PROTECTIVE ORDERS SALLY HOLT EMERSON

PROTECTIVE ORDERS SALLY HOLT EMERSON Underwood, Wilson, Berry, Stein & Johnson, P.C. 500 S. Taylor, Suite 1200, LB 233 P.O. Box 9158 Amarillo, Texas 79105-9158 (806) 379-0348 Fax: (806) 349-9473 sally.emerson@uwlaw.com State Bar of Texas 37 TH ANNUAL ADVANCED FAMILY LAW COURSE August 1-4, 2011 San Antonio CHAPTER 21

SALLY HOLT EMERSON EDUCATION: B.A. in Spanish with honors, Texas Tech University J.D., Texas Tech School of Law THE UNDERWOOD LAW FIRM 500 S. Taylor, Suite 1200 LB 233 P.O. Box 9158 Amarillo, Texas 79105-9158 (806) 379-0348 Telecopier No. (806) 379-0316 E-Mail: sally.emerson@uwlaw.com PROFESSIONAL ACTIVITIES: Shareholder Underwood, Wilson, Berry, Stein & Johnson, P.C. Board Certified in Family Law - 1991 Amarillo Bar Association, 1981 present; Director 1996-1998; President, 2001-02 Founding Member Panhandle Family Law Association, 2000-present, President 2002-2003 Member, SBOT Texas Family Law Council: 6/93-present; Chair, 2007-08 Member, SBOT Texas Collaborative Law Council 2010 present Director, Texas Board of Legal Specialization, 1994-2000; Chair, 1996-97 Member and Director, Texas Academy of Family Law Specialists, 1996-present; President, 2001-02 Fellow, American Academy of Matrimonial Lawyers Fellow, International Academy of Matrimonial Lawyers Fellow, Texas Bar Foundation Fellow and Director Texas College of Collaborative Law 2009-present Member and Director Collaborative Law Institute of Texas Member, State Bar College Member, ABA Standing Committee on Specialization, 1995-1998 Member, Pattern Jury Charge Committee, 1995-98 Course Director: 7 th & 8 th Annual TAFLS Trial Institute Series, Reno, Nevada, 1993 & 1994 12 th Annual TAFLS Trial Institute Series, New Orleans, Louisiana, 1998 Advanced Family Law Course, August 2003, San Antonio, Texas Workshop Coordinator, 19 th Annual Advanced Family Law Course, San Antonio, Texas, 1993 AWARDS AND HONORS: Presented with Leadership Award by the Panhandle Family Law Association, 2005 Named as a Super Lawyer by Texas Monthly Magazine 2003 2011 Named by Texas Monthly to 2010 list of Top 50 Women Attorneys in Texas and Top 50 Women Attorneys in Central & West Texas Region Presented with the Career Achievement Award by the Amarillo Women s Network, 2000

TABLE OF CONTENTS I. INTRODUCTION... 1 II. DEFINITIONS... 1 A. Definitions... 1 B. Family Violence... 1 C. Family and Household... 1 D. Abuse... 2 E. Dating Violence... 2 F. Application of Definitions... 2 G. Standing... 3 III. PLEADINGS... 3 A. Service of Process... 3 B. Venue... 3 C. Contents of Application... 3 D. Attachments to Application... 3 1. Former Spouses... 3 2. Child Subject to Court of Continuing, Exclusive Jurisdiction... 3 3. Former, Expired Protective Order... 4 4. Application Filed Before Previous Protective Order Expired... 4 5. The Remedy if Requirements are Not Satisfied... 4 6. Respondent s Pleading Requirements... 4 IV. TEMPORARY EX PARTE PROTECTIVE ORDERS... 4 A. Detailed, Sworn Description Required... 4 B. Exclusion of Party from Residence... 4 C. Remedies... 5 V. CONTINUANCES AND DISCOVERY... 5 VI. COUNTERATTACKING... 6 VII. TRIAL... 6 A. Duties of the Court... 6 B. Addressing the Legal Standards... 6 1. Did the Alleged Acts Take Place?... 6 2. Do the Alleged Acts Fall Within the Definition of "Family Violence"?... 6 3. Is Family Violence Likely to Occur in the Future?... 6 4. New Section 84.006 -- Hearsay Statement of Child Victim of Family Violence... 7 C. Argument to the Court... 7 D. Orders and Agreed Orders... 7 E. Duration - Possible New Subsections (d) to Section 85.001 and Amendment to Section 85.025... 8 VIII. POST-TRIAL... 8 A. Enforcement - New Section 81.010... 8 B. Motion to Modify Protective Order... 9 IX. OTHER NEW DEVELOPMENTS... 9 A. Stalking Protective Orders... 9 B. Delivery of Protective Orders Military Personnel... 9 X. CONCLUSION... 9 APPENDIX... 11 i

