The Texas Council on Family
Violence promotes safe and
healthy relationships by supporting
service providers, facilitating
strategic prevention efforts, and
creating opportunities for freedom
from domestic violence.
Tracy Grinstead-Everly, JD
Public Policy Manager
Texas Council on Family Violence

Napoleonic Code: "Women, like walnut trees,
should be beaten every day.”

Rescinded by a French court in 1924
1782: “Rule of Thumb” Sir Frances Buller, a
British judge, ruling that a man may legally beat
his wife, provided that he used a stick no thicker
than his thumb
 1871: Alabama is the first state to rescind the
legal right of men to beat their wives (Fulgrahm
v. State)
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Illegal in Texas in 1879
1976: Nebraska makes marital rape a crime
Rape law passed in 1983 in Texas
 Abolished in all 50 states and Washington DC by 1993
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 1993:
The United Nations recognizes
domestic violence as an international human
rights issue and issues a Declaration on the
Elimination of Violence Against Women
 1994: Congress passes the Violence Against
Women Act, part of the federal Crime
Victims Act
 February 1996: the National Domestic
Violence Hotline (NDVH) was established
from funding allocated in the Violence
Against Women Act
Family violence is a pattern of assaultive and
coercive behaviors through which threats and
violence are used to maintain power and control
over the other partner.
 Abusive behaviors include physical, sexual,
psychological, emotional, financial, isolation,
spiritual, and stalking.
 Though the violence often escalates, underlying
forms of control persist. Survivors often
experience several concurrent types of abusive
behavior, which may change at any time.
 Much of this violence is not criminal.
 Accessibility and additional barriers exist for
some victims.

Few victims report.
Statutes are complicated and do not always reflect reality of FV.
This leads to fewer arrests.
This leads to fewer reports sent to prosecutors.
This leads to fewer charges being filed.
Judges and juries do not understand the dynamics and do not convict on
cases presented.
Victims do not feel safe and offenders are not held accountable.
Few victims report.
Texas Family Code § 71.004:
(1) An act by a member of a family or household
against another member of the family or
household that is intended to result in physical
harm, bodily injury, assault, or sexual assault or
that is a threat that reasonably places the
member in fear of imminent physical harm,
bodily injury, assault, or sexual assault, but does
not include defensive measures to protect
oneself; or
Texas Family Code § 71.004:
 (2) Abuse by a family or household member
toward a child of the family or household
(child abuse); or
 (3) Dating Violence.
 Texas Family Code §71.0021: “Dating Violence” –
threat or action intended to result in physical
harm, bodily injury, assault or sexual assault
 Intimate, not social relationships
 Defined by circumstances
 Includes GLBT relationships
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Texas Family Code §71.004(2): child abuse as it
relates to family violence is defined as:
 Texas Family Code §261.001:
 (C) Physical injury that results in substantial
harm to the child or the genuine threat of
the same;
 (E) Sexual conduct harmful to a child’s
mental, emotional or physical welfare; or
 (G) Compelling or encouraging the child to
engage in sexual conduct.

