November-December 2013

Legislative changes to the Texas Family Code and Code of Criminal Procedure

Kristine Soulé

Assistant Criminal ­District Attorney in ­Tarrant County

Cynthia Gustafson

Assistant Criminal ­District Attorney in ­Tarrant County

FC §81.0075: Intends to clarify that there is no conflict of interest when a prosecutor representing TDFPS in an action involving the victim also represents that same victim in a preceding, concurrent, or subsequent protective order (PO) suit. However, this is subject to the Texas Disciplinary Rules of Professional Conduct and does not cure any ethical conflicts that may arise in these situations.

FC §82.003: Increases the available venue locations for a protective order to include the county where the alleged family violence occurred. Victims are no longer limited to only the county where they or the respondent reside.

FC §§82.004 and 85.042(a): §82.004 requires that an application for a protective order include whether an applicant is receiving services from the Title IV-D agency in connection with a child-support case and, if known, the agency case number for each open case. §85.042(a) requires the clerk of the court to send a copy of the PO to the Title IV-D agency. There is no requirement that the respondent is a party to the child support case, and there is no exception made if the respondent is not a party. If known, this information is required regardless of the respondent’s involvement in the child-support case.

FC §§85.021(1)(C) and 85.022(b)(7): In 2011, the Legislature gave courts the authority in §85.021(1)(C) to prohibit a respondent from removing a pet, companion animal, or assistance animal from the possession of a party protected by a PO. Additionally §85.022(b)(7) gave courts authority to prohibit a respondent from harming, threatening, or interfering with the care, custody, or control of a pet or assistance animal belonging to a person protected by a protective order. The changes made in 2013 clarify that an animal is included whether it is possessed by or in the actual or constructive care of the person protected by the protective order, addressing situations where the applicant has left the animal to escape the abuse.

FC §85.042(a-1): Revises the requirement on the clerk to provide a copy of the protective order to the staff judge advocate or provost marshal if the respondent is a member of the military in an active-duty status to make it conditioned on the applicant or applicant’s attorney providing the applicable mailing address.

CCP art. 7A.01(a)(2): Removes the limitation on eligibility for a protective order to only certain victims of trafficking, adding victims trafficked for forced labor or services.

CCP art. 7A.01(a)(3): Reduces the victim’s age from younger than 18 to younger than 17 for a parent’s or guardian’s applications on behalf of victims of sexual assault, sexual abuse, or stalking.

CCP art. 7A.01(a)(4): Sets the victim’s age to younger than 18 for a parent or guardian to file an application on behalf of victims of trafficking of persons and compelling prostitution.

CCP art. 7A.01(b): Increases the available venue locations for filing a protective order to include any county in which an element of the alleged offense occurred or any court with jurisdiction over a family violence protective order involving the same parties.

CCP art. 7A.05(a)(2)(A)(ii): Authorizes the court, upon a finding of good cause, to prohibit the respondent from communicating in any manner with the applicant or any member of the applicant’s family or household except through the applicant’s attorney or a person designated by the court.

CCP art. 7A.07(b): Amends when a victim or her parent or guardian can apply to rescind a protective order; applies to a victim of sexual assault, sexual abuse, or stalking who is 17 or older; a parent or guardian acting on behalf of a victim who is younger than 17; a victim of trafficking persons or compelling prostitution; or a parent or guardian acting on behalf of a victim who is younger than 18.

CCP Chapter 7B was repealed and merged with Ch. 7A.