PROTECTIVE ORDERS I. INTRODUCTION Representing a client in a protective order hearing is often one of the least rewarding aspects of being a family law attorney. Most private practitioners usually wind up defending protective orders. Judges often appear to err on the side of caution and grant an application for a protective order rather than risk violence occurring after a denial of the application. You may believe your client is guilty of the alleged conduct or at least has put him or herself into a disadvantageous position. You may feel your only option is to go to the courthouse and try to work out the best deal possible for your client rather than risk the hearing. For our clients, being the subject of a protective order carries a stigma. Not only does a protective order carry a social stigma, but there are also legal repercussions. In re Cummings, 13 S.W.3d 472, 475 (Tex. App. Corpus Christi 2000, no pet.). There is rich history, going back at least to John Adams s defense of the British soldiers involved in the Boston Massacre, of American attorneys stepping up to ensure that every defendant receives a fair trial, regardless of the allegations. While a protective hearing is not a criminal trial, it can set in motion a chain of events that can result in a client s confinement. The evidence may be used as a basis for a criminal prosecution or as evidence in a divorce suit or suit affecting the parentchild relationship. Except as provided in Subtitle B of Title 4 of the Family Code, the relief and remedies provided in that subtitle are cumulative of other relief and remedies provided by law. TEX. FAM. CODE ANN. 81.008 (Vernon 2002). The 2011 Texas Legislative Session has given us several changes to protective orders, and others are sitting on the Governor's desk at the time this paper is being written. This paper will review the changes and discuss representing clients in protective order cases. II. DEFINITIONS A. Definitions The definitions contained in Chapter 71 of the Family Code are long and frequently glossed over by practitioners who assume they know their terms. These definitions are critical to the representation of your client since the facts must fall within these definitions in order for the applicant to prevail. A court shall render a protective order as provided by Section 85.001(b) if the court finds that family violence has occurred and is likely to occur in the future. TEX. FAM. CODE ANN. 81.001 (Vernon 2002). So the issues in each case boil down to: Did the alleged acts take place? 1 Do the alleged acts fall within the definition of "family violence"? Is family violence likely to occur in the future? Successfully prosecuting or defending against a protective order proceeding depends upon the applicant meeting the burden of pleading and proving the case. You have to know what that burden is. B. Family Violence The definitions are intertwined. The starting point is the definition of family violence. Family violence means: 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; abuse, as that term is defined by Sections 261.001(1)(C), (E), and (G), by a member of a family or household toward a child of the family or household; or dating violence, as that term is defined by Section 71.0021. TEX. FAM. CODE ANN. 71.004 (Vernon 2002). The definition of family violence includes threats that reasonably place a family member in fear of imminent physical harm, bodily injury, assault, or sexual assault. While harassment may transform into an active threat, harassment does not rise to the level of family violence in the absence of current or prior threats of violence or of actual physical violence. See Thompson v. Thompson-O'Rear, 2004 WL 1243080, at *2 (Tex. App. Texarkana 2004, no pet.) (memo. op.). C. Family and Household Since the terms family and household occur in the first two parts of the definition of family violence, those definitions come next. Family includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, 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. 71.003 (Vernon 2002). Two individuals are related to each other by consanguinity if one is a descendant of the other or they share a common

ancestor. TEX. GOV T CODE ANN. 573.022(a) (Vernon 2004). An adopted child is considered to be a child of the adoptive parent for this purpose. TEX. GOV T CODE ANN. 573.022(b) (Vernon 2004). Two individuals are related to each other by affinity if they are married to each other or the spouse of one of the individuals is related by consanguinity to the other individual. TEX. GOV T CODE ANN. 573.024(a) (Vernon 2004). The ending of a marriage by divorce or the death of a spouse ends relationships by affinity created by that marriage unless a child of that marriage is living, in which case the marriage is considered to continue as long as a child of that marriage lives. TEX. GOV T CODE ANN. 573.024(b) (Vernon 2004). 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. 71.005 (Vernon 2002). Member of a household includes a person who previously lived in a household. TEX. FAM. CODE ANN. 71.006 (Vernon 2002). D. Abuse Abuse for purposes of the definition of family violence specifically means: 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, guardian, or managing or possessory conservator 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 continuous sexual abuse of young child or children under Section 21.02, Penal Code, indecency with a child under Section 21.11, Penal Code, sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code; or compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code. TEX. FAM. CODE ANN. 261.001(1)(C), (E), (G) (Vernon Supp. 2007). E. Dating Violence SB 116 has been, at the time of the writing of this paper, sent to the Governor for signature. This bill, if signed, will amend TEX. FAM. CODE ANN. 71.0021 to define dating violence as an act other than a defensive measure to protect oneself by an actor that is 2 committed against a victim with whom the actor has or has had a dating relationship or because of the victim's marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault. For purposes of Title 4 of the Family Code, dating relationship means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of: the length of the relationship; the nature of the relationship; and the frequency and type of interaction between the persons involved in the relationship. A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a dating relationship. TEX. FAM. CODE ANN. 71.0021 (Vernon 2002). SB 819 (sent to Governor for signature) has added clarification for who may file an application for protective order with regard to family violence under Section 71.004. Rather than an adult as it now requires, the amendment allows a member of the dating relationship regardless of whether the member is an adult or child. F. Application of Definitions Upon the drafting or receipt of the pleadings and continuing through trial and perhaps beyond to an appeal (or mandamus), hold these definitions before you as your guide. The following are questions that the applicant may need to prove at trial: Are the respondent and the person(s) to be protected members of the same family or household, remembering that former members of a household are considered members of the same household? Alternatively, did a dating relationship exist between the respondent and the person to be protected? Do or did these people have a continuing relationship of a romantic or intimate nature? Did the act result in physical harm, bodily injury, assault, or sexual assault? Was the act intended to result in physical harm, bodily injury, assault, or sexual assault? Was the act a threat that reasonably placed the person to be protected in fear of imminent

