Texas: Restraining Orders

Restraining Orders

Restraining Orders
1. Introduction
  
  Victims of nonconsensual online publication of sexually explicit material may be able to obtain a restraining order that prohibits the perpetrator from continuing to harass the victim online. Texas law differentiates between protective orders and restraining orders. A victim could be eligible for a protective order to prohibit contact if family violence has occurred and is likely to occur again. Violations of protective orders can subject a person to contempt of court, or can be considered a criminal offense for which a law enforcement officer could take the violating offender into custody. A restraining order describes a set of orders a court imposes on one or more parties to a divorce, which regulate their conduct while the divorce is pending to prevent a litigant from, e.g. emptying the bank account, incurring new debt, confiscating mail, using harsh or obscene language in talking to another party, or talking badly of the other party in front of children. Unlike protective orders, which are more extreme remedies, restraining orders are routine in Texas divorces. Restraining orders are not enforceable by the police or a sheriff’s department. Rather, violations of these orders can be brought to the attention of the court, which has the power to order an offender to jail. Notably, however, Texas courts are more likely to simply admonish an offender on the first violation. A court can also hand down interim sanctions, such as fines.
2. Text of Statute(s)
  1. TEX. FAM. CODE § 6.501 (Temporary Restraining Order)
    1. After the filing of a suit for dissolution of a marriage, on the motion of a party or on the court’s own motion, the court 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 as necessary, including an order prohibiting one or both parties from:
      
      intentionally communicating by telephone or in writing with the other party by use of vulgar, profane, obscene, or indecent language or in a coarse or offensive manner, with intent to annoy or harm the other;
      
      threatening the other, by telephone, or in writing, to take unlawful action against any person, intending by this action to annoy or alarm the other;
      
      placing a telephone call, anonymously, at an unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication with the intent to annoy or alarm the other;
      
      intentionally, knowingly, or recklessly causing bodily injury to the other or to a child of either party;
      
      threatening the other or a child of either party with imminent bodily injury;
      
      intentionally, knowingly, or recklessly destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of the parties or either party with intent to obstruct the authority of the court to order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.
      
      intentionally falsifying a writing or record relating to the property of either party;
      
      intentionally misrepresenting or refusing to disclose to the other party or to the court, on proper request, the existence, amount, or location of any property of the parties or either party;
      
      intentionally or knowingly damaging or destroying the tangible property of the parties or either party; or
      
      intentionally or knowingly tampering with the tangible property of the parties or either party and causing pecuniary loss or substantial inconvenience to the other.
    2. A temporary restraining order under this subchapter may not include a provision:
      
      the subject of which is a requirement, appointment, award, or other order listed in Section 64.104, Civil Practice and Remedies Code; or
      
      that:
      
      excludes a spouse from occupancy of the residence where that spouse is living expect as provided in a protective order made in accordance with Title 4;
      
      prohibits a party from spending funds for reasonable and necessary living expenses; or
      
      prohibits a party from engaging in acts reasonable and necessary to conduct that party’s usual business and occupation.
  2. TEX. FAM. CODE § 85.001 (Required findings and orders)
    1. At the close of a hearing on an application for a protective order, the court shall find whether:
      
      family violence has occurred; and
      
      family violence is likely to occur in the future.
    2. If the court finds that family violence has occurred and the family violence is likely to occur in the future, the court:
      
      shall render a protective order as provided by Section 85.021 applying to both parties that is in the best interest of the person protected by the order or member of the family or household of the person protected by the order.
    3. A protective order that requires the first applicant to do or refrain from doing an act under Section 85.022 shall include a finding that the first applicant has committed family violence and is likely to commit family violence in the future.
  3. TEX. FAM. CODE § 85.002 (Exception for Violation of Expired Protective Order)
    
    If the court finds that a respondent violated a protective order by committing an act prohibited by the order as provided by section 85.002, that the order was in effect at the time of the violation and that the order has expired after the date that the violation occurred, the court, without the necessity of making the findings described in section 85.001(a), shall render a protective order as provided by Section 85.021.
  4. TEX. FAM. CODE § 85.003 (Separate Protective Orders)
    1. A court that renders separate protective orders that apply to both parties and require both parties to do or refrain from doing acts under Section 85.002, shall render two distinct and separate documents that reflect the appropriate conditions for each party.
    2. A court that renders protective orders that apply to both parties and require both parties to do or refrain from doing acts under Section 85.022 shall render the protective orders in two separate documents. The court shall provide one of the documents to the applicant and the other document to the respondent.
    3. A court may not render one protective order under Section 85.022 that applies to both parties.
  5. TEX. FAM. CODE § 85.025 (Duration of Protective Order)
    1. Except as provided by Subsection (b) or (c), an order under this subtitle is effective:
      
