNDOING, Texas Academy of Family Law Specialists (January 2003) PARENTAGE: CURRENT ISSUES, University of Houston Law Center (October 2002) OBJECTIONS AT TRIAL, American Bar Association, Section of Family Law, Fall CLE Conference, Orlando, FL (November 2002) DIVISION OF PROPERTY AND DIVIDING SPECIFIC ASSETS, University of Houston Law Foundation (June 2002) FAMILY LAW FOR THE NON-SPECIALIST, J. Reuben Clark Law Society (April 2002) DIVISION OF PROPERTY ON DIVORCE, University of Houston Law Foundation (September 2001 and September 2002) FAMILY LAW UPDATE, Ten Hot Topics in Family Law, Collin County Bench/Bar Conference (June 2000) FAMILY LAW UPDATE, J. Reuben Clark Law Society (June 2000) DIVISION OF PROPERTY ON DIVORCE, University of Houston Law Foundation (April 2000) FAMILY LAW DISCUSSION, J. Reuben Clark Law Society (October, 1999) BUSINESS VALUATIONS IN DIVORCE AND CROSS-EXAMINATION OF A VALUATION EXPERT, American Bar Association, Family Law Section, San Diego (October, 1999) th OPENING STATEMENT - JURY OR NONJURY, 25 Annual Advanced Family Law Course, State Bar of Texas (August, 1999) UPDATE ON FAMILY LAW, Dallas Women s Lawyers Association (December, 1998) FAMILY LAW FOR THE NON-SPECIALIST, Dallas Bar Association (December, 1998) OBTAINING RECORDS FROM NON-PARTIES, 24th Annual Advanced Family Law Course, State Bar of Texas (August 1998) DISCOVERY UPDATE, Dallas Bar Association Friday Clinic (December 1996 and July 1998)

7 OPENING AND CLOSING THE FILE, Family Law Conference for the General Practitioner and Legal Assistant, South Texas College of Law (February 1998 and February 1999) DISCOVERY UPDATE, 23rd Annual Advanced Family Law Course, State Bar of Texas (August 1997) DISCOVERY UPDATE, 22nd Annual Advanced Family Law Course, State Bar of Texas (August 1996) BUSINESS VALUATION IN DIVORCE, Dallas Chapter Texas Society of Certified Public Accountants Fifth Annual Divorce Conference (September 1996, September 1998) DISCOVERY, Dallas Bar Association Family Law Training Seminar (October 1996) ATTORNEY S FEES, Family Law Practice Institute, University of Houston (September 1996)

8 PROTECTIVE ORDERS AND FAMILY VIOLENCE I. APPLICATION FOR PROTECTIVE ORDER A proceeding for a protective order is begun by filing an Application for a Protective Order with the clerk of the court. A court must render a protective order if the court finds that family violence has occurred and is likely to occur in the future. Tex. Fam. Code Ann. Section Court means the district court, court of domestic relations, or juvenile court having the jurisdiction of a district court, statutory county court, constitutional county court, or other court expressly given jurisdiction. Tex. Fam. Code Ann. Section A. Persons Who May File Application An adult member of the family or household may file an application for protective order to protect the applicant or any other member of the applicant s family or household. Tex. Fam. Code. Ann. Section (a). An application for protective order to protect the applicant may be filed by an adult member of the dating relationship. Tex. Fam. Code Ann. Section (a)(1)(B). Additionally, any adult may file an application for a protective order to protect a child from family violence. The adult does not have to be a member of the family. B. Definitions Family Defined Family includes individuals related by consanguinity or affinity, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together. Tex. Fam. Code Ann. Section ; James v. Hubbard, 21 S.W.3d 558 (Tex. App. San Antonio 2000, no pet.)(mother-in-law was entitled to protective order against her son-in-law because, at time order was rendered, son-in-law s divorce has not yet become final and thus he fell within the definitely of family ); Butler v. State, 162 S.W.3d 727 (Tex. App. Fort Worth 2005, pet. granted)(family violence case where victim was fiancee with whom defendant had a child). Household Defined Household means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other. Tex. Fam. Code Ann. Section Member of Household Defined Member of a household includes a person who previously th lived in a household. Teel v. Shifflett, 309 S.W.3d 597 (Tex. App. Houston [14 Dist.] 2010, pet. filed)(court found evidence that boyfriend and girlfriend lived in same household even though intermittent due to their disagreements and that girlfriend engaged in family violence). Page 8

