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OFFICE of COURT ADMINISTRATION

Domestic Violence and the MOEP: Nuts and Bolts for the Court Administrator

Kimberly A.F. PiechowiakProtective Order Resource AttorneyTexas Office of Court Administration

[email protected]


Discuss:•Prevalence of domestic violence in Texas•Potential lethality of family violence•Magistrate’s Order of Emergency Protection•When the federal firearms prohibitions apply

Improve:• Information flow from the Magistrate to law enforcement for data entry into TCIC

• Obstacles• Best practices

•Victim and community safety•Access to resources

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Learning objectives:


Domestic Violence: Texas Stats

•32% of ALL Texans have experienced DV (2011)•38% of females•27% of males

•119 women killed by intimate partners (2013), along with 17 bystanders

•185,453 DV incidents (DPS, 2013)•97% of them were assaults• “Simple” Assault: 74.3%

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Serious bodily injury – “creates a substantial risk of death, or that causes death, serious permanent disfigurement, or protracted loss of or impairment of the function of any bodily member or organ”

Bodily Injury –Pain, cuts,

bruises, black eyes...

Types of Injuries

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Types of Injuries


On the subject of injuries…

Remember…

Experienced batterers know how and where to hit without leaving immediate OR subsequent visible injuries

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What looks like this today …

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Can look like this tomorrow


What starts out looking like a minor grabbing today…

Might look like this tomorrow…8


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Which is why…

“We must make misdemeanors matter. We must realize that true success is not prosecuting a murderer, it is preventing the murder.”

Source: Casey Gwinn, “Making Misdemeanors Matter”, 3 Homefront (1998).

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But do protective orders provide safety?

Carsey Institute, University of New Hampshire, 2011http://www.carseyinstitute.unh.edu/publications/IB‐Logan‐Civil‐Protective‐Order.pdf

•For 50% of victims, the PO stopped the violence.•For the other half, violence was significantly reduced.•Weakness— enforcement, especially in rural areas

•Fewer resources• Local politics• Law enforcement difficulties in determining predominant aggressor

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Ultimate Goal:

Domestic ViolenceHomicidePrevention

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— Casey Gwinn, J.D., President of the National Family Justice Center Alliance

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"No relationship goes from happy, healthy, and functional to murder-suicide overnight. It never happens that way. There's always a pattern of abuse."


Domestic Violence

• “a pattern of behavior in any relationship that is used to gain or maintain power and control over an intimate partner.”

- National Domestic Violence Hotline www.thehotline.org 1(800) 799-SAFE

• Includes actions or threats of actions that are•Physical•Sexual•Emotional•Economic•Psychological

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Source: National Center for Domestic and Sexual Violencewww.ncdsv.org

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VERBAL/EMOTIONAL

NAME-CALLING

YELLING

HUMILIATION

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PHYSICAL

PUSH

PUNCH

KILL

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SEXUAL

Objectification

Unwanted

touching

FORCED

SEX

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LETHALITY: Top risk factors that increase a DV victim’s risk of homicide:

PRIOR FAMILY VIOLENCE — 72% of DV homicides STALKING — 76% of female DV homicide victims*

https://www.ncjrs.gov/pdffiles1/nij/grants/209731.pdf

* https://www.victimsofcrime.org/src19


Other important lethality factors…

Domestic

Violence

Homicides

THREATS

14.9x

WEAPON

20.2x

STRANGULATION

9.9x

FORCED SEX

7.6x

JEALOUSY

9.2x

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Lethality/Danger Assessments

•http://www.dangerassessment.org

•Jacquelyn C. Campbell, Ph.D., R.N.•Anna D. Wolf Chair, The Johns Hopkins University School of NursingNational Director, Robert Wood Johnson Foundation Nurse Faculty Scholars

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Magistrate’s OrdersOf

Emergency Protection

An important piece of the puzzle…


• Available to victims of :• Sexual assault/aggravated sexual assault

(PC 22.011/22.021)• Stalking (PC § 42.072)• Family violence offense (Title 5, Penal Code)

• Granted after arrest and before release on bond

• Mandatory if during a family violence assault, the accused• used or exhibited a deadly weapon OR• inflicted serious bodily injury on victim.

