Ex-parte relief and what not to say to a judge ex-parte

1 ex parte relief AND what NOT TO SAY TO A judge ex parte Tyler Pennington Pennington Law PLLC 106 S. Harris St., Suite 125 Round Rock, Texas 78664 Tel: 512-255-2733 Fax: 866-736-3690 Tyler Pennington 106 S. Harris St., Suite 125 Round Rock, TX 78664 i i (512) 255-2733 Education University of Missouri-Kansas City, School of Law Kansas City, MO Juris Doctor, May 2010 Park University Parkville, MO Bachelor of Science, Social Psychology, December 2006 Magna Cum Laude Professional Activities Pennington Law PLLC Round Rock, TX Founder.

2 Attorney at Law June 2011 to September 2011 and January 2013-Current Bargas Law Firm Austin, TX Associate Attorney September 2011 to January 2013 Missouri State Public Defender, Trial Division-District 16 Kansas City, MO Intern May 2009 to April 2010 Accomplishments, Memberships Winner of 2010 Most Outstanding Clinic Student Award, University of Missouri-Kansas City, Child and Family Services Clinic Assisted in re-drafting Termination of Parental Rights, Appellate Section, of the KCMBA Attorney Practice Handbook, University of Missouri-Kansas City, Child and Family Services Clinic Sports and Entertainment Law Society, University of Missouri-Kansas City, President and Secretary Successfully defended Mandamus appeal in the 3rd Court of Appeals related to the 2015 amendment to Texas Family Code (b-1)

3 Authored appellate briefs for family and criminal cases in the 1st, 3rd, and 4th Court of Appeals Successfully overturned Reason to Believe finding for physical abuse on CPS administrative appeal Williamson County Bar Association, Member Austin Criminal Defense Lawyer s Association, Member i TABLE OF CONTENTS I. II. PURPOSE OF ex parte III. RECOGNIZING NEED FOR IV. OBTAINING ex parte A. PROCEDURE ..2 B. ex parte LEGAL REMEDIES ..2 1. TEXAS RULES OF CIVIL PROCEDURE ..3 2. DIVORCE CASES ..4 3. SUITS AFFECTING PARENT CHILD 4.

4 PROTECTIVE ORDERS ..6 5. AFFIDAVIT REQUIREMENT ..7 6. RESPONDING TO ex parte relief ..8 V. ETHICAL CONSIDERATIONS ..9 VI. CONCLUSION ..10 1 ex parte relief AND what NOT TO SAY TO A judge ex parte I. Introduction If you have handled family law cases in your practice it is very likely that you have used or heard of the term ex parte . ex parte means on or from one side or party only or from a one-sided or partisan point of view . (Merriam-Webster, ). As a family law practitioner, whether dealing with divorces, suits affecting the parent child-relationships or protective orders you will at some point come across the need to seek ex parte relief from the court.

5 You may see ex parte relief in different aspects of your daily practice, and it is important to know the law as well as the practical and ethical implications of using ex parte relief to benefit your clients. II. Purpose of ex parte relief In most family law cases ex parte relief comes in the form of temporary restraining orders (TROs). TROs can be used in a multitude of areas of family practice, such as to preserve the status quo between the parties, In re Newton, 146 648, 651 (Tex. 2004); for the protection of a spouse (Tex. Fam. Code ); for the preservation of property, (Tex.)

6 Fam. Code ); and to protect the safety and welfare of a child (Tex. Fam. Code ). Emotions run high and intense during family conflict making ex parte relief often necessary once a suit is filed to protect the parties, their property, and even the children. 2 III. Recognizing Need for relief ex parte relief is necessary in the following obvious circumstances: family violence, a parent that is a flight risk, child abuse and neglect, and transferring and disposing of money or property by a spouse. However, in some cases the need for ex parte relief may be as simple as putting a band-aide on the situation until you can get into court for a temporary orders hearing.

7 Knowing your case is the first step in recognizing ex parte relief . Sometimes, what a client believes is an emergency will not be an emergency in the court s view since many counties have standing orders which are put in place once a family suit is filed that can sufficiently protect the parties, children and property. For example, the following counties all have standing orders: Travis, Bell, Bastrop, Harris, Dallas, Collin, and Montgomery. This is not inclusive of all the counties in Texas which have standing orders so it is extremely important to check the county in which the suit will be filed to see if they have a standing order and to see whether or not that standing order meets the needs of your case.

8 IV. Obtaining ex parte relief A. Procedure The first step in requesting ex parte relief is to file the underlying suit (SAPCR, divorce, protective order). Without the underlying suit, the ex parte relief cannot be sought. It is not necessary to file the request or application for ex parte relief as a separate pleading. However, your request for ex parte relief may be filed as a pleading separate from the underlying suit. Also a motion for a TRO can be heard and rendered by a district judge , county judge or an associate judge . Tex. Fam.

9 Code (a), (a)(14)(C). 3 Once the pleading containing the request has been filed, it may be necessary to contact the opposing party against who relief is sought prior to seeking a relief from the court. For example in Travis County, Texas you must certify in writing that to the best of the applicant s knowledge, the party against who relief is sought is not represented by counsel; or, if the party is represented by counsel, that counsel has been notified of the application for relief and that counsel does not wish to be heard by the court or that counsel presenting the application has diligently attempted to notify such counsel and has been unable to do so and the circumstances do not permit additional efforts to give notice.

10 Travis County Local Rule, pg. 17. Other courts have similar local rules and it is extremely important to familiarize yourself the local rules in the county where the suit will be filed to make sure you are in compliance. B. ex parte Legal Remedies 1. Texas Rules of Civil Procedure In civil cases generally temporary restraining orders are governed by Rule 680 of the Texas Rules of Civil Procedure. Rule 680 states that a TRO shall not be entered without notice to the adverse party unless the applicant can clearly show from specific facts set forth in an affidavit or verified pleading that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and hearing can be held.