9 Family Violence Defined Family violence means: (1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; or (2) the following types of abuse by a member of a family or household toward a child of the family or household: (a) (b) (c) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent or guardian that does not expose the child to a substantial risk of harm; sexual conduct harmful to a child s mental, emotional, or physical welfare, including conduct that constitutes the offense of indecency with a child, sexual assault, or aggravated sexual assault under the Texas Penal Code; or compelling or encouraging the child to engage in sexual conduct; and (3) dating violence as that term is defined by Section (a) of the Family Code. Tex. Fam. Code Ann. Section The definition of family violence does not include emotional abuse for an adult, but does include emotional abuse/injury to a child. The definitions for abuse/neglect of a child are much broader than an adult. Except for kickout orders, there is no time requirement for when the violence must have happened. Arguably a protective order for violence that happened a year before the filing could be obtained, so long as family violence is likely to occur in the future. Dating Violence Defined Dating violence means an act by an individual against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself. Tex. Fam. Code Ann. Section (a). Dating Relationship Defined Dating relationship means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. In determining the existence of a dating relationship, the length, nature, and frequency and type of Page 9

10 interaction between the persons involved will be considered. Tex. Fam. Code Ann. Section (b). A casual relationship or ordinary fraternization in a business or social context does not constitute a dating relationship. Tex. Fam. Code Ann. Section (c). Prosecuting Attorney or DPRS A prosecuting attorney or the DPRS may file an application for the protection of any person alleged to be a victim of family violence. Tex. Fam. Code Ann. Section (d). The person alleged to be the victim of family violence in an application filed by a prosecuting attorney or DPRS is considered to be the applicant for a protective order. Tex. Fam. Code Ann. Section (e). C. Venue An application for protective order may be filed in the county in which the applicant resides; the county in which the respondent resides; or any county in which the family violence is alleged to have occurred. Tex. Fam. Code Ann. Section NOTE: There is no requirement that the protective order must be filed in the court of continuing jurisdiction. D. Contents of Application An application must state: (1) the name and county of residence of each applicant; (2) the name and county of residence of each individual alleged to have committed family violence; (3) the relationships between the applicants and the individual alleged to have committed family violence; and (4) a request for one or more protective orders. Tex. Fam. Code Ann. Section The applicant is not required to specify the specific facts surrounding the alleged violence. Martinez v. Martinez, 52 S.W.3d 429 (Tex. App. Fort Worth 2001, review denied). If the request for protective order is for a child, the request must contain facts sufficient to show specific violence to the child. In many cases, there is evidence showing violence against the spouse, however, this evidence will not allow the issuance of a protective order for the child. It must be clear that the violence was perpetrated against the child. E. Application Filed During Divorce or SAPCR A person who wishes to apply for a protective order with respect to the person s spouse and who is a party to a suit for the dissolution of a marriage or a suit affecting the parent-child relationship that is pending in a court must file the application as required by Chapter 85 of the Family Code for issuance of a protective order. Tex. Fam. Code Ann. Section , et. seq. Page 10

11 II. TEMPORARY EX PARTE (WITHOUT A HEARING) ORDERS A. Generally If the court finds, from the information contained in an application for a protective order, that there is a clear and present danger of family violence, the court, without further notice to the individual alleged to have committed family violence and without a hearing, may enter a temporary ex parte (without a hearing) order for the protection of the applicant or any other member of the family or household of the applicant. Tex. Fam. Code Ann. Section (a); In re M.G.M., 163 S.W.3d 191 (Tex. App. Beaumont 2005, no pet.)(trial court had temporary emergency jurisdiction to issue an ex parte temporary protective order which was limited in scope to provisions that would ensure the physical safety of mother and children, in a proceeding where mother sought a protective order, while out-of-state divorce and custody proceedings were pending). NOTE: A temporary ex parte protective order is not criminally enforceable. If the temporary ex parte order is violated, a contempt action must be filed to enforce the order. They are useful, however, if you want to get the respondent out of the house immediately on a kickout order. In a temporary ex parte order, the court may direct a respondent to do or refrain from doing specified acts. Tex. Fam. Code Ann. Section (b). A temporary ex parte order is valid for the period specified in the order, not to exceed 20 days. Tex. Fam. Code Ann. Section (a). On the request of an applicant or on the court s own motion, a temporary ex parte order may be extended for additional 20-day periods. Tex. Fam. Code Ann. Section (b). The attorney must provide a provide a protective order at the time of presenting pleadings on an ex parte order, as well as a separate order to the sheriff, if that relief is requested. B. Contents of Application An application that requests the issuance of a temporary ex parte order must: (1) contain a detailed description of the facts and circumstances concerning the alleged family violence and the need for the immediate protective order; and (2) be signed by each applicant under an oath that the facts and circumstances contained in the application are true to the best knowledge and belief of each applicant. Tex. Fam. Code Ann. Section An affidavit should be attached to the application that contains facts supporting a finding of clear and present danger of family violence. Many times the allegations are only conclusions and Page 11