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MAGISTRATE’S ORDER OF EMERGENCY PROTECTION

(TEX. CODE CRIM. PRO. (CCP) ART. 17.292)


Must Lucy file a written application?

A written application is not required.

Who else can request the Magistrate’ s Order on Lucy’s behalf?

Lucy’s parent or guardian, a peace officer, the state’s attorney, or the court. (CCP Art. 17.292(a))

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MOEP Procedures

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When and how does Ricky get

notice that the order is being considered?

Statute is silent.

Must the court hold an adversarial hearing to consider the application?

An adversarial hearing is not required for an emergency order such as a Magistrate’s Order .*

*Ex parte Flores, 130 S.W.3d 100 (El Paso 2003, pet ref’d)

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MOEP Procedures


Who may appear before the magistrate when the request is considered?

• The statute is silent.

Can Lucy present information or evidence? • Permitted but not required

Would Lucy’s attendance be beneficial? • Lucy’s safety. CCP art. 5.01 and art. 56.02 • Lucy’s “stay away” locations. CCP art. 17.49 • Whether Lucy wants to participate in GPS

monitoring of Ricky. CCP art. 17.292(c‐1) and art. 17.49

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MOEP Procedures


Can Ricky be required to stay away

from Lucy?• “Stay away” provisions apply to places, not people.

CCP Art. 17.292 (c)(3)

Can Ricky be forbidden from communicating with Lucy?

• Order can limit how Ricky communicates, but cannot impose a total ban on communication. (CCP Art. 17.292(c)(2))

• Prohibits threatening or harassing communication

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Contents of the Order

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Under CCP Art. 17.292, what must the magistrate order an accused to do, regardless of whether the order is mandatory or discretionary?

A. Refrain from threatening a person protected by the order

B. Refrain from assaulting a person protected by the order

C. Surrender the accused’s concealed handgun license

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ANSWER: C

Must order the surrender of any concealed handgun license.

Except for suspending the concealed handgun license, for both mandatory and discretionary orders, the magistrate has discretion over what provisions to include in the order.

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In 2014, which group of judges issued of the largest number of protective orders of any type?

A. District Court judges

B. County Court at Law judges

C. Justices of the Peace and Municipal Judges

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Who issues the most orders?

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OFFICE of COURT ADMINISTRATION 31

Muni + JP: 17,02871 %

Total : 24,110Answer: C


By statute , who is responsible for forwarding the Magistrate’s Order to local law enforcement?

A. The magistrate who issued the order

B. The magistrate’s clerk

C. The court’s bailiff

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Sending the Order to Law Enforcement


ANSWER: A

The magistrate shall send a copy of the Magistrate’s Order to either:

•Chief of police (if victim resides in municipality) OR

•Sheriff (if victim resides outside municipality)

(CCP art. 17.292(h))

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Sending the Order to Law Enforcement

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How many participants in this process?

•Information?

•Paperwork/documentation?

•Both?

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Victim

Officer

Advocate?Court Clerk

Judge

Court Clerk

District/County Clerk?

Police

Data entry

MOEPs

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Texas OCA Protective Order Record Improvement Project

Funding: DOJ Bureau of Justice Statistics

Purpose: Increase reporting of protective orders to NICS by reviewing and analyzing the PO reporting process, from the application/request stage to entry into TCIC.

•Meet with law enforcement, judicial, and court clerk training organizations

• Conduct case studies in eight rural, suburban, and urban jurisdictions• Statewide survey• Create NICS Protective Order Improvement Task Force to develop recommendations

•Develop training to improve reporting rates

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Protective Order Data Entry Form

http://http://www.txcourts.gov/media/524144/protectiveorderdataentryform.pdf

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Send the order to local law enforcement agency (police or sheriff)

Include identifiers for restrained person, which are:

Name Date of birth RaceSex Hair/eye color Weight/Height

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TIP‐‐IMPROVING THE ODDSThat the Order Gets into TCIC


Identifying information available from:•Accused•Court’s own observation of accused•Police report/affidavit/other official document•Witness •Personal bond ‐ Art. 17.04 , CCP. To be granted personal bond, the accused must provide the following identifying information: name, address, place of employment, date and place of birth, height, weight, color or hair and eyes, driver’s license number and state of issuance, and name and address of nearest relative.

