By Sara Bill
Victim Assistance Coordinator;
Jacquelyn Johnson and Amanda Oster,
Assistant County and District Attorneys, all in Aransas County
Anyone who has been involved in criminal justice for a while understands the experience of watching our laws grow and change. The statutes governing protective orders are no different. With the 86th Regular Session in 2019 came the passing of HB 1343, which added a new subsection to Chapter 7B of the Code of Criminal Procedure and gave us tools to ensure that victims are protected even after cases are disposed. This chapter has helped us modify our mindset to think about how victims are protected long after we clear the criminal cases off our desks and send them to storage.
Jacquelyn Johnson and Amanda Oster,
Who can file?
Texas Code of Criminal Procedure Chapter 7B gives prosecutors options for seeking protective orders for the following types of offenses:
• Human Trafficking,
• Continuous Sexual Abuse of a Child,
• Indecency with a Child,
• Sexual Assault,
• Indecent Assault,
• Aggravated Sexual Assault,
• Stalking, and
• Compelling Prostitution.[1]
This sort of protective order can be sought by the victim, any adult acting on behalf of a victim younger than 18, a sexual offense response coordinator for a sexual offense, or a prosecutor.
Where to file?
Legally, these applications can be filed in a district court, juvenile court having district court jurisdiction, statutory county court, or a constitutional county court.[2] Practically, it’ll depend on local judges. For example, our constitutional county court-at-law judge prefers that protective order applications for this section be filed in our district courts.
What happens after I file?
If you’re somewhat familiar with the process of seeking protective orders in family violence cases, you’ll notice some similarities for the 7B process. There will be a temporary ex parte order issued by the judge and then there will have to be a hearing on the application. For the temporary ex parte order to be granted, the court must find that there is “a clear and present danger of sexual assault or abuse, indecent assault, stalking, trafficking, or other harm to the applicant.”[3] The term “a clear and present danger” is interesting because it seems to imply future harm. In contrast, the required finding to issue a final protective order requires “reasonable grounds to believe that the applicant is the victim of” one of the aforementioned offenses,[4] meaning that the burden for the final protective order is showing that the abuse happened. There is no requirement to show future danger, which is different from a family violence protective order.
Overlap with Family Code Title 4
Oddly enough, stalking is covered by Arts. 7B.002 and 7B.003, and under those sections, the burden for protective orders in a stalking case is “reasonable grounds” that the applicant was a victim of stalking. However, Article 7B.051 carves out a slightly different process for requesting a stalking protective order. This section states that to obtain a stalking protective order this way, you will follow the procedures of Title 4 of the Family Code.[5] For a protective order for stalking under Art. 7B.051, it is a required finding that “probable cause exists to believe” stalking was committed and the conduct “indicates” the defendant is likely to engage in future stalking.[6] That being said, Arts. 7B.002 and 7B.003 seem like an easier path to get a stalking protective order than Art. 7B.051.
Title 4 of the Family Code is also incorporated with Chapter 7B of the Code of Criminal Procedure for offenses motivated by bias or prejudice. Specifically, there is a process by which we can get protective orders for victims of arson, criminal mischief, or graffiti when the crimes are motivated by bias or prejudice.[7] The burden of proof for this sort of protective order is probable cause to believe that one of those three offenses was committed, the defendant committed the offense because of bias or prejudice, and the defendant is “likely” to commit one of those three offenses again or a Title 5 Penal Code offense (crimes against persons) because of bias or prejudice.
Should I file?
You have some decisions to make. Going back to Art. 7B.001, the statute reads that the listed persons “may” file under Art. 7B.001(a). Without a criminal case then, prosecutors do not have to file an application for a protective order. Or if a criminal case has not been disposed, you do not have to file an application. So be wise about if and when you file an application. For example, if you have an adult victim of sexual assault, does it make sense for her to testify at a protective order hearing and a criminal jury trial? Is it beneficial for her emotional and mental wellbeing to have her describe the same conduct twice? (Note that Art. 7B.004 has a provision that allows hearsay statements of a child victim to be admissible at the protective order hearing.) What are the pros and cons of creating a record before a criminal trial?
If you plan to pursue a protective order while a criminal case is pending, keep discovery in mind. The applicant’s affidavit in her protective order packet, whatever media she provides, any statements that deviate from what she told law enforcement initially, and the like—all should be disclosed to the defense in the criminal case. Larger offices may be at risk of a protective order attorney not disclosing information to the felony prosecutor, for example. Those attorneys may not even work in the same building. So be sure there is a system in place that ensures discovery from the protective order is provided to all required parties. Smaller offices are typically less of a concern because it is usually the same attorney who wears all the hats.
If the defendant has already been arrested on a charge, you can possibly ensure protection of the victim through bond conditions until the case is disposed. Most judges we’ve worked with don’t require victim testimony to secure bond conditions, and in most situations we’ve even gotten the defense to agree to them. With bond conditions, a protective order may not be necessary for the time being.
Or maybe you’re in a different situation altogether. Maybe you’re not going to be able to prove a criminal charge beyond a reasonable doubt. Maybe criminal charges aren’t going to be filed and maybe it does makes sense go for broke by seeking a protective order.
