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26. Family Violence and
Related Assaultive Offenses
(20 hrs.)
TCLEOSE LEARNING
OBJECTIVES
08/02/04
Objectives
• Unit Goal: 26.1. Understanding the dynamics of family violence
• 26.1.1 Discuss how victims might be affected by family violence
• 26.1.2 Identify common characteristics of family violence offenders
• 26.1.3. Describe the cycle of abuse phases.
• 26.1.4. Discuss examples of the types of abuse often occurring in family violence incidences
• List examples of some barriers victims face when attempting to leave the abusive relationship
• Unit Goal: 26.2. To enable the student to recognize the legal issues pertaining to family violence.
• 26.2.1 Identify offenses and statutes that refer to family violence
• 26.2.2. Define family violence terms related to Title 4 of the Family Code; Protective Orders and Family
Violence
• 26.2.3. Explain the application procedure for a Protective Order.
• 26.2.4. Describe the Protective Order court hearing process.
• 26.2.5 Discuss what a Protective Order is, what it means, and consequences of violation.
• 26.2.6. Discuss the recommended steps in handling family violence calls involving Temporary Ex Parte
Protective Orders, Protective Orders, and Magistrate’s Order for Emergency Protection.
• Unit Goal: 26.3 To enable the student to recognize the legal issues pertaining to child abuse.
• 26.3.1 Identify the legal requirements for investigation of child abuse or neglect.
• 26.3.2 Identify the legal requirements relating to medical treatment and medical examinations of a
child.
• Unit Goal: 26.3. To increase the students’ understanding of procedures for responding to family violence.
• 26.3.1. Discuss family violence situations and describe procedures for conducting preliminary investigations.
• 26.3.2 Give examples of community resources and referrals
Unit Goal: 26.1. The student
will be able to provide
understanding of family
violence characteristics.
Note to the instructor: Students
should be instructed to use the term
“family” rather than “domestic”
violence because Texas law defines
and uses family violence and there is
no legal definition for domestic
violence.
how victims
26.1.1. Discuss
might be affected by family
violence
Victims may experience some of the
following:
• Physical injuries
• Feelings of guilt about violence, the children, etc.
• Feelings of low self esteem, feeling like violence
is justified
• May be isolated and not trust anyone
• May be dependent on abuser both economically
and emotionally
• May feel powerless to do anything to change the
situation
Victims may experience some of the
following:
• May blame herself for the violence
• May be in denial that it is really that bad
• May have a passive personality or may be
aggressive
• Feeling stressed
• Questioning their sanity
26.1.2. Identify common
characteristics of family
violence offenders
Common characteristics of family
violence offenders:
• The majority of family violence is male-on-
female; so “offender” in this context generally
refers to a male offender
• May be extremely jealous and accuse partner of
constant infidelity
• Usually feels very poorly about himself and has
low self-esteem
• Has probably witnessed and/or been the victim of
family violence as a child or young adult battering
Common characteristics of family
violence offenders:
• Believes that the male is the ruler and head of the
house no matter what
• Blames others for actions and rarely takes any
personal responsibility unless he will directly
benefit
• May act very differently in public than at home
• May be hateful and ugly to everyone, i.e., the
town bully
Common characteristics of family
violence offenders:
• Unable to deal with stress; may turn to
drug/alcohol abuse.
– Substance abuse in itself does not cause the violence.
Although substance abuse may intensify the frequency
and severity of family violence, studies show that when
substance abuse stops, the battering usually continues.
There are batterers who are not substance abusers and
substance abusers who do not batter.
• Uses sex aggressively to maintain power and
control
• Does not believe his behavior should have
negative consequences
• May be angry and socially isolated - a loner
Common characteristics of family
violence offenders:
• Denies and/or minimizes the seriousness of the
violence
• Has a history of abuse either as a child or with
another partner
• Uses violence to get what he wants and solve
problems because it has worked in the past
• May be extremely moody and have severe mood
swings
Some theories on the causes of
family violence abuse:
• It works to get the batterer what he wants
• Learned Behavior - role models, a way of life
• Sex role stereotypes clearly defined roles for
boys and girls
• Cultural – e.g., society, media, role models,
etc.
• Stressors and lack of control – e.g., finances,
isolation, children
26.1.3. Describe the cycle of
abuse phases.
Example of the “cycle of violence” model:
• A husband feels the need to have absolute
power and control over his wife and
children, and this control is maintained
using verbal and physical violence and
threats.
• Victims of family violence have reported that the
cycle of violence does not accurately describe
their experiences but that the Power and Control
Wheel does. It is preferable to use the Power and
Control Wheel when discussing the types of
behavior that the offender does in order to
maintain the power and control in the family.
•
• The violence usually increases in frequency and
severity over time.
