magistrate’s order after the moep: what for emergency ...tmcec.com/public/files/file/the...

©2003 Texas Municipal Courts Education Center, Austin. Funded by a grant from the Court of Criminal Appeals.

Volume 12 JULY 2003 No. 5

Magistrate’s Orderfor Emergency

ProtectionBy Kimberly A.F. Piechowiak, Assistant City Attorney II

Family Violence Prosecutor, San Antonio

I N S I D E T H I S I S S U E

Articles:After the MOEP: What Happens Next?by Robert J. Gradel .............................. 1

FAQs about MOEPs by Karrie Key .... 1

Magistrate’s Order for Emergency Protectionby Kimberly A.F. Piechowiak ............. 1

Columns:Around the State ................................. 2Clerks Corner ..................................... 18From the General Counsel ................. 3Insights into Diversity ....................... 19Resources for Your Court ................ 15

After the MOEP continued on page 6

FAQs about MOEPsBy Karrie Key, Associate Judge, Austin

FAQs continued on page 8

In cases of domestic violence, victim safety should be aprimary concern. State law has been crafted to emphasizethis priority, not only for law enforcement personnel andprosecutors, but also for judicial officers. Article 5.01(b) ofthe Texas Code of Criminal Procedure states:

In any law enforcement, prosecutorial, or judicialresponse to allegations of family violence, theresponding law enforcement or judicial officers shallprotect the victim, without regard to the relationshipbetween the alleged offender and victim.

To assist a magistrate in fulfillment of this goal, Section17.292 of the Code of Criminal Procedure allows for aMagistrate’s Order for Emergency Protection (MOEP).

After the MOEP: WhatHappens Next?

By Robert J. Gradel, Municipal Judge, Lampasas

You head down to the jail on Sunday morning about 8:00a.m. Eleven people have been arrested overnight, and yourSunday School class begins at 9:00 a.m., so you have notime to waste. Waiting for you is a woman (and hermother) who wants an emergency protective order. Shetells you that her husband has an alcohol abuse problem.Last night, he clenched his fists like he was going to hit her,called her bad names, threatened her, pushed her, andthrew the remote at her, all in front of the children. Shehas no visible red marks, bruises, or abrasions. He hasdone this before, but she never called the police. They havebeen married 10 years and have three children. The policeofficer who answered the call and made the arrest got offat 6:00 a.m. On his sketchy report, he indicated that hethought you should consider granting a protective order.The husband admits calling her bad names and having a

MOEP continued on page 5

Why do we need to worry aboutMOEP’s? Because the Code of

Criminal Procedure instructs judges toextend maximum protection to victimsof family violence. Art. 5.01, C.C.P.

Do I need a motion from thearresting officer or the victim

before I can issue a MOEP? No. Youmay accept motions from a peaceofficer, the alleged victim, a prosecutor,or the guardian of the alleged victim.However, you may issue a MOEP on

your own motion. Practice tip: On theMOEP itself, never recite that thevictim requested the MOEP. Remember,the defendant receives a copy. Givenpossibly volatile circumstances, Iwouldn’t alert the defendant that thevictim requested a MOEP.

Do I need a reason to issue aMOEP? This is a great question.

The statutes don’t really address this

Municipal Court Recorder July 2003

Texas Municipal CourtsEducation Center

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Web site: www.tmcec.com

FY03TMCA Officers

President: Joe Pirtle, SeabrookPresident-Elect: Sharon Hatten, Midland1st V.P.: Vacant2nd V.P.: Edwin L. Presley, BenbrookSecretary: Luane Turvey, WebsterTreasurer: Robert Richter, Missouri CityPast-President: Robert Kubena,Hallesttsville

Directors

Robert Doty, Lubbock . Ninfa Mares, FortWorth . Vicki Gerhardt, New London .Robin Smith, Midland . Dan Francis,Robinson . David Perkins, New Braunfels. Miles Whittington, Kemah . George BillRobinson, Yorktown . Robin Ramsay,Denton . Robert Barfield, Pasadena

Staff

• Hope Lochridge, Executive Director• W. Clay Abbott, General Counsel• Ryan Kellus Turner, Program Attorney &

Deputy Counsel• Margaret Robbins, Program Director• Jo Dale Bearden, Program Coordinator• Margaret Danforth, Admin. Director• Patricia Russo, Program Assistant II• Rey Guzman, Multimedia Specialist• Beatrice Flores, Registration Coordinator• Lidia Ball, Research Assistant• Courtney Barajas, Publications Coordi-

nator/Administrative Assistant

Published by the Texas Municipal CourtsEducation Center through a grant from theTexas Court of Criminal Appeals. Sub-scriptions are free to all municipal judges,clerks, prosecutors, and support personnelemployed by the municipal court. Othersmay purchase an annual subscriptions for$50.

Articles and items of interest not otherwisecopyrighted may be reprinted with attribu-tion as follows: “Reprinted from theMunicipal Court Recorder with permissionof the Texas Municipal Courts EducationCenter.”

The views expressed are solely those of theauthors and are not those of the TMCABoard of Directors or the staff of TMCEC.

AROUND THE STATE

TMCEC Legislative UpdateTMCEC has added a Lubbock Legislative Update to its schedule of summerprograms. It will be held on August 13 (Wednesday) at the Lubbock Holiday InnHotel & Towers (801 Avenue Q).

A limited number of sleeping rooms will be provided at grant expense. Pleasecall TMCEC if you do not have a registration form. A check for $50, payable toTMCEC, should be submitted with the registration form.

Note: The Lubbock Update is the only TMCEC Legislative seminar that is stillopen. Both Houston and Austin have wait lists.

Looking Ahead: Fall ConferencesSeptember 18-20, 2003 Annual Meeting of the Texas Municipal Courts Association,Galveston, San Luis Resort Spa. For more information, contact Judge RobertRichter, 281/333-9229 (www.txmca.com).

October 5-8, 2003 Annual Conference of the Texas Court Clerks Association, SanAntonio, Holiday Inn Riverwalk. Contact David Preciado, 210/207-7109 formore information (www.courtclerks.org).

November 11-14, 2003 Texas Teen Court Conference, Wichita Falls. Contact MyraWeeks, Wichita County Teen Court, 940/716-8575 for more information(www.tcat.com).

November 19-22, 2003 Texas Municipal League Annual Conference, San Antonio.Contact TML for more information: 512/719-6300 (www.tml.org).

Certification Program Affiliates withSouthwest Texas University

The Clerks Certification Program is now officially affiliated with South WestTexas University. Faculty from SWT will participate in the governing committeesfor the program and as instructors in the training sessions. Special appreciation isshown to Dr. Quint Thurman, Chair of the Criminal Justice Department, andJudge David Perkins of New Braunfels who is also a Professor in the CJDepartment. The University will change its name in the fall to Texas StateUniversity - San Marcos.

July 2003 Municipal Court Recorder

FROM THE GENERAL COUNSEL W. Clay Abbott

Many concerns about the impact ofMagistrate’s Order for EmergencyProtection (MOEPs) on divorce andchild custody cases are addressed by therecently passed changes to MOEPs inHB 297. A summary of that billappears on page 8 in this newsletter.

Due to the nature of the offenses thatcome before the municipal court, wedeal with victims far less than ourcounterparts in the higher courts. Weare, however, obligated to follow theTexas Constitution and Code ofCriminal Procedure in dealing withvictims of crime when they comebefore our courts. As magistrates, thevictim is rarely in attendance at a 15.17hearing but, again, the rights providedto victims by the State Constitution andlaws apply to the magistrate as well.

Article I, Section 30, TexasConstitution, provides to the victim ofa criminal offense certain rights in thecriminal justice system. A portion ofthat section is set out below:

(a) A crime victim has the followingrights:

(1) the right to be treated withfairness and with respect forthe victim’s dignity andprivacy throughout thecriminal justice process; and

(2) the right to be reasonablyprotected from the accusedthroughout the criminaljustice process.

(b) On the request of a crime victim,the crime victim has the followingrights:

(1) the right to notification ofcourt proceedings;

(2) the right to be present at allpublic court proceedingsrelated to the offense, unlessthe victim is to testify and thecourt determines that thevictim’s testimony would bematerially affected if thevictim hears other testimonyat the trial;

(3) the right to confer with arepresentative of theprosecutor’s office;

(4) the right to restitution; and

(5) the right to information aboutthe conviction, sentence,imprisonment, and release ofthe accused.

The rights due to a victim fall into twocategories: rights that must beprovided regardless of a request andrights guaranteed upon a request ofthe victim. A victim has the same rightas a defendant to be treated withfairness, dignity, and respect. Thevictim is also provided with a right toprivacy. This right to privacy mustclearly be balanced with thedefendant’s rights to notice and otherdue process. It should not, however,be violated for the sake of expediency

or a lack of concern.

The other right that must always beprovided is the right to be secure inthe criminal justice process. If victimsare harmed, threatened, or intimidatedin our courtrooms and courthouses,then we have failed and need to closeup our doors and go do somethingelse. If a court of law is not a saferefuge, then there is no safe place; thevictimizers win and “justice,” “order,”and “the rule of law” are meaninglessphrases. Good security does not justhappen. It is planned, carefullyexecuted, and vigilantly enforced.