12 lack any specific facts upon which a court may act, such as she was abusive to me, and she threatened me. Specific past acts or threats of violence, dates of occurrence, and some basis to believe future violence is likely to occur must be set forth in the affidavit. See In re Potts, 399 th S.W.3d 685 (Tex. App. Houston [14 Dist.] 2013)(for ex parte relief, affidavit attached to application for protective order must contain a detailed description of the facts and circumstances concerning the alleged family violence and need for immediate relief broad, disjointed, and often rambling allegations are not enough). Example, Mary Smith hit me in the stomach with her hand at 2 a.m. on January 1, 2014, in our bedroom at 2500 Main Street, Anytown, Texas. I am fearful that violence will occur again. B. Motion to Vacate Any individual affected by a temporary ex parte order may file a motion at any time to vacate the order. Tex. Fam. Code Ann. Section On the filing of the motion to vacate, the court must set a date for hearing the motion as soon as possible. To vacate an improper ex parte protective order, a written motion should be filed specifically pointing out the reasons the order is improper. The respondent should sign a controverting affidavit and an order should be prepared to dissolve the existing order. Opposing counsel should be contacted and invited to be present at the courthouse when the motion to vacate the improper order is presented. C. Temporary Order Prevails During the time the order is valid and to the extent of any conflict between orders, a temporary ex parte order prevails over any other court order made in a suit affecting a parent-child relationship (SAPCR). Tex. Fam. Code Ann. Section NOTE: This is not true for final protective orders. The terms of a final protective order which conflict with a SAPCR order are void. D. Exclusion from Residence Subject to the limitations of the contents of a protective order, a person may only be excluded from the occupancy of the person s residence by a temporary ex parte order ( kickout order) if the applicant: (1) files a sworn affidavit that provides a detailed description of the facts and circumstances requiring the exclusion of the person from the residence; and (2) appears in person to testify at a temporary ex parte hearing to justify the Page 12

13 issuance of the order without notice. Tex. Fam. Code Ann. Section Before the court may render a temporary ex parte order excluding a person from the person s residence, the court must find from the required affidavit and testimony that: (1) the applicant requesting the excluding order either resides on the premises or has resided there within 30 days before the date the application was filed; (2) the person to be excluded has, within the 30 days before the date the application was filed, committed family violence against a member of the household; and (3) there is a clear and present danger that the person to be excluded is likely to commit family violence against a member of the household. Tex. Fam. Code Ann. Section (b). NOTE: The courts require strict compliance with the Family Code before requiring a respondent to be excluded ex parte from the occupancy of the respondent s residence. A personal appearance by the applicant is mandatory. Although the applicant must accompany the attorney to the courthouse, he or she is usually excluded from the hearing until the pleadings are examined by the judge. The affidavit of the applicant will be closely reviewed by the judge to assure maximum protection to the absent respondent. The affidavit must include specific detailed facts (not conclusions) as to the violence which must have occurred within 30 days before the application was filed, including date, time and place and facts showing clear and present danger that the respondent is likely to commit further violence against the applicant. E. Contacting Respondent The court may recess the hearing on a temporary ex parte order to contact the respondent by telephone and provide the respondent the opportunity to be present when the court resumes the hearing. Without regard to whether the respondent is able to be present at the hearing, the court shall resume the hearing before the end of the working day. Tex. Fam. Code Ann. Section F. Order Sent to Police On request by an applicant obtaining a temporary ex parte protective order that excludes the respondent from the respondent s residence, the court granting the temporary order must render a written order to the sheriff, constable, or chief of police to provide a law enforcement officer from the department of the chief of police, constable, or sheriff to: (1) accompany the applicant to the residence covered by the order; Page 13

14 (2) inform the respondent that the court has ordered that the respondent be excluded from the residence; (3) protect the applicant while the applicant takes possession of the residence; and (4) protect the applicant if the respondent refuses to vacate the residence while the applicant takes possession of the applicant s necessary personal property. Tex. Fam. Code Ann. Section NOTE: Because the police will not enforce a temporary ex parte protective order, applicants should take special precautions during the period before the protective order hearing, such as seek refuge with a family member or some other shelter. III. HEARING A. Date of Hearing On the filing of an application for a protective order, the court must set a date and time for the hearing. Tex. Fam. Code Ann. Section (a). Except as provided by the statute regulating extended time for hearing (Tex. Fam. Code Ann ), the court may not set a date later than the th 14 day after the date the application is filed. Tex. Fam. Code Ann. Section (a). On the request of the prosecuting attorney in a county with a population of more than 2 million or in a county in a judicial district that is composed of more than one county, the district court must set the hearing on a date and time not later than 20 days after the date the application is filed or 20 days after the date a request is made to reschedule a hearing. Tex. Fam. Code Ann. Sections (a), For example, in Dallas County, the district court must set the hearing on a date and time not later than 20 days after the date the application is filed or 20 days after the date a request is made to reschedule a hearing. If a set hearing is not held because of the failure of a respondent to receive service of notice of an application for a protective order, the applicant may request the court to reschedule the hearing. Tex. Fam. Code Ann. Section (a). Except as provided by Section , the date for a rescheduled hearing must be not later than 14 days after the date the request is made. Tex. Fam. Code Ann. Section (b). If a respondent receives service of notice of an application for a protective order within 48 hours before the time set for the hearing, on request by the respondent, the court must reschedule the hearing for a date not later than 14 days after the date set for the hearing. Tex. Fam. Code Ann. Section (a). Page 14