Legal definitions of child abuse and neglect are
also often used against the victim.
 Texas Family Code §261.001(1): “abuse”
 (A) mental or emotional injury
 (B) causing or permitting child to be in
situation in which the child sustains mental or
emotional injury
 Failing to act to prevent others from the above
(“failure to protect” or “negligent supervision”)
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Problems with abuse and neglect definitions:
 40-60% of batterers also abuse their children
 Unreported child abuse:
 Victims fear losing their children
 Batterers often manipulate the system
 Victims injected into the juvenile court system
 Unrealistic and unsafe case plans for victims
 Placement with the batterer or the batterer’s
family
 Late reports interpreted as means to gain
custody advantage
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Texas Code of Criminal Procedure §14.03: peace
officer MAY arrest without a warrant if with
probable cause to believe:
Person has committed an assault and there is danger
of further bodily injury;
 Person has violated a protective order if not
committed in the presence of the officer;
 Person has committed family violence;
 Person has prevented/interfered with an individual’s
ability to place an emergency telephone call if not
committed in presence of officer.
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Dual arrests to be avoided - training on primary
aggressor
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Texas Code of Criminal Procedure §14.03: peace
officer SHALL arrest without a warrant with probable
cause to believe that
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a person has violated a protective order
AND
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the offense is committed in the officer’s presence
Texas Code of Criminal Procedure §14.03: peace
officer SHALL remain at the scene if necessary to verify
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an allegation of violation of a protective order
OR
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commission of an act of family violence to verify the
allegation and prevent further commission of the
violation or of family violence
Victims do not trust/access the system.
Victims fear that no one will believe them.
Victims often lack objective evidence of their allegations and do not always
present well in court.
Protective orders are denied /batterers get custody or unsupervised visits.
Victims respond in ways to best protect themselves and their children.
Victims lack legal protection /are punished for not following court orders.
Victims are not safe and offenders and not held accountable.
Victims do not trust/access the system.
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A restraining order:
 Usually a provision in another case, such as a
divorce
 Civil court order
 Civil consequences - contempt of court
 Applicant often must hire an attorney
A protective order:
 Separate court case
 Civil court order
 Civil and criminal options for enforcement
 No fees to petitioner – court may impose fees on
respondent
A victim can have both simultaneously

To obtain a protective order the applicant must
be:
 Victim of family violence:
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Victim of dating violence – definition:
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Related by blood or marriage to the respondent
Living or lived with the respondent
A parent having children with the respondent
Foster parents with the respondent
Continuing relationship of “romantic or intimate
nature” – facts of length, nature and frequency
Victim of sexual assault
Effective 9-1-11:
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Victim of stalking
Victim of trafficking
New dating partner/spouse
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Magistrate’s Order for Emergency Protection (MOEP,
commonly referred to as an EPO)
Temporary Ex-Parte Protective Order
Final Protective Order
Who files paperwork varies by county
Forms vary by county
 Texas Supreme Court Pro Se Protective Order Kit
 Forms available online in English, Spanish and
Vietnamese
 Interpretation issue
Texas Code of Criminal Procedure §17.292: issued
at offender’s initial appearance before
magistrate after arrest
 Who can request:
 The victim
 The guardian of the victim
 Peace officer
 State’s attorney
 The magistrate on her/his own motion
 GPS option

MOEP is MANDATORY if the offense involves:
 Serious bodily injury to the victim
 The use or exhibition of a deadly weapon
during the commission of an assault
 31-91 days but for no less than 61 days if use or
exhibition of a deadly weapon
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Adult family members
Dating adults
Adult for a child
Prosecuting attorneys (who represent the state)
DFPS (Department of Family and Protective Services)
Survivor of sexual assault
Additional applicants effective 9-1-11:
Minors who are victims of dating violence
 Stalking victims
 Trafficking victims
 New dating partners/spouses
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Issued by the court at the time an application for a final
protective order is filed
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Based on the applicant’s affidavit
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Effective 9-11: judge my recess ex parte hearing to call
respondent
 Must must resume hearing the same day
 Notice
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Can be filed in the county where the victim or abuser lives –
no length of residency requirement
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Lasts up to 20 days and can be extended for additional 20 day
periods at the applicant’s request or the court’s own initiative
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Criminally enforceable if it has been personally served upon
respondent
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No mutual orders without separate applications
Preemptive: “to gain a strategic advantage in an
impending (allegedly unavoidable) war before
that threat materializes.”
 Victim’s crisis and chaos versus abuser’s
calculation
 Why victims often lose the race
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Fear of retaliation from abuser for filing
Child care, transportation, work problems
 Do not know their rights
 Wait list for advocate, attorney to assist
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Dueling applications
Perception is everything: fear and urgency versus
retaliation
 Judicial response can result in no PO for either party
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Threats upon service
 Continuances
 Disqualification of potential attorneys
 Hearing
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Physical proximity
Cross examination
Pressure for agreed order
 Terms of order
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Contact for purposes of children
Visitation
Child support
Waiver of finding
Violation by “invitation”
Respondent is prohibited from:
 Committing family violence
 Communicating with the victim or a member of
the victim’s family in a threatening or harassing
manner
 Going near the victim’s residence or place of
employment (address can be confidential)
 Stalking victim or a member of the victim’s
family
 Possessing a firearm
 Effective 9-1-11: harming, threatening or
interfering with possession of pet, service or
companion animal possessed by petitioner
Respondent is prohibited from:
 Removing a child from the possession of the
person named in the order
 Transferring or disposing of property
 The court may:
 Provide possession of and access to a child
 Require payment of child or spousal support
 Require respondent to complete BIPP
 Award possession of community property