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TIP‐‐IMPROVING THE ODDSThat the Order Gets into TCIC

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• Written, detailed protocol

• Back‐up personnel

• Document what was sent to law enforcement:

Cover sheet listing the items sent

Protective order TCIC data sheet

Protective order.

Keep a copy of EVERYTHING

• Confidentiality: Check with your legal advisor about possible confidentiality concerns if a copy of the protective order data sheet is kept in the court’s file.


Require confirmation (by an actual human) of receipt by the agency

Periodically compare the number of orders forwarded to law enforcement in your county with the number of orders DPS has in the system for your county.

Report can be requested at [email protected].

Staff member with access to TCIC can check the system on a regular basis to ensure order was entered.

Enlist law enforcement to check on status.

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Require officers to furnish:Probable cause affidavit Criminal history Motion/request for MOEPCompleted Protective Order Data Entry form

Have staff confirm information with complainant if possible

Confirm data sheet information in court and compare to protective order for accuracy

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•Communication: get involved with local agencies

• Meet for breakfast!• Focus on effective administration of justice

• Educate on protocols and the legal system.

• Court procedures and expectations

Best Practices for Everybody


After the order is issued, what next?• Order shall be sent to either:

• Chief of police (if victim resides in municipality)

OR• Sheriff (if victim resides outside municipality)

•The Magistrate shall order police to make good faith effort to notify victim

•The Clerk shall send copy to the victim.

• If order prohibits person from going to school or child care facility, the Magistrate shall send a copy to that school or child care facility(CCP art. 17.292(h)(i))


More notifications…

•DPS ‐ Copy of the order must be sent to Department of Public Safety only if the order suspends concealed handgun license

•Defendant‐ CCP 17.292(j)•As of May 15, 2013, a magistrate or the magistrate’s designee, shall serve defendant in person, or electronically

•Magistrate shall make a separate record of service in written or electronic form.

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• Victims of family violence are entitled to protection from harm. (CCP Art. 5.01)

• The magistrate shall protect the victim, regardless of the relationship between the alleged offender and the victim. (CCP Art. 5.01)

• Victim has the right to have the magistrate consider the safety of the victim and the community in setting amount of bond.

(CCP art. 56.02(a)(2))

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Legislative Mandate:Magistrate’s Duty to Protect


•After Granny’s arrest, Cousin Pearl requests a Magistrate’s Order to restrain Granny from further violence against her.

•Cousin Pearl claims she and Granny are members of the same family.

•Granny denies a blood tie to Pearl; Pearl is only related to Jed, who is Granny’s son‐in‐law.

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Family Relationship?


•Texas Family Code Chapter 71

•Texas Family Violence Bench book Ch. 2

•TMCEC Forms

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Controlling Definitions‐

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•“Family”: persons related by consanguinity or affinity, former spouses, and parents of same child. It also means a member of the same household (Fam. Code 71.002)

•“Family Violence” includes dating violence

(Fam. Code § 71.004)

• “Dating Violence” now includes assault on person who is a romantic rival if the rivalry motivated the assault (Fam. Code § 71.0021)

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Controlling definitions‐highlights


• an act by a member of a family or household against another member that is intended to result in

• physical harm• bodily injury • assault • sexual assault, or • a threat that reasonably places the member in fear of same •Does not include defensive measures to protect oneself;

• abuse, as that term is defined by Sections 261.001(1)(C), (E), and (G), by a member of a family or household toward a child of the family or household; or

• dating violence, as that term is defined by Section 71.0021.

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“Family Violence” Ch. 71 TX Family Code


Based on the information you have from Cousin Pearl and Granny, does Pearl qualify for a Magistrate’s Order?