The rights due a victim on request aregenerally the right to notice, the rightto be present, and the right toinformation. The prosecutor has aspecific duty to confer with the victim.The prosecutor represents the State ofTexas and not the victim, but has anobligation to hear the victim’s entreatyand provide him or her information.The court also must be open to avictim and be free with informationabout the proceedings, procedure, andrulings of the court. The victim is stilla witness and can be excluded fromhearing testimony to protect the

Constitutional & Statutory Victims’ Rights

Recent CCA OpinionIf you are engaged in hearings or objections to Lidar or Radar under theDaubert or Kelly cases then you will want to take a look at Hernandez v.Texas No. 2053-01. The Court of Criminal Appeals returned the case onJune 4, 2003. It can be found at www.cca.courts.state.tx.us/opinions/205301a.html. There are several opinions that can be found as 205301(b)-(d). The opinion concerns urinalysis and addresses judicial notice andthe record necessary to take notice. The case’s impact on Lidar and Radarobjections is significant, if not a little confusing, due to the number ofopinions.


defendant’s right to a fair trial, but thecourt’s rulings should be thoughtfullymade based on the individualcircumstances and provide as muchaccess to the victim as due process willallow.

The Texas Constitution also allows theLegislature to define what a “victim”is, and the Legislature has done so inArticle 56.01(3), Code of CriminalProcedure. In that article, victim isdefined as:

a person who is the victim ofsexual assault, kidnapping, oraggravated robbery or who hassuffered bodily injury or deathas a result of the criminalconduct of another.

This definition excludes many“victims” that come into municipalcourt. Yet, while a person may notqualify as a victim in a case inmunicipal court, he or she may qualifyas a victim in cases pending in a highercourt. In that event, municipal courtsdo have a constitutional and statutoryobligation to provide information,notice, and access. The interest ofthose citizens excluded from thisdefinition should still be carefullyguarded if our courts are to be courtsof the people. In addition, themunicipal judge as a magistrate willroutinely interact with and impactpersons defined by law as victims.

More significant details about avictim’s rights are provided in Article56.02, Code of Criminal Procedure.Portions of that article are set outbelow:

(a) A victim, guardian of a victim, orclose relative of a deceasedvictim is entitled to the followingrights within the criminal justicesystem:

(1) the right to receive fromlaw enforcement agenciesadequate protection fromharm and threats of harmarising from cooperationwith prosecution efforts;

(2) the right to have themagistrate take the safetyof the victim or his familyinto consideration as anelement in fixing theamount of bail for theaccused;

(3) the right, if requested, tobe informed:

(A) by the attorneyrepresenting the stateof relevant courtproceedings, includingappellate proceedings,and to be informed ifthose proceedingshave been canceled orrescheduled prior tothe event; and

. . .

(4) the right to be informed,when requested, by apeace officer concerningthe defendant’s right to bailand the procedures incriminal investigations andby the district attorney’soffice concerning thegeneral procedures in thecriminal justice system,including generalprocedures in guilty pleanegotiations andarrangements, restitution,and the appeals andparole process;

. . .

(8) the right to be providedwith a waiting area,separate or secure fromother witnesses, includingthe offender and relativesof the offender, beforetestifying in anyproceeding concerning theoffender; if a separatewaiting area is notavailable, other safeguardsshould be taken tominimize the victim’scontact with the offenderand the offender’s relativesand witnesses, before andduring court proceedings;

(9) the right to prompt return ofany property of the victimthat is held by a lawenforcement agency or theattorney for the state asevidence when theproperty is no longerrequired for that purpose;

(10) the right to have theattorney for the state notifythe employer of the victim,if requested, of thenecessity of the victim’scooperation and testimonyin a proceeding that maynecessitate the absence ofthe victim from work forgood cause;

. . .

(b) A victim, guardian of a victim, orclose relative of a deceasedvictim is entitled to the right to bepresent at all public courtproceedings related to theoffense, subject to the approvalof the judge in the case.

(c) The office of the attorneyrepresenting the state, and thesheriff, police, and other lawenforcement agencies shallensure to the extent practicablethat a victim, guardian of avictim, or close relative of adeceased victim is afforded therights granted by Subsection (a)of this article and, on request, anexplanation of those rights.

(d) A judge, attorney for the state,peace officer, or law enforcementagency is not liable for a failureor inability to provide a rightenumerated in this article. Thefailure or inability of any personto provide a right or serviceenumerated in this article maynot be used by a defendant in acriminal case as a ground forappeal, a ground to set aside theconviction or sentence, or aground in a habeas corpuspetition. A victim, guardian of avictim, or close relative of adeceased victim does not havestanding to participate as a partyin a criminal proceeding or to


contest the disposition of anycharge.

Prosecutors and peace officersobviously have the greatest duty owedto the crime victim. Their duty is toprotect, inform, notify, and listen.However, neither the police nor theprosecutor becomes the advocate forthe victim. The police may not act as alegal advocate without violating rulesagainst Unauthorized Practice of Law.The prosecutor’s duty is to the Stateof Texas and must “see that justice isdone,” rather than simply advocate thevictim’s position. Both of theseexecutive agents must, however, beavailable to victims to listen, consider,and explain.

There are several specific items thatmay be overlooked in municipal court.The victim is entitled to a separate

waiting room from the defendant anddefense witnesses. Common sense andrudimentary security analysis shouldalso mandate this. The prosecutor, ifrequested, has a duty to keep thevictim informed of court dates,procedures, continuances, or delays.

Magistrates have two important dutiesto a victim. The first is to take thesafety of the victim and his or herfamily into consideration as anelement in fixing the amount of bailfor the accused. Traditionally, the onlybail issue was the amount necessary tosecure the defendant’s appearance.Now, the safety of the victim and thepublic are factors that must beincorporated into the magistrate’sdetermination of bail amounts. Thesecond duty may be harder toaccommodate as a practical matter.

The victims, should they request, areentitled to be present at all publiccourt proceedings in the case in whichthey are involved. This would include15.17 hearings in the jail. Obviously,this may pose security and logisticalproblems. This right is “subject to theapproval of the judge in the case.”While it may not always be possible toaccommodate, a blanket ban is alsonot appropriate. The magistrate shouldmake every effort to provide for therights and security of all personsaffected.

It is an important task judges and courtstaff serve in protecting the rights ofthose accused of fine-only offenses. Itis important that the security and rightsof victims be protected as well. Ajustice system that fails to protect,inform, and provide access todefendants or victims is not just.

In the ten years that I have beeninvolved in family violence prosecu-tion, first with the Bexar CountyDistrict Attorney’s Office and now theSan Antonio City Attorney’s Office, Ihave dealt with literally thousands ofdomestic violence complainants. It hasbeen my experience that the majorityof family violence victims not onlyreconcile with their batterer, they oftenattempt to drop charges and/or recanttheir original statements to policeofficers. A petition for divorce and/orcustody is rarely pursued.

Given the dynamics of domesticviolence, such behavior is not surpris-ing and is also not usually an indicatorthat the violence did not occur. It is,more often than not, a symptom of theinsidious nature of the crime and thefact that family violence perpetratorshave an inordinate amount of controlover their victims. That being said, notevery self-proclaimed victim ofdomestic violence is a true victim.However, the percentage of false

victims is not nearly as high as somewould have you believe. In fact,according to San Diego Sgt. AnneO’Dell (retired), there is no greater rateof false reporting for crimes involvingdomestic violence than for any othertypes of crimes. According to theTexas Council on Family Violence, therate of false reports for all crimes isapproximately three percent.

In cases of family violence, the suspectand the victim are usually married, livetogether, and/or have children to-gether. A violent situation is compli-cated by the familiarity of the parties.If either party initiates divorce,custody, and/or visitation proceedings,the paramount concern of the FamilyCourt is to order custody and visitationthat is in the best interest of the child.While the potential exists that aMOEP can play a role in such determi-nations, it is rare for such an order tobe the sole determining factor. I haveconferred with local district courtjudges who routinely hear family lawcases, and they seemed to agree that

the issuance of a MOEP is viewed as a“helpful indicator” rather than the finalconsideration when making theirdecisions.

Since the safety and security ofchildren is so important, many typesof evidence are, by necessity, takeninto account. The presence ofviolence in the home is considered forboth its direct impact on the physicalsafety of children (who oftenphysically intervene when one parent isassaulting another), as well as itsindirect effect on the child’s future as aperpetrator or victim of violence.Children who merely witness domesticviolence are six times more likely tocommit suicide, and 24 times morelikely to commit sexual assault thanchildren who have not been exposedto such abuse. According to theAmerican Bar Association, children ofbattered women are 15 times morelikely than children from the generalpopulation to also be physicallyabused.1 While there is no questionthat conditions ordered by a court

MOEP continued from page 1

B


such as batterers’ intervention, alcoholclasses, and special exchangeprovisions can be difficult on children,the trauma of continued exposure todomestic violence cannot be ignored.

Taking into account the emphasis thathas been placed on victim safety bythe Texas Legislature, the potentialbenefits of issuing a MOEP must beacknowledged. A MOEP can help toimmediately calm a heated anddangerous situation while allowing theparties to regroup and exploreoptions. As previously stated, manyvictims do not pursue other legalremedies at all. Others may use theallotted time period to apply for apermanent protective order, duringwhich the suspect is entitled to a fullhearing. Either way, the MOEPexpires no later than up to the 61st dayafter the day of issuance. After that,the existence of a permanentprotective order determines theallowable contact between the parties.