physical harm, bodily injury, assault, or sexual assault? Did the act consist of defensive measures to protect the respondent? SB 116 may exempt a defensive measure to protect oneself. Did the act constitute abuse of a child? G. Standing While it is a condition most applicants meet, examine whether the applicant has standing to bring the suit. An application for protection from dating violence may be filed by an adult member of the dating relationship or an adult member of the marriage if the victim is or was married as described by the amendments to Section 71.0021 (a)(1)(b) which SB 116 may add. Any other type of protective order application may be filed by an adult member of the family or household to protect the applicant or any other member of the applicant s family or household. TEX. FAM. CODE ANN. 82.002(a) (Vernon 2002). Any adult may apply for a protective order to protect a child from family violence. TEX. FAM. CODE ANN. 82.002(c) (Vernon 2002). In addition, an application may be filed for the protection of any person alleged to be a victim of family violence by a prosecuting attorney or the Department of Protective and Regulatory Services. TEX. FAM. CODE ANN. 82.002(d) (Vernon 2002). The latter is now known as the Department of Family and Protective Services. III. PLEADINGS Protective order applications have service and pleading requirements that must be followed. A. Service of Process As with any suit, applications for protective orders must meet the requirements under the Texas Rules of Civil Procedure, such as correctly naming the respondent s in the application and the citation. The return must be properly completed by the agent for service of process, usually the sheriff or constable in these cases. B. Venue As a general rule, an application may be filed in the county in which either the applicant or the respondent resides. TEX. FAM. CODE ANN. 82.003 (Vernon 2002). If a suit for dissolution of marriage or a suit affecting the parent-child relationship is pending, however, the applicant must file in the court in which the suit is pending or in a court in the county in which the applicant resides if the applicant resides outside the jurisdiction of the court in which the suit is pending. TEX. FAM. CODE ANN. 82.005, 85.062(a) (Vernon 2002). Similarly, if a final order has been rendered in a suit for dissolution of marriage or suit affecting the parent-child relationship, an application for a 3 protective order by a party to the suit against another party to the suit filed after the date the final order was rendered, and that is: filed in the county in which the final order was rendered, shall be filed in the court that rendered the final order; and filed in another county, shall be filed in a court having jurisdiction to render a protective order under this subtitle. TEX. FAM. CODE ANN. 85.063(a)(Vernon 2002). In the circumstances described in sections 85.062 and 85.063, if the suit is not filed in the court in which the suit is pending or in the county in which the final order was rendered, as applicable, the protective order rendered by the court is subject to transfer under section 85.063. TEX. FAM. CODE ANN. 85.062(d), 85.063(b) (Vernon 2002). C. Contents of Application The application shall list name and county of residence of all applicants and the respondent and define the relationship between each applicant and the respondent. See TEX. FAM. CODE ANN. 82.004 (Vernon 2002). D. Attachments to Application Under certain circumstances, the applicant must file orders with the court and to include certain descriptions in the application itself. 1. Former Spouses If the parties are former spouses of one another, the application must include a copy of the decree dissolving the marriage. If not, there must be a statement in the application that the decree is not available to the applicant and that a copy of the decree will be filed with the court before the hearing on the application. See TEX. FAM. CODE ANN. 82.006 (Vernon 2002). 2. Child Subject to Court of Continuing, Exclusive Jurisdiction If the application seeks protection for a child who is subject to the continuing jurisdiction of a court under Title 5 of the Family Code, there must be included a copy of each court order affecting the conservatorship, support, and possession of or access to the child attached to the application. If not, there must be a statement in the application that the orders are not available to the applicant and that a copy of the orders will be filed with the court before the hearing on the application. See TEX. FAM. CODE ANN. 82.007 (Vernon 2002).

