Protective Orders and the Importance of TCIC Reporting

Transcription

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Protective Orders and the Importance of TCIC Reporting:
The “Big Picture” and the Judicial Perspective
Kimberly A.F. Piechowiak
Protective Order Resource Attorney
Texas Office of Court Administration
[email protected]
OFFICE of COURT ADMINISTRATION
1
2
When I say
“domestic violence…”
This is what many people think
about…
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2
4
5
But usually, it’s more like this …
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3
7
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WHAT, WHY, WHO, HOW?
• What…
• Is NCIC, TCIC, NICS…?
• Types of protective orders should be entered?
• Why do we care about POs and entry into TCIC?
• Safety and accountability—prevalence of DV, dynamics, and barriers
• Funding impact
• Research
• Who participates in the process?
• How to improve the process?
• Obstacles
• Best Practices
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4
WHAT? Alphabet soup…
• TCIC—Texas Crime Information Center
• Via Texas Law Enforcement Telecommunications System(TLETS) • Provides responses within 12 seconds • Links to NCIC so that Texas law enforcement officers know instantly about stolen property, wanted persons, and protective orders anywhere in the country
• III—Interstate Identification Index; federal criminal history database
• NCIC—National Crime Information Center
• NICS—National Instant Criminal Background Check System; checks available records in NCIC, III, and the NICS Index to determine if prospective transferees are disqualified from receiving firearms
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Types of Protective Orders
31-91 day
Magistrates
Order of
Emergency
Protection
• TX CCP 17.292
20 day
Temporary
Ex Parte
Protective
Order
• TX Family Code
Ch. 83
Protective
Orders
• FV, DV, SA,
• SK, TK
• TX Family Code
Ch. 71, 81-82,
84-88, CCP 7A
and CCP 6.09
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Q: Why do we care about POs and TCIC?
A: Protective orders that cannot be
verified will often not be enforced.
Safety
Accountability
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5
Safety
 Victims:
 Unprotected and suffer further abuse
 Copy of PO may be taken/destroyed by abuser
 May not have yet received a copy from issuing court
 Law enforcement officers  Community
Accountability
 Violations go unpunished
 Increases opportunity for offender to retain and/or procure firearms
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But do protective orders provide safety?
Carsey Institute, University of New Hampshire, 2011
http://www.carseyinstitute.unh.edu/publications/IB‐Logan‐Civil‐
Protective‐Order.pdf
• For 50% of victims, the PO stopped the violence.
• For the other half, violence was significantly reduced.
• Weakness— enforcement, especially in rural areas
• Law enforcement difficulties in determining predominant aggressor
• Fewer resources
• Local politics
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"No relationship goes from happy,
healthy, and functional to murdersuicide overnight. It never happens
that way. There's always a pattern
of abuse."
— Casey Gwinn, J.D., President of the National Family Justice Center Alliance
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Ultimate Goal:
Domestic Violence
Homicide
Prevention
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Domestic Violence
• “a pattern of behavior in any relationship
that is used to gain or maintain power and
control over an intimate partner.”
- National Domestic Violence Hotline
www.thehotline.org 1(800) 799-SAFE
• Includes actions or threats of actions that are
• Physical
• Sexual
• Emotional
• Economic
• Psychological
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Source: National Center for Domestic and Sexual Violence
www.ncdsv.org
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VERBAL/EMOTIONAL
HUMILIATION
YELLING
NAME-CALLING
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PHYSICAL
KILL
PUNCH
PUSH
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SEXUAL
FORCED
SEX
Unwanted
touching
Objectification
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LETHALITY: Top risk factors that increase a DV victim’s risk of homicide:
PRIOR FAMILY VIOLENCE — 72% of DV homicides STALKING — 76% of female DV homicide victims*
https://www.ncjrs.gov/pdffiles1/nij/grants/20973
1.pdf
* https://www.victimsofcrime.org/src
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Other important lethality factors…
THREATS
14.9x
JEALOUS
Y
9.2x
WEAPON
20.2x
Domestic
Violence
Homicides
FORCED SEX
7.6x
STRANGULATIO
N
9.9x
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Domestic Violence: Texas Stats
• 32% of ALL Texans have experienced DV (2011)
• 38% of females
• 27% of males
• 119 women killed by intimate partners (2013), along with17 bystanders
• 185,453 DV incidents (DPS, 2013)
• 97% of them were assaults
• “Simple” Assault: 74.3%
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9
Types of
Injuries
Bodily Injury –
Pain, cuts,
bruises, black
eyes...
Serious bodily injury – “creates a substantial risk of death, or
that causes death, serious permanent disfigurement, or
protracted loss of or impairment of the function of any bodily
OFFICEoroforgan”
COURT ADMINISTRATION
member
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On the subject of injuries…
Remember…
Experienced batterers know how to hit without leaving immediate OR subsequent visible injuries
Striking in the “swimsuit” area
Striking in the scalp area
What looks minor at first can change over the next few days
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What looks like this today …
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10
Can look
like this
tomorrow
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What starts out looking like a
minor grabbing today…
Might look like this tomorrow….
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Which is why…
“We must make misdemeanors matter. We must realize that true success is not prosecuting a murderer, it is preventing the murder.”
Source: Casey Gwinn, “Making Misdemeanors Matter”, 3 Homefront (1998).
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Police notification
•Reported by victim 15.1%
•Reported by third party 8.0%
•Unreported 76.9%
•Among reasons for not reporting: • Too minor 29.0%
• Embarrassment 6.1%
• Fear of reprisal 5.0%
• Police could not do anything 4.8%
• Would not be believed 2.7%
Source: The Reporting of Domestic Violence and Sexual Assault by Nonstrangers to the Police (funded by the USDOJ)
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Justice System Barriers
Criminal
Few victims report.
Complicated statutes
do not reflect reality of
FV.
Fewer arrests.
Fewer reports sent to
prosecutors.
Fewer charges filed.
Fact finders do not
understand the
dynamics and do not
convict on cases
presented.
Civil
Victims do not trust system.
Victims fear disbelief.
Victims lack objective
evidence or do not present
well in court.
Protective orders denied or
batterers get custody or
unsupervised visits.
Victims respond in ways to
best protect themselves and
their children.
Victims lack legal protection
or are punished for not
following court orders.
Victims are not safe and offenders are not
held accountable
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Texas, Our Texas
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Texas, Our Texas
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Why do we care about POs and TCIC?
Federal funding may be reduced
•
NICS (National Instant Criminal Background Check System) Act Record Improvement Program (NARIP) requires states to report all Brady disqualifiers (from purchasing or receiving a firearm) to the federal criminal databases.
• Those disqualifiers include:
• Felony convictions
• Misdemeanor convictions of domestic violence
• Mental health commitments
• Protective orders
•
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Funding continued…
•If in compliance, the state may be eligible to receive a waiver of the 10% match requirement for certain federal grants.
•If not in compliance, the state’s Byrne justice assistance grants, which fund criminal justice projects at the state and local levels, may be reduced. In 2013, the Office of the Governor received over $21 million from Byrne grant funds.
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•Research •Inaccurate information in state and national databases
•Inability to identify areas of need
•Cannot properly allocate resources
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How many participants in this process?
•Information?
•Paperwork/documentation? •Both?
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Entry of MOEPs into TCIC
Victim
Court
Clerk
Officer
Judge
Police
Advocate?
Court
Clerk
Data entry
District/County
Clerk?
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Texas OCA Protective Order Record Improvement Project
Funding: DOJ Bureau of Justice Statistics
Purpose: Increase reporting of protective orders to NICS by reviewing and analyzing the PO reporting process, from the application/request stage to entry into TCIC.
• Meet with law enforcement, judicial, and court clerk training organizations • Conduct case studies in eight rural, suburban, and urban jurisdictions
• Statewide survey
• Create NICS Protective Order Improvement Task Force to develop recommendations
• Develop training to improve reporting rates
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“Big Picture” Obstacles Identified:
• Texas’ decentralized court and law enforcement systems *
• 254 counties
• 458 District Courts
• 510 County‐level Courts
• 817 Justice Courts
• 926 Municipal Courts with 1,288 judges • 2,636 law enforcement agencies
• Incomplete or missing TCIC data entry sheets *
• Unaware of other participants’ roles in the process *
*Identified by judges
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Other common problems …
• Lack of regular communication *
• Lack of standard forms and orders *
• No confirmation procedure that the order was received by law enforcement *
• Lack of personnel to assist victim/petitioner with application
• Insufficient police investigation, documentation, and enforcement *
• Typographical errors during data entry
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Other common problems …
• Private attorneys unaware of the process and the importance of complete and accurate TCIC forms *
• Staff turnover, especially law enforcement
• Confusion regarding applicant’s address *
• Accuracy?