Note to the instructor:
Handout: Power and control wheel. Discuss
the change from the Cycle of Violence to the
Power and Control Wheel
Triggering Events or Stressors:
•A couple married young with unrealistic high
expectations.
•A couple's values, education, or financial
resources differ.
Communication skills are lacking, leaving
conflicts unresolved.
Cycle:
• Tension building
• Difficult times; arguments increase.
Violent Episode
• Physical, emotional, and sexual abuse
possible.
• Average incident lasts from 2-24 hours.
Honeymoon
• The calm stage; the offender is often
apologetic and loving.
• Still not the "normal" relationship, power
and control issues are still apparent.
The cycle usually repeats itself
over time and increases in
severity. There is danger to the
victims when the cycle is
allowed to continue and
escalate.
26.1.4. Discuss examples of the
types of abuse often occurring
in family violence incidences
Physical
• This is the most obvious. It includes
pulling, shoving, slapping, hitting,
punching, pulling hair, cutting, stabbing,
choking, shooting, burning, kicking,
disfiguring, spitting at, torturing, throwing
things, stomping, pinching, etc.
Sexual
• Forced sexual intercourse that may occur
before, during and after a beating. Often
includes acts that the women finds offensive
• Not allowing the use of birth control and
refusing to use it himself resulting in
unwanted pregnancy
• Use of objects
• Forced sex with others or in inappropriate
places or in front of children
Emotional
• Withholding affection
• Ignoring for long periods of time: treating as a non-person
• Verbal abuse: name calling, constant allegations of infidelity
• Isolation: preventing contact with family, friends and neighbors
• Severing family ties and/or preventing contact with friends and
neighbors
• Injuring or killing pets
• Destroying personal possessions
• Belittling in front of family/friends and humiliating or degrading acts
• Constant monitoring
26.1.5 List examples of some barriers
victims face when attempting to
leave the abusive relationship
Barriers to leaving an abusive
relationship:
• Financial dependence on the abuser
• Lack of an available support system
• The victim’s previous negative experience with the
criminal legal system
• Fear due to increased threats by the abuser when victims
try to leave
• Loves the abuser but wants the violence to stop
• Children want to stay/return
• Victim believes that the children need both parents
• Immigrant victims face additional barriers of threats with
the INS, distrust of law enforcement, language
Unit Goal: 26.2. To enable the
student to recognize the legal
issues pertaining to family
violence.
offenses and
26.2.1. Identify
statutes that refer to family
violence .
Family violence offenses and statutes:
• Authority of Peace Officers - CCP 14.03
• Murder - PC 19.02
• Manslaughter - PC 19.04
• Criminally Negligent Homicide - PC19.05
• Assault - PC 22.01
• Sexual Assault - PC 22.011
• Aggravated Sexual Assault - PC 22.021
Family violence offenses and statutes:
• Assault/Aggravated Assault - PC 22.02
– Assault is a serious crime and the laws in Texas reflect
this view. Penalties are increasing, warrants are often
not needed to make a lawful arrest, and the victim’s
agreement or cooperation is not necessary to file
charges, make an arrest or prosecute the offender
– Review the definition of bodily injury. Bodily injury is
the main defining factors for an assault to be a Class A
misdemeanor. The victim, not the officer, determines
the presence of bodily injury. Under case law, although
visible indicators of bodily injury are preferable, it is
possible to establish probable cause for an arrest for
assault without visible injuries to corroborate the
victim’s claim of injury.
Family violence offenses and statutes:
• Injury to a child, elderly person or disabled
individual - PC 22.04
• Aggravated Kidnapping - PC 20.04
• Kidnapping - PCPC 20.03
• Unlawful Restraint - PC 20.02
• Deadly Conduct - PC 22.05
• Terroristic Threat - PC 22.07
• Obstruction/Retaliation - PC 36.06
Family violence offenses and statutes:
• Harassment - PC 42.07
• Stalking - PC 42.072
• Unlawful Possession of a Firearm - PC 46.04
• Interference with an Emergency Telephone Call -
PC42.062
• Disorderly Conduct - PC 42.01
• Criminal Mischief - PC 28.03
• Violation of a Protective Order or Magistrate’s
Order - PC 25.07
26.2.2. Define family violence
terms related to Title 4 of the
Family Code; Protective Orders
and Family Violence
Definition of family violence terms:
• Applicability of definitions FC 71.001
• Dating violence FC 71.021
• Family FC 71.003
• Family violence FC 71.004
• Household FC 71.005
• Member of household FC 71.006
26.2.3. Explain the application procedure for
a Protective Order.
Application procedure for a
protective order:
• Venue (county where it may be filed) FC 82.003
• Where to make application FC 82.003
• Who may file FC 82.002
• Contents of application FC 82.004
• No fee is required for issuance of protective order
FC 81.002, LGC 118.131
26.2.4. Describe the Protective
Order court hearing process.
