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@penningtonlawpllc.net

Tyler Pennington 106 S. Harris St., Suite 125 Round Rock, TX 78664 i tyler@penningtonlawpllc.net 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, 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 §156.006(b-1)

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

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TABLE OF CONTENTS

I. INTRODUCTION………………………………………………………..1

II. PURPOSE OF EX PARTE RELIEF……………………………………..1

III. RECOGNIZING NEED FOR RELIEF………………………………….2

IV. OBTAINING EX PARTE RELIEF……………………………………...2

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 RELATIONSHIP…...5

4. PROTECTIVE ORDERS ……………………………………..6

5. AFFIDAVIT REQUIREMENT ……………………………….7

6. RESPONDING TO EX PARTE RELIEF …………………….8

V. ETHICAL CONSIDERATIONS ………………………………………..9 VI. CONCLUSION ………………………………………………………...10

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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, https://www.merriam-

webster.com/dictionary/ex%20parte). 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. 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 S.W.3d 648, 651 (Tex.

2004); for the protection of a spouse (Tex. Fam. Code §83.001); for the preservation of

property, (Tex. Fam. Code §6.501); and to protect the safety and welfare of a child (Tex.

Fam. Code §105.001).

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.

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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.

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.

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. Code §§201.005(a), 201.007(a)(14)(C).

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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. 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. Tex. R. Civ.

Pro. 680.

A temporary restraining order is valid for 14 days and can only be extended for good

cause shown, in which case it can be extended for an additional 14 days. The party whom

the order is against can consent to a longer extension. No more than one extension may be

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granted unless the additional extensions are unopposed. A hearing on a temporary

restraining order shall take priority over other cases on the court’s docket except other cases

involving TROs, which shall be of the same priority. Id.

Some examples of why a court would allow a TRO extension that I have seen in my

practice include: lack of service on respondent, court has other matters which take priority

on the docket, and request to obtain counsel by respondent. The reason for the extension

must be made part of the court’s record, which can be done in open court on the record and

it is also best to put the reason on the signed TRO extension order.

2. Divorce Cases

In a divorce case, ex parte relief can be found under §6.501 of the Texas Family Code.

After the suit for divorce is filed, a party by motion or the court on its own motion, may

grant a temporary restraining order without notice to the adverse party for the

preservation of the property and for the protection of the parties, including prohibiting

one or both parties from the following:

(a) communicating with the other party in a vulgar, profane or obscene manner,

(b) intentionally, knowingly or recklessly causing bodily injury to the other party,

(c) threatening the other party, destroying, concealing or removing property,

(d) falsifying records of either party, selling, signing, or mortgaging property,

(e) destroying of financial records, emails or text messages,

(f) excluding party from use or enjoyment of a residence or from operating control over a

motor vehicle in possession of a party. Tex. Fam. Code §6.501.

This list is by no means exhaustive.

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The Court may not prevent a party from spending funds for reasonable and necessary

living expenses or prohibit a party from engaging in acts which are reasonable and necessary

to conduct that party’s usual business and occupation. Additionally, a court may not exclude

a spouse from the occupancy of the residence where that spouse is living except as provided

in a protective order under Title 4, discussed below. Id.

It is important to remember that a TRO under §6.501 of the Texas Family Code can only

be sought against the other spouse and can prohibit the behavior of one or both spouses and

is not binding on third parties. Harmon v. Schoelpple, 730 S.W.2d 376, 381 (Tex. App.-

Houston [14th Dist.] 1987, no writ).

3. Suits Affecting Parent-Child Relationship

Any person with standing to bring a suit affecting the parent-child relationship

(SAPCR) may request a TRO for a child’s safety or welfare. Texas Family Code §105.001

details the relief available when seeking a TRO to protect the safety and welfare of children.

Although, §105.001 strictly deals with children issues it is also used during divorce

proceedings because it is mandatory to join the parties’ children to a divorce in Texas. Tex.

Fam. Code §6.406. Therefore, it is important to be familiar with §105.001 when handling a

Texas divorce.

Under §105.001 a court can restrain a party from the following:

(a) disturbing the peace of a child or the other party; and

(b) from removing the child beyond a certain geographic area identified by the court.

Although these are some of the things that a court can restrain a party from doing this

list is by no means exhaustive.

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Additionally, a court may not issue a TRO on any type of relief that requires notice

and hearing, such as: conservatorship of a child, child or spousal support, payment of

attorney fees, sworn inventory or appraisal, or appointment of receiver.

4. Protective Orders

Texas Family Code §83.001 details the requirements a party must meet in order to

seek an ex parte protective order. Under this section a court may direct a respondent to do

certain acts or to refrain from doing certain acts. In a sense §83.001 gives a court fairly wide

latitude on what it can issue within an ex parte protective order.

If the Court finds that there is a clear and present danger of family violence the court

may enter a temporary ex parte protective order without notice and hearing to the

respondent. This ex parte protective order can be for the protection of the applicant, of any

other member of the family or household, including the children. Tex. Fam. Code §83.001.

The Court cannot issue an ex parte protective order for the payment of support for the

applicant or the applicant’s child, In re M.G.M, 163 S.W.3d 191 at 201 n. 4), nor can the ex

parte order require the respondent to attend counseling or a batterer’s intervention program.