It is important to remember that themagistrate can review the officer’sdetermination of probable cause toarrest and require further informationbefore issuance of the MOEP, such ashaving the arresting officer report backto the court so that the magistrate canmake appropriate inquiries. Lack ofphysical injuries does not mean thatthe situation is not potentially lethal.The cycle of abuse leading up toserious injury often begins withassaults during which there is little tono injury.

Since many victims of domesticviolence neither pursue legal remediesnor report the crimes to police, theyand their families do not receiveavailable assistance and protection.Many feel they will not be believed orthat they cannot handle the stress ofnavigating a system that has nottraditionally been progressive inproviding the safety that the law haspromised. MOEPs are among thetools that judicial officers have at theirdisposal to provide that safety.

Frequent training is also extremelyimportant for all criminal justicepersonnel, as are carefully enforced“no-drop” prosecution policies, suchas we have here at the San AntonioCity Attorney’s Office. The messagemust be sent to perpetrators that theycan no longer control the system byintimidating victims into dropping thecharges. Due to the very real danger ofretaliation against a victim for pursuingcriminal justice intervention, it isimportant for all system participants toutilize whatever tools are availableunder the law, and not depend on thevictims for enforcement. It is up tothe participants in the criminal justicesystem to make the law keep itspromise.

_____________1Due to the breadth of statistical andother information that is currentlyavailable on this issue, it is difficult toadequately discuss it at length in thisarticle. However, for more information,please contact the Texas Council onFamily Violence at www.tcfv.org or 512/794-1133.

few beers, but denies he was trying tohurt her when he threw the remote (hedidn’t hit her anyway), and also denieshe threatened her or clenched his fistsat her. His mother-in-law confirmsthat he has not been treating herdaughter right, but has never witnessedany violence towards her or thechildren. What are you going to do?

Issuance of Magistrate’s Order forEmergency Protection (MOEPs) are acommon occurrence for magistrateswho set bonds for inmates at the localjails every morning. That encounter isusually very brief, and may be the lasttime the magistrate will see either ofthe individuals. But after the MOEP isissued, there can be far reachingramifications in the criminal and familylaw arenas for the parties and the

children. The family violenceaccusations often occur in a context inwhich the parties are either marriedand/or have children together. Whenthe magistrate sees the couple at thejail the morning after one of them hasbeen arrested for prevention of familyviolence and assault, it is possible thatsome kind of family law litigation hasalready begun, or will shortlythereafter. After a divorce or SuitAffecting the Parent ChildRelationship (SAPCR) case has beenfiled, there is usually a temporaryhearing in which the trial courtdetermines the primary residence ofthe parties and children, and sets thechild support and visitation with theabsent parent. The existence of aMOEP gives the victim a huge stickwith which to figuratively beat up theother side at the next court hearing.

The public policy of the State ofTexas is that children should havecontinuing and frequent contact withtheir parents (Section 153.001(a),Family Code). This is, of course,conditioned on the parent providing asafe, stable, and nonviolentenvironment for the child. The bestinterest of the child is always thecourt’s primary consideration (Section153.002, F.C.). It is presumed that aparent should be appointed a JointManaging Conservator (JMC) of his/her child (Section 153.131, F.C.). JMCwill give the absent parent the right tomake many important decisions forthe child, and usually results inrestrictions on the custodial parentbeing allowed to relocate with the childto cities far away from the absentparent (Section 156.136, F.C.). Boththe father and the mother have equal

After the MOEP continued from page 1

MOEP continued from page 5

B


legal standing when it comes to gettingcustody of the children (Section153.003, F.C.).

The Standard Possession Order (SPO)visitation is presumed to be theminimum that a parent should receive(Section 153.252, F.C.). The SPO,when all alternative visitation periodsare elected, results in the childrenspending about one-third of the timewith the absent parent. Court orderspertaining to possession and access tothe abuser’s children are restricted bySection 153.004(c), F.C. If there isevidence of family violence within atwo year period, the court is directedto consider that evidence in decidingwhether to make the parties JMCs. Ifthe court finds that there has beenabuse, it is prohibited from making theparents JMCs of the children (Section153.004(b), F.C.). This effectivelyeliminates the abuser from any chanceof obtaining custody of the children.The court is further directed to makefindings concerning access to thechildren by the abuser. The court caneither (a) find that access would notendanger the children (not very likely);(b) enter an order completelyeliminating visitation with the abuser(not too likely); or (c) render an orderthat includes supervised visitation,exchange of the children in aprotective setting, alcohol counseling,and battering prevention classes (verylikely). These orders are difficult on allthe parties and their children, anddramatically reduce visitation with theabsent parent.

When a divorce is filed, the ex partetemporary order may not kick thespouse out of the house without ahearing, unless there is also aprotective order (Section 6.502, F.C.).Under the Family Code, an ex parte“kick-out” order is difficult to getfrom a divorce judge. Affidavits mustbe prepared and filed, the familyviolence must be recent, the victimmust appear before the judge in

person, and the court may recess thehearing to contact the respondent(Sections 83.006, 83.007, F.C.). This isa big hassle. If a person was of a mindto abuse the system to get a “leg up”in the litigation, or to undo an adverseruling in a previous hearing, theMOEP is very quick, cheap, andeffective.

In the criminal context, a Texasresident is not eligible for a license tocarry a concealed handgun if theperson is restricted by a courtprotective order, or subject to arestraining order affecting the spousalrelationship. Section 46.06(6) of thePenal Code prohibits a person frompurchasing a handgun while under aprotective order (Section411.172(a)(13), Government Code).But the big net is cast by 18 U.S.C Sec922(g)(8), which states:

(g) It shall be unlawful for anyperson

. . .(8) who is subject to a courtorder that

(A) was issued after ahearing of which such personreceived actual notice, and atwhich such person had anopportunity to participate;(B) restrains such personfrom harassing, stalking, orthreatening an intimatepartner of such person orchild of such intimate partneror person, or engaging inother conduct that wouldplace an intimate partner inreasonable fear of bodilyinjury to the partner or child;and(C)(i) includes a finding that

such person represents acredible threat to thephysical safety of suchintimate partner or child;or(ii) by its terms explicitlyprohibits the use,attempted use, orthreatened use of physical

force against suchintimate partner or childthat would reasonably beexpected to cause bodilyinjury;

. . .

to ship or transport ininterstate or foreigncommerce, or possess in oraffecting commerce, anyfirearm or ammunition; or toreceive any firearm orammunition which has beenshipped or transported ininterstate or foreigncommerce.

Once the person is under a protectiveorder, mere possession of ammunitionsubjects that person to prosecution,the 2nd Amendment notwithstandingUnited States v. Emerson, 270 F.3rd 203(2001).

One cannot underestimate thepressures that magistrates face whenthere is a request for a MOEP by aperson who claims they were abused.The last thing the magistrate needs isto have a correspondent from theDallas Morning News call for a commentafter a request for a MOEP wasdenied, and the applicant was promptlykilled by the abuser. But at the sametime, family law litigants are becomingvery savvy to the leverage a MOEPprovides. Most magistrates are poorlyequipped to deal with the request forissuance of a MOEP at the jail themorning after an arrest. The victim hasobviously convinced the police officerthat some action was necessary, butthe police officer is rarely available,and the respondent has had noopportunity to consult with anattorney or produce witnesses. Asmagistrates, we need to be sensitive tothe potential for abuse, and make aserious inquiry before issuing a MOEP.When I confronted the situationoutlined in the first paragraph, I issuedthe protective order. I have had doubtsabout whether I made the rightdecision.B


FAQs continued from page 1

issue (and there is no case law onpoint). The only statutory guidance isfound in the statute referred to inArticle 5.01, C.C.P.—judges shouldextend maximum protection to victimsof family violence. Consider theposition you are in: You have signedthe probable cause affidavit, whichmeans that probably family violenceoccurred. Should you always issue aMOEP? I don’t. Magistrates couldissue a MOEP in every case, but notnecessarily order the defendant to stayaway from a shared residence.

Is a MOEP ever mandatory?You must issue a MOEP in cases

alleging serious bodily injury or when adeadly weapon is used.

Isn’t it true that I may issue aMOEP only in assault cases?

You may issue a MOEP in a caseinvolving family violence or datingviolence. Family violence includes anyconduct that is intended to result inphysical harm, bodily injury, assault,sexual assault, or a threat thatreasonably places a victim in fear ofimminent physical harm, bodily injury,assault or sexual assault. Datingviolence carries the same definition,with the additional requirement that thevictim and the defendant has or had adating relationship. See, Section 71.003,et seq Family Code. So, depending onthe facts, you could issue a MOEP inoffenses including but not limited tocriminal trespass, criminal mischief,burglary, sexual assault, injury to anelderly individual, injury to a child, andindecency with a child.