15 B. Hearsay Statement of Child Victim of Family Violence In a hearing on an application for protective order, a statement made by a child 12 years of age or younger that describes alleged family violence against the child is admissible as evidence in the same manner that a child s statement regarding alleged abuse against the child is admissible under Section in a suit affecting the parent-child relationship. Tex. Fam. Code Ann. Section C. No Right to Jury Trial There is no right to a jury trial in connection with an application for a protective order. Williams v. Williams, 19 S.W.3d 544 (Tex. App. Fort Worth 2000, pet. denied). IV. ISSUANCE OF PROTECTIVE ORDER A. Finding of Family Violence At the close of a hearing on an application for a protective order, the court must find whether: (1) family violence has occurred; and (2) family violence is likely to occur in the future. Tex. Fam. Code Ann. Section (a). If the court finds that family violence has occurred and that family violence is likely to occur in the future, the court must render a protective order as provided by Section of the Family Code applying only to a person found to have committed family violence. Tex. Fam. Code Ann. Section (b)(1). The trial court has great discretion in determining whether the conduct of an individual constitutes family violence or that family violence is likely to occur in the future. In finding that family violence is likely to occur in the future, this requires the court to look at past behavior in order to predict the future. There are cases holding that past incidents of family violence alone are sufficient to support a finding that family violence is likely to occur in the future. Teel v. Shifflett, th 309 S.W.3d 597 (Tex. App. Houston [14 Dist.] 2010, pet denied); Clements v. Haskovec, 251 S.W.3d 79 (Tex. App. Corpus Christi 2008, no pet.). The court may also render a protective order as provided by Section of the Family Code applying to both parties that is in the best interest of the person protected by the order or member of the household of the person protected by the order. Tex. Fam. Code Ann. Section (b)(2). The court may only render a protective order against both parties if both parties have filed an application for a protective order. Cockerham v. Cockherham, 218 S.W.3d 298 (Tex. App. Texarkana 2007). Page 15

16 A protective order that requires the first applicant to do or refrain from doing an act under Section of the Family Code (the criminally enforceable provisions) must include a finding that the first applicant has committed family violence and is likely to commit family violence in the future. Tex. Fam. Code Ann. Section (c). Relevant Cases: Thompson v. Thompson O-Rear, 2004 WL (Tex. App. Texarkana 2004)(unreported)(evidence of father s harassment of mother at son s baseball game without prior threats of or actual physical violence was insufficient to support a family violence protective order). Pena v. Garza, 61 S.W.3d 529 (Tex. App. San Antonio 2001, no pet.)(court entitled to take testimony of sister as to physical abuse over other testimony by friends and family to support the issuance of a protective order. th Teel v. Shifflett, 309 S.W.3d 597 (Tex. App. Houston [14 Dist.] 2010, no pet.)(evidence that a parent engaged in abusive or neglectful conduct in the past permits an inference that the parent will continue this behavior in the future). Collier v. State, 2013 WL (Tex. App. Tyler 2013 (mem. op.)(one incident of violence that includes a threat of future violence was enough to prove that family violence occurred and was likely to occur in the future. Maki v. Anderson, 2013 WL (Tex. App. Fort Worth 2013)(mem. op.)(case discusses legal and factual sufficiency of evidence for a court to enter a protective order, trial court determines credibility of witnesses and can reject or accept all or part of a witness testimony; evidence of past abusive conduct permits an inference that abusive conduct will continue). th Dalbosco v. Seibert, 2012 WL (Tex. App. Houston [14 Dist.] 2012, pet. denied)(mem.op.)(evidence of pattern of violent behavior enough to show likelihood that family violence is likely to occur in the future). In determining whether a person is placed in fear of imminent physical harm, the intent of the respondent in his actions is not relevant, rather the sole question is whether the applicant s fear is reasonable. Bedinghaus v. Adams, 251 S.W.3d 79 (Tex. App. Corpus Christi 2008)(protective order granted where husband never struck wife or daughter but did make threats to his wife and daughter and raised a fist at his daughter threats to harm without actual physical violence meet the definition of family violence for the purpose of obtaining a protective order). If the court finds that a respondent violated a protective order by committing an act prohibited by the order as provided by Section of the Family Code, that the order was in effect at the Page 16

