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Family violence response and protective orders

Summary of the topic

Family violence law sits across three codes. The Family Code supplies the definitions and the court's protective order, the Code of Criminal Procedure supplies the officer's duties, and section 25.07 of the Penal Code makes it an offense to violate the orders. Section 71.004 of the Family Code defines family violence as an act by a member of a family or household against another member that is intended to result in physical harm, bodily injury, assault or sexual assault, or that is a threat placing the member in fear of imminent harm. It also covers abuse of a child of the family or household and dating violence under section 71.0021. Sections 71.003, 71.005 and 71.006 define family, household and member of a household, so a former spouse, a former household member and a co-parent who never married can all fall within the definition.

Article 5.04 of the Code of Criminal Procedure sets the officer's primary duties: to protect any potential victim, to enforce the law and any protective order, and to make lawful arrests of violators. The officer must advise a possible adult victim of the reasonable means to prevent further violence, including the required written notice. Article 5.05 requires a written report of every family violence investigation.

Article 14.03(a) gives a peace officer discretionary warrantless arrest power in several family violence situations, including a violation of section 25.07 that was not committed in the officer's presence. Article 14.03(b) makes one arrest mandatory: a peace officer shall arrest without a warrant a person the officer has probable cause to believe has committed an offense under section 25.07 in the officer's presence. Article 14.03(c) requires the officer to remain at the scene, where reasonably necessary, to verify an allegation and to prevent further violence.

Section 25.07 covers a violation of a listed order or bond condition by committing family violence, communicating in a threatening or harassing manner, going near a protected location, possessing a firearm or tracking a protected person. It is a Class A misdemeanor, rising to a state jail felony or a third degree felony in listed circumstances. Reconciliation between the parties does not affect the order or the duty to enforce it.

Under article 17.292 a magistrate can issue an order for emergency protection at the defendant's appearance after arrest, lasting 31 to 61 days, or 61 to 91 days where a deadly weapon was involved. A Chapter 85 protective order comes from a court after a hearing and lasts up to two years under section 85.025, or longer in listed cases.

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