Applicant must have resided at residence during
past 30 days
 Respondent committed actual physical violence
within past 30 days
 Clear and present danger that respondent is
likely to commit family violence
 Name must be on lease/deed (unless duty to
support)
 Ability to pay rent/mortgage or bills without
help of respondent (unless duty to support)
 Must be a hardship to move
 Civil standby option
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Applicant and respondent must meet relationship
requirement
If no prior PO: must show that family violence occurred
and is likely to occur in the future (no requirement of
corroborating medical records or police reports under law)
If prior PO has expired or will expire within 30 days: must
show threat of harm that reasonably places applicant in
fear
If prior PO was violated: must show criminally enforceable
provision was violated while PO in effect
Effective 9-1-11: final PO can last more than 2 years if:
Serious bodily injury OR
 Two or more PO involving same applicant
 Containing family violence finding
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Order is automatically extended by 1 year after
respondent’s release from jail/prison, if PO expired while
respondent was incarcerated
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At Commanding Officer's discretion, may be short (e.g.,
10 days)
Violence between current or ex- spouses, parents of
same child or co-habitating partners: prohibited from
possessing a firearm
The military can enforce a civilian protective order
 Courts must notify base if a civilian PO is issued
against a military member
 The Commanding Officer can issue a MPO even if a
civilian order exists
The MPO can be enforced on and off base
An MPO cannot be issued against a civilian, even if the
victim is military
 MPO
paper work must be destroyed six
months after expiration, so encourage
victims to keep a copy if proof of the
order would be helpful in the future
 If the military member is transferred to a
new command, MPO expires
 Enforcement of MPO is totally at
discretion of Commanding Officer
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Previously made statements of child over 12 about abuse
concerning that child admissible in PO hearing
Military must be advised of family violence report, PO or
family violence conviction against military member
New partner may get PO against partner’s ex
DFPS to obtain or assist a parent to obtain a protective
order on behalf of a child against an alleged perpetrator of
abuse; trains DFPS workers on PO
Minors can apply without an adult
Deletes “fear of further harm” requirement from sexual
assault and stalking PO applications
Stalking protective orders – under sexual assault PO
provision in criminal code
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Regular process option
Request at hearing after stalking arrest
Protective orders for trafficking victims, potentially for the
lifetime of the parties – terms of SA PO
It is not a defense to violation charges that the
victim invited respondent to location.
 Law enforcement may not arrest a victim for
“violating” her/his own order.
 Violation of a protective order:
 Contempt of court (up to 6 months/$500/both)
 class A misdemeanor (up to 1
year/$4,000/both)
 Second offense = third degree felony (2 – 10
years in prison/$10,000/both)
 Offender can be arrested for violation AND other
crime committed in process
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 If
a member of the military violates the
order, he or she is subject to punishment
under the Uniform Code of Military Justice
(UCMJ):
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Willfully Disobeying a Superior Commissioned
Officer
Willfully Disobeying the Lawful Order of a
Warrant Officer, Noncommissioned Officer, or
Petty Officer
Failure to Obey an Order or Regulation
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Texas Code of Criminal Procedure §17.291
Bail may be denied upon violation of MOEP, PO or
condition of bond
The magistrate can hold the defendant in jail for four
(4) hours after making bail, if there is probable cause
to believe any violence would continue if the person
were immediately released.
This period can be extended up to forty-eight hours if
authorized in writing by a magistrate. If the extended
time period exceeds twenty four (24) hours, the
magistrate must make a finding:
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The violence would be continued if the person were
released AND
The person has previously been arrested within ten (10)
years on more than one occasion for family violence or
for any other offense involving the use or exhibition of a