• Undisclosed?
•Leads to confusion regarding who should enter the order.
•Handling extensions of order after violations, incarceration, or modifications *
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Point of entry problems
•Failure or delay to receive order
•Lack of timely notification when PO is extended/modified
•Conflicting information between order and data sheet
•Confusion regarding out of state orders (validates/modifies?)
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Protective Order Data Entry Form
http://http://www.txcourts.gov/media/524144/protectiveorderdata
entryform.pdf
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“Big Picture” Recommendations
• Mandatory, uniform forms *
• Training of all participants *
• Dynamics of family violence
• Types of protective orders
• Importance of information gathering
• Legislative changes *
• Deadline for clerks to send order to law enforcement
• Shorten deadline for law enforcement to enter
• Mandate entry of MOEPs
• Clarify which agency should enter order if victim’s current address is unknown
• Revise internal procedures to reduce number of participants involved
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More “Big Picture” Suggestions
Statewide requirement to provide completed TCIC data entry form at time of application or request *
Prioritize protective order processing
To expedite the process, send electronic copy or fax of PO and data sheet to reporting agency whenever possible.
•
•
•
•
•
According to the NCIC Operating Manual, “each record in the POF must be supported by a protection order (electronic or hard copy).”
Certified copies are also accepted per CCP Art. 5.05 (d) OFFICE of COURT ADMINISTRATION
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Best Practices for Judges
 Notify the requestor to submit TCIC/NCIC data sheet as early in the process as possible
 Have staff confirm information with complainant if possible
 Confirm data sheet information in court and compare to protective order for accuracy
 Instruct the parties, or officer if MOEP, not to leave the courtroom after the protective order proceeding until the identifying information form is completed and returned to the Clerk.
• Written, detailed protocol
• Document what was sent to law enforcement:  Cover sheet listing the items sent  Protective order TCIC data sheet  Protective order
 Keep a copy of EVERYTHING.
 Require confirmation of receipt by the agency
 Periodically compare the number of orders forwarded to law enforcement in your county with the number of orders DPS has in the system for your county. Report can be requested at [email protected].
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Best Practices for Judges
• Require officers to furnish:
Probable cause affidavit Criminal history • Motion/request for MOEP
• Completed Protective Order Data Entry form
•
•
• Communication: Get involved with local agencies
Not advocacy driven, but focused on effective administration of justice
• Educate stakeholders on necessity of judicial independence, the judicial role, and the legal system.
• Court procedures and expectations
• Discover their roles and procedures
•
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Remember:
Protective
Orders
…are a critical piece of the domestic violence homicide prevention puzzle.
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Texas Office of Court Administration
(512) 936‐6390
[email protected]
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Go SPURS Go!!!
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Domestic Violence
Resource Program
Office of Court Administration
OCA's Domestic Violence Resource Program offers
the following resources:
Domestic Violence in Texas
In 2013, 119 women were
killed by their intimate partner.
Additionally, in the 2013
Crime in Texas report, the
Texas Department of Public
Safety reported that there
were 185,453 incidents of
domestic
violence,
which
involved 199,752 victims and
194,756 offenders.
While
these numbers may seem
staggering, it is important to
note that many studies
indicate that less than 50
percent of all family violence
incidents are actually reported
to the police.
The Protective Order Resource Attorney provides technical assistance and
training to courts and others on protective orders and protective order reporting
as part of the Texas OCA Protective Order Record Improvement Project. This
project, funded through a grant from the Bureau of Justice Statistics, was created
to increase the reporting of protective orders to the National Instant Background
Check System (NICS).
Please contact Kimberly Piechowiak for more
information, or to request facilitation or training on this issue in your jurisdiction.
Protective Orders and TCIC Reporting Webinars
Protective Orders and the Importance of TCIC Reporting: Clerks - This training
module provides an overview of the protective order reporting process with
additional information specific to court clerks.
Protective Orders and the Importance of TCIC Reporting: Judges - This training
module provides an overview of the protective order reporting process with
additional information specific to judges.
Protective Orders and the Importance of TCIC Reporting: The Big Picture - This
training module provides an overview of the protective order reporting for all
participants in the process.
Office of Court
Administration
Protective Order Resource
Attorney
(512) 936-6390 (direct)
(512) 463-1625 (main)
[email protected]
Texas Family Violence Benchbook
The Benchbook is a compilation of state and federal statutes, case law, and
other resources related to domestic violence issues.
These FREE resources can be found at
http://www.txcourts.gov/dvrp/domestic-violence-resourceprogram.aspx
.
POWER AND CONTROL WHEEL
21
hysical and sexual assaults, or threats to commit them, are the most apparent forms of domestic violence and are usually
P
the actions that allow others to become aware of the problem. However, regular use of other abusive behaviors by the
batterer, when reinforced by one or more acts of physical violence, make up a larger system of abuse. Although physical assaults may occur only once or occasionally, they instill threat of future violent attacks and allow the abuser to take control of
the woman’s life and circumstances.
he Power & Control diagram is a particularly helpful tool in understanding the overall pattern of abusive and violent behaviors, which are used by a batterer to establish and maintain control over his partner. Very often, one or more violent
incidents are accompanied by an array of these other types of abuse. They are less easily identified, yet firmly establish a pattern of intimidation and control in the relationship.
T
VIOLENCE
l
a
c
si COERCION
y
AND THREATS:
Making and/or carryph
ing out threats to do
something to hurt her.
Threatening to leave her,
commit suicide, or report
her to welfare. Making
her drop charges.
Making her do illegal
things.
INTIMIDATION:
Making her afraid by
using looks, actions,
and gestures. Smashing
things. Destroying her
property. Abusing pets.
Displaying weapons.
EMOTIONAL ABUSE:
MALE PRIVILEGE:
Treating her like a servant: making
all the big decisions, acting like the
“master of the castle,” being the
one to define men’s and women’s
roles.
ECONOMIC ABUSE:
Preventing her from getting
or keeping a job. Making her
ask for money. Giving her an
allowance. Taking her money.
Not letting her know about or
have access to family income.
POWER
AND
CONTROL
USING CHILDREN:
ph
ys
Developed by:
Domestic Abuse Intervention Project
202 East Superior Street
Duluth, MN 55802
218.722.4134
Making her feel guilty
about the children. Using
the children to relay
messages. Using
visitation to harass her.
Threatening to take the
children away.
ic a
se
xu
al
l
Putting her down. Making her
feel bad about herself.
Calling her names. Making her
think she’s crazy. Playing mind
games. Humiliating her.
Making her feel guilty.
ISOLATION:
Controlling what she does,
who she sees and talks to,
what she reads, and where
she goes. Limiting her
outside involvement.
Using jealousy to justify
actions.
MINIMIZING, DENYING,
AND BLAMING:
Making light of the abuse
and not taking her concerns
about it seriously. Saying
the abuse didn’t happen.
Shifting responsibility for
abusive behavior. Saying
she caused it.
x
e
s
l
a
u
VIOLENCE
Produced and distributed by:
4 6 1 2 S h o a l C r e e k B l v d . • A u s t i n , Te x a s 7 8 7 5 6
512.407.9020 (phone and fax) • www.ncdsv.org
CHILDREN COPING WITH
FAMILY VIOLENCE
TRUANCY
22
NEW
GENERATIONS
OF VIOLENT
FAMILIES
VIOLENCE AT
SCHOOL
RUNAWAYS
Children
Living in
Violent
Homes
TEEN PREGNANCY
USE OF
PORNOGRAPHY
SEXUAL
HARASSMENT
SUBSTANCE ABUSE
FOOD
ADDICTIONS
DATE RAPE
Developed from:
Domestic Abuse Intervention Project
202 East Superior Street
Duluth, MN 55802
218.722.4134
VIOLENCE ON
OUR STREETS
SEXUAL
ASSAULTS
Produced and distributed by:
4 6 1 2 S h o a l C r e e k B l v d . • A u s t i n , Te x a s 7 8 7 5 6
512.407.9020 (phone and fax) • www.ncdsv.org
The 2013 Honoring Texas Victims Report
By the Numbers Summary
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Each year, The Honoring Texas Victims Report
119
women killed
provides our state’s most extensive analysis of
women killed in Texas by their male intimate
partner. The Report tracks and discusses detailed
information about each murder, offers the respectfully summarized stories of the women killed and
offers hopeful strategies for addressing intimate
partner fatalities and violence in our state. The
Report also holds tight to the idea that domestic
violence murders are knowable, identifiable and
predictable; armed with this hopeful message, we
call on you to use this information to lead state and
local efforts to make the entire map Go Purple.*
Consider using this quick summary document in
your communication with media and interested
stakeholders during Domestic Violence Awareness
Month – October 2014 – and beyond.