3. Former, Expired Protective Order If the application was filed after a previous, expired protective order, a copy of the expired protective order must be attached to the application. If not, there must be a statement that the order is not available to the applicant and that a copy of the order will be filed with the court before the hearing on the application? See TEX. FAM. CODE ANN. 82.008(a)(1) (Vernon 2002). There must also be a description either of the violation of the prior protective order before the order expired, if alleged, or of the threatened harm that reasonably places the applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault. See TEX. FAM. CODE ANN. 82.008(a)(2) (Vernon 2002). If a violation of the expired order is alleged, there must be a statement in the application that the violation of the expired violation has not been the grounds for any other issued or requested protective order protecting the applicant. See TEX. FAM. CODE ANN. 82.008(a)(3) (Vernon 2002). 4. Application Filed Before Previous Protective Order Expired If a prior protective order will expire within 30 days of the date of application, the application must include a copy of the previous protective order. If not, the application must include a statement that the previously rendered order is unavailable to the applicant and that a copy of the order will be filed with the court before the hearing on the application. See TEX. FAM. CODE ANN. 82.0085(a)(1) (Vernon 2002). The application must also include a description of the threatened harm that reasonably places the applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault. See TEX. FAM. CODE ANN. 82.0085(a)(2) (Vernon 2002). 5. The Remedy if Requirements are Not Satisfied There is no requirement to notify the other party that you have filed the previous order with the court. See Cooke v. Cooke, 65 S.W.3d 785, 790 (Tex. App. Dallas 2001, no pet.). Cooke also implies that compliance with the statute is met just by either filing the order with the application or making the statement that the order is unavailable but will be filed before the hearing on the application. Id. The statutes do not contain any consequences for the applicant s failure to comply. Nevertheless, if the respondent brings the failure to the court s attention, the court may take an action beneficial to the respondent or at the very least, may view both the applicant and the respondent in a new light. 6. Respondent s Pleading Requirements Unless the respondent wants to file his or her own independent application for protective order, there are no pleading requirements for the respondent. An 4 answer is not required. TEX. FAM. CODE ANN. 82.021(Vernon 2002). There is therefore no requirement to plead self-defense as an affirmative defense, even though defensive measures to protect oneself are an affirmative defense to applications for protective orders if the alleged family violence is not abuse. TEX. FAM. CODE ANN. 71.0021(a), 71.004(1), (3). However, if the new amendment to Section 71.0021 regarding dating violence is signed into law, it may be necessary to allege a defensive measure to protect oneself in those circumstances. (possible SB116 amendment). IV. TEMPORARY EX PARTE PROTECTIVE ORDERS A. Detailed, Sworn Description Required An application that requests the issuance of a temporary ex parte order under Chapter 83 must: contain a detailed description of the facts and circumstances concerning the alleged family violence and the need for the immediate protective order; and 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. 82.009 (Vernon 2002). SB 819 has been sent to the Governor to be signed, and adds a subsection (b) to section 82.009. If signed, this new subsection will allow a statement signed under oath by a child if it otherwise complies with this chapter. The court must find from the information contained in the application for a protective order that there is a clear and present danger of family violence before it may issue a temporary ex parte protective order. TEX. FAM. CODE ANN. 83.001(a) (Vernon 2002). B. Exclusion of Party from Residence It is possible to exclude a respondent from that respondent s own residence through a temporary ex parte protective order. Before this severe remedy may be imposed without a hearing, there a number of requirements that must be met. To exclude a party from residence, the residence must be: jointly owned or leased by the party receiving exclusive possession and a party being denied possession; owned or leased by the party retaining possession; or 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. 83.006(a), 85.021(2) (Vernon 2002). Furthermore, the applicant must have: filed a sworn affidavit that provides a detailed description of the facts and circumstances requiring the exclusion of the person from the residence; and appeared in person to testify at a temporary ex parte hearing to justify the issuance of the order without notice. TEX. FAM. CODE ANN. 83.006(a 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: 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; 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 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. 83.006(b) (Vernon 2002). SB 819, which is sitting on the Governor's desk waiting to be signed at the time this paper is being written, will add a subsection (c) to section 83.006, if it is signed. This provision is currently found in section 83.007, so it really just moves it over to 83.006. This is the provision that allows the court to 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. Then, 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. Since this provision is currently found in section 83.007, the bill would repeal that section. C. Remedies Any individual affected by a temporary ex parte order, not just the respondent or a party to the suit, may file a motion to vacate the temporary ex parte protective order. TEX. FAM. CODE ANN. 83.004 (Vernon 2002). The court's vacating the temporary ex parte protective order does not render it void so any 5 violations of the order before it is vacated may still be prosecuted. Turner v. State, 2003 WL 22240324, at *2 (Tex. App. Tyler 2003, no pet.) (memo op.). 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. 83.007 (Vernon 2002). V. CONTINUANCES AND DISCOVERY Title 4 does not favor the respondent in the areas of continuances and discovery. The respondent does have a narrow right to advanced notice of the hearing. Without a Level 3 Discovery Plan, the severe time restraints on protective order hearings leave the respondent with no time for written discovery and with no time for depositions. A trial subpoena is still an option if the respondent needs written documents from a witness. The respondent is entitled to receive notice of the hearing, and if the hearing is scheduled less than fortyeight hours after the respondent receives notice, the court must reschedule the hearing within 14 days should the respondent request. TEX. FAM. CODE ANN. 82.043, 84.004 (Vernon 2002); Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 927, 929 (Tex. App. Dallas 2003, pet. denied). The respondent is not entitled to additional service for this rescheduled hearing. TEX. FAM. CODE ANN. 84.004(b). The court may not delay a hearing on an application in order to consolidate it with a hearing on a subsequently filed application. TEX. FAM. CODE ANN. 84.001(b) (Vernon 2002). Generally, a party is entitled to full, fair discovery within a reasonable period of time. A party seeking to avoid discovery must show particular, specific, and demonstrable injury by facts sufficient to justify protection from discovery. Martinez v. Martinez, 52 S.W.3d 429, 432 (Tex. App. Fort Worth 2001, pet. denied). However, the need to conduct discovery is not one of the statutory bases to continue a protective order hearing. A judge errs in granting a motion for continuance of a protective order hearing in order to provide a litigant with time to conduct discovery. Id. at 433. Court may grant a legislative continuance. TEX. FAM. CODE ANN. 84.005 (Vernon 2002). The court is not required to do so. Note there is no requirement that the case be reset within a specified period of time. See id. The employment of a legislator as counsel and the granting of a legislative continuance is the only means for a respondent to extend the hearing date to a date when written discovery and depositions become possible without a Level 3 Discovery Plan.

