2019 County
and District Clerks’
Association of Texas
Annual Education Conference
June 23-27, 2019
The Woodlands Waterway Marriott Hotel & Convention Center
Piece of the Puzzle,
Part of the Whole
Breakout 2: Protective Orders From
Application to Final Order
Tuesday, June 25, 2019 1–1:45 p.m.
Ms. Judith Snively Chief Deputy of Clerks
Harris County District Clerk's Offices
Join us as we explain protective orders, including law and statutes covering Texas Family Protection Orders and qualifications and preparation of the application, among many other points.
Ms. Judith Snively, Chief Deputy of Clerks, Harris County District Clerk's Office Judith Snively recently was appointed chief deputy of courts by Harris County District Clerk Marilyn Burgess. Snively is a Texas-licensed attorney with over 30 years of experience representing clients in criminal, family, juvenile and civil courts.
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CDCAT 124th Annual Summer ConferenceThe Woodlands, Texas
June 25, 2019
FAMILY PROTECTIVE ORDERS FROM FILING TO FINAL JUDGMENT
Judith Snively, JDChief Deputy of Courts
Harris County District Clerk
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FACTS AND FIGURES
Over 12 million people are affected a year with Intimate Partner Violence.
Over 12 million people are affected a year with Intimate Partner Violence.
1 in 4 women and 1 in ten men aged 18 and older in the U.S. have been the victim of severe physical violence
and/or stalking by an intimate partner in their lifetime.
1 in 4 women and 1 in ten men aged 18 and older in the U.S. have been the victim of severe physical violence
and/or stalking by an intimate partner in their lifetime.
On average 24 people per minute are victims of rape, physical violence or stalking by an intimate partner.
On average 24 people per minute are victims of rape, physical violence or stalking by an intimate partner.
What is a Family Protective Order?
Texas Family Code, Title 4., Subtitle A., Chapter 71.000
ApplicationAn Application for Protective Order is filed at the District Clerk’s by a victim of family violence, to request a Family Judge to render an order to prohibit an abuser from committing and threatening family violence, communicating with the victim, and being in proximity of the victim.
Texas Family Code Title 4., Subtitle B., Chapter 85.
Issuance of Protective Order (for up to two years)The Court will conduct a hearing on the application to determine if;(1) Family violence has occurred; and(2) Family violence is likely to occur in the future
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What is Family Violence?Section 71.003 Texas Family Code defines “Family”, as those individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code;
Spouses, former spouses, parents of the same Child (regardless of marriage), foster child and foster parent, roommates, and dating and former dating partners.
Section 71.004 Texas Family Code “Family Violence” means:(1) an act by a 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 or imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself. (2) abuse : or (3) dating violence
Section 71.004(3)and(4) Texas Family Code An adult or a child in a dating relationship can file an application for protective order.
Qualifications and Preparation of the Application
Texas Family Code Chapter 82 Applying for Protective OrderWho Can File?
Section 71.004 (1) or (2)
An adult member of the family or household to protect the applicant and family members.
Section 71.004 (3)
An adult member of the dating relationship; or an adult member of the marriage.
All Temporary Ex Parte Orders must contain an Affidavit from Applicant. If a “kick out” order is needed the case may be set for hearing the same day or next morning.
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CONTENTS OF APPLICATION
Family Code Section 82.004
1. the name and county 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;4. a request for one or more protective orders; and5. note if an applicant is receiving services from the Title IV-D agency
in connection with child support case and if known, the agency case number for each open case.
6. An undocumented individual with grounds will not be deported for applying for protection.
Filing should include the alleged conduct that Respondent engaged in that constitutes family violence and specific requests for protection. The pleading can include a TRO and must be verified with affidavit.
Method of Filing, Notice, and Citation of Service
Family Code Section 82.003 VENUE
The application is e-filed or prose paper filed, with the district clerk in the county where, (1) the applicant resides; (2) the respondent resides; or (3) where the family violence is alleged to have occurred.
It can be filed Prose, by private counsel, District Attorney or other government agency or private agency giving aid to victims of domestic violence.
There is no filing fee charged at time of filing.
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What to Expect at the Hearing Protective Order Hearing is a bench trial with witnesses, testimony, and evidence. The
respondent is not entitled to a jury trial.
The applicant is sometimes separated away from the Respondent if the applicant wishes to be out of the Courtroom.
The Judge will hear testimony from both sides and consider evidence, such as of documents, medical records and photos.
Judge can rule on granting a Protective Order for any amount of time up to two yearsor if continued family violence was found, up to twenty years and if child abuse is found, up to life in prison.
Within the Protective Order the Judge can put restrictions on Respondent as well as obligations. Respondent’s license to carry a hand gun will be suspended.
The Judge can order that the case be transferred to another family court having jurisdiction over dissolution of a marriage.
The Judge can order separate Protective Orders on both parties.
A copy of the protective order will be given to both parties after judgment. If the Respondent is not present a copy will be mailed within 3 days by the Clerk.
It Is Not Always Domestic Violence Sometimes the evidence tells the story.
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How is the Clerk’s Office involved?