A. Yes

B. No

C. Maybe; cannot tell based on the facts stated.

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Controlling Definitions

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ANSWER: C

For instance, Pearl would qualify

if she can prove that

she is a member of

the Clampett household.

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Controlling Definitions


Family Violence is an element of the offense that must be pled and proven to convict the offense:

•Penal Code § 22.01(b)(2)(A)(family violence assault)

•Penal Code § 22.02(b)(1)(family violence aggravated assault)

NOTE: The family violence element is usually requires prior conviction in order to enhance the punishment.

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Family Violence Offense


Penal Code Title 5 offenses (Offenses Against the Person):

• Any proof (extrinsic or intrinsic) may establish the family relationship between the defendant and victim.

• If the court determines the offense involved family violence as defined by 71.004 of the Texas Family Code, the court SHALL make an affirmative finding and enter it into the judgment (CCP Art. 42.013)

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Family Violence Offense

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•State law: Discretionary•Magistrate may forbid an accused from possessing a firearm unless the person is licensed peace officer in full time employment by state agency or political subdivision (CCP art. 17.292 (c)(4))

•Except:Mandatory suspension of state concealed handgun license (CCP art. 17.292(l))

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Firearms Possession


Qualifying protective order:• Issued after notice and an opportunity for a hearing;• Prohibits harassing, stalking, or threatening another

who is• The accused’s intimate partner or the intimate

partner’s child AND• contains

• a finding the accused poses credible threat of physical harm to protected persons, OR

• Prohibits use, attempted use, or threat of physical force capable of inflicting bodily injury to the protected persons. (18 USC §§ 921 and 922(g)(8))

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Federal Firearms Possession Prohibition: Mandatory


• Prohibit possession of firearm under CCP Art. 17.292(c)(4).

AND

• Warn the defendant orally and in writing that the federal firearms prohibition may apply during the term of the Magistrate’s Order.

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Federal Firearms Possession Prohibition—Suggestions

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WARNINGS UNDER FEDERAL LAW

POSSESSION, TRANSPORTATION, OR RECEIPT OF A

FIREARM WHILE THIS ORDER REMAINS IN EFFECT MAY

BE A FELONY UNDER FEDERAL LAW PUNISHABLE BY UP

TO 10 YEARS IN PRISON AND/OR A FINE. IT IS

UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO A

QUALIFYING PROTECTIVE ORDER TO POSSESS A

FIREARM OR AMMUNITION.

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Federal Firearms Possession Prohibition


Justice Courts have explicit or potential jurisdiction over Magistrate’s Orders of Emergency Protection and what other type of protective order?

A. Human Trafficking (CCP Art. 7B)

B. Sexual assault (CCP Art. 7A)

C. Stalking (CCP Art. 6.09)

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Protective Order Jurisdiction


ANSWER: C

CCP art. 6.09. statute reads “at any proceeding related to an offense under PC § 42.072 in which the defendant appears before the court .The statute does not otherwise mention types of courts having jurisdiction.

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Protective Order Jurisdiction

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TMCEC Form Book•Magistrate’s Order (with definitions)•Clerk’s Letter regarding Magistrate’s Order•Motion to Modify the Magistrate’s Order•Order Modifying Magistrate’s Order

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RESOURCES:


OCA’s Domestic Violence Resource Program

http://www.txcourts.gov/dvrp/domestic‐violence‐resource‐program.aspx

•Texas Family Violence Benchbook

•Protective Order and TCIC Reporting Webinars

•More information to be added soon!


Kimberly Piechowiak

Texas Office of Court Administration

205 W. 14th Street, Suite 600

Austin, Texas 78701‐1614

(512) 936‐6390

Kim. [email protected]

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PORA CONTACT INFORMATION

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RESOURCES: Victim Safety

Consider having handout or brochure for victims with info such as…• Local prosecutor’s offices• Hotlines:

family violence, sexual assault, stalkingNational Domestic Violence Hotline (800) 799-SAFE (7233)

• Local family violence shelters• Local legal aid offices• Other advocacy groups

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