|
|
|
Texas law provides for the issuance of protective orders to assist family members caught in the web of domestic violence. Requests for protective orders tend to be filed in conjunction with divorce proceedings, but such protection should not be overlooked when circumstances indicate violence by a former spouse or a former roommate. With the evolution of the family unit, the Texas legislature has attempted to protect members of a family consisting of something other than the traditional union of husband, wife and child. The statute paints broadly the definition of family to afford protection, be it a family created by marriage, by the birth of a child, the aftermath of divorce, or by the living arrangements of non-married partners.
An applicant must establish two essential elements before he can claim entitlement to the protection afforded by statute. The court must find that 1) family violence has occurred, and 2) is likely to occur in the future. Tex. Fam. Code ann. §§ 81.001 and 85.001. "Family violence" is primarily defined as an act by a member of a family or household against another member of the family or household:
The process begins with the filing of a document entitled
"Application for Protective Order". Tex. Fam. Code Ann. § 82.001.
The application must state: 1) the name and county of residence
of each applicant; 2) the name, address, and county of residence
of each individual alleged to have committed family violence; 3)
the relationship between the applicant and the individual alleged
to have committed family violence; and 4) a request for one or
more protective orders. Tex. Fam. Code Ann. § 82.004. The
application may be filed by an adult member of the family or by
any adult for the protection of a child. The protection may be
requested for the applicant or for any other member of the
applicant's family or household. Tex. Fam. Code Ann. § 82.002. The
application may be filed in the county where either the applicant
or respondent resides. Tex. Fam. Code Ann. § 82.003.
The protective order application may include a request for
the immediate issuance of a temporary ex parte protective order.
In addition to the benefit of immediate incarceration by the
police for any violation of the order, a temporary ex parte order
can exclude the respondent from the residence. Tex. Fam. Code Ann. §
83.006. To obtain a temporary ex parte protective order, without
exclusion of respondent from the residence, the application 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 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. § 83.009. The temporary ex parte
relief should not be granted unless the court finds from the
information contained in the application that there is a "clear
and present danger" of family violence. Tex. Fam. Code Ann. §
83.001.
Additional requirements are necessary if the exclusion of
respondent from the residence is being sought. The applicant
must: 1) file a sworn affidavit providing a detailed description
of the facts and circumstances requiring the exclusion of
respondent from the residence; and 2) appear 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)(1) and (2).
The court may not render an ex parte protective order excluding
respondent from his residence unless it finds that: 1) the
applicant either resides on the premises or has resided there
within 30 days before the date the application was filed; 2) the
respondent has committed family violence within 30 days before the
date the application was filed; and 3) there is a clear and
present danger that the respondent is likely to commit family
violence. Tex. Fam. Code Ann. § 83.006(b)(1), (2) and (3).
The duration of the protective order is effective for the
period stated in the order, not to exceed one year. Tex. Fam. Code
Ann. § 85.025. A protective order may be superseded by another
court with jurisdiction over the order. Tex. Fam. Code Ann. §
85.009. Additionally, a protective order must contain specific
statutory warning language printed in bold-face type or capital
letters. Tex. Fam. Code Ann. § 85.026. A protective order must be
delivered to the party against whom it is rendered against as
provided in Rule 21a, Texas Rules of Civil Procedure. Tex. Fam.
Code Ann. § 85.041.
In response to case law that "full faith and credit" did not
extend to protective orders from other states because protective
orders were temporary in nature and not final orders, the Texas
legislature enacted Chapter 88 of the Texas Family Code. Section
88.001 provides that a protective order from another jurisdiction
shall be afforded full faith and credit by the courts of this
state, and enforced as if the order were rendered by a court in
this state. Tex. Fam. Code Ann. § 88.001(a). A protective order
from another jurisdiction is presumed valid if the order appears
authentic on its face. Tex. Fam. Code Ann. § 88.002. However, a
protective order from another jurisdiction rendered against both
the applicant and respondent is not enforceable unless: 1) the
respondent filed a written pleading seeking a protective order;
and 2) the issuing court determined that each party was entitled
to a protective order. Tex. Fam. Code Ann. § 88.001(b)(1) and (2).
Respondent may raise as an affirmative defense to an enforcement
action that he was not given reasonable notice and an opportunity
to be heard either before the order was rendered or, in the case
of an ex parte order, within the time required by statute in the
jurisdiction rendering the order after the date the order was
rendered, but not later than a reasonable time. Tex. Fam. Code Ann.
§§ 71.008, 88.003(1) and (2).
Holmes, Diggs, Eames & Puhl
Campbell Centre I
North Tower
8350 N. Central Expressway
Suite 1100
Dallas, Texas 75206
Phone: 214.520.8100
Facsimile: 214.520.6565
Website: www.texasfamilylawyers.com
E-mail: e-mail@texfamlaw.com