Protective order court hearing
process:
• Time Set for Hearing FC 84.001
• Required Findings and Orders FC 85.001
26.2.5. Discuss what a Protective Order
is, what it means, and consequences of
violation.
Code citations for protective orders:
• Civil Provisions of order applying to any party -
FC 85.021
• Civil Provisions for order applying to the
respondent - FC 85.022 (a only)
• Criminal provisions of order applying to the
respondent - FC 85.022 (b through e)
• Adoption of procedures by law enforcement
agency - FC 86.001
• Civil provisions of order applying to any party -
FC 85.021
Code citations for protective orders:
• Duty to enter information into statewide law
enforcement information system - FC 86.0011
• Duration of protective order - FC 85.025
• Delivery to respondent - FC 85.041
• Warning of protective order - FC 85.026
26.2.6. Discuss the recommended
steps in handling family violence calls
involving Temporary Ex Parte
Protective Orders, Protective Orders,
and Magistrate’s Order for
Emergency Protection.
Applicable code citations:
• Rights of crime victims - CCP Chapter 56
• Magistrate’s order for emergency protection - CCP 17.292
• Officer shall Arrest for Violation of Protective Order or
Magistrates Order that occurs in their presence - CCP 14.03,PC
25.07, CCP 17.292
• Temporary Ex Parte Protective Orders are not criminally
enforceable - FC 83.001
• Enforcing out-of-jurisdiction Protective Orders - FC 88.001
Uniform Enforcement of Domestic Violence Protective Orders
Act
• May arrest for violation of a Protective Order not in view -
CCP 14.03 (a)(3)
Note: Family Code, Chapters
82, 83, 85, and 86.
Note: Blacks Law Dictionary defines An Ex
Parte Protective order as an order "On one
Side only; by or for one party; done for, in
behalf of, or on the application of one party
only."
Unit Goal: 26.3 To enable the
student to recognize the legal
issues pertaining to child abuse.
26.3.1. Identify the legal requirements
for investigation of child abuse or
neglect.
Legal requirements for child
abuse/neglect investigation:
• Definitions - TFC 261.001
• Persons’ required to report; time to report - TFC
261.101
• Matters to be reported - TFC 261.102
• Report made to appropriate agency - TFC 261.103
• Contents of report - TFC 261.104
• Referral of report by department or law
enforcement - TFC 261.105
Legal requirements for child
abuse/neglect investigation:
• Immunities - TFC 261.106
• False Report penalty - TFC 261.107
• Failure to report - TFC 261.109,PC 38.17
• Privileged communication - TFC 261.202
• Investigation of report - TFC 261.301
• Conduct of investigation - TFC 261.302
• Investigations in juvenile justice programs and
facilities - TFC 261.405
26.3.2 Identify the legal
requirements relating to
medical treatment and medical
examinations of a child.
Legal requirements for medical
treatment/examinations of a child:
• Consent by non-parent - TFC 32.001
• Consent to treatment by child - TFC 32.003
• Examination without consent of abuse or
neglect of child - TFC 32.005
26.3.3 Identify the legal
requirements for taking
possession of a child in an
emergency.
Requirements for taking possession
of a child in an emergency:
• Civil Liability - TFC 262.003
• Accepting voluntary delivery of possession of a child -
TFC 262.004
• Possession and delivery of missing child - TFC 262.007
• Taking possession of a child in emergency without a court
order - TFC 262.104, CCP 2.13, CCP 63.009(g)
• Unacceptable facilities for housing child - TFC 262.108
• Taking possession of child in emergency with intent to
return home - TFC 262.110
26.3.4 Identify the legal
requirements relating to
communication between law
enforcement authorities and
school officials.
• Notification to schools required - CCP 15.27
• See Family Code, Chapters 82,83, 85, and 86
• Note: Black’s Law Dictionary defines an ex parte
protective order as an order “on one side only; by
or for one party; done for, in behalf of, or on the
application of one party only.”
Unit Goal: 26.3. To increase the
students’ understanding of
procedures for responding to
family violence.
26.3.1. Discuss family violence
situations and describe procedures
for conducting preliminary
investigations.
Procedures for conducting
preliminary investigations.
• Family violence is the deliberate, often
repetitive, physical abuse by one family
member against another.
• In incidences of alleged family violence,
police officers may be unable to identify the
primary aggressor in the incident and often
arrest all parties involved.
Procedures for conducting
preliminary investigations.
• As a result, victims of the incident are disqualified
from receiving crime victim compensation, access
to emergency shelters, and other public benefits.
• Without these services, victims may be less likely
to leave the abusive relationship.
• Having the victim arrested may also reinforce the
batterer's actions and may provide the batterer
with another tool for controlling the relationship.