Tex. Fam. Code §85.024. The former would require personal jurisdiction over respondent. In

re M.G.M at 201 n. 4. Since an ex parte protective order is only in effect for 20 days, the

latter would be in direct contravention to Texas Family Code §85.024, which states that a

party has 60 days after a protective order is rendered to begin an intervention program or

counseling. Tex. Fam. Code §85.024.

An ex parte protective order under §83.001 is valid for a period specified by the order

and not to exceed 20 days from issuance. On the request of the applicant or the court’s own

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motion, a temporary ex parte protective order may be extended for an additional 20-day

period. Tex. Fam. Code §83.002.

In order to exclude a party from the residence where they live you must request what

we often call a “kick-out” order when filing for a protective order. This relief is not available

under §§6.501 or 105.001 of the Texas Family Code. Under §83.006 of the Texas Family

Code a person may only be excluded from the residence under an ex parte order if the

applicant files a sworn affidavit providing a detailed description of the facts and

circumstances requiring the exclusion of the person from the residence. The applicant must

also appear in person to testify at the temporary ex parte hearing to justify the issuance of the

order without notice.

Before issuing a “kick-out” order the Court must find that the applicant either: 1)

resides on the premises or 2) has resided there within 30 days before the date the application

for protective order was filed. The Court must also find that there is a clear and present

danger that the person to be excluded is likely to commit family violence against a member

of the household. The court may recess the temporary ex parte protective order hearing to

contact the respondent by telephone and provide the respondent an opportunity to be present

when the court resumes the hearing. The court shall resume the hearing before the end of the

working day, without regard to whether the respondent is able to be present at the hearing.

Tex. Fam. Code §83.006.

5. Affidavit Requirement

Ex parte relief such as a temporary restraining order under §§6.501 or 105.001 of the

Texas Family Code does not always require the applicant to submit a supporting affidavit

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justifying the relief requested. However, if you are asking to attach the body of a child (writ

of attachment) or asking to exclude a parent from possession or access to a child, you must

attach a verified pleading or affidavit to your application stating facts which show that

immediate and irreparable injury, loss or damage will result before notice can be served on

respondent and a hearing can be held. Tex. Fam. Code §§6.503, 105.001 (b)(1)-(3).

It is important to make sure the affidavit sets forth in a very specific manner why

irreparable, injury, loss or damage will occur before a hearing can be held to not just make

conclusory statements in the affidavit. It is sometimes necessary to get affidavits from

witnesses other than the parties (family, friends, counselor, school officials) to show why

immediate relief is necessary.

6. Responding to Ex Parte Relief

If you represent a respondent who has been served with a restraining order or ex parte

protective order you need to act quickly to preserve their rights and to determine whether

they have any adequate legal remedy to defend the ex parte order.

A respondent to an ex parte protective order may file a motion to vacate the order at

any time. Once the motion is filed, the court shall set the motion for hearing as soon as

possible. Tex. Fam. Code §83.004. The Texas Rules of Civil Procedure also allow a

respondent to file a motion to dissolve or modify a temporary restraining order. On two

days’ notice to the applicant of the TRO or on shorter notice if the court allows, the party

against whom the TRO was sought may move to dissolve or modify the TRO. Tex. R. Civ.

P. 680.

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Furthermore, temporary restraining orders issued or denied under the Texas Family

Code are not subject to interlocutory appeal. Tex. Fam. Code §§6.507, 105.001(e). TROs

issued or denied under the Texas Family Code must be challenged by mandamus. In re

Jones, 263 S.W.3d 120, 122 (Tex.App.—Houston [1st Dist.] 2006, orig. proceeding) ; In re

Lemons, 47 S.W.3d 202, 203-04 (Tex.App.—Beaumont 2001, orig. proceeding); In re

Hauck, No. 03-14-00640-CV (Tex.App.—Austin 2014, orig. proceeding) (memo op.; 10-13-

14).

V. Ethical Considerations

Ex parte relief can be tricky and the traditional notions of fair play in the justice system

typically discourage or disallow ex parte communication between attorneys and the court.

Texas Disciplinary Rules of Professional Conduct 3.05 state that a lawyer shall not:

(a) Seek to influence a tribunal concerning a pending matter by means prohibited

by law or applicable rules of practice or procedure;

(b) Except as otherwise permitted by law and not prohibited by applicable rules of

practice or procedure, communicate or cause another to communicate ex parte with a

tribunal for the purpose of influencing that entity or person concerning a pending matter

other than:

(1) In the court of official proceedings in this cause;

(2) In writing if he promptly delivers a copy of the writing to opposing

counsel or the adverse party if he is not represented by a lawyer;

(3) Orally upon adequate notice to opposing counsel or to the adverse party if

he is not represented by a lawyer. Tex. Disciplinary R. Prof’l. Conduct 3.05.

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As stated above, you can communicate ex parte with the court “except as otherwise

permitted by law and not prohibited by applicable rules of practice or procedure”. Knowing

the law, such as Texas Family Code §6.501, §105.001 or Texas Rules of Civil Procedure

680, and the local rules that govern ex parte relief is extremely important to ensure that your

request is in compliance with the ethics rules.

VI. Conclusion

Ex parte relief, when done carefully and appropriately, can be an effective tool to

protect your client and/or their child’s well-being. It is imperative that you are aware

of the statutes, case law, local rules and ethics rules which govern ex parte relief

before proceeding. Additionally, being familiar with the particular judge on the case

can be of utmost importance. Taking all of this into consideration ensures that the

relief protects your client as well as your law license.