Texas Legislators Update and Toughen Protective Order and Family Violence Laws
September 1, 2015 marked the beginning of some significant changes to Texas laws, including the Family Code, Penal Code, and Code of Criminal Procedure. In practice, this means crimes committed after this date will be prosecuted by these new sets of laws (while crimes committed before September 1 will still be prosecuted using the old laws). There are a number of important changes dealing with protective orders and family violence that you should be aware of.
Definition of “Applicant” for Protective Orders Expanded
First, Senate Bill 817 makes changes to protective order applications, and makes it clear that trafficking activities amount to family violence. Previously, the “victim” was named as the sole applicant for a protective order, which didn’t account for the fact that often a parent or prosecutor will apply for the protective order on behalf of the victim. Under this change, the language is expanded to “victim or an applicant for a protective order,” making the application more accurate and preventing judges from denying the application based on the concern that a person is not a “victim” until the assault or abuse has taken place.
Additionally, this bill broadens the definition of Family Violence under the Family Code by incorporating additional definitions of Child Abuse found elsewhere in the Family Code. These new instances of family violence include:
- (H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene… or pornographic;
- (I) the current use by a person of a controlled substance… in a manner or to the extent that the use results in physical, mental, or emotional injury to a child;
- (J) causing, expressly permitting, or encouraging a child to use a controlled substance…;
- (K) causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child (AKA trafficking).
Presumption of Family Violence Created
Second, House Bill 1782 amends the Protective Orders provisions of the Family Code by creating a presumption of family violence if the respondent has a previous conviction for family violence or received deferred adjudication for family violence. The Family Code currently states that “A court shall render a protective order… if the court finds that family violence has occurred and is likely to occur in the future.” The new law enacted by House Bill 1782 allows the court reviewing the application for protective order to PRESUME that family violence has occurred and is likely to occur in the future if:
- (1) the respondent has been convicted of or placed on deferred adjudication community supervision for a Title 5 Penal Code offense (“Offenses Against the Person”) against the child in which the court has made an affirmative finding that the offense involved family violence, or a Title 6 Penal Code Offense (“Offenses Against the Family”);
- (2) the respondent’s parental rights with respect to the child have been terminated; and
- (3) the respondent is seeking or attempting to seek contact with the child.
Title 5 offenses include homicide, kidnapping, unlawful restraint and smuggling, trafficking, and sexual and assaultive offenses. Title 6 offenses include prohibited sexual conduct, interference with child custody, agreement to abduct from custody, enticing a child, criminal nonsupport, harboring a runaway child, violating certain court order or conditions of bond in family violence, sexual assault or abuse or stalking cases, and continuous family violence.
Penalties for Violations of Protective Orders Stiffened
Finally, Senate Bill 147 condenses two Penal Code sections dealing with violations of protective orders and allows for such violations to be prosecuted under the harsher penalties, including the possibility of charging violators with a felony for repeat violations rather than separate misdemeanor charges for each violation. Formerly, family violence protective orders were covered under the stricter Penal Code Section 25.07, and sexual assault, stalking, and human trafficking protective orders were covered under the lesser Penal Code Section 38.112. SB 147 amends Section 25.07 to cover all violations of family violence, sexual assault, stalking and human trafficking protective orders and conditions of bond, and eliminates Section 38.112. Changes involving felony charges for repeat violations are now included in Section 25.072.
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