Family Violence: Legal Choices for Victims of Domestic Violence

No one has a legal right to abuse another. Husbands do not have the right to abuse their wives. Men and women do not have the right to abuse their partners or significant others. Parents do not have the right to abuse their children. In fact, it is the right of everyone to be protected from abuse.

What is abuse? Abuse is causing physical injury, bodily injury, assault or sexual assault, attempting to cause such an injury, or seriously threatening to inflict such an injury. Although weapons sometimes are used, they are not necessary to abuse another person. Human hands or feet are often used to blacken an eye, break a rib, or worse.

We expect our laws and law enforcement agencies to protect us as much as possible from all crimes. For the crimes occurring in our homes at the hands of those with whom we live, however, it is essential that each person learn what he or she can do to prevent, escape, or stop abuse. When we need it most, the law may be too little and too late.

• Plan for Tomorrow
  Protecting Yourself, Important Papers and Possessions, Evidence of Violence, How to Find a Lawyer, Counseling Services
• The Law
  The Police, People Who Are Not U.S. Citizens, Stalking
• Texas Family Violence Prevention Act
  Warrantless Arrest, Mandatory Arrest Law, Protective Order, Do You Need an Attorney, How To Get A Protective Order, Application Fee and Court Costs, Ex Parte Temporary Protective Order, Permanent Protective Order, Can the Abuser Go to Jail for Violating a Protective Order? Peace Bonds, Mental Health Commitment, Civil Lawsuit
• Definitions
  Assault, Bodily Injury, Child Abuse, Abuse of Elderly Persons and Disabled Adults, Family, Family Violence, Household, Misdemeanor

Plan for Tomorrow

Protecting Yourself
Whether you are thinking about leaving, have decided to leave, or already have left an abusive environment, a qualified counselor will help you understand your options. A good counselor will never advise you to return to a situation that you see as immediately life threatening.

Think about your options for an extended stay away from home if you have to leave. Do you have friends or relatives who will give you shelter? Can you visit, phone, or write to explain your situation to them so they will understand if you suddenly arrive? Do not let embarrassment stop you from considering this option. Remember, this may involve your life and the lives of your children. Do not underestimate those who care about you.

Start to put aside an emergency cash fund in an account the abuser does not know about. If you are unable to save money and need emergency cash, you can sell or pawn your jewelry, silver, or other property the abuser would not miss to get emergency cash. You may be able to borrow funds from an employer, your family, or a bank for this purpose.

Choose a friend who can keep some clothes for you and your children. Give the friend a set of keys to your house and car. If you cannot find someone to keep these things, rent a locker at a bus station or airport and keep them there.

Important Papers and Possessions
Important papers such as birth certificates, work permits, immunization records, and passports should be kept available. If it would arouse suspicion to remove these papers from your household, make copies of them. Libraries and post offices have copy machines. If you have a Protective Order, keep an extra copy in a place the abuser does not know about.

Take or copy income tax returns; deeds or leases to residences; statements from savings or checking accounts for the last year; car registrations and titles; stocks, bonds, and mutual fund certificates; paid or outstanding loan statements or contracts; and any other papers or documents showing ownership rights to money or property.

Copy everything you can get your hands on and leave it with someone who will not turn it over to the abuser. This information will be helpful to your lawyer if you have to go to court.

If you leave, take the children with you if at all possible. This could be important if there is a custody dispute. Do not let the abuser visit or take the children. This is important until such time as there are legal orders giving you custody. Keep your children physically with you and pursue legal action as soon as possible to get court orders to legally protect your custody rights.

Evidence of Violence

What to Do to Prove Your Case
You need to think about building a provable case if you have to go to court. A lawyer proves a case by showing evidence and questioning witnesses. You should keep evidence such as bills or other documentation of medical treatment you have had resulting from abuse. You should keep torn or bloody clothing and objects or weapons used against you. Also, you should keep copies of any police reports concerning prior incidents of violence.

Photographs
If possible, you should have color photographs of yourself taken by a friend, neighbor, or shelter worker at the time you are bruised or wounded by abuse. Put the dates the pictures were taken on the back with the signature of the person who took them. All these things should be kept where the abuser cannot get to them.

Witnesses
Anytime you discuss your situation with friends, relatives, police, social workers, doctors, nurses, or counselors, be sure to have their correct names, when and where you talked to them, and where they can be reached to confirm that you talked with them. The more people you talk with, the better your case will be, especially if those you talked with will be regarded as objective in court. It may be embarrassing at first, but winning your case in court-if it comes to that-will be worth it.

