CHAPTER 4—MAISTRAT’S ORR O MRNY PROTECTION PART I ...

1 1 The Texas Family Violence Benchbook September 2013 CHAPTER 4 MAGISTRATE S order OF EMERGENCY PROTECTION PART I: STATUTES AND CASE LAW (Tex. Code Crim. Proc. arts. , 17. 292, and 17. 293) Note: 2013 legislative changes are noted in red. Summary: After an arrest for certain offenses, there are two situations in which a magistrate can issue an order of emergency PROTECTION for the victim and the victim s family or household members. One is discretionary, the other mandatory. The purpose of the magistrate s order is to prevent the defendant from inflicting further harm on the victim after the defendant is released from confinement.

2 The magistrate s order differs from a Tex. Fam. Code Title 4 protective order in that the former does not require a hearing, does not require the defendant and the victim to have a specific relationship (and can be issued to protect the victim from a stranger), and is issued before the defendant is released from jail. Unlike the protective orders available under Tex. Code Crim. Proc. CHAPTER 7A (sexual assaults) and article (crimes motivated by bias or prejudice), the magistrate s order is available to victims of several different types of offenses.

3 The magistrate s order should complement the conditions of bond set for the defendant. Discretionary. After a person is arrested for an offense involving family violence, sexual assault, aggravated sexual assault, or stalking, the magistrate may issue an order of emergency PROTECTION before the defendant is released from custody. Mandatory. After an arrest for an offense that involved family violence with serious bodily injury or involved display or use of a deadly weapon, and before the defendant is released, the magistrate shall issue an order of emergency PROTECTION .

4 The magistrate s order is criminally enforceable. Violation of the order is a Class A offense under Tex. Penal Code Predicate offenses. A magistrate s order of emergency PROTECTION can issue after an arrest for a violation of: Tex. Penal Code (sexual assault); The Texas Family Violence Benchbook September 2013 2 Tex. Penal Code (aggravated sexual assault); Tex. Penal Code (stalking); The Texas Family Violence Benchbook September 2011 2 OR any offense involving family (Tex. Code Crim. Proc.)

5 Art. (a-b)) Standing to apply. The order can issue on the magistrate s own motion or upon the request of the: victim; victim s guardian; a peace officer; OR the state s attorney. (Tex. Code Crim. Proc. art. (a)) Hearing. A hearing is not required before a magistrate s order may The statute does not address whether the order can exclude the defendant from the defendant s residence. 1 In this context, family violence is defined as: (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; (2) abuse, as that term is defined by Tex.

6 Fam. Code (C), (E) and (G), by a member of a family or household toward a child of the family or household; OR (3) dating violence. (Tex. Fam. Code ) 2 Ex parte Flores, 130 100 (Tex. App. El Paso 2003, pet. ref d). Tex. Code Crim. Proc. art is not unconstitutional because it does not require a hearing be held before the magistrate s order of emergency PROTECTION 3 The Texas Family Violence Benchbook September 2013 However, if the court is asked to do this, the best practice is to hold a hearing on at least that issue to satisfy due process.

7 Discretionary order . A magistrate s order may be issued after an arrest for an offense involving family violence, sexual assault, aggravated sexual assault or stalking. (Tex. Code Crim. Proc. art. (a)) Mandatory order . After an arrest for an offense involving family violence, an emergency order of PROTECTION must be issued if the magistrate finds the offense also involved: serious bodily injury to the victim; the use of a deadly weapon during an assault;3 OR the exhibition of a deadly weapon during an assault. (Tex.)

8 Code Crim. Proc. art. (a)) Scope of the order . To protect the victim, the magistrate may order the arrested person not to: commit family violence; stalk another person, including the victim; communicate directly or indirectly in a threatening or harassing manner with a member of the victim s family or household (including the victim); OR can issue.

9 Prompt assumption of judicial control following a violent incident outweighs the need for an adversarial proceeding. 3 Tex. Penal Code (17) defines deadly weapon as (1) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (2) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. The Texas Family Violence Benchbook September 2013 4 go near the residence, work place, residence, school, or child-care facility of the victim or a member of the victim s family or household.

10 The magistrate s order must: suspend the defendant s concealed handgun license; AND prohibit the defendant from possessing a firearm (unless the alleged offender works full time as a licensed peace officer) for the duration of the order . NOTE: A copy of the order should be forwarded to the DPS Concealed Handgun Licensing division. The federal authorities request that order contain a Brady marker, which is some notation or finding that the respondent is subject to the prohibitions on firearm possession under 18 ch.