      for the period stated in the order, not to exceed two years; or
      
      if a period is not stated in the order, until the second anniversary of the date the order was issued.
    2. A person who is the subject of a protective order may file a motion not earlier than the first anniversary of the date on which the order was rendered requesting that the court review the protective order and determine whether there is a continuing need for the order. After a hearing on the motion, if the court finds there is a continuing need for the protective order, the protective order remains in effect until the date the order expires under this section. If the court finds that there is no continuing need for the protective order, the court shall order that the protective order expires on a date set by the court.
    3. If a person who is the subject of a protective order is confined or imprisoned on the date the protective order would expire under Subsection (a), the period for which the order is effective is extended, and the order expires on the first anniversary of the date the person is released from confinement or imprisonment.
  6. TEX. FAM. CODE § 82.002 (Who May File Application [for Protective Order])
    1. With regard to family violence under Section 71.004(1) or (2), an adult member of the family or household may file an application for a protective order to protect the applicant or any other member of the applicant’s family or household.
    2. With regard to family violence under Section 71.004(3), an application for a protective order to protect the applicant may be filed by:
      
      an adult member of the dating relationship; or
      
      an adult member of the marriage, if the victim is or was married as described by Section 71.0021(a)(1)(B).
    3. Any adult may apply for a protective order to protect a child from family violence.
    4. In addition, an application may be filed for the protection of any person alleged to be a victim of family violence by:
      
      a prosecuting attorney; or
      
      the Department of Family and Protective Services.
    5. The person alleged to be the victim of family violence in an application filed under Subsection (c) or (d) is considered to be the applicant for a protective order under this subtitle.
  7. TEX. FAM. CODE § 6.502 (Temporary Injunction and Other Temporary Orders)
    1. While a suit for dissolution of a marriage is pending and on the motion of a party or on the court’s own motion after notice and hearing, the court may render an appropriate order, including the granting of a temporary injunction for the preservation of the property and protection of the parties as deemed necessary and equitable and including an order directed to one or both parties:
      
      requiring a sworn inventory and appraisement of the real and personal property owned or claimed by the parties and specifying the form, manner, and substance of the inventory and appraisal and list of debts and liabilities;
      
      requiring payments to be made for the support of either spouse;
      
      requiring the production of books, papers, documents and tangible things by a party;
      
      ordering payment of reasonable attorney’s fees and expenses;
      
      appointing a receiver for the preservation and protection of the property of the parties;
      
      awarding one spouse exclusive occupancy of the residence during the pendency of the case;
      
      prohibiting the parties, or either party, from spending funds beyond an amount the court determines to be for reasonable and necessary living expenses;
      
      awarding one spouse exclusive control of a party’s usual business or occupation; or
      
      prohibiting an act described by section 6.501(a)
    2. Not later than the 30th day after the date a receiver is appointed under Subsection (a)(5), the receiver shall give notice of the appointment to each lienholder of any property under the receiver’s control.
  8. TEX. FAM. CODE § 6.506 (Contempt) – The violation of a temporary restraining order, temporary injunction, or other temporary order issued under this subchapter is punishable as contempt.
3. Cases
  1. Bedinghaus v. Adams, No. 2-08-096-CV, 2009 WL 279388 (Tex. Ct. App. Feb. 5, 2009)
    - Procedural Posture: Ex-boyfriend of victim, Andrea Adams, appealed the lower court’s order granting a family violence protective order against him.
    - Law: TEX. FAM. CODE § 85.001
    - Facts: After appellant Bedinghaus and Adams ended their ten-month relationship, Bellinghaus began harassing and stalking Adams. After they broke up, he sent her 600 to 800 text messages and emails; printed derogatory statements about her and sent them to relatives, friends, neighbors and her employer; posted blogs on the internet referencing Adams; and hired a private investigator to follow Adams—this was just the tip of the iceberg. At trial, Adams presented uncontroverted testimony that appellant’s actions placed her in fear of imminent physical harm. The court found that Bedinghaus had committed family violence, and granted Adams’ request for a protective order prohibiting appellant from communicating with her, or doing anything that reasonably made her fear physical harm, among other things. Bedinghaus appealed, asserting that there was an insufficient legal and factual basis to support the order.
    - Outcome: On appeal, the court affirmed, explaining that the uncontroverted testimony sufficed to show that Bedinghaus’ actions put Adams in fear of imminent injury. The court rejected Bedinghaus’ argument that though he had intended to place Adams in fear of imminent physical harm, he had not intended to cause her actual physical harm. The court explained that: “This, however, is not the reasonableness test previously articulated. Further, although [Bedinghaus] contends that his statements are taken out of context and often refer to court action, not physical violence, his interpretation of his actions and their reasonableness is likewise not the test previously discussed.”¹
    - Special Notes: The court focused on the proper inquiry—the victim’s subjective opinion as to whether the defendant’s actions caused her to fear imminent injury.
4. Practice Pointers
  - In Texas, family violence is any act committed between family or household members (including children) that is: (1) intended to result in physical harm, bodily injury, assault, or sexual assault, or (2) a threat that reasonably places the member in fear of immediate physical harm, bodily injury, assault or sexual assault. Family violence can also encompass violence between a victim and abuser who are/were in a dating relationship or the victim is a new spouse or partner of someone the abuser was married to or in a dating relationship with.
  - In Texas, a “dating relationship” is a relationship between people who have or had a continuing romantic or intimate relationship based on factors such as: (1) the length of the relationship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the persons involved in the relationship.²
1. Bedinghaus v. Adams, No. 2-08-096-CV, 2009 WL 279388, at *4 (Tex. Ct. App. Feb. 5, 2009). ↩
2. Tex. Fam. Code § 71.0021. ↩
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Texas: Restraining Orders

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Restraining Orders