How to Find a Lawyer
There are several ways to find a lawyer. Friends or family members may be able to recommend a lawyer. Social workers, counselors, and local bar associations will give names of lawyers who specialize in family law. The shelter centers listed on the Blue Pages of this booklet recommend lawyers. The statewide Lawyer Referral Service makes referrals to lawyers who specialize in family law and to agencies providing legal services for those who cannot afford lawyers. The toll free number is 1-800-252-9690 and is a public service of the State Bar of Texas.

Shop around until you find a lawyer you trust and get along with. Do not hesitate to ask about fees and payment schedules.

Counseling Services

Before launching into any legal actions, it is usually best to discuss the situation with a counselor familiar with the problem of family violence.

Lawyers are not trained counselors. They cannot decide what you should do. Once you have made up your mind, a lawyer can begin the legal process to change your situation. If you are not sure how you want to change your life, talk to a counselor. A counselor can help you figure out what to do. A lawyer can then give advice about how the law can help with what you have decided to do.

In recent years, an increasing number of shelters for battered women have been started. These people can help you get emotional, medical and legal help, and emergency shelter.

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The Law
The law has been changed during the past few years to better protect victims of domestic violence. In particular, the laws governing warrantless arrests and Protective Orders have been designed to protect victims of domestic violence.

Each case is slightly different. The best remedy for one case may not be appropriate for another. Consult a lawyer to advise which remedy is best for you.

The Police
Anytime one person threatens or hurts another, the police or sheriff should be called. These law enforcement officials have a duty to prevent or stop injuries and attempts to cause injuries.

If the police have probable cause to believe that an assault has been committed and that you are in immediate danger of further assault, they may arrest the abuser immediately without a warrant. Evidence that an assault has occurred can be a black eye, a bloody nose, a bruise, or other injuries. If there are broken bones, wounds from weapons, or any injuries requiring emergency medical attention, the assault may be considered a felony, and the police can also arrest the abuser immediately. The more serious the injuries, the more likely it is that an arrest will be made.

At the time of arrest, the arresting officer must get your address and phone number. This information is required because before the individual arrested can be released on bail, the agency holding him or her must make a "reasonable attempt" to notify you of the impending release.

Before a person who is arrested for family violence can be released from jail, that person must appear before a magistrate. At that time, a magistrate's order for Emergency Protection can be granted. A request for such an order can be made by the victim or the victim's guardian, the police officer, the state's attorney, or the magistrate. The order may prohibit the perpetrator from harassing, stalking or abusing the victim or from going within certain distances of the victim. The order lasts for 31 days, giving the victim time to get a Protective Order if needed.

Take down the officers' names and badge numbers in case they are needed later for information or as witnesses. Ask the officers for their report number while they are still at the scene. It further insures the officer will make a written report. When you call the police department to follow-up on the criminal case, it speeds your connection to the detective handling your case. If they give you a copy of a police report, keep it. Police reports of domestic violence help create an impartial record of abuse allegations and help establish a pattern of repeated abuse.

People Who Are Not U.S. Citizens
Even if you are not a U.S. citizen, you are entitled to the protection of the law while in the United States. If the abuser is in the country illegally, he may be deported. If you are in the country illegally, you may want to call an immigration lawyer before you call the police. But if the abuse is severe or life threatening, you may want to call the police first.

There is no requirement of citizenship to file for divorce or complain to the police. However, fraud is presumed when a person who is not a citizen of the United States files for divorce within two years of the time permanent residency and a green card are received. The marriage is viewed as a way to get legal residence. Proof of spousal abuse will justify the early divorce and may preserve residency privileges.

Undocumented women also now have protections under the Violence Against Women Act. If the victim is being abused by a lawful permanent resident or U.S. citizen, she can either file a petition for legal status on her own without the assistance of the abuser or she can request a suspension of deportation. The details are too complex to explain in this brochure, but these women can be referred to the Political Asylum Project of Austin, 1716 E. 6th Street, Austin, TX 78769, (512) 478-0546.

Stalking
The 75th Legislature recently passed anti-stalking legislation to protect individuals from threatening conduct, including following another person, if such conduct could cause fear of bodily injury, death, or an offense to the property of either the person being followed or a member of that person's family or household. The offense, specifically defined in Section 42.072, Penal Code, is a Class A misdemeanor. If the actor has been previously convicted under Section 42.072, the offense is a third-degree felony.