Counties in Which the Most Fatalities Occurred
Per Capita Comparison
20
18
16
14
12
10
8
6
4
2
0
Harris
Dallas
Tarrant
Dallas County Per Capita Female
Intimate Partner Murder Rate:
1:62,752
Jefferson County Per Capita
Female Intimate Partner
Murder Rate:
1:41,134
Bexar
*For more on Go Purple, take a look at the full report or
visit www.tcfv.org.
Like us on Facebook
www.facebook.com/TexasCouncilonFamilyViolence
Follow Aaron Setliff, TCFV Policy Director on twitter @tcfvpolicy.
24
Where Killed
Other
2%
Vehicle
2%
Vehicle
(near home) 1%
Kitchen
Living Room
1%
4%
Unknown
2%
Front/Backyard
7%
Bedroom
8%
Public Place
18%
Home
(Unknown Room)
79%
Home
76%
Means of Death
Strangled
6%
Stabbed
22%
CONFIRMED:
Unknown
Beaten
1%
5% Other
8%
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17
11
Shot
58%
bystanders or
witnesses killed
bystanders or
witnesses injured
Ages of Victims & Offenders
Victim’s Relationship to Perpetrator
Wife
47%
women had taken
steps to leave
Ex-girlfriend
15%
Ex-wife
3%
40
30
20
10
0
Girlfriend
35%
19 or
Under
20-29
30-39
Victims
40-49
50-59
Offenders
60-69
70 or Over
American Bar Association
Commission on Domestic Violence
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JUDICIAL CHECKLIST
Prepared by the Judicial Subcommittee of the American
Bar Association Commission on Domestic Violence
DEFINING THE ISSUE
D
omestic violence is about POWER AND CONTROL. Physical abuse is only one tactic among
many used by batterers to enforce their control over a victim. Other methods include emotional
abuse, psychological coercion, isolation, economic control, immigration status-related abuse,
sexual assault, and stalking or harassing behavior.
Domestic violence is CHOSEN BEHAVIOR and is rarely caused by substance abuse, genetics, anger,
stress, illness, or problems in the relationship, although these factors are often used as excuses and can
exacerbate violent behavior. Abusers may justify their actions by blaming the victim, but courts should
not accept this as a justification.
Courts are uniquely positioned to hold batterers accountable and to increase safety for victims.
DOMESTIC VIOLENCE civil protection orders are available in every U.S. jurisdiction. Some jurisdictions
have additional civil protection orders for victims of STALKING and/or for victims of non-intimate partner
SEXUAL ASSAULT, including teens and other affected family members.
COMMON EFFECTS OF VIOLENCE ON VICTIMS
COMMON PERPETRATOR ATTITUDES & CONDUCT
●
fear of offender violence
●
denial, detachment, lack of affect
●
rage
●
intimidating
●
blames self or circumstances
●
consistent, persistent attempts to control victim
rationalizes batterer’s behavior,
minimizes violence
●
unaware of legal and social options
●
isolation from family and friends, and/or from
others who share the victim’s language, faith,
culture, etc.
●
●
●
●
●
self-medication by use of alcohol and/or drugs
●
low self-esteem, shame
●
depression, anxiety, suicidal thoughts
●
post-traumatic stress disorder, exhaustion
●
use of defensive/protective violence
●
●
●
●
●
●
“Jekyll-Hyde” personality: polished and
likeable in public while abusive at home
self-centered, narcissistic, claims to be the
“real” victim
minimizes and denies own behavior &
instead blames victim, circumstance or others
dependent on victim, jealous and possessive
low self-esteem, inadequate or desperate
feelings once caught
promises “It won’t happen again” or
“I didn’t mean it”
authoritarian, uses children to “spy”
on other parent
substance abuse
difficulty managing daily tasks because
of obstacles created by the abuse
Judicial Checklist
JUDICIAL CONSIDERATIONS IN CIVIL PROTECTION ORDER CASES
FULL FAITH & CREDIT
The Violence Against Women Act 2005 (VAWA)
mandates that every state, recognized tribe and
territory provide full faith and credit to protection
orders issued by other states, tribes or territories.
This includes provisions in protection orders relating to custody, visitation and support. For the
purposes of full faith and credit under VAWA,
a protection order is any injunction, protection
order, restraining or other order issued for the
protection of victims of domestic violence, sexual
assault, dating violence or stalking.
VAWA requires enforcement of orders issued by
other jurisdictions, including custody provisions, if:
✓ the issuing court had jurisdiction over the subject matter and parties, and
✓ the respondent had both notice and the opportunity to be heard.
There is no requirement that the order be registered to receive full faith and credit.
✓ Courts and law enforcement agencies receiving federal funding must certify that their laws,
official policies or practices prohibit the issuance of mutual protection orders.
FIREARMS AND OTHER WEAPONS
18 U.S.C. §922(g)(8) prohibits persons subject
to “qualifying orders of protection” from possessing a firearm or ammunition in or affecting commerce. Violation of the law is punishable by up
to ten years in prison.
❑
❑
❑
Help facilitate full faith and credit enforcement
by including the following language in your
protection orders:
“This civil protection order has been issued
in compliance with the notice and due process requirements set forth in the Violence
Against Women Act of 2005, 18 U.S.C.
§2265 and the laws of this state. This order,
and all of its provisions, is enforceable in all
fifty (50) states, the District of Columbia, tribal
lands, and U.S. territories.”
MUTUAL ORDERS (i.e., orders issued against both
parties on the basis of only one petition)
Because mutual orders are issued sua sponte,
without a petition by the respondent and a
finding that the respondent is entitled to protection, they are unauthorized in most jurisdictions
and should be discouraged. Mutual orders can
increase the risk to victims.
✓ Pursuant to VAWA, mutual orders are not entitled to full faith and credit in other jurisdictions.
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✓
✓
✓
✓
Ensure the order is a “qualifying order of protection” under federal law:
respondent has been accorded notice and
opportunity to be heard
petitioner is an “intimate partner” or the child
of either party (18 U.S.C. §921(32))
order includes a finding that the respondent
is a credible threat to the intimate partner or
child, or prohibits future use or attempted use
of physical harm reasonably expected to cause
bodily injury; or
order prohibits respondent from continuing to
harass, threaten, stalk or otherwise engage in
acts that would place the intimate partner in
reasonable fear of bodily injury to themselves
or the child
Where appropriate, order and verify surrender
of weapons to law enforcement; respondents
should be ordered to file the receipt from the
police agency or proof of sale to the court.
❑ When the protection order issues, provide the
following warning, either verbally or in writing,
to the respondent, as required by 42 U.S.C.
3796gg-1(e):
“As a result of this order, it may be unlawful for you to possess or purchase a firearm,
including a rifle, pistol, or revolver, or ammunition pursuant to federal law under 18 U.S.C.
922(g)(8) [and/or state law]. If you have any
questions whether these laws make it illegal
for you to possess or purchase a firearm, you
should consult an attorney.”
❑
www.abanet.org/domviol
JUDICIAL CONSIDERATIONS REGARDING CUSTODY AND VISITATION IN DOMESTIC VIOLENCE27CASES
Studies indicate that at least 50% of disputed
custody cases involve domestic violence, and that
abusive fathers are more likely to seek sole custody than non-abusive fathers. Studies also indicate the risk of international child abduction is
higher when the respondent is foreign-born and
can legally travel outside the US. Adverse effects
to children who witness domestic violence are
well-documented, including aggressive behavior,
depression and cognitive difficulties. Children are
at a greater risk of being abused if their mother
has been abused. This is particularly true after
separation, even if there was no prior abuse of
the children.
JURISDICTION
❑ Is respondent from another jurisdiction? Consult
state’s long-arm statute or tribe’s statute conferring jurisdiction.
❑ Is petitioner from another jurisdiction? If so, is
petitioner fleeing abuse?
❑ Consult state’s relocation statute.
❑ Consult state’s enactment of the Uniform Child
Custody Jurisdiction Enforcement Act (UCCJEA)
[or Uniform Child Custody Jurisdiction Act
(UCCJA)].
❑ Consult Federal Parental Kidnapping
Prevention Act (PKPA), 28 U.S.C. § 1738A
(“Full faith and credit given to child custody
determinations”).