Reference: Office of House Bill
Analysis, H.B. 3491 by: Hinojosa,
Public Safety, 7/19/2001
Determining the predominant
aggressor starts with a through
investigation.
The following are issues to investigate
prior to making this determination:
Methods to determine the predominant
aggressor at a family violence call:
• Do not dismiss what the children may tell you
here; often children will tell you what has really
been happening (for example: “Daddy has been
hitting Mommy all day and she threw a frying pan
at him”)
• Who poses the most danger to the other?
• Is one party in actual fear of the other?
• Was the amount of force used appropriate and
reasonable?
Methods to determine the predominant
aggressor at a family violence call:
• For example, did one party react to a slap by
beating the other party?
• What is the relative severity of the injuries
inflicted on each person?
• Is one party physically larger and stronger than the
other?
• Is there a history of violence by one of the parties
against the other or against other people?
Methods to determine the predominant
aggressor at a family violence call:
• Is one party usually the aggressor?
• Who is at most risk for future harm or injury?
• Did any injuries appear to be the result of self-
defense?
• Is the party with less-serious injuries demanding
that the other party be arrested too?
• Do the stories make sense?
• Can anyone else (children, witnesses, 911 tapes)
corroborate either story?
Note to the instructor: See handout
“Determining the Predominant Aggressor at
a Family Violence Call”
Approach the scene with caution:
• At least 2 officers should respond if possible
• Obtain all relevant information from the dispatcher before
arriving at the scene
• Notify the dispatcher upon arrival
• Avoid the use of sirens and lights unless it is apparent that
the victim is in imminent danger of serious bodily injury
• Position vehicle safely - not directly in front of residence
• Be alert for assailants leaving the scene
• Listen carefully and approach cautiously
Entering the residence:
• Any resident consents to the entry
• “Exigent circumstances” require that the
officer enter without consent
• Exigent means” requiring immediate
action” In some instances the 911 call itself
may support a determination of exigent
circumstances or include an invitation to
enter without force.
Dealing with the incident:
• Diffuse the violence
• Be neutral…do not take sides
• Do not blame the victim or make comments
that could indicate fault on the victim’s part
(for example, avoid questions such as “what
did you do to make him/her angry?”)
• Locate and interview the complaining party
• Locate and interview the involved parties
Dealing with the incident:
• Locate an interpreter if necessary
– Contact the local family violence program if special
assistance is needed
– Never ask a bi-lingual suspect to interpret for a non-
English speaking victim, and avoid using children as
interpreters unless absolutely necessary
• Locate witnesses and interview
• Determine if any weapons were involved or are in
the residence and secure them if necessary
Dealing with the incident:
• Observe and listen when responding to family violence
situations
– 80% of crisis situations can be diffused through listening
– Always ask any children what happened out of sight and hearing of
the adults…and document their response
• Inform all parties what action is to be taken. If arresting,
advise victim of intention. Explain that arrest is taking
place because the law has been broken
• Take photos of the victims, suspects, children and the
scene as appropriate
Dealing with the incident:
• Apply report-writing techniques for documenting domestic
violence incidents
• Document everything! Even if the victim is unavailable for
trial, your report could result in a good case and a
conviction if it is accurate and thorough
• You only get one chance at fresh crime scene evidence!
• If the family violence is present or alleged,
– Officers are required to make a written report CCP5.05
– Family Violence Report form: UCR-10
– Notice to adult Victims of Family Violence (English and Spanish)
(CCP 5.03, 5.04, 5.05)
• Note to the instructor: See handout “Notice to
Adult Victims of Family Violence (English and
Spanish)”
• Reference: Texas Council on Family Violence
www.tcfv.org or 800-525-1978.
• Note to the instructor: The Texas Council on
Family Violence has a model protocol and sample
forms. Refer back to Patrol Procedures unit for
responding to family violence. Role-play activity
to family violence.
26.3.2 Give examples of
community resources and
referrals
Community resources and referrals:
• Crime Victim’s Assistance personnel at the PD or SO
• Victim service units when investigating domestic violence
incidents
• Nearest Family violence shelter or outreach program
• Rape crisis centers
• Public Assistance agencies, i.e., food stamps, Temporary
Assistance for Needy Families (TANF), WIC, DHS
• District or County Attorney’s Office
• Texas Council on Family Violence www.tcfv.org or 800-
525-1978
• National Domestic Violence Hotline (1-800-779-7233)
Few men during their lifetime
come anywhere near exhausting
the resources dwelling within
them. There are deep wells of
strength that are never used.
Richard E. Byrd
FAMILY VIOLENCE
LEARNING OBJECTIVE 26.1.to 26.1.3
INSTRUCTIONAL STRATEGY: Lecture, Reading assignments, handouts, and overheads
PURPOSE: Have students demonstrate knowledge and skills related to the dynamics of family violence.