If you are a victim of stalking, an Emergency Protective Order may be issued by a magistrate in the same circumstances as victims of family violence. Also, if a law enforcement agency is holding a person for the offense of stalking, the agency must make a reasonable attempt to notify the victim before the offender is released.

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Texas Family Violence Prevention Act
The Texas Legislature passed the Family Violence Prevention Act in 1985. It declares that increasing family violence poses a serious threat to society. The victims, who most often are women, children, and older people, are entitled to maximum protection by the law and those who enforce the law.

Police officers, prosecutors, and judges are directed to change their attitudes toward family violence. Persons who commit family violence are criminals and subject to the same penalties as other offenders. The fact that an assailant is related to or lives with the victim is never a defense for criminal acts.

The law makes the following provisions:

1. It defines "family" to include persons who are the biological (or adoptive) parents of the same child, whether they are married or not.
2. It establishes specific duties for police officers investigating family violence cases. The officer must give the victim written notice of her legal rights and remedies. These include the right to file a criminal complaint and to apply for a Protective Order. The victim must be told the name and location of the nearest shelter center or battered women's assistance group. The officer also is required to ask the victim if she or any other member of the household has been injured or is in danger of being injured after the officer leaves.
   
   The officer is permitted to make an arrest without a warrant if the officer believes that an assault has occurred and that the victim is in danger of further injury. The officer also may make a warrantless arrest when a Protective Order is in effect and the officer has probable cause to believe that the assailant has violated it.
   
   If the investigating officer is uncertain about whether a Protective Order is in place, the officer must follow police department procedures to find out before leaving the scene if there is a chance that further family violence will occur.
   
   Finally, if the investigating officer reasonably believes that an offense has occurred, the officer must make and file a report with the police department.
   
   
3. The Family Violence Prevention Act orders police and sheriffs' departments to establish procedures to keep Protective Orders on file.
4. . The law establishes that a Protective Order is presumed to be valid for one year after the date of issue, unless the order expressly states an earlier expiration date. Violating a protective or an agreed order is a Class A misdemeanor, for which an offender may be jailed for up to one year and fined up to $4,000. After a person is twice convicted of violating a Protective Order, the person will be charged with a felony for subsequent violations.
5. The law prohibits prosecutors and judges from tying the criminal prosecution to any civil litigation. The victim may not be required to file for divorce or child custody as a precondition of prosecution, and the fact that a suit has been filed for damages may not be used as a reason to dismiss or delay prosecution. A prosecutor may, however, require that a victim provide information for an offense report, based on information in the protective order application, to law enforcement officials.
6. The court may order police to assist a victim in taking possession of the victim's personal property. If a final protective order grants possession of a residence to the victim, the court may order police to assist the victim in taking possession of the residence, to notify the abuser that the court has ordered that the abuser be excluded from the residence, and, if the abuser refuses to leave, to arrest the abuser for violating the court's order.
   

1. a person has committed any offense within the officer's presence or view;
2. the officer has probable cause to believe a person has committed an assault resulting in bodily injury to another person, and the officer has probable cause to believe there is danger of further bodily injury;
3. the officer has probable cause to believe a person has violated a Protective Order, even if the violation was not committed in the officer's view; or
4. the officer has probable cause to believe a person has committed an assault resulting in bodily injury to a member of a person's family or household.
   

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Protective Order
A Protective Order is a court order issued by a county or district judge for the protection of victims of family violence. It orders someone who has committed family violence to do or not to do certain things.

A Protective Order may:

1. prohibit further acts of family violence; *
2. prohibit the abuser from directly communicating with you in a threatening or harassing manner, or communicating a threat through any person, or, if so ordered, communicating in any manner except through a person specifically designated by the court; *
3. prohibit the abuser from going within a specified distance of your home or job; *
4. prohibit the abuser from going to or near the residence, child care facility, or school where a child protected under the order normally resides or attends (Note: you are responsible for sending a copy of the Protective Order to schools, day care facilities, and other protected locations); *
5. provide for a parent to have possession of and access to children (possession is not the same as custody);
6. set child support or spousal support;
7. order counseling or a battering intervention program to begin within 60 days; and
8. provide for possession of mutually-owned property, such as the home
   (Note: possession is not the same as changing the ownership of the property);

Persons Eligible for Protective Orders

1. Persons who are related to the applicant by blood or marriage-for example, a parent, spouse, sibling, or in-law.
2. Ex-spouses.
3. Persons currently living together, or who have lived together in the past, or who have had a child together.