VI. COUNTERATTACKING A strategy that will not be successful is for the respondent to attempt to file a counter-application for a protective order against the applicant. To apply for a protective order, a respondent to an application for a protective order must file a separate application. TEX. FAM. CODE ANN. 82.022 (Vernon 2002). The hearing on this second application therefore may be separate from the hearing on the original application. It might not even fall into the same court in some circumstances. Similarly, a court may not render one protective order under section 85.022 that applies to both parties. TEX. FAM. CODE ANN. 85.003(c) (Vernon 2002). However, since the relief in section 85.021 can apply to any party, a respondent (as a respondent and not as an applicant in his or her own right) should be permitted to request relief under that section. See TEX. FAM. CODE ANN. 85.021 (Vernon 2002). VII. TRIAL A. Duties of the Court A court shall render a protective order as provided by Section 85.001(b) if the court finds that family violence has occurred and is likely to occur in the future. TEX. FAM. CODE ANN. 81.001 (Vernon 2002). At the close of a hearing on an application for a protective order, the court shall find whether family violence has occurred and family violence is likely to occur in the future. TEX. FAM. CODE ANN. 85.001(a) (Vernon 2002). If the court finds that family violence has occurred and that family violence is likely to occur in the future, the court shall render a protective order as provided by Section 85.022 applying only to a person found to have committed family violence; and may render a protective order as provided by Section 85.021 applying to both parties that is in the best interest of the person protected by the order or member of the family or household of the person protected by the order. TEX. FAM. CODE ANN. 85.001(b) (Vernon 2002). Trial must be to the bench. A respondent in a protective order hearing is not entitled to a jury trial. Williams v. Williams, 19 S.W.3d 544, 548 (Tex. App. Fort Worth 2000, pet. denied). B. Addressing the Legal Standards As stated at the beginning of this paper, the key questions at trial are: Did the alleged acts take place? 6 Do the alleged acts fall within the definition of "family violence"? Is family violence likely to occur in the future? 1. Did the Alleged Acts Take Place? This question is addressed in the same manner that all fact questions are addressed. Are there witnesses besides the parties to the alleged acts? Is there any evidence, including statements of the parties, made before or after the alleged acts that has a tendency to make the existence of the alleged acts more or less probable than it would be without the evidence? What are the character and reputation of the parties? Are there any reputable character witnesses who are familiar with either the applicant or the respondent (or preferably both)? Is there any evidence that the applicant has a motive for falsely accusing the respondent of family violence? Is there any evidence that would cause the court to believe the statements of one party over the other? Are there inconsistencies and omissions in the sworn statements of the applicant? Can you present evidence that would disprove any of the applicant s allegations or sworn statements? One unreported case has held that the affidavit for ex parte relief is not evidence for the final hearing if it was neither offered nor admitted into evidence and the applicant did not testify about its contents. Gipson v. Huerta, 2003 WL 21666140, at *2 (Tex. App. Corpus Christi 2003, no pet.) (memo op.). 2. Do the Alleged Acts Fall Within the Definition of "Family Violence"? Go back to the relevant definitions of family violence. Even if the evidence offered by the applicant is all true, has family violence occurred? 3. Is Family Violence Likely to Occur in the Future? Even if family violence occurred, the court also has to find that it is likely to occur in the future. TEX. FAM. CODE ANN. 85.001(a). The burden is not easy on the respondent. See Vongontard v. Tippit, 137 S.W.3d 109, 113-14 (Tex. App. Houston [1st Dist.] 2004, no pet.) (evidence legally and factually sufficient to show respondent likely to commit acts of dating violence in the future). Evidence that a parent has engaged in abusive or neglectful conduct in the past permits an inference that the parent will continue this