❑ Is child Native American/Alaska Native?
Consult Indian Child Welfare Act (ICWA), 25
U.S.C. §§1901-1963.
EFFECTIVE ORDERS: Carefully craft custody/visitation arrangements to serve the child’s best interest
by protecting the child and the victimized parent.
❑ Award sole custody to non-abusive parent, at
least until batterer completes court ordered
programs and otherwise demonstrates that children will be safe.
❑ Explicitly articulate the day, time and location
for visitation or exchange. Do not order visitation as “reasonable” or “mutually agreeable.”
Police and courts will be unable to enforce
such a ruling.
❑
❑
❑
❑
❑
❑
❑
Address holidays and birthdays, in case they
do not fit into the regular visitation/exchange
schedule.
Include timed windows for exchanges and
consequences for a perpetrator’s lateness or
failure to appear.
Consider supervised visitation and/or exchange
through visitation center, intermediary not
involved in perpetuating the violence, or location away from abused party (especially when
parental abduction and/or safety of child is a
concern).
Start with short, time specific, supervised visits
to batterer, and increase time pending compliance; restrict overnight visitation.
Order no use of alcohol or drugs during or
prior to visitation.
Order that child’s passport be turned over to
non-abusive parent, that abusing parent post
bond and that child not be removed from the
jurisdiction.
When necessary have the order translated into
a parent’s primary language.
CUSTODY EVALUATIONS: Custody evaluations
must be performed by experts who have had
appropriate training in domestic violence and
who understand:
✓ How domestic violence affects adult and
child safety.
✓ How the perpetration of domestic violence
(not acts of self-defense) may reflect on
parental fitness.
✓ That domestic violence may encompass physical, sexual, or emotional abuse or threats of
abuse to the children.
✓ When it is appropriate to limit the perpetrator’s
access to the child(ren), based on the abuser’s
history and pattern of abuse.
The views expressed herein have not been approved by the House
of Delegates of the Board of Governors of the American Bar
Association and accordingly should not be construed as representing the policy of the ABA.
© 2008
Judicial Checklist
ACCESS TO THE COURTS
LEGAL ACCESS:
PARTIES & STANDING
Domestic violence is documented across all boundaries of
race, class, ethnicity, sexual orientation, national origin, physical ability and age. Mistaken
assumptions about who can
be a victim and who can be a
perpetrator can restrict access
to the courts by discouraging
certain victims from coming
forward. Consider the following potential victims of domestic
violence:
✓ Minors in dating relationships
✓ Elders abused by spouses, dating partners, adult children or
grandchildren, or caregivers
✓ Persons with disabilities
abused by intimate partners,
parents, siblings or caregivers
✓ Immigrants (with or without
legal status) and persons with
limited English proficiency
✓ Victims of human trafficking,
commercial sex trade, and
international “matchmaking”
agencies
✓ Lesbian, gay, bisexual and
transgendered persons
✓ Military personnel and/or
their intimate partners
PHYSICAL ACCESS: American
with Disabilities Act; state law
❑
Consult state and federal laws
to ensure compliance with
legal minimums for physical
access to the courts.
❑
Ensure courtroom is free of
architectural and communication barriers (e.g., signs,
alarms).
Provide auxiliary aids or services when they are necessary
to ensure effective communication (e.g., using a TTY or
relay service for litigants who
are Deaf or hard of hearing;
providing Braille documents or
reading documents to a blind
litigant).
❑ Ensure that service and companion animals are permitted
in facilities unless the animals
pose a direct threat to the
health or safety of others.
❑
❑
Ensure that persons with disabilities are not charged to
cover the costs of needed
accommodations, including
cost to hold hearings at acces-
28
sible locations. When the
respondent has means, order
that the costs of accommodation be paid by respondent.
LANGUAGE ACCESS: Title VI of
the Civil Rights Act; Americans
with Disabilities Act; state law
❑ Consult federal and state law
to ensure compliance with
legal requirements for language access to the courts.
❑ Utilize professional and/or
qualified interpreters. Know
how to qualify an interpreter
for legal proceedings. In no
case should a party’s child or
other family member interpret.
❑ Be aware that some language communities are very
small, and effective communication requires that the party
must be comfortable with the
interpreter chosen and satisfied that there are no potential conflicts of interest or
safety concerns.
❑ When the respondent has
means, order that the costs of
interpreters/translators be paid
by respondent.
GOALS OF JUDICIAL INTERVENTION
stop the violence • protect the abused party, children • protect family members, general public • hold
perpetrator accountable for violence through court sanctions and regular compliance reviews • restore
and validate victim • provide adequate security for all parties prior to, during and after court proceedings, including exclusion of weapons • stop emotional, financial, physical, immigration-related and other
forms of abuse used to control and coerce victims and children • provide restitution to abused party and
financial support (e.g., property division, child support, and maintenance of basic needs such as clothing and health insurance) • convey to the general public that domestic violence is a crime and “not just
a family matter” • break intergenerational cycle of violence • referrals to supportive, culturally competent
community-based services, such as victim services programs, counseling, employment, immigration or housing assistance • order structured visitation or custody arrangements to ensure stable, safe environment for
children with the non-abusing parent
American Bar Association Commission on Domestic Violence
29
NICS Protective Order Improvement Site Visit Summary
District and County Attorney Offices
Prosecutors’ offices usually handle ex-parte and permanent/2 year protective orders,
but a few do get involved with Magistrates Orders of Emergency Protection (MOEP). All
had extensive screening procedures and conducted conflicts checks. All had staff who
interviewed the applicants and gathered information regarding the incidents and
information necessary for TCIC data entry. TCIC data entry form was completed but
jurisdictions varied on when it occurred. Some did it at the time of application while
others did it once the order was issued. Attorneys made decisions regarding which
cases are accepted and represented applicants in court. Most prosecutors’ offices were
clear on the role of other participants and collaborated pretty well with other agencies.
x
x
Top challenges identified:
o Confusion among entering agencies regarding who should enter.
o Law enforcement agencies that will not accept the order for entry if
applicant’s address is undisclosed.
Top recommendations:
o Improve communication among participants
o Mandatory statewide forms
o Add fields in TCIC for types of Protective Order and duration
o Training of all participants
o Legislative suggestions
Mandatory entry of MOEPs
Entry based on applicant’s current OR last known address
Deadline for clerks to send order to law enforcement
Victims’ Advocacy and Legal Aid Groups
Victims’ advocacy and legal assistance organizations had many of the same types of
procedures as prosecutors’ offices. They also handled ex-parte and permanent
protective orders, but sometimes got involved with MOEPs. Staff completed intake and
other forms including those needed for TCIC data entry. Attorneys made decisions
regarding which cases are accepted and represented applicants in court. Most
organizations collaborated well with other agencies.
x
o Private attorneys unaware of the process and the importance of complete
and accurate TCIC forms.
30
x
o Unable to verify temporary ex parte orders
o Staff turnover in other agencies, especially law enforcement
o Creation of a portal (similar to child support portal) to enable victim,
attorney, and others to see what information has been sent and allow
easier portability.
o Same procedure for filing and entering TCIC information across the state.
o Uniform mandatory forms
o Training for all participants, including information on family violence
dynamics and importance of protective orders
o Clerk mandates
o Require filing of TCIC data sheet up front like the civil case information
sheet
o Require entry of ex parte orders after receive proof of service
District, County, and Court Clerks
District and County Clerks offices primarily handled ex-parte and permanent protective
orders, while a few did receive copies of MOEPs. Most offices prioritized the
processing of protective orders and ensured that they were processed before the end of
the business day. Many but not all time-stamped and tracked the order. Most sent the
orders to law enforcement via fax or email, but there was one large jurisdiction that
sends them via the United States Postal Service. Justice of the Peace, Municipal Court,
and designated Magistrate Court clerks sent MOEPs to the designated law enforcement
agencies, often by fax or email. Many offices required signed verifications of receipt. In
many of the smaller jurisdictions, the MOEP is handed over to law enforcement directly
from the judge.
x
x
o Private attorneys not completing TCIC forms, thus requiring extensive
follow-up.
o Incomplete TCIC forms
o Confusion regarding which jurisdiction should perform the TCIC data entry
Top recommendations
o Mandatory updated, statewide forms, including a checklist
o Weblink to OCA for tip sheets, forms, and other information
o TCIC data entry fields should include type and duration
o Standardized training
o Legislation
31
Change for entry of order to jurisdiction of applicant’s current OR
last known address
Mandatory entry of MOEPs
Deadline for clerks to send to law enforcement
o Get or confirm all TCIC information when the parties are in court
o Procedure to double-check data entry for typographical errors.

