Brief Summary of Texas Laws
Addressing
Family Violence and Sexual Assault
Legal Options for Victims of Family Violence
The goal of this training is to inform volunteers of the Texas laws which provide the legal options available to victims. The role of a volunteer is to assist victims in identifying and understanding his/her options. Volunteers need not feel as though they must be experts in this area. A volunteer often serves simply as a liaison to the legal resources a victim needs. These liaison efforts may include referrals to law enforcement to report crimes, accompaniment for support while the victim reports the crime, assistance obtaining a protective order and accompaniment to protective order hearings, or perhaps contacting members of the criminal justice system for answers to questions the volunteer/advocate has as they attempt to assist a victim in identifying legal options.
It is not unusual for victims to be unaware of their basic legal rights. Victims who was pushed by a partner, physically restrained, or even hit might not even yet identify that these behaviors are abusive, much less consider that the resources of the criminal justice system are available to them based on the behaviors they have endured. Some victims have minimized their situations so greatly that they don’t believe legal intervention is even an option. Other victims may be aware legal options exist, but are hesitant to contact the criminal justice system for variety of reasons. Some fear they simply won’t be believed; others do not want their abusers to experience any legal consequences; some fear if they report the abuse to authorities, their batterers will retaliate and the violence will intensify. Especially in rural communities, victims fear their batterers will have an undue influence on the legal process based on the batterer’s friendship with someone within the criminal justice system. There are some victims who are hesitant to contact the criminal justice system because they believe they will be mistreated. Sometimes these fears are unrealistic, and an encounter with an understanding and compassionate member of the criminal justice system changes these beliefs. Yet, there are cases in which a victim has or will encounter rude, judgmental, and unprofessional behavior from a member of the criminal justice system or another entity from which they are seeking assistance. These encounters certainly discourage victims from accessing all the resources they need to secure their safety.
Because of these fears, the accompaniment role of a volunteer/advocate is often vital in providing victims with the support needed to access his/her basic legal rights. As a volunteer or new staff member, you may not be familiar with the legal or social service the victim is seeking. During accompaniment, you may be especially helpful to the victim by asking questions that occur to you as you learn more about the options available and/or the procedures for accessing the service the client is seeking.
The following information was used by permission from Texas Council on Family Violence from their website: www.tcfv.org
Legal Options for Individuals Affected by Domestic Violence
The following are legal options for victims of abuse in Texas.
Protective Orders
Title IV, Texas Family Code
Protective orders make it a criminal offense for the respondent to go within a certain distance of the protected person’s home, work or school, or to communicate with her in a harassing manner. Any victim of family violence (effective 9/1/01, this includes dating violence) is eligible to apply for a protective order. The final protective order may be good for up to two years and can include civil remedies such as child support and visitation schedules depending on the county or judge issuing the order. The protective order may be renewed upon a showing of “the threatened harm that reasonably places the applicant in fear of imminent physical harm.”
To find out how to apply for a protective order, contact your local domestic violence service provider or the local county attorney’s office. The victim may not be charged for any fee or expense associated with the protective order process.
Magistrate’s Order for Emergency Protection
Art. 17.292 Code of Criminal Procedure
Commonly referred to as an Emergency Protective Order, the Magistrate’s Order for Emergency Protection (MOEP) is available when a person has been arrested for a family violence assault. When the defendant is brought before a judge to receive a bond or bail amount, the judge may issue this order for no less than 31 days and no more than 61 days. Like a protective order, violations of the MOEP can result in the arrest of the defendant. A law enforcement officer, the victim, a prosecutor, or the judge can request the order.
Additionally, the judge can grant one on his or her own motion. MOEPs are mandatory in cases where the defendant is charged with a family violence assault causing serious bodily injury to the victim or the use or exhibition of a deadly weapon during the commission of the assault.
Stalking
Section 42.072, Texas Penal Code
To be charged with stalking, the defendant must have the intent or the knowledge that his or her actions will instill fear of death or bodily injury to the victim or a member of the victim’s family or household.
Threats can be explicit (e.g. “I’m going to kill you.”) or implied (e.g. veiled threats, hurting family pets). Threats must be aimed at a specific person, they cannot be general threats. Threats may be conveyed by the stalker or someone acting on his or her behalf.
Threatening conduct has to occur on more than one occasion and be directed toward the victim and/ or the victim’s family or household members. However, only one police report is required. The acts may include threatening contact by mail or phone, or by following the victim, placing her under surveillance, or damaging the victim’s property. Stalking is a criminal offense punishable by a fine of $4,000 and/or up to one year in jail.