ACTIVITY:
1. Handouts: “Family Violence Statistics”
Excuses and Tactics Used by Batterers
Power and Control Wheel
2. Reading Assignment (Homework)
a. Texas Penal Code, Chapter 22
b. TCCP Chapter 5?
c. Family Violence Prevention Act
d. Protection of the family statute…what does this mean??
3. Lecture (20 minutes) on course content: family violence issues, stress victims rights.
4. Evaluation:
a. participation
b. application of knowledge
In Texas, approximately 80% of family violence offenders arrested are male (Texas Department of Public Safety, Uniform
Crime Reports, 2000).
A child’s exposure to the father abusing the mother is the strongest risk factor for transmitting violence behavior from one
generation to the next (American Psychological Association, 1996).
104 Texas women were murdered by their intimate male partner in 2000 (Texas Department of Public Safety, Uniform
Crime Reports, 2000.
Protecting battered women saves the lives of men (Reuters, 2001). Efforts to protect battered women have resulted in a 70
percent reduction in the murder rate of men by their partners
Additional resources:
www.tcfv.org
Texas Department of Public Safety Uniform Crime Reporting
FAMILY VIOLENCE
LEARNING OBJECTIVE: 26.1.4.
ACTIVITY: ROLE-PLAY (allow at least 30-45 minutes)
Officers arrive at the scene and find a man, a woman and 2
children (10-year-old boy and 7-year-old girl). Man
immediately denies doing anything wrong, but children are
yelling that “daddy hit mommy again” and woman is in a
chair with her head down crying. When officers begin to
ask her questions she becomes hostile and defensive and it
is apparent that they have both been drinking.
How would participants handle this call? Must be very
specific.
Have the entire class critique the responses for negative and
positive actions of the responding officers.
PROTECTIVE ORDERS
Learning Objectives: 25.2.2-.6
STUDENT CLASS NOTES
A Protective Order is a court order, and may be issued by a County Judge, a District Judge a Municipal
court judge or a Justice of the Peace designed to protect one or more persons from future incidences
of family violence. It is a civil order with both civil and criminal enforcement options available.
I. TEXAS FAMILY CODE, TITLE 4, CHAPTER 71, STATUTORY DEFINITIONS:
A. "Family Violence": (Family Code 71.004)
1. 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, or assault, or
A that reasonably places the member in fear of imminent physical harm, bodily injury, or
assault, or sexual assault, but does not include defensive measures to protect oneself, or
as that term defined by Family Code Section 261.001, Subsections:
(1)(C),(E), and (G), by a member of a family or household toward a child of the family or
household:
(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm
from injury to the child;
(E) sexual conduct harmful to a child’s mental, emotional or physical welfare, including conduct that
constitutes the offense of indecency with a child under Section 21.11, Penal code, sexual assault
under Section 22.011, Penal code or aggravated sexual assault under Section 22.021, Penal Code or
(G) compelling or encouraging a child to engage in sexual conduct as defined by Section 43.01 Penal
Code.
dating violence, as that term is defined by Family Code Section 71.0021
B. "Family" – includes (Family Code 71.003)
1. Individuals related by (blood relatives) or affinity (relatives
by marriage);
2. Individuals who are former spouses of each other;
3. Individuals who are of the same child (whether married or not);
4. A foster child and foster parent, whether or not they live together.
C. " Member of Household": (Family Code 71.006) )”Member of a household” includes a person who
previously lived in a (particular) household.
D. "Household": (Family Code 71.005) a unit composed of persons living together in the same
, whether or not they are related to each other.
II. APPLICATION FOR A PROTECTIVE ORDER
A. VENUE: an application may be filed (Family Code, Sec. 82.003):
1. In the county where the resides; or
In the county where the ________________ resides.
NOTE: There is no length of residency requirement in the family code…resides
is where a person is currently living regardless of how long the person has lived there.
(NOTE: A valid Protective Order is enforceable anywhere in the United States and US territories under
the Federal Full Faith and Credit provision of the Violence Against Women Act (VAWA) and under
the Uniform Interstate Enforcement of Protective Orders Act under Texas law regardless of where it
was issued.
Venue
An application may be filed in the county in which the applicant resides or the county in which the
respondent resides (Family code 82.003). Victims should consult with the County Attorney or
District Attorney who's responsible for handling such cases in the county where application is being
made. (Family Code Sec. 82.003). If the CA or DA are unable or unwilling to file the protective
order Applicant can file pro-se without an attorney.
C. WHO MAY FILE (Family Code, Sec. 82.002):
1. An member of a family or household for the protection of the applicant or for any other member
of the applicant’s family or household;
2. An adult member of the dating relationship
3. Any adult for a child from family violence.
4. A attorney .
5. The Department of Protective and Regulatory Services (DPRS)
Note: Protective Orders are now available to victims of family violence in a
dating relationship.