deadly weapon.
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Texas Penal Code §25.07 and §46.04(c): It is a crime for an
abuser to possess a firearm if there is an active protective
order in place
 Types of PO: magistrate’s order, family violence, stalking,
sexual assault, foreign or restraining order in divorce
 Penalty: class A misdemeanor (up to 1 year in county jail,
up to $4,000 fine or both) for first offense; third degree
felony (2-10 years in prison/up to a $10,000 fine/both) if
subsequent conviction
 Notice must be given in court, on order and on any citation
Mandatory (FV) or discretionary (SA or stalking) suspension of
CHL
Provision not applicable to law enforcement in course of fulltime government employment
 Off-duty officer may not possess duty weapon
 Officer may not possess personal firearms
Entry into TCIC – 10 days
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It is a federal crime to transport, receive or possess
firearms or ammunition if subject to a “qualifying
protection order”
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Issued after hearing of which respondent had actual
notice and opportunity to participate; and
Finding that respondent poses a credible threat to the
physical safety of the victim OR order prohibiting
respondent from using any force that would cause injury
to victim
Penalty: up to 10 years in prison/$250,000 fine/both
It is also a federal offense for a person to assist
another person in possessing a firearm if there is a
valid protective order against that other person
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Provision not applicable to law enforcement or
military in course of government employment
“Intimate partner:” current or former spouse, people
with a child in common, or current or former
cohabitants (does not include dating partners)
Full faith and credit
 No exemption for military in Texas
 Effect of Texas PO on military in other states
Orders consistent with federal law get full faith
and credit – enforceable in all states
 “Consistent” orders:
 Court had jurisdiction over parties and matter
under law of that state or Native American
tribe; and
 “Reasonable notice and opportunity to be
heard is given to the person against whom the
order is sought sufficient to protect that
person’s right to due process”
 Interstate violations – 5 years or up to life,
depending on circumstances
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Uniform Interstate Enforcement of Protective
Orders Act: Texas Family Code Chapter 88:
 Full faith and credit
 Not necessary to register PO
 Best practice to carry and provide certified
copy of order, but not required (enforceable if
law enforcement has probable cause to believe
there is a valid order)
 The state that issues the order determines who
is covered and the terms and conditions
 Effective 9-1-11: Texas must enforce the order in
the same manner as the issuing court
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Priority for services under Crime Victims’
Compensation Fund
Restitution for medical bills and counseling, lost
wages, support, child care, some property, necesssry
travel, relocation, attorney’s fees for civil actions
 Victim eligible if suffers physical/mental harm as a
result of a criminal act
 Victim must cooperate with law enforcement
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Lease termination
 Unemployment benefits without disqualification
 TANF – exemptions to child support and
employment requirements
 Deposit waivers for utilities
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Assist with evidence for immigration cases
 Finding of family violence for divorce/support
 Child custody and possession
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Contact with advocates for services and
referrals for public benefits
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TCFV Agenda:
HB 2172: continuous violation of PO
 SB 129: expanded venue for filing PO
 SB 743: continuous violation of PO
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HB 570: allows electronic service of MOEP
 HB 1292: adds “trafficking” to findings of PO
(clean-up bill on trafficking PO – 82nd)
 HB 1438: MOEP extended if defendant
incarcerated when order expires
 HB 1462: adds contact with family member to
terms of violation of PO or MOEP
 SB 357: add “trafficking” to findings of PO
(clean-up bill on trafficking PO – 82nd)

“Start where you are,
Use what you have,
Do what you can.”
-Arthur Ashe
Tracy Grinstead-Everly, JD
Public Policy Manager
tgrinstead-everly@tcfv.org
Texas Council on Family Violence
(512) 794-1133 – phone
(800) 525-1978 – toll free
(512) 794-1199 – fax
www.tcfv.org