When you “shall” file
A lot of this decision-making will be much easier if prosecutors can secure a conviction or deferred adjudication on the types of charges that we’re talking about. Art. 7B.001(a-1) mandates that a prosecutor shall promptly file an application for a protective order upon a conviction or deferred for the offenses we’ve been discussing. This duty applies to convictions or deferred orders with sentencings on or after September 1, 2019, regardless of offense date. The rationale is that a conviction or deferred constitutes “reasonable grounds” and thus satisfies the requirements to get a victim a protective order.[8] From a practical standpoint, our office fulfills this duty by filing the protective order application and protective order in the criminal case at the time of the plea for these types of offenses. Our district judges do the plea and grant the protective order, and the defendant is served with a copy of the protective order immediately after. It has been a fairly seamless experience to handle it this way. Obviously, you’ll likely be at the mercy of your judges if they want to handle these situations differently.
However, if a victim 18 years or older tells us not to file an application after a conviction or deferred, we cannot file an application.[9] If a victim does not want this type of protective order, it is the practice of our office to have her state such on the record.
Informing the victim
The victim or her parent, guardian, or another adult acting on her behalf (if the victim is younger than 18 or an adult ward) has rights under Art. 56A.052. Victims have the right to know they may request that the prosecutor file an application for a protective order under Art. 7B.001. They also have the right to know the court in which the application for a protective order may be filed. If the victim or the victim’s parent or guardian is present when the defendant is convicted or placed on deferred adjudication or community supervision, he or she should be notified about these rights by the court. If the victim or victim’s parent or guardian is not present when the defendant is convicted or placed on deferred adjudication or community supervision, he or she is to be notified by the prosecutor. These rights are the bare minimum to follow. Failure to provide this information leaves prosecutors subject to the Texas Disciplinary Rules of Professional Conduct.
For practical purposes, cooperative victims should be notified of this process prior to the plea or conviction. A prosecutor and victim assistance coordinator should explain this process in advance and collect all of the information needed for an application for a protective order under Art. 7B.001 so it can be filed with the court at the time of the plea or conviction by jury.
Duration
There are many possibilities for how long the protective order will last. It “may” be for the lifetime of the defendant and victim, or however long the order says. If the order does not specify, it will last for two years.[10] However, the order “shall” be for life if there is a deferred or conviction and the defendant is required to register for life as a sex offender.[11] The default position of our office is to request that the protective orders have a lifetime duration for all orders we seek under Chapter 7B. Our judges have not given us any pushback on this yet.
Modification
Look at you acting like a prosecutor and stuff! You got a protective order for someone who really needed it. Good work. But guess what? The order can be rescinded. For victims 18 or older, they can file with the court at any time to rescind the order, and so can the parent or guardian acting on a child’s behalf.[12] There is an exception that a parent or guardian cannot file an application to rescind if the parent or guardian is the offender.
Enforcement
Protective orders are just a piece of paper if we are not doing our job to enforce them.
Make sure protective orders are entered into the statewide PO database as required by law. This is the responsibility of the law enforcement agency under §411.042(b)(6) of the Government Code, but make sure that it’s getting done. We always advise victims to keep a certified copy of their protective order readily available in the event they need to prove its existence to an officer, but the database exists for a reason.
If needed, remind officers that Art. 14.03(b) requires that they “shall” arrest a person if the officer has probable cause the person violated Texas Penal Code §25.07 in the officer’s presence.
Texas Penal Code §25.07 allows us to file criminal charges if bond conditions or the protective order is violated. If the §25.07 offense is a violation of a Chapter 7B protective order following the defendant’s conviction or deferred adjudication for the victim of that offense, the §25.07 offense is a state jail felony.[13] The §25.07 offense will be a third-degree felony if the defendant has been previously convicted two or more times for a §25.07 offense or for out-of-state offenses that contain substantially similar elements.[14] The offense will also be a third-degree felony if the charged §25.07 offense occurred by assault or stalking.[15] Also, you can combine two or more violations of §25.07 within a 12-month period to file a third-degree felony.[16]
Closing remarks
It has been said that if a man cannot feel safe, he can never feel free. As prosecutors, we are in a privileged position to protect people and provide them with safety. Sometimes we do so with a sword; sometimes we do so with a shield. It takes wisdom to know which tool to use and courage to wield it when necessary. Wisdom without courage is useless, and so is courage without wisdom. We hope that this article has increased your knowledge about the tools in your arsenal to fight the good fight. Now go and administer justice.
Endnotes
[1] Tex. Code Crim. Proc. Art. 7B.001(a).
[2] Tex. Code Crim. Proc. Art. 7B.001(b).
[3] Tex. Code Crim. Proc. Art. 7B.002(a).
[4] Tex. Code Crim. Proc. Art. 7B.002(b).
[5] Tex. Code Crim. Proc. Art. 7B.051(a).
[6] Tex. Code Crim. Proc. Art. 7B.052(b).
[7] Tex. Code Crim. Proc. Art. 7B.101.
[8] Tex. Code Crim. Proc. Art. 7B.003(c).
[9] Tex. Code Crim. Proc. Art. 7B.001(a-2).
[10] Tex. Code Crim. Proc. Art. 7B.007(a).
[11] Tex. Code Crim. Proc. Art. 7B.007(b).
[12] Tex. Code Crim. Proc. Art. 7B.007(b).
[13] Tex. Penal Code §25.07(g)(1).
[14] Tex. Penal Code §25.07(g)(2).
[15] Tex. Penal Code §25.07(g)(1).
[16] Tex. Penal Code §25.72(e).