Family Law

TERMINOLOGY
The first thing the reader has to know is that in Texas, the term “restraining order” is a generic term. That means, it is not a legal term, and does not pertain to any actual legal mechanism or pleading in Texas. The term “restraining order” is applied informally to any of the four mechanisms that restrains a person from coming near someone, their family, their employment, and/or other areas/individuals depending on the situation.

Restraining orders in Texas come in four types They are: (1) Peace Bond, (2) Protective Order, and, (3) Magistrate’s Order for Emergency Protection, and, (4) Temporary Restraining Order & Injunction. Each of these aforementioned restraining orders are different in their filing procedures, which court hears the request, who qualifies for them, and how long they last. The applicant for a restraining order has to figure out which type of restraining order under Texas law they qualify for and the situation calls for. This article discusses only the Peace Bond and Protective Order, as they are the two primary mechanisms for civil restraining orders.

(A quick note – this article uses the male term “he” when referring to an individual. This is done for simplicity’s sake.)

PEACE BOND
The first restraining order type is the Peace Bond. A Peace Bond is a court order designed to keep the peace (hence its name) by protecting a person or property from someone who has threatened to harm that person or property.

First, the nomenclature must be explained. While no standard name exists for the party making the accusation in a Peace Bond, he may be called the “accusing party,” the “complaining party,” the “plaintiff,” or the “applicant.” In this article, this individual is referred to as the Applicant.

The party against whom the allegations are made is formally called the Accused, although often the term “Defendant” is primarily used. In this article, this individual is referred to as the Accused.

Finally, actual pleading which asks the Court for the Peace Bond is formally called the “complaint.” It may be also be called a “petition,” “peace bond form,” or, “application.” In this article, this pleading is referred to as the Complaint.

The standard under Texas law is that the threat has to be serious and reflect imminent or future harm. In re Jones, 55 S.W.3d 243, 247‐249 (Tex. Spec. Ct. Rev. 2000); Ex parte McCain, 153 Tex. Crim. 517, 519, 221  S.W.2d 781, 782 (Tex. Crim. App. 1949). The Applicant does not have to have a relationship with the Accused to request a Peace Bond – this person can be a friend, a coworker, or a stranger.

The Peace Bond can be requested by filing a Complaint at one’s nearest Justice of the Peace Court, which is the Texas version of a small claims court. The Applicant can simply walk into his nearest Justice of the Peace to apply. It does not cost anything to file a Peace Bond. The Complaint for a Peace Bond is normally provided by at the clerk’s window of the Justice of the Peace Court upon request. Within the Complaint, the Applicant will be asked to write out specifically as to what happened and why he feels threatened. Most of the time, the Complaint will need to be notarized – a process the Applicant may be able to do at the Justice of the Peace Court’s clerk window (if that is not available, then the Complaint can be notarized elsewhere and then quickly brought back to the Justice of the Peace Court for filing).

Once the Complaint is filed, the Judge – called a “Magistrate” – will review it within hours or about a day. This review is normally done without the Magistrate even talking to the Applicant. If the Magistrate is satisfied that there is a genuine risk to the Applicant, the Justice of the Peace Court shall then issue an “arrest warrant” for the Accused. Texas Code of Criminal Procedure Art. 7.01.

The term “arrest warrant” here is misleading, however. The Accused is not going to be arrested. The “arrest warrant” in this case means a summons to come to Court, which is delivered unto the Accused by a constable, mandating that the Accused come to court on a certain date and time (within a few business days, normally). This will be the first of two hearing dates. The Applicant does not have to appear at this first hearing.

At the first hearing date, the Magistrate will advise the Accused of the allegations made against him, the possible penalties involved, and, his right to counsel. It is important to note here that while the Accused has a right to retain his own attorney, he does not have a right to demand an attorney appointed to him for free. AG Opinion JM – 977 (1988). The Magistrate will then normally set an “appearance bond,” meaning a small bond to ensure that the Accused will appear at the second hearing which is normally set about ten business days out from the first.

At this second (and final) setting, the Applicant and the Accused plead their full, respective cases to the Magistrate by presenting testimony and evidence. Witnesses are allowed. The hearing is before the Magistrate – a jury trial is not allowed for a Peace Bond. Ex parte Johnson, 391 S.W.2d 407 (Tex. Crim. App. 1965). Either party can use an attorney. While the local county’s District Attorney has the ability to send a lawyer to help the Applicant, majority of Texas counties do not provide this service.