In terms of timing, when mustI issue a MOEP? You issue the

MOEP when the defendant appearsbefore you shortly after arrest. Eachjudge conducts the hearing a bitdifferently, but MOEPs are emergency,ex parte orders. The defendant needonly listen to your instructions, askquestions about the terms of theorder, and acknowledge receipt of the

order by signature. I do not ask for thedefendant’s side of the story. Somejudges do. In my opinion, the betterpractice is to tell the defendant thatyou are issuing the order based on yourassessment of the circumstances. Ialways tell them that I do not know ifthey are not guilty or guilty, and theMOEP has no impact on thatquestion.

Doesn’t a MOEP contain ageneral “stay-away” provision?

No. The MOEP statute allows amagistrate to order a defendant to stayaway from the victim’s (and/or amember of his or her her family orhousehold) home, work place, school,day care, and college campus. In otherwords, the MOEP’s “stay-away”provisions are place-specific. The

statute does not authorize a general“stay-away” order. Accordingly, thedefendant and the victim may meet in arestaurant, a therapist’s office, a lawyer’soffice, and so forth. Of course, if thedefendant engages in any harassing,threatening, or assaultive conduct, thedefendant may be arrested for thatconduct and for violating the MOEP.

If you feel it is appropriate, you mayrequire a “no contact with victim” as acondition of release on bond. You mayalso add home curfew and electronicmonitoring as a condition of release.See, Art. 17.34, C.C.P.

Under what circumstances mayI modify a MOEP?* You may

modify the protective order on yourown motion, the defendant’s motion,


*New Legislation Concerning Modifying MOEPs

Subject: MOEP Conflicts, Modifications, and TransfersHB 297Effective Date: September 1, 2003

Act amends Article 17.292, Code of Criminal Procedure, by adding two newsections and amending a third. The addition of subsections (f-1) and (f-2) clarifythat a protective order subsequently issued by a family law court after a hearing(Chapter 85, Subtitle B, Title 4, Family Code, or under Title 1 or Title 5, F.C.)controls over the Magistrate’s Order for Emergency Protection (MOEP). Atemporary ex parte order issued by the family court (Chapter 83, Subtitle B, Title4, F.C.) does not control over the magistrate’s order, unless the judge makingsuch an order is informed of the existence of the MOEP and specificallydictates that the new order supercedes the MOEP.Perhaps more importantly, amendments to Article 17.292(j), Code of CriminalProcedure, allow the issuing magistrate to modify the MOEP after notice and ahearing. To make the modification the magistrate must find: (1) the order asoriginally issued is unworkable; (2) the modification will not place the victim ofthe offense at greater risk than did the original order; and (3) the modificationwill not in any way endanger a person protected under the order. All threefindings must be established at a hearing after notification of every affectedparty. This would include both the protected parties and the prosecutor.Finally, the act goes on to allow transfer of the MOEP to the trial court withjurisdiction of the offense which gave rise to the MOEP. The transfer can onlytake place upon agreement of the parties—presumptively the Defendant andthe State—or upon a motion, notice and a hearing. Since the action is a transferto the trial court, the motion and the hearing should be before the magistrate.The change in law applies only to a MOEP issued after September 1, 2003.


Over the past decade, there has beenincreasing recognition of the impactof working with trauma victims on thehelpers themselves. The term vicarioustrauma, (or secondary trauma, orcompassion fatigue), describes thisimpact in which the helper developssymptoms that parallel the symptomsof the trauma victim. In fact, the DSMIV (Diagnostic and Statistical Manual)of the American PsychiatricAssociation suggests that thedevelopment of post-traumatic stressdisorder (PTSD) can happen fromwitnessing or hearing graphic detailsof life threatening events.

When the term helper is used, we mostoften picture a therapist for sexuallyabused children, an emergency roomdoctor, or a police officer investigatinga homicide. However, judges face thesame challenges in the courtroom (asdo prosecutors and other lawyers).Judges may face greater obstacles inconfronting these problems becausethey are supposed to remain neutraland unemotional in reviewing the

“facts” of a case before their findingsand ultimate decision.

As a forensic psychologist with closeto 30 years of experience workingwith the justice system in the areas ofdomestic violence, child abuse, andchild custody litigation, I have gainedsome insight into the plight of manyjudges in this area. Althoughcommunity members may perceivejudges as privileged in their power andprestige, their suffering is no lesssignificant, both personally and to theadministration of justice itself. Theirphysical and emotional health isessential for an accessible andeffective courtroom.

In my work as a consultant to theNational Council of Juvenile andFamily Court Judges and the FamilyViolence Prevention Fund in theirprogram for judges entitled EnhancingJudicial Skills in Domestic Violence Cases,I have begun to survey participantjudges on the impact of their work.Many of the participants sit on the

criminal or civil bench, and somespecialize in domestic violence courts.With very few exceptions, judges canrelate to the impact of traumaticmaterial on themselves and theircolleagues. Domestic homicides,horrific assaults, and sexualexploitation of children relived incourt by 911 tapes, graphicphotographs, and victim-impactstatements are examples of traumaticmaterial.

Vicarious trauma may be exhibited bya wide variety of symptoms that areemotional, interpersonal, cognitive,behavioral, and even spiritual. Judgeshave described how the nature ofwhat they see and hear in thecourtroom can shake their very faithin humanity. Along the way theydescribe depression, anxiety, sleepdisturbances, hypervigilance,nightmares, and withdrawal fromfamily and friends. The impact may bemild and short term or last for yearsand require mental health

Domestic and Family Violence:Vicarious Trauma and Judges

By Peter Jaffe, PhD

Amicus Curiae

continued

The Amicus Curiae program isdesigned to identify and assistmembers of the judiciary who haveimpairments and to provide aconfidential resource for those judgesto seek help. Impairments includesubstance abuse, addictions, andmental or emotional disorders. Thisprogram operates within thedisciplinary role of the StateCommission on Judicial Conduct.

Amicus Curiae translates as “friend ofthe court.” The program is the first ofits kind in the United States. Theprogram is voluntary and confidential.Amicus locates treatment resources,refers judges to needed services,monitors judges through appropriaterecovery programs, and provides themwith motivation and supportthroughout their recovery process. Itsgoal is to assist judges in locating

resources that can help identify andtreat impairments that may beaffecting their personal lives and theirperformance on the bench.For further information, contactElaine Thompson (Program Manager)at the State Commission on JudicialConduct, P.O. Box 12265, Austin, TX78711, 512/463-8138 or 877/228-5750 (toll free).


intervention. The clinical literature inthis field stresses that these reactionsare normal in the context of theviolence that is being considered on adaily basis.

The impact of this trauma is uniquefor each judge and interacts with anumber of factors such as their ownbackground, personal circumstances,and perceived support for their role inthe community. In general, judges whohave experienced abuse themselves inchildhood or in their adult years maysuffer greater vicarious trauma. Judgeswho are hearing cases of unspeakableabuse to young children the same agesas their own children may experiencemore profound effects. As well, judgeswho are struggling with life crises, suchas illness, may be impacted in morepronounced ways.

Vicarious trauma also can becompounded by stress and burnout.Judges who are experiencing heavydockets, budget cutbacks, and lack ofresources may feel more hopelessabout the challenges presented bycases of domestic violence and childabuse. The current budget crisesacross all states have forced judges tocope with greater volumes of caseswithout adequate court or communityresources. Longer serving judgesdescribe more short and long-termsymptoms. Female judges appear tohave more symptoms, but this findingmay relate to gender differences inexpressing feelings and innermostthoughts on this emotionally ladensubject.

On a hopeful note, many judgesarticulate key coping and preventionstrategies that are supported by thecurrent research and clinical literaturein this field. The key elements appearto be a search for balance between thebench and a home life as well as playand restful activities. An awareness ofthe importance of exercise and diet isessential to survival. Many judgesstress the role of hobbies far removed

from the bench, such as gardening andantique collecting. Some judges seekmentors and training opportunitiesthat nourish their life-long learning andsupport from colleagues. Most judgeswish someone had addressed this topicprior to their election or appointmentor early in their career. Some judgeshave begun discussions on this topic aspart of regular judicial meetings andbuild in more peer support or access tospecialized counselors.

We are in the process of analyzingsurveys from more than 100 judges whoidentify their struggles with vicarioustrauma, as well as their coping strategies.We hope to write a more detailed articlefor the field. From our work thus far,we believe that this issue needs to beraised in judicial workshops andmeetings to provide understanding andsupport and to enhance theeffectiveness and well-being of judges.The taxing expectations and demandsplaced on our colleagues in the justicesystem leave us no option to ignore thisissue.

Suggested ReadingsCerniss, Cary (1995). Beyond Burnout.New York: Routledge.Covey, Stephen (1994). First ThingsFirst. New York: Fireside.Covey, Stephen (1989). The Seven Habitsof Highly Effective People. New York:Fireside.Figley, C.R. (1995). Compassion Fatigue:Coping with Secondary Traumatic StressDisorder in Those Who Treat theTraumatized. New York: Brunner/Mazel Publishers.Hanb, Thick Nhat (1991). Peace is EveryStep: The Path of Mindfulness in EverydayLife. New York: Bantam.Herman, Judith Lewis (1992). Traumaand Recovery: The Aftermath of Violence –from Domestic Abuse to Political Terror.Basic Books.Maslach, Christina (1982). Burnout: TheCost of Caring . Spectrum Books,Prentice-Hall.