17 time of the violation, and that the order has expired after the date that the violation occurred, the court, without the necessity of making the findings that family violence has occurred and is likely to occur in the future must render a protective order as provided by Section of the Family Code applying only to the respondent and may render a protective order as provided by Section of the Family Code to any party. Tex. Fam. Code Ann. Sections , ; Sharpe v. McDole, 2010 WL (Tex. App. Austin 2010)(pet. denied)(the only finding necessary on the application for a second protective order based on the violation of a first protective order is whether the respondent violated the first protective order; applicant s violations of the protective order, if any, are irrelevant). A court that renders separate protective orders that apply to both parties and require both parties to do or refrain from doing acts under Section of the Family Code, must render two distinct and separate protective orders in two separate documents that reflect the appropriate conditions for each party. Tex. Fam. Code Ann. Section (a). A court may not render one protective order under Section of the Family Code that applies to both parties. Tex. Fam. Code Ann. Section (c). Note: The applicant should not agree to a mutual protective order. The court has no authority to render one protective that requires both parties to do or refrain from doing acts under Section of the Family Code (the criminally enforceable provisions). Tex. Fam. Code Ann. Sections (b); Moreno v. Moore, 897 S.W.2d 439 (Tex. App. Corpus Christi 1995, no writ)(a mutual protective order is void). This is not the same thing as an agreed protective order discussed below. B. Agreed Protective Orders To facilitate settlement, the parties to a proceeding may agree in writing to the terms of a protective order as provided by Section of the Family Code, subject to the approval of the court. Tex. Fam. Code Ann. Section (a). To facilitate settlement, a respondent may agree in writing to the terms of a protective order as provided by Section of the Family Code, subject to the approval of the court. Tex. Fam. Code Ann. Section (b). However, the court may not approve an agreement that requires the applicant to do or refrain from doing an act under Section Tex. Fam. Code Ann. Sections (b), If the court approves an agreement between the parties, the court must render an agreed protective order that is in the best interest of the applicant, the family or household, or a member of the family or household. Tex. Fam. Code Ann. Section (c). An agreed protective order is not enforceable as a contract. Tex. Fam. Code Ann. Section (d). Page 17

18 C. Default Order A court may render a protective order that is binding on a respondent who does not attend a hearing if the respondent received service of the application and notice of the hearing. Tex. Fam. Code Ann. Section (a). If the court reschedules the hearing, a protective order may be rendered if the respondent does not attend the rescheduled hearing. Tex. Fam. Code Ann. Section (b). D. Exclusion of Addresses and Telephone Numbers On request by a person protected by an order or member of the family or household of a person protected by an order, the court may exclude from a protective order the address and telephone number of the following: (1) person protected by the order, in which case the order must state the county in which the person resides; (2) the place of employment or business of a person protected by the order; or (3) the child-care facility or school a child protected by the order attends or in which the child resides. Tex. Fam. Code Ann. Section (a). On granting a request for confidentiality, the court must order the clerk to strike the information that has been excluded from the order from the public records of the court and maintain a confidential record of the information for use only by the court. Tex. Fam. Code Ann. Section (b). E. Content of Protective Order Applying to Any Party 1. Prohibitions In a protective order, the court may prohibit a party from: (1) removing a child who is a member of the family or household from the possession of a person named in the order or the jurisdiction of the court; (2) transferring, encumbering, or otherwise disposing of property, other than in the ordinary course of business, that is mutually owned or leased by the parties; or (3) removing a pet, companion animal, or assistance animal, as defined by Section of the Human Resources Code, from the actual or constructive care of a person named in the order. Tex. Fam. Code Ann. Section (1). Page 18

19 2. Exclusive Possession of Residence A court may grant exclusive possession of a residence to a party and, if appropriate, direct one or more parties to vacate the residence if the residence: (1) is jointly owned or leased by the party receiving exclusive possession and a party being denied possession; (2) is owned or leased by the party retaining possession; or (3) is owned or leased by the party being denied possession and that party has an obligation to support the party or a child of the party granted possession of the residence. Tex. Fam. Code Ann. Section (2). 3. Possession of a Child The court may provide for the possession of and access to a child of a party if the person receiving possession of or access to the child is a parent of the child. Tex. Fam. Code Ann. Section (3). NOTE: The terms of a protective order which conflict with a SAPCR order are void. Under a standard possession order, a possessory conservator is entitled to come to the applicant s home to pick-up and return children, and a final protective order to stay away is void at the designated times. Therefore, if an attorney seeks a protective order following a divorce, the attorney should also file a petition to modify the divorce decree requesting a change of any provisions in the decree that are inconsistent with the protective order. A temporary ex parte order, however, during the time the temporary order is valid, prevails over any other SAPCR order and can offer some protection to an applicant while awaiting a hearing on a modification order. Tex. Fam. Code Ann. Section Payment of Support The court may require the payment of support for a party or for a child of a party if the person required to make the payment has an obligation to support the other party or the child. Tex. Fam. Code Ann. Section (4). 5. Use and Possession of Property A court may also award to a party the use and possession of specified property that is community property or jointly owned or leased property. Tex. Fam. Code Ann. Section (5). NOTE: If it is certain that the protective order will be granted and it is further anticipated the parties will be divorced during the existence of the protective order, it is advisable to ask Page 19