Judges
Ex-parte and permanent protective orders are primarily handled by civil district courts
and county-courts-at-law. MOEPs are generally issued from Justice of the Peace,
municipal, and designated magistrate courts. It appears that the most information is
given to the judges that hear ex-parte and permanent protective orders, since there is
extra information contained in the application. While many MOEPs are issued based on
written requests that include information necessary for TCIC data entry, many others
are not. Often the only information available to a magistrate is a probable cause
affidavit. Availability of information varies among the jurisdictions, and often within
them as well.
x
x
o Law enforcement does not understand the order, particularly MOEPs
o Inconsistencies regarding confidential location of applicant
o Handling extensions of order after violations or incarceration
o High turnover in law enforcement
o Statewide mandatory standard forms, including adoption by state bar for
private practitioners.
o Training on family violence dynamics, types of protective orders, and
information gathering for TCIC forms for all participants.
o Deadlines for clerks to forward the order and law enforcement to enter.
o Compliance mechanisms (ex. 90% CJIS requirement).
Law Enforcement:
Law enforcement agencies have various methods in which they receive orders
depending not only on the size of the jurisdiction but also on the other agencies from
which they receive the orders. They are at the mercy of whatever methods the
forwarding agencies choose to employ along with whatever procedures were followed in
the procurement of the information necessary for full and accurate entry into the TCIC
system. If the forms are complete, most agencies complete data entry within hours of
32
receipt. In addition, police agencies are taxed with the responsibility to research
whatever information is missing in order to accomplish timely data entry.
x
x
o Missing or incomplete data, or data sheet conflicts with information in the
protective order.
o Private attorneys sometimes neglect to get the order to the entering
agency
o No or insufficient communication with other jurisdictions
o Confusion regarding out of state orders (Who validates? Who modifies?)
o Often not receive TCIC forms
o Delayed receipt of POs from clerk’s office by mail
o Protective orders that are extended due to respondent’s incarcerationhow to notify entering agency of the extension?
o What agency enters the order if cannot determine address of applicant.
o Training on Brady indicator for data entry personnel
o Mandatory, uniform forms
o Training for all participants on:
Family violence dynamics
Protective orders (including plain meaning of “legalese”)
TCIC forms
Full faith and credit
o Deadline for clerks to forward to entering agency
o Require new TCIC data sheet to be completed and forwarded to entering
agency upon renewal of protective order
o Change legislation for entry of order to jurisdiction of applicant’s current
OR last known address
o Require TCIC form accompany order at time of filing
33
NICS Protective Order Improvement Survey Results Summary
Approximately 1,000 individuals started the survey and approximately 850 completed it.
Survey Respondents by Role
Justice of the Peace
County or District Clerk's Office
Emergency dispatch/communications
Law enforcement
Terminal Agency Coordinator (TAC)
Municipal Judge
Magistrate
District Judge
County or County Court at Law Judge
County or District Attorney's Office
City or JP Clerk
Non-profit attorney
Advocate
Private attorney
Other
City Prosecutor
Shelter staff
Note: Respondents were asked to select all that apply.
191
149
148
148
135
132
111
76
63
36
34
30
15
6
4
2
1
34
Do the key participants in your area work togther
to ensure complete protective order reporting?
31%
60%
9%
Yes
No
I don't know.
Do you communicate regularly with the key participants
to discuss protective order issues and processes?
45%
55%
Yes
No
In general, who completes the TCIC data entry form?
Law Enforcement
288
I don't know.
239
Emergency Dispatch/Communications
226
County/District Attorney
117
District/County Clerk's Office
93
JP
59
Protective Order Applicant (Victim)
47
Private Attorney
46
Terminal Agency Coordinator
44
Magistrate
41
JP or Municipal Clerk
39
Advocate
35
Non-profit Attorney
35
Municipal Judge
30
County and County Court at Law Judge
18
District Judge
18
Shelter Staff
13
City Prosecutor
2
Respondent
1
35
Does your jurisdiction have any challenges with processing
protective orders and completing the proper TCIC
reporting?
15%
48%
37%
Yes
No
I don't know.
Challenges
Examples of reported challenges:
 Jurisdictional issues affecting whose responsibility to enter data into system
 Entering EPO into Texas Only Database (TCIC) or into NCIC - When dispatch called for help they were told
it was the agency's discretion. Verification - One dispatcher enters another verifies... they don't see eye
to eye on how it should be entered. ***It would be nice if they would provide the Judge/Magistrate/clerk
a copy of the entry made into TCIC/NCIC to make sure all the information given was entered correctly.
 I do not know if all the stakeholders in these processes have ever sat down and discussed the process of
reporting, filing and coming to court. I find the whole process to compartmentalized and siloed by
individual systems that touch a protective order.
 Incomplete or inaccurate data entry sheets, missing addresses, missing dates of birth, missing drivers
license numbers, missing social security numbers, most missing information is on the protected persons.
Entries are required to have as much information in them as possible, including the minors. No standard
format for the language and layout of the orders. Makes it very hard to find expiration information,
property exchange dates/times, other pertinent information that needs to be in the miscellaneous field.
The differing language on the Protection Order Restrictions vs the NCIC/TCIC Protection Order Codes.
 There is very little information on the Data Entry form. Some coworkers have tried to communicate with
the courts to relay how vital this information is for the entry process but was passed around from court
to court and person to person so much that they have given up. We have to dig for information on parties
involved with the order. The process is long and tedious and requires so much time of the dispatchers.
 Sometime it gets confusing as to what jurisdiction entered the P.O. because the person may live in one
city, work in another, and children are in another. Plus it seems sometimes several days go by before we
receive the paper work and it's been in effect for a couple of days.
 Often courts provide incomplete or incorrect information, and we are left trying to compile correct data
and complete the TCIC entry. This is probably due to our local Justices of the Peace not following the
standard form provided by the state that lists the information needed for the protective order. There is
also a lack of sufficient training from TCIC on protective order entry. There are often issues related to the
36
interpretation of the protective order conditions, which can vary widely between officers, dispatchers,
courts, and attorneys. Some of the additional fields in the protective orders are not explained, and are
difficult to find out the appropriate information without doing a fair bit of research. Brady indicators are
one of these examples. You can find info on the Brady indicator online or by doing further research, but
the criteria for actually using that indicator cannot be found in the TCIC protective order materials (to my
knowledge).
 This is a problem currently being addressed. We have one judge who does not think that protective orders
need to be entered into the TCIC/NCIC system and refuses to provide the information necessary to
complete the entry form and/or to have her staff fill them out. Our Sheriff, along with our District Attorney,
is dealing with this issue.
 Communications has difficulty entering. No checks and balances between issuance and entry. Mandatory
information difficult to obtain and general lack of knowledge/training on whole process.
374 respondents indicated that they wanted information about protective order reporting training and
protective order record improvement planning.
37
PROTECTIVE ORDERS
Data Entry Form for
TEXAS CRIME INFORMATION CENTER (TCIC)
The intent of this form is to aid court clerks with the collecting and providing to local law enforcement agencies pertinent information
regarding protective orders for the purpose of entry into TCIC.
To be filled out by Criminal Justice/Law Enforcement Official:
ORI:
(check one) PROTECTIVE ORDER:
OCA:
EMERGENCY PROTECTIVE ORDER:
PROTECTIVE ORDER NO:
ISSUE DATE:
COURT IDENTIFIER:
DATE OF EXPIRATION:
DATE OF DISMISSAL:
*** RESPONDENT INFORMATION ***
Items in ALL UPPERCASE LETTERS must be answered to allow entry into TCIC.
NAME OF RESPONDENT: ______________________________________________________________
RACE: (circle one) Indian Asian Black White Unknown
Place of Birth: _________
Ethnicity: (circle one)
SEX: (circle one) M
Hispanic
Non-Hispanic
F
Unknown
CTZ: _________ DATE OF BIRTH: _______________ HEIGHT: __________ WEIGHT: ___________
Skin: (circle one) Albino Black Dark
Dk Brown Fair Light Lt Brown Medium Med Brown Olive Ruddy
EYE COLOR: (circle one)
Black Blue Brown Gray Green Hazel Maroon Pink Multi-Colored Unknown
HAIR COLOR: (circle one)
Black Blond Brown Gray Red White Sandy Bald Unknown
Sallow Yellow Unknown
Scars, Marks and/or Tattoos: (please describe in detail):______________________________________________________________________
______________________________________________________________________________________________________________________
Caution and Medical Conditions: (circle all that apply) 00 – Armed and Dangerous 05—Violent Tendencies 10—Martial Arts Expert
15—Explosive Expertise 20—Known to abuse drugs 25—Escape risk 30—Sexually violent predator 50—Heart condition
55—Alcoholic 60—Allergies 65—Epilepsy 70—Suicidal 80—Medication Required 85—Hemophiliac 90—Diabetic 01--Other
PROTECTION ORDER CONTIONS (PCO): (circle all that apply)
01—Respondent is restrained from assaulting, threatening, abusing, harassing, following, interfering with or stalking the protected person and/or
child of the protected person.