Note: A peace officer should not be deciding if someone qualifies for a protective order but should simply refer them to the
appropriate office to make an application. For example: “I’m not sure if you qualify for a protective order or not but
here is the notice to adult victims of family violence information and I suggest you contact the District or County
Attorney or the local family violence program to see if you can get a protective order”
D. CONTENTS OF APPLICATION (Family Code, Sec. 82.004)
1. The names and counties of residence of:
a. The applicant(s)/victim(s); and
The alleged offender.
The relationship between the applicants and the individual alleged to have committed family violence
A request for one or more protective orders
III. "REQUIREMENTS FOR TEMPORARY EX PARTE ORDER" (Family Code, Sec. 83.001 - there are three types of
protective orders - this is the first type, the "temporary" version)
DEFINITION of "EX PARTE": only one party is present.
(a)If the court finds from the information contained in an application for a protective order that there is a clear and
present danger of family violence, the court, without further notice to the individual alleged to have committed family
violence and without a hearing, may enter a temporary ex parte order for the protection of the applicant or any other
member of the family or household of the applicant
A. In a temporary ex parte order, the court may direct the respondent to do or refrain from doing specific acts;
B. Temporary Ex Parte Order is valid for period specified, not to exceed ; may be extended for additional
20-day periods; (Family Code 83.002)
When certain conditions are met, a Temporary Ex Parte Order may exclude a person from the occupancy of the person’s
residence may require a police escort to protect the person obtaining the order while that person takes possession of
the residence; (Family Code 83.006)
E. Violation of a Temporary Ex Parte Order is NOT criminally enforceable, meaning a peace officer
arrest for such a violation. Violation is enforceable only by contempt of court proceedings with a fine of not
more than $500 and/or confinement in jail for not more than six months.
Note: although the ex parte order is not criminally enforceable, officers are encouraged to make a lawful arrest for any
other criminal offense that may have occurred. For example, criminal trespass, terroristic threat, harassment,
etc.
IV. COURT HEARING ON THE "FINAL PROTECTIVE ORDER" (this is the second type of protective order, and is
commonly referred to as the final the "Protective Order")
A. TIME SET FOR HEARING (Family Code, Sec. 84.001):
1. Unless a later date is requested by the applicant, the court shall set a date and time for a hearing on the applicant no
later than after the date the application is filed; however
2. A prosecuting attorney in a county with a population or more than 1.5 million or a multi-county judicial district may
request that a hearing take place not later than 20 days after the date the application is filed, and the court shall grant
the request. (Family Code 84.002)
3. If a respondent receives service of notice of an application for a protective order within 48 hours before the time set
for the hearing, on request by the respondent, the court shall reschedule the hearing for a date not later than 14 days
after the date set for the hearing. A respondent is not entitled to additional service for a rescheduled hearing. If the
respondent fails to attend protective order hearing, a default judgment may be issued and a protective order issued,
subject to the discretion of the court. . (Family Code, 84.004)
B. REQUIRED FINDINGS AND ORDERS (Family Code, Sec. 85.001):
(Updated, 2001 77th Legislative Session)
1. The court shall find family violence has occurred; and
2. family violence is likely to occur in the future.
3. If the court finds family violence has occurred and is likely to occur in the future, the court shall render a protective
order as provided by 85.022 applying only to a person found to have committed family violence, and;
4. may render a protective order as provided by Section 85.021 applying to both parties that is in the best interest of the
person protected by the order
or member of the family or household of the person protected by the order. .
Students are encouraged to contact their local Family Violence program,
Battering Intervention and Prevention Program, District Clerk or their own agency’s registry for
copies of current protective orders so they will know what they look like in their community.
V. "PROTECTIVE ORDER" Updated, 2001 77th Legislative Session)
A. Requirements of Order Applying to Any Party (Family Code, Sec. 85.021 Civilly enforceable only
In a Protective Order, the court may:
1. Prohibit a party from :
a. Removing a of the family or household from possession of a
person named in the order, or from the jurisdiction of the court; or
b. Transferring, encumbering or otherwise disposing of property mutually owned or leased by the
parties;
2. Grant exclusive of a residence to a party, and if appropriate, direct
one or more parties to vacate the residence; if the residence is granted to the protected person, this
provision is criminally enforceable against the respondent in the final protective order. It is not
criminally enforceable if the residence is granted to the respondent. )
3. Provide for possession of and access to a child of a party;
4. Require of monetary support for a party or child;
5. Award to a party the use and possession of specified property that is community property or jointly
owned or leased property
B. Requirements of Order Applying to Person Who Committed Family Violence
(Family Code Section 85.022) 85.022 (b through e are Criminally enforceable against the respondent
only!