Divorce/Custody Options for Victims
of Family Violence:
Joint Managing Conservatorship (joint custody)
Joint managing conservatorship refers to the legal custody of the child as opposed to the physical custody of the child. Joint managing conservators share rights, duties and decision-making in regards to the child. They do not necessarily have equal time with the child.
Texas law presumes that joint managing conservatorship is in the best interest of a child. However, in cases where there is a history of family violence, the court is prohibited from appointing the parents as joint managing conservators. Effective 9/1/01, it is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect or physical or sexual abuse by that parent directed against the other parent, a spouse or a child. Section 153.004(b), Texas Family Code. It is best to consult with a qualified family law attorney prior to entering into any custody agreement.
Visitation
For years, the Standard Possession Order was presumed to be the “minimum reasonable possession” of a child for a noncustodial parent. As of September 1,1999, the Texas Family Code was amended to provide that, if the court finds that there is a history or pattern of family violence within the last two years, the court may prohibit the batterer from having access to the child unless certain conditions are met. If this finding is made, the court may only award visitation to the batterer if the court finds it would not endanger the child, access would be in the child’s best interest, and the order is designed to protect the safety and well being of the child and victim. Additionally, the court may impose visitation restrictions, such as supervision of the visitation, prohibition of use of drugs of alcohol, or mandating participation in a battering intervention program.
Mediation
Beginning September 1,1999, a victim of family violence who is required to attend mediation may file an Objection to Mediation. This document should state that she is a victim of abuse perpetrated by the other party. By filing this objection, the mediation requirements are waived. Even if the other party challenges the validity of the claim, the judge can only order mediation under conditions that ensure the emotional and physical safety of the victim. This includes no face-to-face contact and requires that parties be placed in separate rooms during the mediation process.
Spousal Maintenance (Alimony)
Spousal maintenance may be ordered if the person from whom maintenance is sought has been convicted of, or received deferred adjudication for, a family violence offense that occurred within the two years prior to the divorce being filed or while the divorce was pending.
It is important to note that if the domestic violence provision is met, the law does not require a marriage of any particular duration or that the spouse seeking maintenance prove an inability to meet his or her minimum reasonable needs.
The section above, provided by Texas Council on Family Violence.
Family Code: Ch. 6. sec. 6.602 Mediation Proceedures
Statutes
As you review the section of statues below assembled by advocates of Panhandle Crisis Center, please remember you are not expected to be an expert. Members of the criminal justice system are our allies in requesting information and support for victims regarding their legal options. There are a vast number of laws that members of the criminal justice system must enforce. Family violence and sexual assault represent only a small portion of those laws. Advocates receive training and updates to revisions to laws focusing solely on family violence and sexual assault. Because of this, it is often helpful to be familiar with the many legal options available to victims and where/how to reference them when questions arise during your role as an advocate for victims in the criminal and civil justice systems.
Criminal Justice System
Victims of family violence who have been assaulted or threatened have several legal options available to them. By contacting a crisis center or the local law enforcement agency, victims may be advised of the options for reporting these crimes and/or seeking orders of protection against their offenders.Below is an example of the types of crimes committed against victims of family violence and sexual assault for which victims may seek the assistance of the criminal justice system. Beside the crime is the statute reference number. To become more familiar with the definitions of various crimes, volunteers may access Texas Statutes on line at the following address. http://www.statutes.legis.state.tx.us/.
(If you have difficulty accessing Texas Statutes through this link, go to http://www.capitol.state.tx.us/, there is generally a link to Texas Statutes on this page.)