20 for child support, spousal support, possession, counseling, and other things that you can get in a temporary hearing so that it won't be necessary for the abused spouse to come back to court later for temporary orders. F. Content of Protective Order Applying to Person Who Committed Family Violence 1. Content of Order to: In a protective order, the court may order the person found to have committed family violence (1) complete a battering intervention and prevention program as provided by the Code of Criminal Procedure that meets the guidelines adopted by the community justice assistance division of the Texas Department of Criminal Justice if a program is available; (2) counsel with a social worker, family service agency, physician, psychologist, licensed therapist, or licensed professional counselor if a battering intervention program is not available; or (3) perform acts specified by the court that the court determines are necessary or appropriate to prevent or reduce the likelihood of family violence. Tex. Fam. Code Ann. Section (a). Affidavit of Compliance A person found to have engaged in family violence who is ordered to attend a battering intervention program or counseling must file with the court an affidavit before the 60th day after the date the order was rendered stating either that the person has begun the program or counseling or that a program or counseling is not available within a reasonable distance from the person s residence. Tex. Fam. Code Ann. Section (a). An affidavit must be accompanied by a letter, notice, or certificate from the program or counselor that verifies the person s completion of the program or counseling. Tex. Fam. Code Ann. Section (a). Statement of Completion A person who files an affidavit that the person has begun the program or counseling must file with the court before the date the protective order expires a statement that the person completed the program or counseling not later than the 30th day before the expiration date of the protective order. Tex. Fam. Code Ann. Section (a). Page 20

21 Noncompliance with Affidavit Requirements A person who fails to comply with the filing requirements may be punished for contempt of court. Tex. Fam. Code Ann. Section (a). 2. Prohibitions in Protective Order In a protective order, the court may prohibit the person found to have committed family violence from: (1) committing family violence; (2) communicating directly with a person protected by an order or a member of the family or household of a person protected by an order in a threatening or harassing manner; (3) communicating a threat through any person to a person protected by an order or a member of the family or household of a person protected by an order; (4) communicating, if the court finds good cause, in any manner with a person protected by an order or a member of the family or household of a person protected by an order except through the party s attorney or a person appointed by the court; (5) going to or near the residence or place of employment or business of a person protected by an order or a member of the family or household of a person protected by an order; (6) going to or near the residence, child-care facility, or school a child protected under the order normally attends or in which the child normally resides; or (7) engaging in conduct directed specifically toward a person who is a person protected by an order or a member of the family or household of a person protected by an order, including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person; (8) harming, threatening, or interfering with the care, custody, or control of a pet, companion animal, or assistance animal that is possessed by or is in the actual or constructive care of a person protected by an order or by a member of the family or household of a person protected by an order; and (8) possessing a firearm, unless the person is a peace officer as defined in section 1.07, Penal Code, or actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision. Tex. Fam. Code Ann. Section (b). The court must specifically describe each prohibited location and the minimum distances from the location, if any, that the party must maintain. Tex. Fam. Code Ann. Section (c). Except in confidentiality situations as discussed below, physical addresses should be listed. The specificity requirements of a protective order do not apply to an order in which information is confidential. Tex. Fam. Code Ann. Section , (c). Page 21

22 In a protective order, the court shall suspend a license to carry a concealed handgun issued under Subchapter H, Chapter 411 of the Government Code that is held by a person found to have committed family violence. Tex. Fam. Code Ann. Section (d). G. Protective Order s Effectiveness 1. Not to Exceed Two Years Except as provided below, a protective order is effective for the period stated in the order, not to exceed two years, or if a period is not stated in the order, until the second anniversary of the date the order was issued. Tex. Fam. Code Ann. Section (a). The court may render a protective order sufficient to protect the applicant and members of the applicant s family or household that is effective for a period that exceeds two years if the court finds that the person who is the subject of the protective order: (1) caused serious bodily injury to the applicant or a member of the applicant s family or household; or (2) was the subject of two or more previous protective orders rendered: (a) (b) to protect the person on whose behalf the current protective order is sought; and after a finding by the court that the subject of the protective order (i) has committed family violence; and (ii) is likely to commit family violence in the future. Tex. Fam. Code Ann. Section (a-1). 2. Request for Expiration A person who is the subject of a protective order may file a motion not earlier than the first anniversary of the date on which the order was rendered, requesting that the court review the protective order and determine whether there is a continuing need for the order. A person who is the subject of a protective order under Section (a-1) that is effective for a period that exceeds two years may file a subsequent motion requesting that the court review the protective order and determine whether there is a continuing need for the order not earlier than the first anniversary of the date on which the court rendered an order on a previous motion by the person under this subsection. After a hearing on the motion, if the court finds there is a continuing need for the protective order, the protective order remains in effect until the date the order expires. If the court finds there is no continuing need for the protective order, the court shall order that the protective order expires on a date set by the court. Tex. Fam. Code Ann. Section (b). Page 22

