By Zelda Hinojosa-Howell, Lone Star Legal Aid
Representing survivors of crime requires a willingness to provide holistic legal services to meet both their legal and non-legal needs. Legal aid attorneys representing survivors of crime wear many hats. We are their zealous advocate, but at times it can feel like we are also their cheerleader, therapist, and protector. We must consider what a client needs for protection from future crime or abuse, not only current needs. This article will explore the realm of protective orders and how to navigate them effectively to meet the needs of a survivor.
Title IV Protective Orders provide relief to a client dealing with family violence. For the purposes of this example, we shall call the client Ryan. Ryan reports being abused or threatened by their spouse. Ryan wants a divorce, custody, or a modification, but is afraid of retaliation. Ryan may be in a shelter or staying with friends or family. Ryan may have reported incidences of abuse to the police. No charges are pending and the abuser is harassing the client.
In some instances, a client has attempted to obtain assistance from the local Office of the District Attorney, to no avail. In other instances, charges are pending and their Magistrates Order for Emergency Protection has expired.
Who may apply?
Ryan has come to legal aid for help, which may indicate that the Office of the District Attorney has not filed a protective order on Ryan’s behalf. Assistant District Attorneys may apply for protective orders for victims (Texas Family Code §82.002). Working through this hypothetical, Ryan is entitled to apply for a protective order because Ryan would qualify as a family or household member under the previously mentioned code. Ryan may also apply for protection of a child who is a victim of family violence. If Ryan does apply and places a child on the protective order, an advocate should discuss the consequences and pitfalls of allowing abusive parent contact with the child during the time protection is sought. If Ryan allows the child to have visitation with the abusive parent during this time, the abusive parent may retaliate against the child. Also, the courts may believe Ryan has no fear of further abuse to the child. By turning the child over for visitation, Ryan may give the abuser power to retain the child in their possession, which is a typical control move of abusers. With the child in the abuser’s possession, the abuser may try and turn the tables by filing for custody.
Where to apply?
Ryan lives in Harris County, but the abuse occurred in Montgomery County and the spouse resides in Montgomery County. If there aren’t any pending divorces or SAPCRs, the application may be filed in Harris County, where Ryan resides, or in Montgomery County, where the abuse occurred and/or where the respondent resides (Texas Family Code §82.003).
If a Suit for Divorce or Suit Affecting the Parent-Child Relationship (SAPCR) is pending, the Application for Protective Order may be filed in the suit of the pending litigation or in the county where the applicant resides if it is outside the jurisdiction of the court where the suit is pending (Texas Family Code §85.062). Ryan has not yet filed suit for divorce, custody, or modification. However, in another scenario, if divorce or SAPCR final orders exist, then those must be included in the application (Texas Family Code §82.006 – 82.007).
Remember that Ryan doesn’t have to pay any fees to the court, constable, or even the court reporter (Texas Family Code §81.002).
Ex Parte Relief?
Ryan may also need an Application for Ex Parte Relief. This can provide temporary protection during the adversarial process. Hence, if a court determines there exists “clear and present danger of family violence,” an Application for Ex Parte Relief will be granted (Texas Family Code §83.001). This gives about 20 days of protection without notice to the abuser and without a hearing.
The issue most advocates encounter after filing applications for protective orders is notorious service-dodging respondents. The good news is that a court may extend the Temporary Ex Parte Protective Order for additional 20-day periods (Texas Family Code §83.002). Notice the plurality of the last word in that sentence. To me, this means a possibility of multiple 20-day extensions, even though some judges only allow one extension. In my experience, the Harris County Protective Order court prefers to allow only one extension for the Temporary Ex Parte Order.
If Ryan needs to reside in the house and wants to make the abuser leave, then an Ex-Parte “Kick-Out Order” would be useful. Ryan would need to appear in court to testify with a sworn affidavit of violence, proof of residence and obvious danger that the abuser will likely re-commit an act of violence (Texas Family Code §83.006). Be aware that the court may contact the respondent and allow them to be present at the hearing.
Hurdles at Final Hearing
There’s no right to a jury trial at the final hearing of a protective order (See Williams v. Williams 19 S.W.3d 544 Tex. App. 2000). Make sure the respondent gets served more than 48 hours prior to the final hearing; otherwise, they can ask for a continuance and it can be rescheduled (Texas Family Code §84.004). Pro tip: If you have a private process server, and the abuser has a criminal case, then search the docket for their next court date and serve them in criminal court!
In court, Ryan must 1) show that family violence has occurred, and 2) it is likely to occur again. These can be supported by testimony, emails, videos, texts, photographs, police reports, and eyewitness accounts (Texas Family Code §85.001). Caselaw shows that demonstrating past violent conduct can prove future violence. See In re Epperson, 213 S.W.3d 541 (Tex.App. – Texarkana 2007) and Boyd v. Palmore, 425 Sw.W.3d 425, 432 (Tex.App. – Houston [1st Dist.] 2011).
Once the court establishes that violence has occurred and is likely to occur in the future, it can render final orders. The protective order can prohibit the respondent from possessing firearms, ensure they maintain a particular distance from “Ryan,” and require child support to be paid. The protective order can also state that the respondent may not remove Fido, the pet, from Ryan’s possession (Texas Family Code §85.022).
Take care of yourself to take care of others
To meet the needs of survivors of crime, we must take steps to help ameliorate current abuse and prevent future abuse. This means helping a client to obtain the resources they need to overcome trauma from the violence they have endured. We must understand the neurobiology of trauma and how that influences our client’s decision-making skills, while finding holistic solutions for their problems.
It is also important to realize that compassion fatigue and triangulation are real within the legal aid profession. Practitioners must not only protect clients from future trauma, but must also protect themselves from secondhand trauma. Taking care of oneself is the only way to continue to provide support to our survivor community.