behavior in the future. In re T.L.S. and R.L.P., 170 S.W.3d 164, 166 (Tex. App. Waco 2005, no pet.). There are occasions, however, in which the applicant is so focused on proving the existence of family violence in the past that the applicant fails to submit evidence as to the likelihood of family violence in the future. Statements of the likelihood of family violence in the future by the applicant s attorney in oral argument are not evidence and do not establish the required second element necessary for the protective order. Gipson, 2003 WL 21666140, at *2. 4. New Section 84.006 -- Hearsay Statement of Child Victim of Family Violence The Governor has signed HB 905 into law which creates a new section in Chapter 84 regarding admissibility of certain hearsay statements of a child in hearings on an application for a protective order. This new section takes effect on September 1, 2011, and applies only to hearings on applications for protective orders that are commenced on or after the effective date. TEX. FAM. CODE ANN. 84.006 provides that in a hearing on an application for a protective order, a statement made by a child 12 years of age or older 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 104.006 in a suit affecting the parent-child relationship. TEX. FAM. CODE ANN. 104.006 allows a statement made by a child 12 years of age or younger that describes alleged abuse against the child, without regard to whether the statement is otherwise inadmissible as hearsay, to be admissible as evidence if, in a hearing conducted outside the presence of the jury, the court finds that the time, content, and circumstances of the statement provide sufficient indications of the statement's reliability and the child testifies or is available to testify at the proceeding in court or in any other manner provided for by law or the court determines that the use of the statement in lieu of the child's testimony is necessary to protect the welfare of the child. Similarly, HB 1721, which has not been signed yet by the Governor, would add Article 7A.035 to the Texas Code of Criminal Procedure by providing that in a hearing on an application for a protective order under this chapter, a statement that is made by a child younger than 14 years of age who is the victim of an offense under Section 21.02, 21.11, 22.011, or 22.021, Texas Penal Code, (assaults and sexual assaults against children) and that describes the offense committed 7 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 104.006, Family Code, in a suit affecting the parent-child relationship. C. Argument to the Court If defending against a protective order, the court should be reminded, both through evidence and through argument, of the stigma of a protective order, of its possible legal consequences, and of the possible adverse effects it may have on the respondent s relationship with other family members, such as his children. The applicant has the burden of proof, and the respondent is not required to prove his innocence. D. Orders and Agreed Orders At the close of a hearing on an application for a protective order, the court shall find whether family violence has occurred and whether family violence is likely to occur in the future. TEX. FAM. CODE ANN. 85.001. If the court makes this finding, then the court shall render a protective order as provided by Section 85.022 applying only to a person found to have committed family violence and may render a protective order as provided by section 85.021 applying to both parties that is in the best interest of the person protected by the order, or member of the family or household of the person protected by the order. To facilitate settlement, the parties to a proceeding may agree in writing to the terms of a protective order. See TEX. FAM. CODE ANN. 85.005 (Vernon Supp. 2007). An agreement is subject to the approval of the court. The requirements of an order applying to any party are set forth in section 85.021, and include such things as prohibiting the parties from removing a child who is a member of the family or household from the possession of the person named in the order, or transferring, encumbering, or otherwise disposing of property, other than in the ordinary course of business, that is mutually owned or leased by the parties. The order may also grant exclusive possession of a residence (supra) and award use and possession of specified property. The order may also provide for possession of and access to a child and require payment of child support. Another bill that the Governor has signed into law is SB 279, which adds a new subsection (C) to Section 85.021. This new provision allows a court to prohibit a party from removing a pet companion animal, or assistance animal, as defined by Section 121.002, Human Resources Code, from the possession of a person named in the order. A respondent may agree in writing to the terms of a protective order as provided by Section 85.022, subject to the court's approval. However, the court