23 H. Warnings in Protective Orders Each protective order issued, including a temporary ex parte order, must contain the following prominently displayed statements in boldfaced type, capital letters or underlined, Tex. Fam. Code Ann. Section (c): A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500 OR BY CONFINEMENT IN JAIL FOR AS LONG AS SIX MONTHS, OR BOTH. NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER. IT IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A FIREARM OR AMMUNITION, OTHER THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07 PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A FIREARM OR AMMUNITION. NOTE: An applicant should be specifically note the warning that no person can give permission to violate the protective order. Parties cannot agree to modify or dismiss the protective order. It can only be changed by court order. Each protective order issued, except for a temporary ex parte order, must contain the following prominently displayed statement in boldfaced type, capital letters or underlined: A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH. AN ACT THAT RESULTS IN FAMILY VIOLENCE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS. Tex. Fam. Code Ann. Section (b). NOTE: Police officers and the courts will not enforce protective orders without the warnings. Note that the above warning does not apply to a temporary ex parte order. Therefore, the police will not enforce a temporary ex parte order. Page 23

24 I. Delivery of Protective Order and Notification A protective order must be delivered to the respondent as provided by the Texas Rules of Civil Procedure, served in the same manner as a writ of injunction, or served in open court at the close of the hearing. Tex. Fam. Code Ann. Section (a). The applicant should bring a proposed protective order to the hearing on the protective order so that the respondent can be served in open court if the relief is granted. If the order has not been reduced to writing, the court must give notice orally to a respondent who is present at the hearing of the part of the order that contains prohibited actions for persons who committed family violence (Tex. Fam. Code Ann. Section ), or any other part of the order that contains provisions necessary to prevent further family violence. Tex. Fam. Code Ann. Section (c). The clerk of the court must mail a copy of the order to the respondent and a certified copy of the order to the applicant not later than the third business day after the date the hearing is concluded. Tex. Fam. Code Ann. Section (c). The alleged violator s knowledge of the existence and terms of the order is an essential element of the offense which the state must prove beyond a reasonable doubt to obtain a conviction for violating a protective order. Ramos v. State, 923 S.W.2d 196 (Tex. App. Austin 1996, no writ); see Wiegand v. State, 2013 WL (Tex. App. Dallas 2013, pet. ref d)(mem. op.)(respondent may be charged and convicted of violating a protective order so long as the order was delivered to him by one of the three methods provided for in the statute it is not necessary to show that he had actual knowledge of the provisions of the order). Presence at a protective order hearing has been held to constitute sufficient notice such that the defendant could be convicted for violating the order. Poteet v. State, 957 S.W.2d 165 (Tex. App. Fort Worth 1996, no writ). It is a good idea to send a copy of the protective order to the respondent by certified mail or personally have him or her served with it. If the respondent is not present at the hearing and the order has been reduced to writing at the conclusion of the hearing, the clerk of the court must immediately provide a certified copy of the order to the applicant and mail a copy of the order to the respondent not later than the third business day after the date the hearing is concluded. Tex. Fam. Code Ann. Section (d). J. Information to Law Enforcement The clerk of the court issuing an original or modified protective order must send a copy of the order, along with the information provided by the applicant or the applicant s attorney that is required by statute, to the following: a. the chief of police of the municipality in which the person protected by the order resides, if the person resides in a municipality; b. the appropriate constable and the sheriff of the county in which the person Page 24

25 resides, if the person does not reside in a municipality; and c. the Title IV-D agency, if the application for protective indicates that the applicant is receiving services from the Title IV-D agency. Tex. Fam. Code Ann. Section (a-1). The chief of police or constable and sheriff must enter the information into the statewide law enforcement information system. Tex. Fam. Code Ann. Section (a). K. Order to Child s School If a protective order prohibits a respondent from going to or near a child-care facility or school, the clerk of the court must send a copy of the order to the child-care facility or school. Tex. Fam. Code Ann. Section (b). L. Notification if Order Vacated The clerk of a court that vacates an original or modified protective order shall notify each individual or entity who received a copy of the original or modified order from the clerk that the order is vacated. Tex. Fam. Code Ann. Section (c). M. Final Appealable Order A protective order is a final appealable order, however, a protective order rendered during the pendency of divorce is not a final appealable order. Tex. Fam. Code Ann. Section ; But th see Keck v. Loftin, 329 S.W.3d 658 (Tex. App. Houston [14 Dist.] 2010)(despite fact that SAPCR was pending, protective order is final appealable order since protective order and SAPCR were filed in difference court with different cause numbers). Page 25