Noer, D.M. (1993). Healing the Wounds:Overcoming the Trauma of Layoffs andRevitalizing Downsized Organizations.California: Jossey-Bass Inc. Publishers.Perlman, L.A. & Saakvitne (1995).Trauma and the Therapist. New York:W.W. Norton & Co.St. James, Elaine (1996). Living theSimple Life. New York: Hyperion.Wilson, J.P. & Lindy, J.D. (Eds.) (1994).Countertransference and the Treatment ofPTSD. New York: The Guilford Press.________________

Dr. Peter Jaffe is presently the Director ofthe Centre for Children and Families inthe Justice System of the London FamilyCourt Clinic (London, Ontario, Canada),which is a children’s mental health centrespecializing in issues that bring childrenand families into the justice system.

Reprinted with permission from NASJENews, Spring 2003, avaliable at http://nasje.unm.edu/current-newsletter/resources-jaffe.htm.

or the victim’s motion. If thedefendants calls you or files a motionto modify, my advice is that you tellthe defendant that his or her attorneymust contact you. If you are going toconsider the defendant’s motion, and itis unopposed by the protected person,try to ensure that the protected personhas at least spoken to a victimcounselor. If they have not done so,try to find someone to counsel them.

If the protected person opposes thedefendant’s motion, and you areconsidering granting the defensemotion, conduct a hearing. Servenotice on the parties and record thehearing.

If the victim contacts you and requestsmodification, you can make yourdecision solely on her or his statement.Or you can insist that the victimreceive some counseling before youeven entertain the motion. If you are a



B


NO. _______________

EL ESTADO DE TEXAS § EN LA CORTE __ CONTRA § DE ______________ § CONDADO ____, Acusado TEXAS

ORDEN DE EMERGENCIA DEPROTECCIÓN DEL MAGISTRADO

En este día, el Acusado, _______, se presentóenfrente de esta Corte después de haber sidoarrestado por una ofensa que involucra:___ violencia familiar; o___ acechando bajo la sección 42.072 delCódigo Penal de Texas.La Corte ha considerado una Orden deEmergencia de Protección del Magistrado comoseguimiento al Artículo 17.292 de losProcedimientos Criminales de Códigos yReglamentos de Texas:___ por su propia moción;___ requerido por:

___ víctima, _________;___ tutor de la víctima, ____________;___ oficial de la paz, ______________;___ abogado representando al Estado, ____; o

___ como asunto de la ley después de que laCorte haya encontrado que el Acusado fuearrestado por una ofensa que involucró:

___ serios daños físicos a la víctima;___ exhibición de un arma de gravedaddurante un acto de agresión.

Persona(s) Protegida(s):Basado en la información que fue presentada,esta Corte otorga una Orden de Emergencia deProtección para las personas nombradas acontinuación: ________________________.

Actos Prohibidos:POR ESTE MEDIO ESTÁ ORDENADO quequeda en efecto de manera inmediata, que elAcusado (fecha de nacimiento: _________,número de licencia de conducción ________)tiene prohibido:___ cometer actos de violencia familiar oagredir a la persona protegida bajo la orden;___ cometer un acto que implique una ofensade violencia familiar bajo la Sección 42.072, delCódigo Penal (acecho);___ comunicándose directamente con unmiembro de la familia o de la vivienda o con lapersona protegida bajo la orden de una maneraamenazante o de manera acosante;___ comunicando una amenaza a través decualquier persona, hacia algún miembro de lafamilia de la vivienda o con la persona protegidabajo la orden;___ acercándose ___________(especifiquedistancia mínima) a la residencia localizada en_______________;

NO. _______________

THE STATE OF TEXAS § IN THE _______________ COURT

VS. § OF

___________________ § ____________ COUNTY, TEXAS Defendant

MAGISTRATE’S ORDER FOR EMERGENCY PROTECTION

On this day, Defendant, ___________________, appeared before the Court after arrest for anoffense involving:

_____ family violence; or

_____stalking under Section 42.072 of the Texas Penal Code.

The Court considered entering a Magistrates Order for Emergency Protection pursuant to Art.

17.292 of the Texas Criminal Procedure — Code and Rules:

_____ on its own motion;

_____ at the request of the:

_____ victim, _________________;

_____ guardian of the victim, ___________________;

_____ peace officer, _______________________;

_____ attorney representing the State, _____________________; or

_____ as a matter of law after the Court’s finding that the Defendant has been arrested for anoffense that also involves:

_____ serious bodily injury to the victim;

_____ the use of exhibition of a deadly weapon during the commission of an assault.

Protected Person(s):

Based on the information presented, this Court enters this Order for Emergency Protection onbehalf of the following persons: _________________________________________________.

Prohibited Acts:

IT IS HEREBY ORDERED that effective immediately Defendant (date of birth: _______,

driver’s license no. _______________) is prohibited from:

_____ committing family violence or an assault on the person protected under the order;

_____ committing an act in furtherance of an offense under Section 42.072, Penal Code (stalking);

_____ communicating directly with a member of the family or household or with the person(s)protected under the order in a threatening or harassing manner;

_____ communicating a threat through any person to a member of the family or household or tothe person protected under the order;

_____ going within __________________(specify minimum distance) of the residence,__________________________ (put address here unless requesting confidentiality), place ofemployment, ______________________ (put address here unless requesting confidentiality), orbusiness, ______________________(put address here unless requesting confidentiality), of amember of the family or household or of the person protected under the order;

_____ going within ____________________(specify minimum distance) the residence,_________________________________(put address here unless requesting confidentiality),child care facility, _______________________________(put address here unless requesting


o lugar de trabajo localizado en ___________a un miembro de la familia o de la vivienda ocon la persona protegida bajo la orden;___ acercándose___________(especifiquedistancia mínima) a la residencia localizada en______________; guardería localizada en__________; o escuela localizada en______________, donde un niño protegidobajo esta orden atiende o vive, y___ posesión de un arma de fuego.

Confidencia del Domicilio:___ Basado en los hechos presentados, laCorte encuentra que para mantener laseguridad de la persona o personas protegidasbajo esta orden, los domicilios y localidadesespecíficas de la persona o personas protegidaspor esta orden se mantendrán de maneraconfidencial y serán excluidas en la orden.

Entrega de la Orden:ESTA ORDENADO que el Funcionario de laCorte deberá mandar una copia de esta orden:___ al Jefe de Policía del municipio dondereside la persona o personas protegidas bajoesta orden.

___ al Alguacil o Agente del condado dondereside la persona o personas protegidas bajoesta orden.___ al director o a la persona encargada de laescuela o guardería donde atiende una de laspersonas protegida y nombrada bajo estaorden.___ a la víctima (sino está presente en eltribunal).

Aviso a la Víctima:QUEDA ORDENADO que un oficial de laley deberá en buena fe hacer un esfuerzo paranotificarle a la víctima por medio de unallamada a su hogar o lugar de empleo, en unperiodo de 24 horas, que esta orden ha sidoentregada.

Suspensión de la Licencia Para Portar unArma de Fuego Ocultada:QUEDA ORDENADO que la licencia paraportar un arma de fuego ocultada de__________, Acusado, queda suspendida porla duración de esta orden. Una copia de estaorden será enviada a: Concealed HandgunLicensing Unit, Department of Public Safety,P.O. Box 4143, Austin, and Texas 78765-4143.En el momento que dicho departamento recibela orden de suspensión de la licencia paraportar armas de fuego, el departamento debede documentar la suspensión de la licencia,reportar la suspensión a las agencias locales quehacen cumplir la ley, y pedir el rendimiento dela licencia al dueño.

confidentiality), or school, _________________________(put address here unless requestingconfidentiality), where a child protected under the order resides or attends; and

_____ possession of a firearm.

Confidentiality of Addresses:

_____ Based on the facts presented, the Court further finds that for the safety of the person orpersons protected under this order, the addresses and specific locations of the person or personsprotected by the order remain confidential and shall be omitted from the order.

Delivery of Order:

IT IS ORDERED that the Clerk of the Court shall send a copy of this order to the:

_____ Chief of Police in the municipality where the member of the family or household orindividual protected by the order resides.

_____ Sheriff or Constable of the county where the member of the family or household orindividual protected by the order resides.

_____ Principal, director, or person in charge of the school or childcare facility attended by aperson protected by the order and named herein.

_____ Victim (if not present at hearing).

Notice to the Victim:

IT IS ORDERED that a law enforcement officer shall make a good faith effort to notify, within24 hours, the victim that this order has been issued by calling the victim’s residence and place ofemployment.

Suspension of Concealed Handgun License:

IT IS ORDERED that the license to carry a concealed handgun of __________________,Defendant, is suspended for the duration of this order. A copy of this order shall be forwarded tothe Concealed Handgun Licensing Unit, Department of Public Safety, P.O. Box 4143, Austin,Texas 78765-4143. On receipt of this order suspending the license to carry a concealed handgun,the department shall record suspension of the license, report the suspension to the local lawenforcement agencies, as appropriate, and demand surrender of the suspended license from thelicense holder.


Duration of Order:

This Order is effective upon issuance and shall remain in full force and effect until midnight on_________,____ (this date should be no less than 31 and up to 61 days from the date ofissuance).

Signed at ______________ a.m./p.m. on this day of _________, 20____.