may not approve an agreement that requires the applicant to do or refrain from doing an act under Section 85.022. TEX. FAM. CODE ANN. 85.005 (Vernon 2002). Section 85.022 sets out the requirements of an order applying to the person who was found to have committed family violence. The court may require this person to do certain things, such as complete a battering intervention and prevention program or similar program with a qualified social worker, family service agency, physician, psychologist licensed therapist or licensed professional counselor. The court may also prohibit the person who was found to commit family violence from doing certain things. These include: committing family violence communicating directly with the protected person or a member of the family or household in a threatening or harassing manner communicating a threat through another person communicating in any manner with the protected person except through an attorney or person appointed by the court going to or near the residence or place of employment of the protected person going to or near the residence, daycare, or school of a protected child engaging in conduct directed towards the protected person, including following the person, that is likely to harass, annoy, alarm, abuse, torment, or embarrass the person possessing a firearm. In fact, in a protective order, the court shall suspend a license to carry a concealed handgun held by a person found to have committed family violence New Section added by SB 279 prohibits the person from harming, threatening, or interfering with the care, custody, or control of a pet, companion animal, or assistance animal, as defined by Section 121.002, Human Resources Code, that is possessed by a protected person or member of the family or household of the protected person E. Duration - Possible New Subsections (d) to Section 85.001 and Amendment to Section 85.025 SB 789 was sent to the Governor to sign, and adds a new subsection (d) to TEX. FAM. CODE ANN. 85.001 regarding the duration of a protective order. If signed, it will provide that if the court renders a protective order for a period of more than two years, the court must include in the order a finding described in Section 85.025 (a-1). The second part of the bill adds section (a-1) to Section 85.025, which now provides that a protective order is not to exceed a period of two years. If SB 789 is signed, the court may enter a protective order that exceeds two years if the court finds that the person who is the subject of the protective order: caused serious bodily injury to the applicant or a member of the applicant's family or household; or was the subject of two or more previous protective orders rendered 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 has committed family violence; and is likely to commit family violence in the future SB 789 goes on to add that a person who is the subject of a protective order may ask the court to review the protective order to determine whether there is a continuing need for the order not earlier than the first anniversary of the date on which the order was rendered. Compliance with the order, by itself does not support a finding by the court of no continuing need for the order. VIII. POST-TRIAL A. Enforcement - New Section 81.010 SB 819 has been sent to the Governor to sign, and if signed it will add a new section 81.010 to Chapter 81 regarding enforcement of protective orders. This new section allows a court of this state with jurisdiction of proceedings arising under this title to enforce a protective order rendered by another court in the same manner that the court that rendered the order could enforce the order, regardless of whether the order is transferred under Subchapter D, Chapter 85. A court's authority under this section will include the authority to enforce a protective order through contempt. A motion for enforcement of a protective order rendered under this title will be able to be filed in: any court in the county in which the order was rendered with jurisdiction of proceedings arising under this title; a county in which the movant or respondent resides; or a county in which an alleged violation of the order occurs. 8

B. Motion to Modify Protective Order Title 4 permits any party to file a motion to modify an existing protective order to exclude any item included in the order or to include any item that could have been included in the order. TEX. FAM. CODE ANN. 87.001 (Vernon 2002). The respondent can clean up his or her act and go back to court to relax some of the conditions. Of course, the applicant may move the court to add new conditions. The court, however, may not extend the duration of the order. TEX. FAM. CODE ANN. 87.002 (Vernon 2002). which the respondent is assigned with the intent that the commanding officer will be notified. X. CONCLUSION Many of the proposed changes to protective orders are subtle, so it will be essential to be familiar with them if the bills are signed. Even if some of them are not signed, the prudent family law practitioner should review the current statutes and become familiar with protective order practice if faced with either defending or prosecuting a protective order case. IX. OTHER NEW DEVELOPMENTS A. Stalking Protective Orders HB 1721 passed both houses in the Legislature and is currently sitting on the Governor's desk, waiting to be signed into law. If passed, it will add a new stalking protective order provision to Chapter 6 of the Code of Criminal Procedure. This bill provides that at any proceeding related to an offense under Section 42.072, Penal Code (which defines stalking and makes it a 3rd degree felony) in which the defendant appears before the court, a person may request the court to render a protective order under Title 4, Family Code, for the protection of the person. The request is made by filing an application for a protective order in the same manner as an application for a protective order under Title 4 of the Family Code. The Bill provides that under those circumstances, the court shall render a protective order in the manner provided by Title 4, Family Code, if, in lieu of the finding that family violence occurred and is likely to occur in the future as required by Section 85.001, Family Code, the court finds that probable cause exists to believe that an offense under Section 42.072, Penal Code, occurred and that the nature of the scheme or course of conduct engaged in by the defendant in the commission of the offense indicates that the defendant is likely to engage in the future in conduct prohibited by Section 42.072(a)(1), (2), or (3), Penal Code. All of the procedures under the Family Code for protective orders will be applicable, if this Bill is signed. B. Delivery of Protective Orders Military Personnel HB 2624 is also waiting on the Governor's signature. This Bill will add a requirement that if the respondent is a member of the state military forces or is serving in the armed forces of the United States in an active duty status, in addition with complying with the requirement in subsection (a) that the clerk of the court sending a copy of the protective order to the chief of police of the municipality where the protected person resides or the appropriate constable and county sheriff, the clerk will also have to send a copy of the order to the staff judge advocate at Joint Force Headquarters or the provost marshal of the military installation to 9