CCrP = Code of Criminal Procedure
PC = Penal Code
FC = Family Code
Family Violence
Assault & Aggravated Assault (Physical) PC 22.01 & 22.02
Bodily Injury PC 1.07
Harassment PC 42.07
Stalking PC 42.072
Terroristic Threat PC 22.07
Interference with Emergency Request for Assistance PC 42.062
Protective Orders for Family Violence Victims FC Title V – Chapters 71 - 92
Violation of Protective Order PC 25.07
(…may not arrest protected person for violation of that order) PC 25.071
Kidnapping and Unlawful Restraint PC 20.01 - 20.05
Injury to a Child, Elderly Individual or Disabled Individual PC 22.04
Authority to Arrest without Warrant (CCrP 14.03)
Notice to adult victims (CCrP 5.04)
Additional Jail Hold on FV Offenders CCrP 17.291
Law Enforcement Standby Assistance CCrP 5.045
Interference with Possessory Interest in Child FC Ch. 42
Interference with Child Custody PC 25.03
Criminal Nonsupport (failure of a parent to financially support a child)PC 25.05
Duties of Peace Officers CCrP 5.04
Interference with Right of Guardian of a Person PC 25.10
Duties of Prosecuting Attorneys and Courts CCrP 5.06
Sexual Assault
Sexual Assault & Aggravated Sexual Assault PC 22.011 & 22.021
Continuous Sexual Abuse of a Young Child PC 21.02
Protective Order for victim of sexual assault CCrP 7A
Indecent exposure PC 21.08
Indecency with a child PC 21.11
Prohibited Sexual Conduct PC 25.02
SANE Exam (Forensic Exam by a Sexual Assault Nurse Examiner)
Right to have advocate present CCrP 56.045
Reimbursement of law enforcement for forensic exams CCrP 56.06
Forms on web site: www.oag.state.tx.us/victims/addtl_info_reimburse.shtml
Pseudonym Form CCrP 57.01
Laws Applicable to both Family Violence
and Sexual Assault Victims
Victim Impact Statement CCrP 56.03
Crime Victims’ Rights CCrP 56.02
Notification CCrP 56.07
Notification to Victim or Witness of Release or Escape of Defendant CCrP 56.11
Notification of Escape or Transfer CCrP 56.12
Confidentiality Address Program http://www.oag.state.tx.us/victims/acp.shtml
(Address Confidentiality Program CCrP 56.82)
Texas has a new program to help these victims of family violence, sexual assault, and stalking keep their actual address confidential. The Texas Address Confidentiality Program (ACP), administered by the Office of the Attorney General (OAG), provides a substitute post office box address and free mail forwarding service for participants.
Crime Victims’ Compensation Fund http://www.oag.state.tx.us/victims/index.shtml
(Compensation CCrP 56.34)
This fund reimburses some out-of-pocket expenses to victims of violent crime and their families. The Crime Victims' Compensation Fund can help eligible victims pay for medical and counseling bills incurred because of the crime and can help families cover the cost of the funeral for a loved one who has been killed as the result of a crime.
The goal of this training is to inform volunteers of the Texas laws which provide the legal options available to victims. The role of a volunteer is to assist victims in identifying and understanding his/her options. Volunteers need not feel as though they must be experts in this area. A volunteer often serves simply as a liaison to the legal resources a victim needs. These liaison efforts may include referrals to law enforcement to report crimes, accompaniment for support while the victim reports the crime, assistance obtaining a protective order and accompaniment to protective order hearings, or perhaps contacting members of the criminal justice system for answers to questions the volunteer/advocate has as they attempt to assist a victim in identifying legal options.
It is not unusual for victims to be unaware of their basic legal rights. Victims who was pushed by a partner, physically restrained, or even hit might not even yet identify that these behaviors are abusive, much less consider that the resources of the criminal justice system are available to them based on the behaviors they have endured. Some victims have minimized their situations so greatly that they don’t believe legal intervention is even an option. Other victims may be aware legal options exist, but are hesitant to contact the criminal justice system for variety of reasons. Some fear they simply won’t be believed; others do not want their abusers to experience any legal consequences; some fear if they report the abuse to authorities, their batterers will retaliate and the violence will intensify. Especially in rural communities, victims fear their batterers will have an undue influence on the legal process based on the batterer’s friendship with someone within the criminal justice system. There are some victims who are hesitant to contact the criminal justice system because they believe they will be mistreated. Sometimes these fears are unrealistic, and an encounter with an understanding and compassionate member of the criminal justice system changes these beliefs. Yet, there are cases in which a victim has or will encounter rude, judgmental, and unprofessional behavior from a member of the criminal justice system or another entity from which they are seeking assistance. These encounters certainly discourage victims from accessing all the resources they need to secure their safety.
Because of these fears, the accompaniment role of a volunteer/advocate is often vital in providing victims with the support needed to access his/her basic legal rights. As a volunteer or new staff member, you may not be familiar with the legal or social service the victim is seeking. During accompaniment, you may be especially helpful to the victim by asking questions that occur to you as you learn more about the options available and/or the procedures for accessing the service the client is seeking.