_________________________________________Judge Presiding, ____________________________

WARNING

A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACTPROHIBITED BY THE ORDER MAY BE PUNISHABLE BY AFINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAILFOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THATRESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSEMAY BE PROSECUTED AS A SEPARATE MISDEMEANOR ORFELONY OFFENSE. IF THE ACT IS PROSECUTED AS ASEPARATE FELONY OFFENSE, IT IS PUNISHABLE BYCONFINEMENT IN PRISON FOR AT LEAST TWO YEARS.THE POSSESSION OF A FIREARM BY A PERSON. OTHERTHAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07,PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT ASA SWORN, FULL-TIME PAID EMPLOYEE OF A STATEAGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TOTHIS ORDER MAY BE PROSECUTED AS A SEPARATEOFFENSE PUNISHABLE BY CONFINEMENT OR IMPRISON-MENT.

NO PERSON, INCLUDING A PERSON WHO IS PROTECTEDBY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TOIGNORE OR VIOLATE ANY PROVISION OF THIS ORDER.DURING THE TIME IN WHICH THIS ORDER IS VALID,EVERY PROVISION OF THIS ORDER IS IN FULL FORCE ANDEFFECT UNLESS A COURT CHANGES THE ORDER.

WARNING UNDER FEDERAL LAW

THIS ORDER IS ENFORCEABLE IN ALL FIFTY STATES, THEDISTRICT OF COLUMBIA, TRIBAL LANDS AND U.S.TERRITORIES. 18 U.S.C. §2265

INTERSTATE VIOLATION OF THIS ORDER MAY SUBJECTTHE RESPONDENT TO FEDERAL CRIMINAL PENALTIES.18 U.S.C. §§ 2261, 2262

POSSESSION, TRANSPORTATION OR RECEIPT OF AFIREARM WHILE THIS ORDER REMAINS IN EFFECT MAYBE A FELONY UNDER FEDERAL LAW PUNISHABLE BY UPTO TEN YEARS IN PRISON AND/OR A FINE.

Duración de la Orden:Esta orden toma efecto en el momento que esemitida y se mantendrá válida hasta la medianoche del día _______, 20____ (no menos de31 y no más de 61 días de la fecha que fueemitida).Firmada a la(s) _____ a.m./p.m. en este día de____, 20__._________________________Juez Presidiendo, ___________

ADVERTENCIAES UNA VIOLACIÓN DE ESTA ORDENCOMETER UN ACTO PROHIBIDO POR LAORDEN, Y PUEDE SER CASTIGADO CONUNA MULTA DE NO MÁS DE $4,000 OSIENDO ENCARCELADO POR UNPERIODO DE NO MÁS DE UN AÑO OAMBOS. UN ACTO QUE RESULTA ENVIOLENCIA FAMILIAR O UNA OFENZADE ACECHAMIENTO, PUEDE SERENJUICIADO POR SEPARADO COMO UNDELITO MENOR O UN DELITO GRAVE.SI UN ACTO ES ENJUICIADO COMO UNDELITO GRAVE POR SEPARADO, SERÁCASTIGADO CON ENCARCELAMIENTOEN UNA PRISIÓN POR UN PERIODO DENO MENOS DE DOS AÑOS. POSESIÓNDE UN ARMA DE FUEGO POR UNAPERSONA QUE NO SEA UN OFICIAL DELA PAZ, COMO ES DEFINIDO EN LASECCIÓN 1.07, DEL CÓDIGO PENAL, QUEESTÁ PARTICIPANDO DE MANERAACTIVA COMO EMPLEADO DE TIEMPOCOMPLETO DE UNA AGENCIA ESTATALO UNA SUBDIVISIÓN POLÍTICA, QUEHAYA SIDO JURADO BAJO LA LEY, QUEES SUJETO A ESTA ORDEN, PUEDE SERENJUICIADO CON UNA OFENSA PORSEPARADO Y CASTIGADA CONENCARCELAMIENTO.

NINGUNA PERSONA, INCLUYENDO A LAPERSONA QUE ES PROTEGIDA BAJOESTA ORDEN, PUEDE DAR PERMISO QUEALGUIEN IGNORE O VIOLE CUALQUIERPROVISIÓN DE ESTA ORDEN. DURANTEEL PERIODO QUE ESTA ORDEN ESVÁLIDA, TODAS LAS PROVISIONES DEESTA ORDEN SERÁN TOTALMENTEENFORZADAS A MENOS QUE LA CORTECAMBIE LA ORDEN.

ADVERTENSIA BAJOLA LEY FEDERAL

ESTA ORDEN ES ENFORZADA EN LOSCINCUENTA ESTADOS, EL DISTRITODE COLUMBIA, TIERRAS TRIBALES YTERRITORIOS DE LOS ESTADOSUNIDOS. 18 U.S.C. §2265

VIOLACIÓN ENTRE-ESTATAL DE ESTAORDEN PUEDE SOMETER ALACUSADO A CRIMENES PENALES ENEL ÁMBITO FEDERAL. 18 U.S.C. §§ 2261,2262


POSESIÓN, TRANSPORTACIÓN ORECIBIMIENTO DE UN ARMA DEFUEGO MIENTRAS ESTA ORDENESTÁ EN EFECTO PUEDE SER UNDELITO GRAVE BAJO LA LEYFEDERAL, Y CASTIGADA CONENCARCELAMIENTO DE UN PERIODODE NO MÁS DE DIES AÑOS Y/O UNAMULTA.ES ENCONTRA DE LA LEY QUE UNAPERSONA QUE SEA SUJETO EN UNAORDEN DE PROTECCIÓN, TENGA UNAARMA DE FUEGO O MUNICIONES. 18U.S.C. §922(G)(8).

RECONOCIMIENTO DEL ACUSADODE HABER RECIBIDO LA ORDEN

Yo, __________(nombre del Acusado), elAcusado en este caso recibí una copia de laOrden de Emergencia de Protección delMagistrado en un tribunal abierto, el________, 20___.

______________Acusado

DECLARACIÓN DE SERVICIOYo con mi firma a continuación, estoydeclarando que le di una copia aquí adjunta dela Orden de Emergencia de Protección delMagistrado al Acusado nombradoanteriormente, a la(s) ____ a.m./p.m. el_______, 20___.

_____________ _____________Nombre Título

IT IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO APROTECTIVE ORDER TO POSSESS A FIREARM ORAMMUNITION.

RESPONDENT’S ACKNOWLEDGEMENT OF RECEIPT OF ORDER

I, ______________________________(name of Defendant), the Defendant in this casereceived a copy of the Magistrate’s Order For Emergency Protection in open court, on_______________________, 20___.

_______________________________Defendant

STATEMENT OF SERVICE

I the undersigned hereby state that I gave a copy of the Magistrate’s Order for EmergencyProtection attached hereto to the Defendant named above at _________________ a.m./p.m. on________________________, 20___.

________________________________ ______________________________________Name Title

court of record, conducting thehearing on the record is always thebetter practice.

A magistrate may, of course, modifythe MOEP on his or her own motion.

Do I need to talk to the victimbefore I issue a MOEP? No. In

some cases, the need for a MOEP isobvious or statutorily required. In thebest of all possible worlds, a judgeshould have a victim counselor contactthe victim. In Austin, we are luckyenough to have MOEP attorneys(typically a volunteer attorney) whocall victims. However, late nights andsome weekends, I do contact victims.If you choose to speak to the victim,your judicial demeanor is very

influential. If you wish, you mayexpress empathy for the victim’s stressand injuries, and assure him or her youwill mobilize available resources.Always let the victim know that while aMOEP may offer some protection, itis not a shield. The victim shouldprepare a safety plan (e.g., notifyingneighbors to call the police ifdefendant is seen in theneighborhood.) Remind the victim thata MOEP cannot keep the defendant200 feet away from his or her person,only away from work, school, andhome.

What if the victim wants tocome to the MOEP hearing?

Assure the victim that he or she willreceive a copy in the mail. However, ifhe or she wants to come to the hearing,

he or she has the right to do so.

What if the victim tells me thatshe wants to move out of state

and just needs time to pack andmove—can I issue a MOEP for twoweeks? Before September 1, 1999, theduration was no longer than 31 days.In 1999, the statute was amended toprovide that the MOEP may remain ineffect up to the 61st day of issue, butnot less than 31 days after issue. Isuppose modification would be anoption under these facts. You couldconduct an inquiry, make sure thevictim is relocated and safe, and thenmodify.

If you have questions or comments,send Judge Key an email:[email protected].


B


RESOURCES FOR YOUR COURT

DPS FormsThe Department of Public Safety (DPS) will no longeraccept requests for driving records that are not on therequired DR-1 form designed by the DPS. Forms createdby other entities do not include all the informationrequired by statute to produce a driving record. Alldriving record requests received not utilizing thisform will not be processed and will be returned to therequestor. If you have any forms on hand with a revisiondate prior to 9/01, please destroy.

These forms may be reproduced on a standard 8½ X 11size paper. Or, you can visit the DPS web site at:www.txdps.state.tx.us under the online services,downloadable forms and print the DR-1 form.

Purchase FamilyViolence Materials

The Texas Council on Family Violence (TCFV) offers avariety of materials to conduct domestic violence training.Materials available from TCFV (shown on pages 15 & 17)are helpful in promoting a violence-free society and themessage that family violence is everyone’s business.