APPENDIX 11

S.B. No. 116 AN ACT relating to protective orders against dating violence. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. This Act shall be known as the Kristy Appleby Act. SECTION 2. Subsection (a), Section 71.0021, Family Code, is amended to read as follows: (a) "Dating violence" means an act, other than a defensive measure to protect oneself, by an actor [individual] that: (1) is committed against a victim: (A) [another individual] with whom the actor [that person] has or has had a dating relationship; or (B) because of the victim's marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and (2) [that] is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim [individual] in fear of imminent physical harm, bodily injury, assault, or sexual assault[, but does not include defensive measures to protect oneself]. SECTION 3. Subsection (b), Section 82.002, Family Code, is amended to read as follows: (b) With regard to family violence under Section 71.004(3), an application for a protective order to protect the applicant may be filed by: (1) an adult member of the dating relationship; or (2) an adult member of the marriage, if the victim is or was married as described by Section 71.0021(a)(1)(B). SECTION 4. The change in law made by this Act to Sections 71.0021 and 82.002, Family Code, applies only to an application for a protective order that is filed on or after the effective date of this Act. An application for a protective order filed before the effective date of this Act is governed by the law in effect on the date the application is filed, and the former law is continued in effect for that purpose. SECTION 5. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2011. 12

President of the Senate Speaker of the House I hereby certify that S.B. No. 116 passed the Senate on March 21, 2011, by the following vote: Yeas 30, Nays 0; and that the Senate concurred in House amendment on May 23, 2011, by the following vote: Yeas 30, Nays 0. Secretary of the Senate I hereby certify that S.B. No. 116 passed the House, with amendment, on May 19, 2011, by the following vote: Yeas 148, Nays 0, one present not voting. Chief Clerk of the House Approved: Date Governor 13

H.B. No. 905 AN ACT relating to the admissibility of certain hearsay statements of a child in hearings on an application for a protective order. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Chapter 84, Family Code, is amended by adding Section 84.006 to read as follows: Sec. 84.006. HEARSAY STATEMENT OF CHILD VICTIM OF FAMILY VIOLENCE. In a hearing on an application for a 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 104.006 in a suit affecting the parent-child relationship. SECTION 2. The changes in law made by this Act apply only to a hearing on an application for a protective order that is commenced on or after the effective date of this Act. A hearing on an application for a protective order that is commenced before the effective date of this Act is governed by the law in effect on the date the hearing was commenced, and that law is continued in effect for that purpose. SECTION 3. This Act takes effect September 1, 2011. President of the Senate Speaker of the House I certify that H.B. No. 905 was passed by the House on March 30, 2011, by the following vote: Yeas 146, Nays 0, 1 present, not voting. Chief Clerk of the House I certify that H.B. No. 905 was passed by the Senate on May 3, 2011, by the following vote: Yeas 31, Nays 0. APPROVED: Secretary of the Senate Date Governor 14

S.B. No. 279 AN ACT relating to inclusion of pets and other companion animals in protective orders; providing a penalty. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 85.021, Family Code, is amended to read as follows: Sec. 85.021. REQUIREMENTS OF ORDER APPLYING TO ANY PARTY. In a protective order, the court may: (1) prohibit a party from: (A) removing a child who is a member of the family or household from: (i) the possession of a person named in the order; or (ii) the jurisdiction of the court; [or] (B) 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 (C) removing a pet, companion animal, or assistance animal, as defined by Section 121.002, Human Resources Code, from the possession of a person named in the order; (2) grant exclusive possession of a residence to a party and, if appropriate, direct one or more parties to vacate the residence if the residence: (A) is jointly owned or leased by the party receiving exclusive possession and a party being denied possession; (B) is owned or leased by the party retaining possession; or (C) 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; (3) 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; (4) 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; or (5) award to a party the use and possession of specified property that is community property or jointly owned or leased property. SECTION 2. Subsection (b), Section 85.022, Family Code, is amended to read as follows: (b) In a protective order, the court may prohibit the person found to have committed family violence from: (1) committing family violence; 15