02—Respondent may not threaten a member of the protected person’s family/household.
03—The protected person is granted exclusive possession of the residence/household.
04—Respondent is required to stay away from the residence, property, school or place of employment of the protected person or other family or
household member.
05—Respondent is restrained from making any communication with the protected person including, but not limited to, personal, written, or phone
contact, or their employers, employees or fellow workers, or other whom the communication would be likely to cause annoyance or alarm.
06—Respondent is awarded temporary custody of the children named.
07—Respondent is prohibited from possessing and/or purchasing a firearm or other weapon.
08—See miscellaneous field for comments regards terms and conditions of the protection order.
09—The protected person is awarded temporary exclusive custody o the child(ren) named.
BRADY RECORD INDICATOR (BRD): N—Respondent is NOT disqualified Y—Respondent is disqualified U--Unknown
RELATIONSHIP TO PROTECTED PERSON: ____________________________________________________________________________
( PLEASE INCLUDE THE FOLLOWING NUMERIC IDENTIFIERS, IF AVAILABLE):
Texas I.D. No: ____________________
Misc I.D. No: _____________________________
Driver's License No: __________________________
Social Security No: _______________________
Driver's License State: ________________
Date of Expiration: ______________
Respondent’s Address:
STREET: _________________________________ CITY: ________________ STATE: _____ ZIP: __________ COUNTY: _____________
38
TCIC DATA ENTRY FORM FOR PROTECTIVE ORDERS
PAGE TWO
RESPONDENT’S NAME: __________________________________
Respondent’s Vehicle Information:
License Plate No: _________________
L.P. State: _______________ L.P. Year Of Expiration: __________ L.P. Type: _____________
Vehicle I.D. #: _______________________ Year: ________ Make: ____________ Model: ___________ Style: __________ Color: _______
*** PROTECTED PERSON INFORMATION ***
NAME OF PROTECTED PERSON: ____________________________________________________________
SEX: (circle one) M
RACE: (circle one) Indian Asian Black White Unknown
Non-Hispanic
DATE OF BIRTH: ________________________
Hispanic
F
Unknown
SOCIAL SECURITY NO. (PSN):_______________________________________
Street: _________________________________ City: ________________ State: _____ Zip: __________ COUNTY: ____________________
Protected Person Employment Information: (use additional pages if necessary)
Place of Employment Name: _____________________________________
Address: _____________________________________________
__________________________________ City: ______________________
State: _______________________ Zip: __________________
Place of Employment Name: _____________________________________
Address: _____________________________________________
_________________________________
City: ______________________
State: _______________________ Zip: __________________
*** PROTECTED CHILD INFORMATION ***
(Use additional pages if necessary)
Name of Protected Child: ___________________________________________________________________
Race: (circle one) Indian
Asian
Black White Unknown
Sex: (circle one)
Hispanic
Non-Hispanic
M
F
Unknown
Date of Birth: __________________ Child Care or School Facility Name: _______________________________________________________
Address: _________________________________________________ City: ___________________
State: __________ Zip: ___________
Asian
Black White Unknown
Sex: (circle one)
Hispanic
Non-Hispanic
M
F
Unknown
Address: _________________________________________________ City: ___________________
State: __________ Zip: ___________
Asian
Black White Unknown
Sex: (circle one)
Hispanic
Non-Hispanic
M
F
Unknown
Address: _________________________________________________ City: ___________________
State: __________ Zip: ___________
To be filled out by Criminal Justice/Law Enforcement Official:
SID #:
FBI #:
FPC:
TEXAS DEPARTMENT OF PUBLIC SAFETY (JANUARY 1996)
MNU:
REVISED: JUNE 2007
39
MAGISTRATE’S ORDER OF EMERGENCY PROTECTION (Art. 17.292, C.C.P.) (Page 1 of 4)
NO: _______________
STATE OF TEXAS
VS.
___________________
§
MAGISTRATE FOR
§
___________________
§
COUNTY, TEXAS
MAGISTRATE’S ORDER OF EMERGENCY PROTECTION
On this day, __________________________, hereinafter called the Defendant, appeared before the undersigned
Magistrate of the State of Texas, after arrest for an offense involving family violence or a Penal Code offense under Section
42.072 (Stalking), Section 22.011 (Sexual Assault), or Section 22.021 (Aggravated Sexual Assault).
After a post-arrest appearance as provided by Article 17.292(a), Code of Criminal Procedure, the Court:
(1) _____ Entered the following order for emergency protection as mandated by Article 17.292(b), Code of Criminal
Procedure, a matter of law because the arrest was for an offense that also involved serious bodily injury to the
victim or the use or exhibition of a deadly weapon during the commission of an assault;
(2) _____ Entered an order for emergency protection as allowed by Article 17.292(a), Code of Criminal Procedure, on
its own motion; at the request of the victim guardian of the victim a peace officer the attorney
representing of the State;
intended to protect ___________________________, hereinafter called the victim, and the following members of the
victim’s family or household, namely _________________________________, ______________________________,
and _____________________________________, including a child or children, namely: _________________________,
____________________________, and ________________________________.
IT IS HEREBY ORDERED that effective immediately and for the next _____ days (31-61 days, or up to 91 days for
assault with a deadly weapon) from the issuance of this Order, the Defendant, is prohibited from:
Committing family violence or an assault on the person(s) protected under this Order;
Committing an act in furtherance of an offense under Section 42.072, Penal Code (Stalking);
Communicating directly with a member of the family or household or with the person(s) protected under the Order in a
threatening or harassing manner;
Communicating a threat through any person to a member of the family or household or to the person(s) protected under
the Order;
Possessing a firearm; unless the person is 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.
Going to or within ____________ (distance) of:
1.
the residence of the victim herein located at
;
2.
the residence of a member of the family or household protected under this Order located at
.
3.
the place of employment of the victim herein located at
;
4.
the place of employment of a member of the family or household protected under this Order located at _____________
________________________________________________________________________________________________;
40
5.
the business of the victim herein located at ______________________________________________________________
________________________________________________________________________________________________;
6.
the business of a member of the family or household protected under this Order located at ________________________
________________________________________________________________________________________________;
7.
the residence of ______________________________, a child protected by this Order at _________________________
________________________________________________________________________________________________;
8.
the child care facility of _________________________, a child protected by this Order located at _________________
________________________________________________________________________________________________;
9.
the school of ____________________________, a child protected by this Order located at _______________________
________________________________________________________________________________________________.
CONFIDENTIALITY OF ADDRESSES:
Based on the facts presented, the Court further finds that for the safety of the person or persons protected under this Order,
the addresses and specific locations of the person or persons protected by the Order remain confidential and shall be
omitted from the Order.
IT IS FURTHER ORDERED that the conditions imposed in this Order shall prevail over any existing order granting
possession of or access to a child named herein for the duration of this Order.
IT IS FURTHER ORDERED that the Defendant be served with a copy of this Order by the Magistrate or the
Magistrate’s designee in person or electronically.
IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Order to:
1.
2.
3.
4.
the chief of police in the municipality where the member of the family or household or individual protected by this
Order resides;
the sheriff of the county where the member of the family or household or individual protected by this Order resides, if
any of these persons do not reside in a municipality;
the principal, director, or other person in charge of the school or child care facility attended by a person covered by
this Order and named herein; and
the victim.
IT IS FURTHER ORDERED that a law enforcement officer shall make a good faith effort to notify the victim, within
24 hours, that this Order has been issued by calling the victim’s residence and place of employment (if not present at
hearing).