In a protective order the court may order the person found to have
committed family violence to: The counseling requirements in a protective order are not criminally
enforceable against the respondent. See Family Code 85.024g
Complete a ____________ intervention and prevention program
Counsel with a social worker or other professional
Numbers 3-9 are criminally enforceable except that depending on what the judge orders in #3 may depend
on whether it is a criminal offense or a civil contempt issue.
Perform acts that the court determines are necessary or appropriate to prevent or reduce the likelihood
of family violence
Committing ___________violence
Communicating in a threatening or harassing manner, either directly or indirectly with the protected
person
Going to or near the residence, place of employment, child care facility, school or any other place
specified in the order.
Engaging in conduct directed specifically toward the protected person or a member of the persons family
or household, including following the person or behavior that is likely to harass, annoy, alarm, abuse,
torment or embarrass the person
Possessing a _________unless the respondent is a full-time, sworn peace officer actively engaged in
employment for a state agency or political subdivision.
Suspend a __________ to carry a concealed handgun
Peace officers can only enforce violations of Family code Sections 85.022 (b
through e). Violations of 85.021 are not criminally enforceable.
C. DURATION: A Protective Order issued under Family Code, Sec. 85.025, is effective for the period
specified in the order, not to exceed .
If no period is specified the order is effective for ___________ from the date the order was issued
D. SERVICE: The Protective Order shall be delivered to the person to whom the order applies in
at the close of the hearing, personally served elsewhere, or served by registered
or certified mail. (Family Code, Sec. 85.041)
E. SHERIFF AND POLICE CHIEF TO MAINTAIN COPY ON FILE:
To insure that officers responding to calls are aware of the existence and terms of Protective Orders, each
law enforcement agency shall establish procedures in the agency to provide adequate information or
access to information for law enforcement officers of the names of persons protected by such order,
and the names of persons to whom the order is directed (the offender). (Family Code 86.001)
A law enforcement agency may enter a protective order in the agency’s computer records of outstanding
warrants as notice that the order has been issued and is
currently in effect. However, if notice from the court that the order has been dismissed or vacated, the agency shall remove
the order from the record of outstanding warrants. Family Code 86.001.
F. Duty to Enter Information into Statewide law Enforcement Information System (TCIC) (Family Code 86.0011)
On receipt of a protective order from the clerk of the issuing court, a law enforcement agency shall immediately, but
not later that 10 days after the date the order is received, enter the information into TCIC
G ENFORCEMENT:
A Protective Order has both civilly and criminally enforceable provisions. It is unique in that it is a civil order with
criminal consequences. e:
1. CIVIL PENALTIES: Violation of the order may be punished by of court with a maximum $500
fine and/or six months in jail; (Family Code, Sec. 85.026)
2. CRIMINAL PENALTIES:
a. Violation of the order is a Misdemeanor (maximum $4000 fine and/or one year in jail);
(Penal Code, Sec. 25.07(g))
b. If, , it is shown at trial that the actor has been previously convicted of this offense or
more times, or has violated the protective order by committing an _________ or the offense of _________ in which
event the offense is a Third Degree Felony (maximum $10,000 fine and/or prison term of 2-10 years). (Penal Code,
Sec. 25.07(g))
c. Code of Criminal Procedure, Art. 14.03(b), states a peace officer shall _____________, without warrant, a
person the peace officer has probable cause to believe has violated a Protective Order under Penal Code, Sec. 25.07, if
the offense is committed in the officer's presence.
d. Even if the offense is not committed in the officer's view, under CCP Art. 14.03(a)(3), the officer may arrest
without warrant a person has probable cause to believe has violated a Protective Order.
e. CCP Article 14.03 (a)(2) authorizes the arrest without warrant of persons who the peace officer has
probable cause to believe have committed an assault causing bodily injury and that there is danger of further bodily
injury to that person.
H. OTHER CRIMINAL ACTS COMMITTED WHILE IN VIOLATION OF A PROTECTIVE ORDER: May be prosecuted
as a separate misdemeanor or felony in addition to the charge of Violation of a Protective Order.
ATTEMPTS AT RECONCILIATION DO NOT NEGATE ORDER: Reconciliatory actions or agreements made by the
persons affected by an order do not affect the validity of the order or the duty of a peace officer to enforce the order.
(Penal Code 25.07 (2)(d).
Every provision of the order is in full force and effect unless modified by a court; it's a peace officer duty to arrest the
respondent if found in violation. (Family Code Sec. 85.026 and Code of Criminal Procedure Article 14.03 (b))
You cannot arrest the protected person because the criminally enforceable provisions do not apply to the protected person.
PROTECTED PERSON CANNOT BE ARRESTED FOR VIOLATION OF PROTECTIVE ORDER (Penal Code, Sec.