If at this final hearing the Magistrate finds that the threat is valid, then the Court may order that the Accused pay a Peace Bond conditioned on that the Accused “will not commit such offense, and that he will keep the peace toward the person threatened or about to be injured, and toward all others named in the bond.” Texas Code of Criminal Procedure Art. 7.03. The Peace Bond can last up to one year. The amount of the bond is calculated by the Magistrate based on the Court’s discretion, and normally takes into consideration the nature of the accusation, the overall situation, and, the financial ability of the Accused. Texas Code of Criminal Procedure Art. 7.06.

If the Accused fails to give the required bond, they can be jailed for a year. Texas Code of Criminal Procedure Art. 7.08. If the Accused violates the Peace Bond, they risk losing the bond, being fined an additional $100, and being jailed for up to three days. Texas Code of Criminal Procedure Art. 7.18, Texas Government Code §21.002. (A quirk of the system here is that if the Accused fails to pay the bond, he can be jailed up to one year. But, if the Accused pays the bond and then later violates it, he can be fined up to $100 and jailed for only up to three days.)

Finally, in situations where the Magistrate feels that the Application was brought without merit, the Court may deny the Peace Bond. In addition, if the Court finds that the Applicant acted frivolously, the Court may order the Applicant to pay for the proceeding. Texas Code of Criminal Procedure Art. 7.10.

After the decision is made, there is no statutory right of appeal. This means, no specific mechanism is outlined in the Texas Code of Criminal Procedure or any other Texas statutory code to allow for a formal appeal of the Magistrate’s decision. However, the Accused can still appeal by filing a Writ of Habeas Corpus in the County or District Court, to have that court review the Magistrate’s decision. Ex parte Salamy, 147 S.W.2d 487 (Tex. Crim. App. 1941); Ex parte Wilkinson, 278 S.W. 426 (Tex. Crim. App. 1925). This Writ of Habeas Coprus serves as a de facto appeal for the Magistrate’s decision.

PROTECTIVE ORDER
A Protective Order may be filed by a party against a romantic partner or a family member. Texas Family Code §82.002.

As with the Peace Bond, the nomenclature must first be cleared up. The party filing the request for a protective order is formally called the Applicant, but may also commonly be called the Petitioner. In this article, this individual is referred to as the Applicant. The party against whom the allegations are made is formally called the Respondent, but may also be informally referred to as a “Defendant.” In this article, this individual is referred to as the Respondent.

The actual pleading which asks the Court for a Protective Order is formally called an “Application for Protective Order,” but may often be called a “complaint,” “application,” “petition,” or, “request.” In this article, it is referred to as the Application.

The standard for a Protective Order is “if the court finds that family violence has occurred and is likely to occur in the future.” Texas Family Code §81.001. “Family violence” is defined as (a) violence by one person in a household against another, or, (b) abuse by one person in a household against a child living in that household, or, (c) dating violence. Texas Family Code §71.0021, 71.004; Dukes v. States, 239 SW3d 444, 449 (Tex.App. – Dallas 2007, pet. ref’d).

An Application can be filed in the District Court of the county where the Applicant or the Respondent resides, or, where the violence occurred. Texas Family Code §82.004. For practical purposes, it is usually easier to apply in the county where the Applicant lives.

The Application can be filed without an attorney, but an attorney is strongly recommended. This is because unlike a Peace Bond which is filed in a Justice of the Peace Court, the Protective Order application is filed in District Court, which is a court of record. This means that the procedure is more nuanced, the rules of evidence apply, a record of the proceedings will be taken, and, that the stakes of the outcome are greater. In many Texas counties, the local district attorney will help the Applicant file the Application and will provide counsel free of charge for the hearing, but it depends on the county.

Much like the Peace Bond, the Application for a Protective Order requires a notarized affidavit stating the allegations. Texas Family Code §§ 82.009, 83.001(a). Once the Application is filed, the first step is the ex-parte order. This ex-parte order is an order which may granted immediately by the Court upon review of the Application without a hearing, if the Judge finds that there is a likely chance that family violence has occurred or will occur. The ex-parte order normally prohibits the Respondent from committing family violence, prohibits direct communication with the Applicant, prohibits from going near employment or school of the Applicant, prohibits possession of firearm, and a slew of other nuanced items aimed to minimize the chances of violence. Texas Family Code §83.001 gives the Judge powers to issue whatever order it deems fit in these situations, although the list has generally become standardized through legal practice. One important note here is that the Court can only order the Respondent to leave if the Respondent (1) lived on the property with the Applicant or has resided there for at least 30 days prior to the App being filed, (2) the family violence occurred within 30 days of the application, and, (3) there is a clear and present danger that the Respondent will commit family violence again. Texas Family Code§83.006(a)(1), (b).