Circle of Accountability

“Circle of Accountability” is a 17-minute video about thelaw enforcement and criminal justice response to thecrimes of family violence. Also featured are men who

Continuing with its leadership role inthe field of domestic violence, theNational Center for State Courts(NCSC) incorporated a domesticviolence workplace policy to itsemployee handbook, effective Jan. 1,2003. By doing so, NCSC becomesone of the first court organizations inthe country to enact such a policy.

The policy, developed by NCSC’sFamily Violence Community ofPractice, has two specific intentions:

• To increase staff awareness ofhow domestic violence can impactemployees and the workplace.

• To outline actions courts and staffmembers can take to provideassistance and resources to thoseaffected by violence in the home.

In addition, the policy serves as amodel for state courts across thecountry in how to introduce such

Family Violence Policy Good for WorkplaceNCSC Creates Policy as Role Model for Courts

policies to the workplace.

“By enacting this policy, it is our hopethat courts and other agencies will beencouraged to examine their owninternal staff-related policies and takesteps to develop a domestic violenceworkplace policy,” said Brenda Uekert,NCSC senior research associate and amember of the Family ViolenceCommunity of Practice. NCSCresearchers can assist courts that areinterested in developing a domesticviolence workplace policy specific totheir needs, Uekert said.

A court implementing such a policysends a signal that the courtunderstands the tremendous impactdomestic violence can have onemployees and the workplace. Only anestimated five percent of companieshave a policy to address domesticviolence. That number is even smallerfrom courts and justice agencies,

although they see firsthand in theircourtrooms every day the seriousconsequences that result fromdomestic violence.

The employee policy includes:

• Education Program. NCSC willprovide training to increaseawareness of the problem, toidentify available resources andhow to access them, and toeducate supervisors how tosupport and counsel employeesaffected by family violence.

• Counseling Assistance/Intervention. NCSC willmaintain a registry of communityagencies and organizations forreferral. The NCSC HumanResources Department will adviseemployees how to access theresources covered by theirinsurance plan.

TCFV Materials continued on page 17


• Performance Management.NCSC will provide a reasonableamount of time for employees toget assistance.

• Time Off. Recognizing thatemployees experiencing familyviolence may be required to taketime off for medical, legal, andfamily matters, NCSC will workwith the employee to create a workschedule that accommodates thesematters. Possibilities includeflexible work schedules, family andmedial leave, short-term disability,and personal leave of absence.

• Confidentiality. Employees canexpect their disclosures tosupervisors and Human Resourcesto remain confidential.

Reprinted with permission from CenterCourt, Williamsburg: National Centerfor State Courts, Vol. 6, No. 1,www.ncsconline.org.

TMCEC PROGRAM AUDIOTAPESThe following are audiotape recordings from TMCEC’s Midland Regional 12-Hour Judges andClerks Programs . Duplicates are available through the Center at no charge; one set per court.

Check herefor specifictapes

JUDGES PROGRAM:

___ The Law of Racial Profiling — W. Clay Abbott, General Counsel, TMCEC

___ Ethics — Robin Smith, Presiding Municipal Judge, Midland

___ Federal & State Case Law Update — Ryan Turner, Program Attorney and DeputyCounsel, TMCEC

___ The Importance of Diversity & Cultural Awareness in Municipal Court — Ana M. Otero,Municipal Judge, Houston

___ Working with Your Clerk — C. Victor Lander, Municipal Judge, Dallas

___ Forms Clinic — Margaret Robbins, Program Director, TMCEC

___ Fine Collections: Changing to a Proactive Approach — Jim Lehman, CollectionsSpecialist, Office of Court Administration

___ Judgments & Enhancements — Ross Fischer, County Attorney, Kendall County

___ Personal Safety & Court Security — Robert Williams, ASTEP Seminars, Austin

___ Dealing with the Media — W. Clay Abbott, General Counsel, TMCEC

___ Magistrate’s Order of Emergency Protection — Karrie Key, Municipal Judge, Austin

___ Radar & Laser: The Law & Science — Robert Barfield, Municipal Judge, Pasadena

___ Judicial Immunity — Ninfa Mares, Chief Municipal Judge, Fort Worth

___ Texas Fair Defense Act — Wesley Shackelford, Special Counsel - Task Force onIndigent Defnese, Office of Court Administration, Austin

___ Disqualification & Recusal — Linda Frank, Municipal Judge, Plano

___ Attorney General Opinion Update — Jeff Moore, Assistant Attorney General, Chief -Municipal Affairs Division, Austin

___ Indigence & Enforcement — Ryan Turner, Program Attorney and Deputy Counsel,TMCEC

CLERKS PROGRAM:

___ Ethics — Margaret Robbins, Program Director, TMCEC

___ Authority and Duties — W. Clay Abbott, General Counsel, TMCEC

___ Court Technology — Jo Dale Bearden, Program Coordinator, TMCEC

___ Financial Management — Rene Henry, Collections Projects Manager, Research & CourtServices, Office of Court Administration, Austin

___ Trial Processes — Margaret Robbins, Program Director, TMCEC

___ Court Security — Allen Gilbert, Municipal Judge, San Angelo

___ Non-Contested Cases Workshop — Carol Gauntt, Court Administrator, Richland Hillsand Margaret Robbins, Program Director, TMCEC

___ Fine Collection — Jim Lehman, Collections Specialist, Office of Court Administration

___ Juveniles — Robin Smith, Presiding Municipal Judge, Midland

Return order to 1609 Shoal Creek Blvd. #302, Austin, TX 78701 or fax to 512/435-6118.

Name: ______________________________________________________________________

Title:________________________________________________________________________

Court: _______________________________________________________________________

Address: _____________________________________________________________________

City, State, Zip Code: ___________________________________________________________

Telephone Number: ____________________________________________________________

E-mail Address: _______________________________________________________________

Family Violence OnlineNewsletter

The Family Violence Community ofPractice newsletter is intended to shareideas and keep colleagues informedabout practices that improve thejustice system’s response in familyviolence cases. More resources can befound on the NCSC website atwww.ncsconline.org in the CourtInformation topic folder on Juvenileand Family Justice. Recent issues havefocused on elder abuse and familyviolence in the military. The newslettercan be accessed online atwww.ncsconline.org/Projects_Initiatives/index.htm. Scroll down tothe Communities of Practice sectionand click onto one of the newsletterissues.


have been violent to women and havechanged their behaviors and attitudeswith the help of interventionprograms. Awarded a Bronze Medalby the Houston International VideoFestival in 2002. The video was dubbedinto Spanish in December, 2001.

I Had a Friend Named Hope

Many of us have clients, coworkers,neighbors, friends, or even familymembers who are or have been victimsof family violence. Most people wantto get involved, but are not sure howto help. If you are charged with thechallenge of educating your

community, this 28-minute video willhelp. The video focuses on womenwho work in a rural clinic and aretouched by a client who needs toescape an abusive husband. The videodescribes:

• The nature of violent relationshipsbetween intimate partners;

• How to recognize the signs ofdomestic abuse;

• Why it is dangerous for women to“just leave;” and

• How to be truly helpful when aclient, friend, family member, orneighbor is in danger.

Home Away From Home

This 25-minute video, aimed atmanagers, supervisors, team leaders,and other organizational leaders, helpsbuild awareness about family violenceand its financial, emotional, andmedical costs to organizations. Thevideo emphasizes the importance ofcorporations adopting policies toconfront the effects of family violenceon the workplace. The videodemonstrates what happens when abusiness with no domestic violenceprocedures or guidelines is confrontedwith a domestic violence situation. It

TCFV Materials continued on page 20

Purchase Family Violence Materials Order FormPlease fill out the following information and fax the form to: 512/794-1199 or mail to:

Texas Council on Family ViolenceP.O. Box 161810

Austin, Texas 78716ATTN: MAIL CLERK

Name: ______________________________________________________________________________________

Address: ____________________________________________________________________________________

Telephone: __________________________________________________________________________________

Credit Card: ___ Mastercard ___ Visa ___ Discover ___ American Express

Credit Card # __________________________________________________ Expiration Date: _______________

Name as it appears on Credit Card: _______________________________________________________________

Circle of Accountability: Cost: $32.01 Quantity: _____ Total $__________($24.95 per video + $5.00 shipping & handling per video* + $2.06 tax per video**)

I Had A Friend Named Hope: Cost: $53.65 Quantity: _____ Total $__________($44.95 per video + $5.00 shipping & handling per video* + $3.70 tax per video**)

Home Away From Home: Cost: $42.89 for TCFV members Quantity: _____ Total $__________($35.00 per video + $5.00 shipping & handling per video* + $2.89 tax per video**)

$69.95 for nonprofit organizations Quantity: _____ Total $__________ ($60.00 per video + $5.00 shipping & handling per video* + $4.95 tax per video**)

Un Nuevo Amanecer (New Dawn): Cost: $53.65 Quantity: _____ Total $__________($44.95 per video + $5.00 shipping & handling per video* + $3.70 tax per video**)

Grand Total $__________

*Shipping for multiple videos: $5 for up to 2 videos; $10 for up to 4 videos; $15 for up to 6 videos; $20 for 7 or more videos.**Send proof of tax exemption, if applicable.