The following information was used by permission from Texas Council on Family Violence from their website: www.tcfv.org
Legal Options for Individuals Affected by Domestic Violence
The following are legal options for victims of abuse in Texas.
Protective Orders
Title IV, Texas Family Code
Protective orders make it a criminal offense for the respondent to go within a certain distance of the protected person’s home, work or school, or to communicate with her in a harassing manner. Any victim of family violence (effective 9/1/01, this includes dating violence) is eligible to apply for a protective order. The final protective order may be good for up to two years and can include civil remedies such as child support and visitation schedules depending on the county or judge issuing the order. The protective order may be renewed upon a showing of “the threatened harm that reasonably places the applicant in fear of imminent physical harm.”
To find out how to apply for a protective order, contact your local domestic violence service provider or the local county attorney’s office. The victim may not be charged for any fee or expense associated with the protective order process.
Magistrate’s Order for Emergency Protection
Art. 17.292 Code of Criminal Procedure
Commonly referred to as an Emergency Protective Order, the Magistrate’s Order for Emergency Protection (MOEP) is available when a person has been arrested for a family violence assault. When the defendant is brought before a judge to receive a bond or bail amount, the judge may issue this order for no less than 31 days and no more than 61 days. Like a protective order, violations of the MOEP can result in the arrest of the defendant. A law enforcement officer, the victim, a prosecutor, or the judge can request the order.
Additionally, the judge can grant one on his or her own motion. MOEPs are mandatory in cases where the defendant is charged with a family violence assault causing serious bodily injury to the victim or the use or exhibition of a deadly weapon during the commission of the assault.
Stalking
Section 42.072, Texas Penal Code
To be charged with stalking, the defendant must have the intent or the knowledge that his or her actions will instill fear of death or bodily injury to the victim or a member of the victim’s family or household.
Threats can be explicit (e.g. “I’m going to kill you.”) or implied (e.g. veiled threats, hurting family pets). Threats must be aimed at a specific person, they cannot be general threats. Threats may be conveyed by the stalker or someone acting on his or her behalf.
Threatening conduct has to occur on more than one occasion and be directed toward the victim and/ or the victim’s family or household members. However, only one police report is required. The acts may include threatening contact by mail or phone, or by following the victim, placing her under surveillance, or damaging the victim’s property. Stalking is a criminal offense punishable by a fine of $4,000 and/or up to one year in jail.
Divorce/Custody Options for Victims
of Family Violence:
Joint Managing Conservatorship (joint custody)
Joint managing conservatorship refers to the legal custody of the child as opposed to the physical custody of the child. Joint managing conservators share rights, duties and decision-making in regards to the child. They do not necessarily have equal time with the child.
Texas law presumes that joint managing conservatorship is in the best interest of a child. However, in cases where there is a history of family violence, the court is prohibited from appointing the parents as joint managing conservators. Effective 9/1/01, it is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect or physical or sexual abuse by that parent directed against the other parent, a spouse or a child. Section 153.004(b), Texas Family Code. It is best to consult with a qualified family law attorney prior to entering into any custody agreement.
Visitation
For years, the Standard Possession Order was presumed to be the “minimum reasonable possession” of a child for a noncustodial parent. As of September 1,1999, the Texas Family Code was amended to provide that, if the court finds that there is a history or pattern of family violence within the last two years, the court may prohibit the batterer from having access to the child unless certain conditions are met. If this finding is made, the court may only award visitation to the batterer if the court finds it would not endanger the child, access would be in the child’s best interest, and the order is designed to protect the safety and well being of the child and victim. Additionally, the court may impose visitation restrictions, such as supervision of the visitation, prohibition of use of drugs of alcohol, or mandating participation in a battering intervention program.
Mediation
Beginning September 1,1999, a victim of family violence who is required to attend mediation may file an Objection to Mediation. This document should state that she is a victim of abuse perpetrated by the other party. By filing this objection, the mediation requirements are waived. Even if the other party challenges the validity of the claim, the judge can only order mediation under conditions that ensure the emotional and physical safety of the victim. This includes no face-to-face contact and requires that parties be placed in separate rooms during the mediation process.
Spousal Maintenance (Alimony)
Spousal maintenance may be ordered if the person from whom maintenance is sought has been convicted of, or received deferred adjudication for, a family violence offense that occurred within the two years prior to the divorce being filed or while the divorce was pending.
It is important to note that if the domestic violence provision is met, the law does not require a marriage of any particular duration or that the spouse seeking maintenance prove an inability to meet his or her minimum reasonable needs.