The Court may or may not grant the ex-parte order when it looks over the Application, although the Court normally likes to err on the side of caution and grant the ex parte order. Once that decision is made, the Respondent is served with an Order to Show Cause, which is a formal notice of a second hearing where the Respondent must appear. At that second (and final) hearing, The Court will then decide if the relief sought by the Applicant should be granted (and if the ex-parte order was granted, if all or parts of the ex-parte order should be made into a final protective order). Tex.Sup.Ct. Order, Misc. Docket No. 12-90078.

The date for the Order to Show Cause is normally set no later than 14 days, but if the Respondent is not served in time or shows and requests a continuance, the Court may extend the hearing date (and the ex-parte order, if one has been granted) at its discretion. Texas Family Code §§84.001(a), 83.002(b).

At the aforementioned second (and final) hearing of the Application for Protective Order, the Court will hear evidence from both the Applicant and the Respondent in the form of evidence and testimony. Witnesses are allowed. A jury is not allowed in a Protective Order hearing, so it will be a hearing before the Judge. Roper v. Joliffe, 492 S.W3d 624, 636 (Tex.App. – Dallas 2015, pet. denied). As mentioned before, unlike a Peace Bond hearing, the procedures for the hearing are generally more nuanced and formal and follow Texas rules for civil procedure and evidence.

After the hearing, the Court has to decide whether or not the Respondent has committed family violence and is likely to commit family violence in the future. Texas Family Code §§88.001, 85.001(b)(1). If the Court decides that the Respondent has committed family violence and is likely to commit family violence in the future, the Protective Order will be granted. Typically, the order is for no more than two years, but can be for more than two years if the Court finds one of the following exists: (a) family-violence felony, (b) serious bodily injury, or, (c) that the Respondent was subject to two or more protective orders in the past against the Applicant.

A noted item with a granted Protective Order is that it allows the Court to order that the Respondent pay all the court costs, legal fees, and other expenses associated with the filing of the Protective Order. This can be extremely punishing against a Respondent, who can often be burdened with a judgment close to or over $1,000 in such cases.

Unlike a Peace Bond, a party has a way to modify a granted Protective Order. The first method is a Motion to Modify. Grounds for modifying a Protective Order are to include or exclude certain items in the order, or, to modify the address or telephone number listed in the order. In re S.S., 217 S.W.3d 685, 686 (Tex. App. – Eastland 2007, no pet.) There are also statutory provisions to extend the order past two years if a Respondent is incarcerated.

A Respondent who violates a Protective Order is subject to both civil and criminal penalties and limitations, including but not limited to: grounds for objecting to mediation in an ongoing family case, removing the 60 day period required in a divorce, suspension of firearm rights, helps to prove a divorce fault of cruelty, grounds for withdraw from a signed Mediated Settlement Agreement, grounds for spousal maintenance, rebuttable presumptions of limitations in a visitation and conservatorship in a custody matter, and, can lead to deportation if the Respondent is not a U.S. Citizen.

Finally, there are two more types of restraining orders: a TEMPORARY RESTRAINING ORDER & INJUNCTION, and, a MAGISTRATE’S ORDER FOR EMERGENCY PROTECTION. The Temporary Restraining Order & Injunction is a restraining order which is used within an ongoing civil or family case. In other words, it is not a “stand alone” restraining order – it is always tied to a live case. It will be discussed in a later article. The other type of restraining order is the Magistrate’s Order for Emergency Protection, which is typically done by a criminal court in conjunction with an arrest, and it too will be discussed in a later article.

DEFENSES
A granting of a Peace Bond or a Protective Order can have a serious effect on an ongoing family case, since a granted restraining order essentially means that a Court found that there an individual committed violence. Unfortunately, in many custody battles, a parent will often try to use Protective Orders as a way to get leverage against the other parent. Similarly, some people will file a Peace Bond or a Protective Order out of maliciousness, or, in an attempt at exertion for money or something else.

Defenses to a Peace Bond and Protective Order are limited, and essentially are either (a) the allegations are made up, or, (b) the Accused/Respondent acted in warranted self-defense. In such cases, the Court has the ultimate discretion to decide whether or not these defenses are valid. Unfortunately, the reality is that the party who is accused often finds himself in a “guilty until proven innocent” scenario in these kinds of situations, because the Court will normally presume that the party making the allegations is truthful, unless convinced otherwise.