Margaret RobbinsTMCEC Program DirectorC

LERK

CORNER

Municipal courts are part of thecommunities in which they serve.Therefore, courts should have someunderstanding of community issuesand problems. One of those problemsis domestic violence. In 2001, therewere over 180,000 incidents ofdomestic violence reported in Texas.1

Although municipal courts do nothandle most domestic violenceoffenses, some of the offenses, such aspublic intoxication, simple assault, anddisorderly conduct involve domesticviolence. Also, defendants chargedwith other Class C misdemeanors,such as traffic offenses, may beinvolved in a violent relationship.Hence, it is important that court clerksunderstand what they may do.

Since many defendants in municipalcourt do not request trials, but opt fora driving safety course (DSC) or justwant to pay their fines, municipal courtclerks see more defendants than theirjudges do. Consequently, there is ahigh probability that a clerk assisting adefendant might be handling a personinvolved in domestic violence. Also,because of the high rate of domesticviolence incidents, there is thepossibility that co-workers or othercity employees are involved in a violentrelationship.

Because the court, including courtclerks, is neutral and cannot advocatefor someone in a domestic violencesituation, what may a clerk do to help?Primarily, clerks can provideinformation to court users, such asdefendants, witnesses, jurors,attorneys, and family members ofdefendants. To do that, clerks should

Domestic Violence – What May a Clerk Do?be aware of community resources forreferrals, such as victims’ advocates,crisis centers, battering intervention,anger resolution, and privatecounseling. Clerks should obtaininformation from these resources andmake it available in the court lobbyand restrooms. The information caninclude such things as:

• brochures on personal safetyplans;

• brochures explaining how thecriminal justice system works,specifically emergency protectionorders, if one is issued; and

• literature about the location andtelephone number of shelters.

Because municipal judges are alsomagistrates, most of the casesinvolving domestic violence seen bymunicipal judges and court personnelinvolve powers as a magistrate. In thiscapacity, judges handle the warningsand clerks process the accompanying

paperwork. The offenses associatedwith family violence include: assault;sexual assault; aggravated assault;aggravated sexual assault; kidnapping;injury to a child, elderly individual, orinvalid; abandoning or endangering achild; and violation of protectiveorders.

Because of the violence involved inthese types of offenses, courts shouldhave security plans to deal withdefendants who might become violent.Someone should periodically inspectand evaluate security hazards. Thismight be something as simple ashaving a glass sitting on a counter ordesk that is within reach of adefendant or victim. Moreover, aseparate room should be available forvictims to be kept separate from theoffender. This will help keep violencefrom erupting. Since many clerks worklate hours and leave court facilitieswhen it is dark, clerks should call thepolice department before departing

More ResourcesIn August 2002, TMCEC sent all municipal courts a copy of the DomesticViolence Service Directory, published by the Texas Council on Family Violence(TCFV). It is a comprehensive list of family violence shelters and serviceproviders. Call TMCEC if you would like an additional copy or access theupdated version at www.tcfv.org.

Another excellent resources is the National Domestic Violence Hotlinewhich is a project of the TCFV. The Hotline serves as a link betweenindividuals in need and community services. By calling the hotline, a callercan get immediate help in English or Spanish, 24 hours a day, seven days aweek. Advocates provide crisis intervention, information, and referrals.

National Domestic Violence Hotline1/800-799-SAFE (7233)1/800-787-3224 (TTY)


the building and have an officer in theparking lot. Also, clerks should betrained in what to do if attacked.Clerks should always keep in mind thepotential for violence.

In 1995, the Texas Legislatureamended Chapter 17 of the Code ofCriminal Procedure and added Article17.292, which gave magistrates theauthority to issue a magistrate’s orderfor emergency protection (MOEP).That statute requires court clerks tosend a copy of the emergencyprotection order to the victim if thevictim was not present in court at thetime the order was issued. Clerks arerequired to do this even if a peace

officer notifies the victim of the order.When issuing a MOEP, if a magistrateorders the suspension of a concealedhandgun license, Article 17.293, C.C.P.requires either the magistrate or theclerk to immediately send a copy ofthe order to the appropriate divisionof the Department of Public Safety atits Austin headquarters.

Clerks should coordinate procedureswith their judges to ensure compliancewith the law. Clerks should be givencopies of the MOEP, name of thevictim, and notified if the judgesuspends a conceal handgun license.Clerks should have in place a processfor notifying the victim and reporting

conceal handgun licenses. Because theCode of Judicial Conduct requirescourts to remain neutral and impartial,clerks must be careful to not step overthe line and advocate for a personinvolved in domestic violence.Nevertheless, clerks should beprepared with information oncommunity resources so that courtusers or other city employees knowwhere to go for help. This will helpclerks to not become involved ingiving legal advice. Clerks can simplypoint out the information on thecommunity resources.1 Statistics from the Texas Council onFamily Violence website: www.tcfv.org

Gender Bias in CourtThe Gender Bias Task Force was commissioned by the Texas Supreme Court to identify bias and implement strategies tobring about gender fairness in the Texas courts and practice of law. After a two-and-one-half year study, the Gender BiasTask Force discovered that many Texas women and men experience discriminatory or inequitable treatment in Texas courtssimply because of their sex. Much of the gender bias documented by the Task Force occurs in the courtroom – in theexchanges among judges, attorneys, litigants, court personnel, and witnesses.

Gender bias may be defined as the predisposition or tendency to think about and behave toward people mainly on the basisof their sex. Gender bias can be subtle and unintentional. The Gender Bias Task Force has created a guide, Guidelines forPracticing Neutral Courtroom Procedures, to help judges, attorneys, and court personnel identify gender fairness in Texas courts.The guide is in the process of revision and reprinting and will be available through TMCEC in Fall 2003. Shown below is anexcerpt from the guide.

As to Domestic Violence and Sexual Assault Victims, the TaskForce learned that domestic violence and sexual assault casespresent special gender fairness problems. Gender biasedbehavior may include:

• Viewing domestic violence and sexual assault as lessserious than other criminal acts.

• Minimizing victim’s experiences, such as assuming thatacquaintance rape is less traumatic than “stranger rape.”

• Questioning the credibility of female crime victims in waysthat the credibility of male crime victims is not questioned.

• Blaming victims for causing the abuse or assault.

In a gender neutral court, special care is taken to treat allvictims of crime with respect and sensitivity to the trauma theyhave experienced. Victims of domestic violence and sexual

INSIGHTS INTO DIVERSITY

assault must not be subjected to unjust scrutiny becauseof the nature of the act(s) perpetrated against them. Theirtestimony is no less credible because the alleged acts aresexual or occurred in a domestic context.

One of the most striking findings of the Task Force was thesignificant gap between the perceptions of men andwomen concerning the extent of gender fairness. Althougha majority of male attorneys and judges surveyed by theTask Force believed that bias against women does exist,most felt that it exists in only a few areas and involves afew individuals. In contrast, more than half of the womenrespondents indicated that bias against female litigants notonly exists, but that it is widespread. Most women alsosaid gender bias is subtle and hard to detect rather thanreadily apparent.


TEXAS MUNICIPAL COURTSEDUCATION CENTER

1609 SHOAL CREEK BLVD., SUITE 302AUSTIN, TX 78701www.tmcec.com

TMCEC MISSIONSTATEMENT

To provide high quality judicialeducation, technical assistance,and the necessary resource ma-terial to assist municipal courtjudges, court support personnel,and prosecutors in obtaining andmaintaining professional compe-tence.

Change Service Requested

closes with suggested actions thatemployers can take to deal with theissue.

Also included in the kit is a manualthat guides you in effectivelyintervening when an employee isexperiencing family violence;educating corporate leadership aboutthe financial, emotional, and medicalcosts of family violence in yourworkplace; creating a multi-department task force; and designingan organizational action plan tocombat the effects of family violencein your workplace.

Un Nuevo Amanecer (New Dawn)

A recent video from TCFV that wasconceived entirely in Spanish forSpanish speakers. The video portrays

the life of a Latina and theprogression of domestic violencethough her everyday life (family,friends, work and other systems).The 25-minute video was madeespecially for public education,outreach and training, and supportgroups. Production of this video wasmade possible by the TexasDepartment of Human Services incooperation with TCFV’s LatinaTask Force.

To purchase any of the materials, usethe order form shown on page 17.TCFV also houses a lending librarywith thousands of domesticviolence-related resource materials.Information on the library is listedunder the Family ViolenceInformation section of the TCFVwebsite: ww.tcfv.org.

DHS VideosThe Texas Department of HumanServices (DHS) also offers family violencematerials such as:

Helping The Battered Woman: A Guide ForFamily And Friends

Sad Is How You Feel When Mom Is Being Beat.

Domestic Violence: Understanding ACommunity Problem.

When Love Hurts: Resources for BatteredWomen.

Family Violence and Addiction: Implications forTreatment.

These pamphlets may be ordered in bulkfor local distribution. For furtherinformation, contact DHS, P.O. Box149030, Austin, Texas 78714-9030 (888/834-7406). www.dhs.state.tx.us.

The DHS website (www.dhs.state.tx.us:80/programs/familyviolence/shelters.html)contains a list of family violence sheltersacross Texas.

TCFV Materials continued from page 17

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