Court clerk reviews the new protective order application to verify that all the correct documents are included with the application: the application itself, affidavit, temporary order, Protective Order Address Form, Texas Crime Information Sheet (TCIC) and a civil process request form. If there is a divorce case pertaining to the two individuals, the divorce decree must also be attached to the application as an exhibit.
The application is then processed through the envelope inbox system and given a case number.
If it is an ex-parte, the temporary protective order is prepped in the Court Processing Page for the judge to sign. The judge reviews and signs within 24 hours. Codes are entered and attached to order, then published to deeds. Family Intake is notified via email so citation can be issued.
The clerk will mail certified copies of the order to the applicant, schools, daycares, Attorney General, Family & Juvenile Courts, HPD, and the Harris County Sheriff’s Office.
The case is set for trial.
The trial date is typically within two weeks (14 days) of when the application is filed.
After the trial, if a final protective order is granted, certified copies are provided to applicant and respondent in court. Copies are also provided to both attorneys.
Just like the temporary protective order, the clerk will provide certified copies of the final order to the applicant, schools, daycares, Attorney General, Family & Juvenile Courts, HPD, and the Harris County Sheriff’s Office.
An entry is made on the electronic docket sheet noting that the protective order has been mailed.
TCIC Notification Sheriff’s Department receives protective
order from the court.
Once the jurisdiction is verified, the respondent is researched in JIMS for aliases, DOB, scars, marks, tattoos, height, weight, etc.
Criminal history search and driver license search in TCIC.
The protective order is then entered into the TCIC and is issued a NIC number (National Instant Criminal Background Check System), that is used for future tracking.
All addresses registered with the protective order are flagged in CAD (computer aided dispatch system) in order to provide safety for the officers that may be responding to calls at those locations.
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Myths about Texas Family Protective Orders
Restraining Orders and Protective Orders are essentially the same thing.
No. A TRO has no penal consequence.
Undocumented people cannot request a Protective Order, ICE will get them
False. An undocumented individual with grounds will not be deported
A victim who is still in a relationship or living with or married to an abuser cannot request aProtective Order.
Wrong, wrong, wrong.
Victims who have never reported abuse to the police cannot get a Protective Order.
No not true. Usually the victims have hidden their abuse
An individual can only get a Protective Order if there has been physical violence.
No. Even threats and stalking can reasonably place the applicant in fear of imminentphysical harm.
An individual that filed an Affidavit of Non-Prosecution cannot apply for a Protective Order.
No not true. There are always underlying factors unknown to the prosecution andCourt.
What is Redacted from the Order and Confidential Recording
Protective order applications are automatically confidential at the time of filing, and stay confidential forever.
The address of the applicant is redacted by the intake clerk when it is being filed as a hard copy by a prose. If an attorney files an application without it being redacted- it will get accepted without any redactions.
The applicant’s residential address is written in the final order, unless it is specified as confidential. On both agreed and contested final orders, both of the parties receive a copy of the final order in court. However, even though the final order is public, if the respondent calls the court requesting the applicant’s address, the District Clerk’s Office will not provide them with the address because it could be a conflict of interest.
All final orders are public unless the “sensx” code is entered with the order. (meaning that the document contains sensitive data)
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Consequences of Violation of a Protective Order
Texas Penal Code Section 25.07
VIOLATIONS OF CERTAIN COURT ORDERS OR CONDITIONS OF BOND IN A FAMILY VIOLENCE, CHILD ABUSE OR NEGLECT, SEXUAL ASSAULT OR ABUSE, STALKING, OR TRAFFICKING CASE.
A person commits an offense if there is a violation of certain Court orders or conditions of bond in the case involving the family, including the following:
Commits family violence, communicates with the protected individual in a threatening or harassing manner, makes a threat through another person, goes to or near the residence or place of employment of the protected individual or household member, possesses a firearm, tampers with electronics, tampers with a pet.
Class A Criminal Misdemeanor
Punishment: Maximum of one year in county jail and maximum/up to a $4,000 fine
3rd Degree Felony (Repeated violations)
Punishment: Minimum two years up to ten years TDCJ/up to a $10,000 fine
Legislation HB 629- “Monica's Law” was signed into law by the Governor. This
law will amend the Government Code to require the Office of Court Administration (OCA), in consultation with the Department of Public Safety (DPS), to establish and maintain a central, computerized, and Internet-based registry for protective orders. The bill would require the registry to be capable of interfacing with local court case management systems, and to be searchable by county, name, and birth year of the person who is the subject of the order. The bill would require courts to enter protective order information into the registry within 24 hours of filing, issuance, or modification of a protective order. Certain information in the registry would be accessible by the public and certain information would be restricted to authorized users.
The bill would require the registry to be established by September 1, 2019.
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HELPFUL LINKS
Domestic Violence Hotline 800 799-7233 (SAFE)
Family Violence Legal Line 800 374-4673 (HOPE)
Texas Council on Family Violence 800 525-1978
Aid to Victims of Domestic Violence (AVDA) 713 224-9911
Battering Intervention and Prevention Program (BIPP) 832 946-2556
www.texaslawhelp.org/protectiveorderkit
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