The section above, provided by Texas Council on Family Violence.
Family Code: Ch. 6. sec. 6.602 Mediation Proceedures
Statutes
As you review the section of statues below assembled by advocates of Panhandle Crisis Center, please remember you are not expected to be an expert. Members of the criminal justice system are our allies in requesting information and support for victims regarding their legal options. There are a vast number of laws that members of the criminal justice system must enforce. Family violence and sexual assault represent only a small portion of those laws. Advocates receive training and updates to revisions to laws focusing solely on family violence and sexual assault. Because of this, it is often helpful to be familiar with the many legal options available to victims and where/how to reference them when questions arise during your role as an advocate for victims in the criminal and civil justice systems.
Criminal Justice System
Victims of family violence who have been assaulted or threatened have several legal options available to them. By contacting a crisis center or the local law enforcement agency, victims may be advised of the options for reporting these crimes and/or seeking orders of protection against their offenders.Below is an example of the types of crimes committed against victims of family violence and sexual assault for which victims may seek the assistance of the criminal justice system. Beside the crime is the statute reference number. To become more familiar with the definitions of various crimes, volunteers may access Texas Statutes on line at the following address. http://www.statutes.legis.state.tx.us/.
(If you have difficulty accessing Texas Statutes through this link, go to http://www.capitol.state.tx.us/, there is generally a link to Texas Statutes on this page.)
CCrP = Code of Criminal Procedure
PC = Penal Code
FC = Family Code
Family Violence
Assault & Aggravated Assault (Physical) PC 22.01 & 22.02
Bodily Injury PC 1.07
Harassment PC 42.07
Stalking PC 42.072
Terroristic Threat PC 22.07
Interference with Emergency Request for Assistance PC 42.062
Protective Orders for Family Violence Victims FC Title V – Chapters 71 - 92
Violation of Protective Order PC 25.07
(…may not arrest protected person for violation of that order) PC 25.071
Kidnapping and Unlawful Restraint PC 20.01 - 20.05
Injury to a Child, Elderly Individual or Disabled Individual PC 22.04
Authority to Arrest without Warrant (CCrP 14.03)
Notice to adult victims (CCrP 5.04)
Additional Jail Hold on FV Offenders CCrP 17.291
Law Enforcement Standby Assistance CCrP 5.045
Interference with Possessory Interest in Child FC Ch. 42
Interference with Child Custody PC 25.03
Criminal Nonsupport (failure of a parent to financially support a child)PC 25.05
Duties of Peace Officers CCrP 5.04
Interference with Right of Guardian of a Person PC 25.10
Duties of Prosecuting Attorneys and Courts CCrP 5.06
Sexual Assault
Sexual Assault & Aggravated Sexual Assault PC 22.011 & 22.021
Continuous Sexual Abuse of a Young Child PC 21.02
Protective Order for victim of sexual assault CCrP 7A
Indecent exposure PC 21.08
Indecency with a child PC 21.11
Prohibited Sexual Conduct PC 25.02
SANE Exam (Forensic Exam by a Sexual Assault Nurse Examiner)
Right to have advocate present CCrP 56.045
Reimbursement of law enforcement for forensic exams CCrP 56.06
Forms on web site: www.oag.state.tx.us/victims/addtl_info_reimburse.shtml
Pseudonym Form CCrP 57.01
Laws Applicable to both Family Violence
and Sexual Assault Victims
Victim Impact Statement CCrP 56.03
Crime Victims’ Rights CCrP 56.02
Notification CCrP 56.07
Notification to Victim or Witness of Release or Escape of Defendant CCrP 56.11
Notification of Escape or Transfer CCrP 56.12
Confidentiality Address Program http://www.oag.state.tx.us/victims/acp.shtml
(Address Confidentiality Program CCrP 56.82)
Texas has a new program to help these victims of family violence, sexual assault, and stalking keep their actual address confidential. The Texas Address Confidentiality Program (ACP), administered by the Office of the Attorney General (OAG), provides a substitute post office box address and free mail forwarding service for participants.
Crime Victims’ Compensation Fund http://www.oag.state.tx.us/victims/index.shtml
(Compensation CCrP 56.34)
This fund reimburses some out-of-pocket expenses to victims of violent crime and their families. The Crime Victims' Compensation Fund can help eligible victims pay for medical and counseling bills incurred because of the crime and can help families cover the cost of the funeral for a loved one who has been killed as the result of a crime.