26 V. MAGISTRATE S PROTECTIVE ORDER OR EMERGENCY PROTECTIVE ORDER Provisions for a magistrate s protective order can be found in the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. Art Any magistrate has the authority to issue an order for emergency protection when processing a defendant after an arrest for an offense involving family violence. Tex. Code Crim. Proc. Ann. Art (a). The request for the order can be made by the magistrate, the victim, the victim s guardian, a peace officer, or state s attorney. Tex. Code Crim. Proc. Ann. Art (a). The victim need not be present in court when the order for emergency protection is issued. Tex. Code Crim. Proc. Ann. Art (d). No formal application for the order is necessary; a verbal request is sufficient. The magistrate s protective order can contain the prohibitions as allowed by the Family Code. Tex. Code Crim. Proc. Ann. Art (c). The address of the victim may be omitted. NOTE: If the order is not issued before the defendant makes bail, an emergency order cannot be obtained. A. Effectiveness and Enforceability The magistrate s order for emergency protection remains in effect up to the 61st day but not less than 31 days after the date of issuance. Tex. Code Crim. Proc. Ann. Art (j). The order is enforceable just like the Family Code final protective order, and the victim can apply for a final protective order in the interim. B. Order Effective Immediately The order for emergency protection is effective immediately, and the defendant must be served a copy of the order in open court. Tex. Code Crim. Proc. Ann. Art (j). C. Order Sent to Law Enforcement The magistrate must send a copy of the order to the chief of police in the municipality where the member of the family or household resides, if the person resides in a municipality, or to the sheriff of the county where the person resides, if the person does not reside in a municipality. Tex. Code Crim. Proc. Ann. Art (h). Page 26

27 VI. MODIFICATION OF PROTECTIVE ORDERS A. Modification On the motion of any party, the court, after notice and hearing, may modify an existing protective order to exclude any item included in the order or include any item that could have been included in the order. Tex. Fam. Code Ann. Section B. Cannot Extend Protective Order A protective order may not be modified to extend the period of the order s validity beyond the second anniversary of the date the original order was rendered or beyond the date the order expires under Section (c) of the Family Code, whichever occurs later. Tex. Fam. Code Ann. Section C. Notice of Modification Notice of a motion to modify a protective order is sufficient if delivery of the motion is attempted on the respondent at the respondent s last known address by registered or certified mail as provided by Rule 21a of the Texas Rules of Civil Procedure. Tex. Fam. Code Ann. Section D. Change of Address of Phone Number If a protective order contains the address or telephone number of a person protected by the order, or the place of employment or business of the person, or of the child-care facility or school of a child protected by the order and that information is not confidential, the person protected by the order may file a notification of change of address or telephone number with the court that rendered the order to modify the information contained in the order. Tex. Fam. Code Ann. Section (a). The clerk must attach the notification of change to the protective order and deliver a copy of the notification to the respondent by registered or certified mail as provided by Rule 21a of the Texas Rules of Civil Procedure. Tex. Fam. Code Ann. Section (b). The filing of a notification of change of address or telephone number and the attachment of the notification to a protective order does not affect the validity of the order. Tex. Fam. Code Ann. Section (c). Page 27

28 VII. VIOLATING A PROTECTIVE ORDER A. Violation of a Protective Order A person commits a crime if, in violation of an order issued under Section or Chapter 85 of the Texas Family Code, or under Article of the Code of Criminal Procedure, the person knowingly or intentionally: (1) commits family violence or an act in furtherance of an offense; (2) communicates: (a) directly with a protected individual or a member of the family or household in a threatening or harassing manner; (b) a threat through any person to a protected individual or a member of the family or household; and (c) in any manner with the protected individual or the member of the family or household except through the person s attorney or a person appointed by the court, if the order prohibits any communication with a member of the family or household; or (3) goes to or near any of the following places as specifically described in the order: (a) the residence or place of employment or business of a protected individual or a member of the family or household; or (b) any child care facility, residence, or school where a child protected by the order normally resides or attends. Tex. Pen. Code Ann. Section 25.07(a). The meanings assigned to the terms family violence, family, household, and member of a household have the meanings assigned by Chapter 71 of the Family Code. Tex. Pen. Code Ann. Section 25.07(b). It has been held that repeated phone calls to a protected person constituted contacting... in a harassing manner and was a violation of the protective order. Patton v. State, 835 S.W.2d 684 (Tex. App. Dallas 1992, no writ); see also Perry v. State, 2012 WL (Tex. App. Waco 2012)(mem. op.)(causing applicant s phone to ring multiple times is communicating with applicant in a threatening or harassing manner). A protective order that prohibits a person from going near his spouse s residence, but allows him to pick up his child at that residence for visitation on specified days, is not contradictory and is enforceable. Collins v. State, 955 S.W.2d 464 (Tex. App. Fort Worth 1997, no writ). It is a better practice for the respondent to pick up and drop off the child at a place other than the prohibited residence. Page 28

29 A peace officer investigating conduct that may constitute violating a protective order may not arrest a person protected by that order for a violation of that order. Tex. Pen. Code Ann. Section 25.07(e). B. Reconciliation Reconciliatory actions or agreements made by persons affected by an order do not affect the validity of the order or the duty of a peace officer to enforce the protective order. Tex. Pen. Code Ann. Section 25.07(d). C. Punishment An offense for violating a protective order is a Class A misdemeanor (punishment is a maximum of one year in jail and/or a $4,000 fine), unless it is shown on the trial of the offense that the defendant has previously been convicted two or more times or has violated the protective order by committing an assault or the offense of stalking, in which event the offense is a third degree felony (two to 10 years in prison and/or a $10,000 fine). Tex. Pen. Code Ann. Section 25.07(g). Page 29