(Check this box if the Defendant holds a Concealed Handgun License) IT IS FURTHER ORDERED that the license to
carry a concealed handgun issued under Subchapter H, Chapter 411, Government Code, held by the Defendant is
SUSPENDED for the duration of this Order. The Clerk is ORDERED to send a copy of this Order to the appropriate
division of the Department of Public Safety at its Austin headquarters (see below for address):
Editor’s Note: Only if the Defendant is a handgun licensee should copies of Orders of Emergency Protection suspending
concealed handgun license be faxed (512.424.7284) or mailed to the following:
Attention: Suspension/Revocation
Texas Department of Public Safety
Concealed Handgun Licensing Section #0235
Post Office Box 4143
Austin, TX 78765-4143
41
IT IS FURTHER ORDERED that this Order is effective upon issuance and shall remain in full force and effect until
midnight on ________________, 20___ (this date should be no less than 31 and up to 91 days from the date of issuance).
SIGNED, ENTERED, AND ISSUED at ________ o’clock _____ m. on this the _____ day of ____________________,
20___.
_____________________________
Printed Name:________________________
Magistrate
_____________________________________
___
Signature of Defendant acknowledging
receipt of copy of this Order (if served in
person)
Municipal Judge, City of _______________
_______________________ County, Texas
____________________________
Telephone
A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THIS 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 BY BOTH. AN ACT THAT RESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSE 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.
THE POSSESSION OF A FIREARM BY A PERSON, 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 THIS ORDER MAY BE PROSECUTED AS A
SEPARATE OFFENSE PUNISHABLE BY CONFINEMENT OR IMPRISONMENT.
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.
WARNINGS UNDER FEDERAL LAW
THIS ORDER IS ENFORCEABLE IN ALL 50 STATES, THE DISTRICT OF COLUMBIA, TRIBAL LANDS, AND U.S.
TERRITORIES. 18 U.S.C., SECTION 2265.
INTERSTATE VIOLATION OF THIS ORDER MAY SUBJECT THE RESPONDENT TO FEDERAL CRIMINAL
PENALTIES. 18 U.S.C., SECTIONS 2261, 2262.
POSSESSION, TRANSPORTATION, OR RECEIPT OF A FIREARM WHILE THIS ORDER REMAINS IN EFFECT MAY
BE A FELONY UNDER FEDERAL LAW PUNISHABLE BY UP TO 10 YEARS IN PRISON AND/OR A FINE.
IT IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A FIREARM OR
AMMUNITION.
DEFINITIONS
The term “family violence” as defined by Section 71.004, Family Code, 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;
The term “family” as defined by Section 71.003, Family Code, 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. Two individuals are related to each other by consanguinity if one is a
descendent of the other, or they share a common ancestor. An adopted child is considered to be a child of the adoptive
42
parent for this purpose. 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. The ending of a marriage by divorce
or the death of a spouse ends relationships by affinity unless a child of that marriage is living.
The term “household” as defined by Section 71.005, Family Code, means a unit composed of persons living together in
the same dwelling, without regard to whether they are related to each other.
The term “member of a household” as defined by Section 71.006, Family Code, includes a person who previously lived in
a household.
(2) “Abuse,” as that term is defined by Sections 261.001(1)(C), (E), and (G), Family Code, by a member of a family or
household toward a child of the family or household;
(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, guardian, or managing or possessory conservator that does not
expose the child to a substantial risk of harm;”
(E) “Sexual conduct harmful to a child’s mental, emotional, or physical welfare, including conduct that constitutes
the offense of continuous sexual abuse of a 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
(G) “Compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code;”
The term “child” or “minor” as defined by Section 101.003, Family Code, means a person under 18 years of age who has
not been married or who has not had the disabilities of minority removed for general purposes.
(3) “Dating violence,” as that term is defined by Section 71.0021, Family Code, which means “an act by an individual that is
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.”
“Dating relationship,” as defined by Section 71.0021(b) and (c), Family Code, 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: (1) the length of the relationship; (2) the nature of the
relationship; and (3) 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.”
The term “firearm” has the meaning assigned by Chapter 46, Penal Code.
A person commits the offense of stalking if, he or she on more than one occasion and pursuant to the same scheme or course
of conduct that is directed specifically at another person, knowingly engages in conduct, including following the other person,
that (1) the actor knows or reasonably believes the other person will regard as threatening (a) bodily injury or death for the
other person; (b) bodily injury or death for a member of the other person’s family or household; or (c) that an offense will be
committed against the other person’s property; (2) causes the other person or a member of the other person’s family or
household to be placed in fear of bodily injury or death or fear that an offense will be committed against the other person’s
property; or (3) would cause a reasonable person to fear the same. Section 42.072, Penal Code.
43
MAGISTRATE’S RECORD OF SERVICE OF ORDER OF PROTECTION (Art. 17.292(j), C.C.P.)
NO: _______________
STATE OF TEXAS
VS.
___________________
§
MAGISTRATE FOR
§
___________________
§
COUNTY, TEXAS
MAGISTRATE’S RECORD OF SERVICE OF ORDER OF PROTECTION
I, the undersigned Magistrate of the State of Texas, certify that a complete copy of the Magistrate’s Order of Emergency
Protection, issued on ______________________, 20___, was served on ____________________________________, Defendant,
by: (CHECK ONE)
The undersigned Magistrate of the State of Texas in person
The undersigned Magistrate of the State of Texas electronically
The undersigned Magistrate’s designee, ________________________________, in person
The undersigned Magistrate’s designee, ________________________________, electronically
On __________________________, 20___.
SIGNED,
Printed Name: ________________________
Magistrate
Municipal Judge, City of _______________
_______________________ County, Texas
Editor’s Note: The 83rd Legislature amended Article 17.292(j), C.C.P. by removing the requirement that an
order of emergency protection be served on the defendant in open court, and instead requiring that the order
be served on the defendant by the magistrate or the magistrate’s designee in person or electronically. As
amended, Art. 17.292(j) also requires the magistrate to make a separate record of such service in written or
44
CLERK’S LETTER: COPY OF MAGISTRATE’S ORDER OF EMERGENCY PROTECTION (Art. 17.292(h), C.C.P.)
Dear ___________________________:
Enclosed is a copy of a Magistrate’s Order of Emergency Protection entered by Judge ________________________________
on ________________________________________, 20__.
You are a person protected by this Order. Please read this Order carefully because it restrains ____________________ from
committing threats or acts of violence against you. The terms of the Order may contain other important restrictions as well. The
Order is in effect for _________ days after it was signed.
A copy of this Order is on file with this Court and with the (Sheriff of ___________________________County) (Chief of
Police of __________________________________). However, we suggest you keep this copy of the Order in a safe place. If the
person restrained by this Order should violate the Order in any way, it is important that you call the (Sheriff) (Police) at
(telephone number).
This is a Court Order. No one, including yourself, can give permission to anyone to ignore or violate any provision of the
enclosed Order.
Sincerely,
______________________________
(Deputy) Clerk
________________ Municipal Court
45
MOTION TO MODIFY MAGISTRATE’S ORDER OF EMERGENCY PROTECTION (Art. 17.292(j), C.C.P.)
NO: _______________
STATE OF TEXAS
VS.
___________________
§
MAGISTRATE FOR
§
___________________
§
COUNTY, TEXAS
MOTION TO MODIFY MAGISTRATE’S ORDER OF EMERGENCY PROTECTION
I,
, the undersigned Respondent or Protected Person, hereby move to modify the Magistrate’s Order of
Emergency Protection (MOEP) issued on
, 20___ by Judge
. In support of this
motion, I submit the following facts:
1. The following changes have occurred since issuance of the MOEP:
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
2. The MOEP, as originally issued, is unworkable because:
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
3. The requested modification will not place the victim of the offense at greater risk than did the MOEP because:
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
4. The requested modification will not, in any way, endanger a person protected under the MOEP because:
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
5. The following additional information is provided in support of this motion:
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
Respectfully submitted,
Signature
46
ORDER MODIFYING MAGISTRATE’S ORDER OF EMERGENCY PROTECTION (Art. 17.292(j), C.C.P.)
NO: _______________
STATE OF TEXAS
VS.
___________________
§
MAGISTRATE FOR
§
___________________
§
COUNTY, TEXAS
ORDER MODIFYING MAGISTRATE’S ORDER OF EMERGENCY PROTECTION
On this the ___ day of __________________, 20__, came to be heard at the request of the, ___________________, to
modify the Magistrate’s Order of Emergency Protection entered on ________________ , 20__, issued by a judge of this Court in
his or her capacity as a magistrate for the protection of ________________________, an alleged victim.
Said ORDER was issued:
On the Magistrate’s own motion;
At the request of the alleged victim of the offense;
At the request of the guardian of the alleged victim;
At the request of a peace officer;
At the request of an attorney representing the State.