Do You Need an Attorney?
You may apply for a Protective Order:

1. Through a private attorney or through a legal aid office. If you use a private attorney and the court finds that the abuser committed family violence, the judge may require him to pay your attorney's fees.
2. Through the County or District Attorney's Office in many counties. Call first and ask to make an appointment with one of the attorneys handling Protective Order applications.
3. By yourself. Anyone can apply for a Protective Order without legal representation. It is sometimes difficult to navigate the legal system without a lawyer; however, a pro se Protective Order packet is available through most shelters, through the Texas Counsel of Family Violence, (800) 525-1978, and the Women's Advocacy Project, (800) 374-4673.

How To Get A Protective Order:
Emergency & Permanent

1. Before a person who is arrested for family violence or stalking can be released from jail, that person must appear before a magistrate. At that time, a Magistrate's Order for Emergency Protection can be granted. A request for such an order can be made by the victim or the victim's guardian, the magistrate, the state's attorney, or a police officer. The Magistrate can then decide to prohibit the perpetrator from harassing, stalking, or abusing the victim or going within certain distances of the victim. This order lasts for 31 days and can give a qualified victim time to get a Protective Order. The order supersedes any court orders, such as custody or visitation orders that may be in existence at the time of the order. Violation of a Magistrate's Order for Emergency Protection is a Class A misdemeanor (first violation) or a state jail felony (subsequent violations).
2. During the appointment with the attorney or prosecutor for a permanent Protective Order, you must make a written statement detailing all past violence. This statement must be sworn to and will be made part of the court records. You must also provide information on how to locate the abuser.
3. Before seeking a permanent Protective Order, the attorney or prosecutor will examine the statement to decide whether it is appropriate to file a Protective Order Application. The attorney or prosecutor must know whether there is a divorce pending. This determines the type of Protective Order that is appropriate. If you plan to file for a divorce at the same time you apply for a Protective Order, you can apply for a regular Protective Order or you can apply for a Divorce Protective Order. However, you cannot file for both based on identical facts. An Article 3.581 Divorce Protective Order can accomplish anything a regular Protective Order can accomplish.
4. If the private attorney or prosecutor decides to file, the attorney or prosecutor will prepare an Application for a Protective Order and send it with the applicant's statement to the judge, along with a request for an Ex Parte Temporary Protective Order. These will be explained in further detail below.

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Application Fee And Court Costs

1. You may not be charged any fee by the clerk of the court for a Protective Order.
2. If a Protective Order ultimately is issued, the abuser will be ordered to pay a statutory protective order fee, plus all filing fees, court costs and expenses incurred in connection with the protective order.

Ex Parte Temporary Protective Order

What It Is?
An EPTPO is an order that is granted by the judge without a hearing and without giving notice to the abuser of what is happening. "Ex Parte" simply means "on the part of one person." Most court orders are signed only after both parties have had a chance to tell their side of the story. Since the EPTPO does not give the abuser (also known as the respondent in the court action) notice and an opportunity to be heard, it is limited in the kinds of enforcement available in cases of violation.

What It Can Do?
An EPTPO can order the same things as a permanent Protective Order, including:

1. prohibiting the abuser from going within a designated distance of your home or job;
2. prohibiting the abuser from going to or near your children's residence, day care facility, or school;
3. prohibiting further acts of family violence;
4. prohibiting the abuser from going within a certain distance of you; and
5. ordering the abuser to leave the house, but only after a hearing. (See below.)
   

1. Generally, the attorney will request an EPTPO when your written statement is sent to the judge. Your statement will be used to convince the judge to sign the Ex Parte Order.
2. An EPTPO can be filed in the county or district clerk's office. You can call your county clerk to find out which office customarily handles Protective Orders in your county.
3. The judge examines the statement and signs the order if this action seems necessary.
4. If you want to have the abuser evicted from the residence immediately, you must file a statement with the court stating why it is necessary to do so. You also must appear in person at a hearing.
5. The EPTPO is effective for 14-20 days, but it may be extended.
   

Permanent Protective Order

The Hearing
You must be present at the hearing. If the abuser agrees to the order, it is called an "agreed" Protective Order, and a hearing may not be necessary.

If there is no agreement, you will appear before the judge. You will tell your story, the abuser will tell his or her story, then the judge will decide whether to grant a Protective Order. This Protective Order is effective for up to one year.

Remedy
After the Protective Order is signed, it can be enforced by the police. A violation of certain provisions of a Protective Order is punishable as a Class A Misdemeanor (up to one year in jail and/or a $4,000 fine). A permanent Protective Order lasts up to one year.