25.07)(2)(e).
The Uniform Interstate Enforcement of Protective Orders Act specifically references foreign or out of state protective
orders, but emphasis on enforcing any order from anywhere should be made. Some officers are still not clear on
enforcing orders from other counties in Texas, much less from other states.
L. Enforcing Out of jurisdiction protective orders: UNIFORM INTERSTATE ENFORCEMENT OF PROTECTIVE
ORDERS ACT (Family Code Chapter 88):
A law enforcement officer of this state, who believes there is probably cause to believe that a valid foreign protective order
exists and that the order has been violated, shall enforce the foreign protective order as if it were issued in Texas.
Probable cause is established the protected individual presents a copy of the order that names the protected individual
and the respondent and it is currently in effect.
Enforce a foreign protective order as if it were issued in Texas
Enforce it if it appears valid on its face
Can rely on any relevant information in determining whether or not probable cause exists to enforce the protective order.
Registration or filing the order is not required in order to enforce the protective order
MAGISTRATES ORDER FOR EMERGENCY PROTECTION (MOEP) (CCP Article 17.292)
This is the 3rd type of protective order applicable to family violence
after an arrest for family violence or stalking, a magistrate can issue a magistrates order for emergency protection
it can be requested by the victim, the victim’s guardian, a peace officer or the prosecutor
if the offense involves serious bodily injury to the victim or the use or exhibition of a deadly weapon, a magistrates order
for emergency protection must be issued.
The order is valid for no less than 31 days and no more than 61 days
RECOMMENDED STEPS FOR INITIAL PATROL OFFICER(S)
A. Upon arrival at a family violence call, protect any possible victims without regard to the
between the offender and victim(s).
B. If it is brought to the officer's attention that a Protective Order is in effect , the officer should attempt to verify the
existence of the order, and whether order is a "Temporary Ex Parte Order" a "Protective Order or a , or a Magistrates
Order for Emergency Protection. Verification can take place through one of the following:
1. The protected party should be in possession of a copy of the order; if so, the officer should accept of
the order as proof the order exists; or
2. Check with the police and sheriff's departments in the city and county where the protected party resides (t).
3. Also check the Department of Public Safety Law Enforcement Information Systems. (Ref. Family Code Article
86.002 and 85.042.) Texas Crime Information Center (TCIC) or the National Crime Information Center (NCIC)
If the order cannot be verified by a collateral source, but the officer sees a
copy of the order it should be enforced as written. Family Code 88.004 (a)
A certified copy of the protective order is not required for enforcement.
Officers are protected from criminal and civil liability for good faith
enforcement of a protective order, even if it is determined later that the order was not valid. Family Code 88.006
C. If it is the final "Protective Order," it should be examined to determine what are the criminally enforceable
"prohibited acts." Family Code 85.022 (b through e)
D. If the respondent (the person to whom the order is directed) is present and is in violation of a "Protective Order," the
officer SHALL arrest for Violation of Protective Order under Penal Code Sec. 25.07.
1. A peace officer will be required in filing the charge (no affidavit required from victims);
peace officer affidavit should include:
a. The cause number of the Protective Order;
b. The the Protective Order was issued;
c. The identity of the court that issued the Protective Order;
d. Full information on the protected persons, respondent, and other persons involved (name, address,
contact information); and
e. What provision in the Protective Order .
2. If respondent has committed some other criminal offense, he should be charged with that violation as
well. For example, criminal trespass, harassment, assault, etc.
3. Even if the protected party is not present, but the respondent is found in violation of the Protective
Order, the officer SHALL arrest him (occurred within view of peace officer - no affidavit required of
protected person).
4. If the officer has probable cause (do not have to have witness affidavits to establish probable cause)
to believe the respondent has violated a Protective Order not in the peace officer's view, and the
respondent is located within a reasonable amount of time, the officer MAY arrest without warrant.
E. If it's a "Temporary Ex Parte Order" and the respondent is still present he:
1. Should be advised to the scene as he stands to be in contempt of court
("Criminal Trespass" might be an appropriate charge if the respondent refuses to leave.)
2. Could be arrested for any other he may have committed.
Law versus Policy
Law is derived from a variety of sources including: the U.S. Congress, state legislatures, and appellate
courts. When legislative bodies create law, they usually do not describe methods for carrying out the
intent. It is up to individual agencies to implement processes and procedures that will accomplish the
legislative intent. Those processes and procedures constitute policy.
Policy interprets the law by describing specific duties required to carry out the law. Law enforcement
agencies can always have policies that are stricter than the law, but not vice versa. Agency chiefs
and department heads have wide discretion when it comes to setting the policy to be followed to
carry out the law. Policies regarding specific laws often vary widely from county to county and city
to city.
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