Having provided NOTICE to each affected party and conducted a hearing, the Court FINDS:
1. The order as originally issued is unworkable;
2. The modification will not place the victim of the offense at greater risk than did the original Order; and
3. The modification will not in any way endanger a person protected under the Order.
The Court hereby MODIFIES AS FOLLOWS:
1. The above-named Defendant may return to the:

Alleged victim’s residence located at:

Alleged victim’s place of employment or business located at:
The residence, childcare facility, or school located at:
2. Other modification(s):
UNLESS EXPRESSLY STATED IN THIS ORDER, ALL OTHER TERMS OF THE MAGISTRATES’S ORDER OF
EMERGENCY PROTECTION ARE STILL IN FULL FORCE AND EFFECT.
ENTERED this ___ day of __________________, 20__.
_________________________________
Magistrate
Municipal Judge, City of _____________
_____________________ County, Texas
47
JUDICIAL RESPONSES THAT
EMPOWER SURVIVORS
Judicial Responses
that Empower Survivors
PRIORITIZING
PRIORITIZING MAKING THE
WOMEN’S
WOMEN’S SAFETY
SAFETY COURT HOSPITABLE
Asking about women’s fears TO ABUSED WOMEN
•• asking
Providing aa separate
separate
asking about
about weapons
weapons Providing
• confiscating weapons restraining order office
•• training
informing women
women of
of their
their
training court
court personnel
personnel •• informing
options
•
providing
battering • making a safe legal
onon
battering
legal options • providing
ADDRESSING
SUPPORTIVE
space
translators making
making the
the
space for
for women
women to
to translators
THE ECONOMIC
JUDICIAL
building
handicap
wait
for
hearings
wait for hearings building handicap
ASPECTS OF
DEMEANOR
DEMEANOR
accessible
accessible
BATTERING
Listening
Listening to
to abused
abused women
women
Asking whether women need child
•• asking
asking questions
questions •• looking
looking
support •• connecting
connecting women
women with
with
women
support
women in
in the
the eye
eye •• recognizing
recognizing
JUDICIAL
JUDICIAL
community resources
resources around
around
the complexity of women’s
community
RESPONSES
RESPONSES
housing and financial assistance
circumstances
circumstances and
and choices
choices
THAT
THAT
EMPOWER
EMPOWER
CONNECTING WOMEN
IMPOSING
IMPOSING SANCTIONS
SANCTIONS ON
ON
BATTERED
BATTERED
WITH RESOURCES
VIOLENT MEN
WOMEN
WOMEN
Providing
advocates for
or
Imposing
Providing advocates
or
Imposing sanctions
sanctions for
for violating
violating
battered
women
•
developing
court
battered women • developing
court orders
orders •• refusing
refusing to
to joke
joke
relationships with
with shelters,
shelters,
and
relationships
and bond
bond with
with violent
violent men
men
FOCUSING
TAKING
FOCUSING
batterer’s
programs,
and
•• correcting
correcting institutional
institutional
ON
THE
NEEDS
THE
VIOLENCE
community
services
bias
community services
bias toward
toward men
men
OF CHILDREN
CHILDREN
SERIOUSLY
OF
Demonstrating
Communicating
Demonstrating
Communicating
concern
for the
the safety
safety
through
concern for
through words
words and
and
of children
children •• making
making space
space
actions
of
actions that
that the
the court
court
in the
the courthouse
courthouse for
for
will
in
will not
not tolerate
tolerate battering
battering
children •• recognizing
recognizing the
the
•• encouraging
children
encouraging women
women to
to
effects of battering
return
return to
to the
the court
court if
if
on children
children
they
on
they need
need to
to
Texas Council on Family Violence
P.O. Box 181610 • Austin, Texas 78716
512/794-1133 • Fax: 512/685-6396
www.tcfv.org
P.O. Box 181610 • Austin, Texas 78716
512/794-1133 • Fax: 512/685-6396
From Battered Women in the Courtroom: The Power of Judicial Responses by James Ptacek. Copyright 1999 bywww.tcfv.org
James
Ptacek. Reprinted with the permission of Northeastern University Press.
Texas Council on Family Violence
From Battered Women in the Courtroom: The Power of Judicial Responses by James Ptacek. Copyright 1999 by James
Ptacek. Reprinted with the permission of Northeastern University Press.
48
Resources
Texas Council on Family Violence: www.tcfv.org
•
•
Domestic Violence Service Directory
Honoring Texas Victims
National Domestic Violence Hotline: www. ndvh.org
•
(800) 799-SAFE (7233)
Office on Violence Against Women of U.S. Dept of Justice: www.ojp.usdoj.gov/vawo/
Family Justice Center Alliance: www.familyjusticecenter.org
National Center for Domestic and Sexual Violence: www.ncdsv.org
Carsey Institute, University of New Hampshire, 2011
•
http://www.carseyinstitute.unh.edu/publications/IB-Logan-Civil-ProtectiveOrder.pdf
Office of Court Administration Domestic Violence Resource Program
•
•
http://www.txcourts.gov/dvrp/domestic-violence-resource-program.aspx
o Webinars
http://www.txcourts.gov/publications-training/training-materials/domesticviolence-information.aspx
o Protective Order Resource Attorney
o Texas Family Violence Benchbook
o Texas Court Remote Interpreter Service
o DPS Protective Order Data Entry Form
o Supreme Court Protective Order Kit
o Protective Order Warnings (Spanish language translation with audio)
Texas Municipal Courts Education Center
•
•
http://www.tmcec.com/resources/books/bench_book/
http://www.tmcec.com/resources/books/forms_book/
CHOICES IN THE LEGAL SYSTEM FOR VICTIMS OF CRIME
Peace Bond
A Magistrate, including a Justice of the
Peace, issues these.
A peace bond is a court order designed
to keep the peace by protecting a
person or property from someone who
has threatened to commit an offense
against a person or property.
Police are not notified.
A Bond is set to guarantee good
behavior. The money is forfeited to
the State if the threat is carried out.
Threats that are not deemed serious
are:

Making a rash statement about a
third person during a quarrel or
bragging about not being afraid of
someone.

Abusive language and bragging by
a drunk.

A rash threat resulting from an
outburst of temper in the heat of
passion.

Making a rash statement
provoked by an angry altercation.
There needs to be some evidence that
a threat will be carried out.
This is a piece of paper, it will not
physically protect you from harm.
Restraining Order
Protective Order
Emergency Protection
Order
Justice of the Peace does not issue.
State’s Prosecutor can file.
Private attorney can file.
State’s Prosecutor cannot file.
Person can file on his/her own if they
know the process.
Private attorney can file.
Police are not notified.
An application is filed in District Court.
An application is filed in District Court,
often filed in divorce proceedings.
Restraining Orders generally act to
protect you from being harassed by
telephone calls, having your bank
account emptied, having your credit
card cancelled, and other similar
activities.
Temporary Order can be in effect for 14
days prior to hearing.
Can be requested by the victim, the
victim’s guardian, a police officer, a
prosecutor, or by the Magistrate on
their own.
Can prevent a person from accessing
the victim’s home.
The Defendant is given a copy of the
Order by the Magistrate.
Final Order lasts for up to two years
after date it is issued.
Police are notified.
Temporary Restraining Orders can be
in effect for 14 days before the
hearing.
Respondent given copy of Order at end
of hearing or if not at Court by certified
mail.
Last until the Court changes it (usually
until the divorce is final).
Police are notified when the final
Order is granted.
Called a PERMANENT INJUCTION after
the Order is final.
Punishment is Class A Misdemeanor or
State Jail Felony, if respondent has
been convicted 2 times for violation.
Punishment is Contempt of Court (up
to $500 fine and/or 6 months in jail).
It is a means of keeping someone
away (it cannot evict someone from
their home, divide property, or deal
with custody of children).
Can be obtained against anyone,
including neighbors and co-workers,
not limited to family members.
Person can file his/her own if they
know the process.
Issued by a Magistrate at the initial
appearance in front of a Judge when a
person is in custody after an arrest for
family violence, stalking or dating
violence.
Lasts up to 91 days from the date it is
issued.
Punishment is Class A Misdemeanor or
State Jail Felony.
A Protective Order is intended to
prevent family violence by a member of
a family household. Protective Orders
can prohibit a person from going to or
near the victim’s residence, work,
school, or daycare facility.
A Protective Order is intended to
prevent family violence by a member of
a family household. Protective Orders
can prohibit a person from going to or
near the victim’s residence, work,
school, or daycare facility.
Only against family members -intimate
partners.
**The information contained herein is not exhaustive and is not intended to be legal advice**
49