Protective Orders, Domestic Violence Convictions, and Firearms

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1 Protective Orders, Domestic Violence Convictions, and Firearms Amanda Elkanick Oder Survivor Services and Training Director Texas Advocacy Project Brian Clubb Military & Veterans Advocacy Program Battered Women s Justice Project

2 Texas

3 What Is A Protective Order? A court order that is issued to address and prevent continuing acts of family/dating violence, sexual abuse or assault, stalking, or trafficking.

4 Remember! A Restraining Order (TRO) IS NOT the same as a Protective Order (PO). How are they different?

5 Protective Order --Intent: Protect PEOPLE --Enforcement: Criminal (arrest) and Civil (contempt) --Type of Filing: Separate suit or as part of a family petition --Who Files: Member of family/ household/dating relationship, DFPS, attorney, pro se party --Duration: Varies --Costs: No filing fees Temporary Restraining Order --Intent: Protect PROPERTY --Enforcement: Civil (contempt) --Type of Filing: As part of a family petition --Who Files: Party to a family petition, attorney, pro se party --Duration: 14 days --Costs: Filing fees

6 Types of Protective Orders in Texas Magistrate s Order for Emergency Protection TX Code of Criminal Procedure (TCCP) Temporary Ex Parte Protective Order TX Family Code (TFC) 83 Final Protective Orders TFC 71, 81-82, 84-88, CCP 7A, CCP 6.09

7 Magistrate s Order for Emergency Protection Most common type of protective order issued in Texas Only available after an arrest for: o Family violence o Sexual assault (and some related offenses) o Stalking o Trafficking Tied to places, not people Relatively quick and easy process In effect for 31 to 91 days Tex. Code Crim. Proc. Art

8 How can an EPO help survivors? An EPO may prohibit an offender from: Committing family violence, sexual assault, stalking or stalking; Threats and harassment; Coming within a specific distance of certain locations; Possessing a firearm; Communication in any manner with victim(s) except through attorney or court appointed person if good cause is shown. Tex. Code Crim. Proc. Art (c)

9 Temporary Ex Parte Protective Order (TEXPO)

10 Temporary Ex Parte Protective Order Can be obtained without notice to offender Add: notice requirement after issuance Requires CLEAR AND PRESENT DANGER of family violence, sexual assault, abuse, stalking, or trafficking Valid for 20 days & it may be extended Both civilly and criminally enforceable Tex. Fam. Code 83; Tex. Code Crim. Proc. Art. 7A.02

11 FINAL PROTECTIVE ORDERS

12 Bases for Protective Orders Sexual Assault/Abuse Trafficking Stalking Family Violence Tex. Fam. Code ; Tex. Code Crim. Proc. Art. 7A.03

13 What Can A Protective Order Do? Prohibit offender from committing certain acts Require offender to perform certain acts Any provisions that the court determines are necessary or appropriate to prevent or reduce the likelihood of family violence or future harm Both civilly and criminally enforceable Tex. Fam. Code ; Tex. Code Crim. Proc. Art. 7A.03

14 Criminally Enforceable Provisions Prohibit family violence/future harm Prohibit threatening and harassing communication Prohibit all communication, with good cause Prohibit conduct likely to harass, annoy, alarm, abuse, torment, or embarrass Stay away from applicant and other protected parties Stay away from residence and other addresses Protect pets Prohibit possession of firearms or ammunition, unless the person is a peace officer Tex. Fam. Code ; Tex. Code Crim. Proc. Art. 7A.05

15 Civilly Enforceable Provisions Prohibit removing child from possession Allow visitation with children Prohibit transfer of property Grant exclusive possession of property Require payment of child/spousal support Require attendance at batterer s program Suspend license to carry a weapon Tex. Fam. Code , 85,026

16 Duration of FVPO 2 years o Most common duration o Default if no duration specified in order o Can be shorter but not longer in most cases Automatic extension if offender is confined on expiration date o 1 year from release date if confined for 5+ years o 2 years from release date if confined for 5 years or less Tex. Fam. Code

17 Lifetime Protective Order Up to the lives of the offender and victim if: Offender caused serious bodily injury to the victim or a member of the victim s family or household; OR Offender was the subject of 2 or more previous POs to protect the same victim; AND after a finding that the offender committed FV and is likely to commit FV in the future. Tex. Pen. Code 1.07

18 Key Differences Family Violence PO Family/household relationship Requirement of likely future harm Higher burden for lifetime PO Longer extension for shorter confinement of Respondent Outcry statement child under 12 PO for Sexual Assault, Stalking or Trafficking No relationship requirement No likely to occur requirement* Lifetime PO easier to obtain 1 year extension regardless of confinement of Respondent Outcry statement child under 14 Tex. Code Crim. Proc. 7A.051, 7A.052

19 Bond Conditions Personal bond, a.k.a. PR bond, or personal recognizance Offender released without paying bond Comes with certain conditions Court can also require any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community. Tex. Code Crim. Proc. Arts , 17.40

20 How can bond conditions help protect the survivor? Conditions can benefit victim and offender: Family-violence evaluation for offender No contact with and/or stay-away from victim BIPP, drug and/or alcohol counseling Pre-trial supervision EM or GPS tracking, curfews Drug and/or alcohol testing Violation can send offender back to jail until convicted Tex. Code Crim. Proc. Art , 17.40

21 Federal

22 Military Protection Orders (MPOs) Verbal or written (DD Form 2873) direct order from servicemember s Commanding Officer Only available against servicemembers Possible conditions Prohibit contact and communication Stay away Vacate military housing/move-in to temporary military quarters Attend counseling No government issued firearms; dispose of personal firearms located on installation 22

23 Armed Forces Domestic Security Act 10 U.S.C 1561a Gives civilian protection orders (CPOs) the same force and effect on military installations and property as in civilian communities Any injunction or other order Temporary or Permanent Issued by a civil or criminal court 10 Containing language protecting one party from the other that meets due process requirements 23

24 Federal Gun Control Act 18 USC 922(g) (8) Prohibits possession of a firearm while subject to a protection order; (9) Prohibits possession of a firearm by anyone ever convicted of a misdemeanor crime of domestic violence ( MCDV ) (Lautenberg Amendment)

25 What makes a protection order *qualifying? Due Process Finding of a Credible Threat OR Express Prohibition on Conduct Relationship Requirement Current or former spouse, Current or former cohabitant, or Share a child in common Terms of the Order Qualifying is not in the text of the statute

26 Restrains from: Terms of the Order Harassing, stalking, or threatening an intimate partner or partner s child, or Engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to partner or child, AND 18 U.S.C. 922(g)(8)(B)

27 Terms of the Order (Cont d) Includes a finding that the respondent represents a credible threat to the physical safety of the petitioner or their child, or 18 U.S.C. 922(g)(8)(C)(i) Prohibits use, attempted use or threatened use of physical force against the petitioner or their child that would reasonably be expected to cause bodily injury. 18 U.S.C. 922(g)(8)(C)(ii)

28 Firearms Official Use Exemption 18 USC 925(a)(1) Limited exception for government employees authorized or required to receive or possess a duty weapon to perform official duties Does not apply to misdemeanor convictions nor personal firearms Commanding officer may still prohibit due to CPO or MPO 28 28