Can the Abuser Go to Jail for Violating a Protective Order?
If any of the following four provisions are included in a Protective Order, a person commits a crime (Class A misdemeanor) and can be punished by jail if, in violation of the order, the person knowingly or intentionally:

1. commits family violence;
2. communicates directly with a member of the family or household in a threatening or harassing manner;
3. goes to or near the residence or place of employment or business of a member of the family or household as specifically described in the Protective Order; or
4. goes to or near the residence or child care facility.
   

Peace Bonds
In a very few cases, a justice of the peace will issue a peace bond to protect a person who is being threatened. The threatening person has to put up money which goes to the state if the threatened act is carried out.

Peace bonds are available when a crime is threatened, but has not yet happened. If criminal activity has happened, a criminal complaint should be filed rather than a peace bond.

Peace bonds are most useful when the threatening person and the person threatened do not live together and are not married. When people are married or live together, the court should be asked for Protective Orders.

To get a peace bond, the justice of the peace must be told why you believe another person will break the law and hurt you unless stopped. The justice of the peace may set a hearing date and inform the threatening person of the chance to explain the incident. If the justice of the peace is convinced that the threatening person will break the law, the justice of the peace can make the threatening person put up money to guarantee good behavior. This is not done by all justices of the peace. Check with your precinct first.

Mental Health Commitment
Texas law allows commitment to mental hospitals of mentally ill persons. To qualify for commitment, persons must be declared mentally ill and must be a substantial risk of harm to themselves or others. Some, but not all, abusers are mentally ill.

A police officer may take an abuser into custody if the officer believes:

• the person is a substantial risk to himself or others unless immediately restrained, or
• the person is mentally ill.
  

It is possible that an abuser may ultimately receive involuntary mental health services, but this remedy cannot be recommended as a way to get immediate relief for the victim. The local mental health and mental retardation center or the local county or district attorney can provide more information.

Civil Lawsuit
Another choice available to a victim is filing a civil lawsuit for damages caused by abuse or assault. A court may award money for medical expenses, mental and physical suffering, and attorneys' fees. A lawyer can advise whether to bring such a lawsuit and whether this can be done with your divorce.

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Definitions

Assault
Assault is a crime in Texas. People commit this offense if they intentionally, knowingly, or recklessly:

• cause bodily injury to another person, including the offender's spouse;
• threaten another with imminent bodily injury, including the offender's spouse; or
• cause physical contact with another when the offender knows or should reasonably believe that the person will regard the contact as offensive or provocative.
• Assault is a misdemeanor unless a deadly weapon is used or the assault causes serious bodily injury. Then it is a second degree felony.
  

Child Abuse
Child Abuse is illegal in Texas. It occurs when anyone abuses or neglects a child's physical or mental health or welfare.

Failure to report child abuse is a Class B misdemeanor. The Department of Protective and Regulatory Services (DPRS) must investigate and take action to protect a child if abuse or neglect is found. Reports and investigation records of child abuse are almost always confidential.

Abuse of Elderly Persons and Disabled Adults
Anyone who has knowledge of abuse, neglect, or exploitation of a person older than 65 or a disabled person is required by law to report this to the DPRS. After the report has been investigated, and if there has been abuse, exploitation, or neglect and the elderly or disabled person consents, the department may provide protective services.

Family
A family is composed of persons related by a blood relationship or marriage, individuals who are former spouses of each other, individuals who are the biological parents of the same child, without regard to marriage, or a foster child and a foster parent, whether or not those individuals reside together.

Family Violence
Family violence is illegal in Texas. It means the intentional use or threat of physical force by a family or household member against another member of the family or household, but does not include defensive measures to protect oneself.

Household
A Household is a unit composed of persons living together in the same dwelling, whether or not they are related to each other.

Misdemeanor
A misdemeanor is an offense punishable by fine, jail, or both. The penalty for a Class A misdemeanor is confinement in jail for up to one year and a fine of up to $4,000. The penalty for a Class B misdemeanor is confinement in jail for up to 180 days and a fine of up to $2,000. The penalty for a Class C misdemeanor is a fine of up to $500.

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Revised 1996

This information is not intended to be a substitute for the legal advice of a licensed attorney. If you have any questions regarding a particular issue or topic we suggest you seek legal counsel.

The above information is adapted from the brochure "Family Violence: Legal Choices for Victims of Domestic Violence" prepared by the Texas Young Lawyers Association and published by the State Bar of Texas. Contact Tammi Sweet at the State Bar of Texas at 1-800-204-2222 ext. 2610 for a copy of the publication.