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“(a) In this article, ‘family violence’ has the meaning assigned by Section
71.004, Family Code.
“(1) the safety of the victim of the offense under Section 25.07, Penal Code,
or the family violence case, as applicable; or
“(2) the safety of the community.
”(e) In determining whether to deny release on bail under this article, the
judge or magistrate may consider:
”(f) A person arrested for committing an offense under Section 25.07, Penal
Code, shall without unnecessary delay and after reasonable notice is given to
the attorney representing the state, but not later than 48 hours after the
person is arrested, be taken before a magistrate in accordance with Article
15.17. At that time, the magistrate shall conduct the hearing and make the
determination required by this article.”
Protective orders are issued in Texas pursuant to its Family Code and its
Code of Criminal Procedure, each having different purposes. The Court of
Criminal Appeals in Harvey v. State, 78 S.W.3d 368 (Tex.Crim.App. 2002)
set out how each protective order statute operates:
“The Family Code procedures for a Texas court to render a protective order
require service of notice and a copy of the application as a prerequisite for a
protective order to be binding. ‘A court may render a protective order that is
binding on a respondent who does not attend a hearing if the respondent
received service of the application and notice of the hearing.’ § 85.006(a)
”Section 6.504 of the Family Code authorizes a court, ‘on the motion of a
party to a suit for dissolution of a marriage … [to] render a protective order
as provided by Subtitle B, Title 4.’ That subtitle contains the provisions for
protective orders, including Chapter 85, which regulates the issuance of
protective orders. The procedures under Section 6.504 of the Family Code
are, therefore, identical to those under Chapter 85 of the Family Code,
except for notice.
”The term ‘in violation of an order issued under Section 6.504 or Chapter
85, Family Code [or] under Article 17.292, Code of Criminal Procedure,’
must be construed in light of these procedural requirements. So construed,
the term means ‘in violation of an order that was issued under one of those
statutes at a proceeding that the defendant attended or at a hearing held after
the defendant received service of the application for a protective order and
notice of the hearing."
”We have not overlooked the portion of Section 25.07(a) that applies to an
act that was ‘in violation of an order … issued by another jurisdiction as
provided by Chapter 88, Family Code.’ We think it likely that the laws of
other jurisdictions require similar notice provisions. If prosecution is brought
for violation of another jurisdiction's order that was issued without notice,
and if the defendant in such a case had no actual notice of the order, there
will be an issue whether such evidence establishes the offense. Today we
need only say that there is no such problem in this case.
”As we have construed the term ‘in violation of an order issued under
Section 6.504 or Chapter 85, Family Code [or] under Article 17.292, Code
of Criminal Procedure,’ it is in effect a requirement of a culpable mental
state for that element. Although we think it was not necessary for the Court
of Appeals to resort to Section 6.02(b) of the Penal Code, which deals with a
definition of an offense that does not prescribe a culpable mental state, we
agree with the Court of Appeals that the statute requires some knowledge of
the protective order.
”The State does not argue that the appellant could be held liable without
having some such knowledge of the order. It does say that the Court of
Appeals went too far in requiring that the appellant ‘knew its provisions.’
We think the State is right, for we find no such requirement in the
procedures for protective orders. The requirements are only that the
respondent be given the resources to learn the provisions; that is, that he be
given a copy of the order, or notice that an order has been applied for and
that a hearing will be held to decide whether it will be issued. The order is
nonetheless binding on the respondent who chooses not to read the order, or
who chooses not to read the notice and the application and not to attend the
hearing.
”The [jury] charge in this case correctly told the jury, ‘A person commits the
offense of violation of a protective order if, in violation of a protective order
issued after notice and hearing, the person knowingly or intentionally
commits family violence.’ This was the essence of the construction we have
given Section 25.07(a) of the Penal Code for orders issued under Chapter 85
of the Family Code.” Id., at 373-73 [emphasis original].
While the Harvey court found that the trial court’s jury charge was
incomplete because it failed to include an element of the offense, the court
ruled that error was harmless and defendant was not deprived a fair trial. Id.,
at 373. In line with Harvey, the following courts of appeal have found the
evidence legally and factually sufficient in § 25.07 cases:
The courts of appeal in the following cases have found situations where a
protective order should not have been issued:
• Where a child was pulled between two parties during an exchange, the
evidence was legally insufficient to support the trial court's issuance
of a protective order. The record contained no evidence that family
violence "was likely to occur in the future," as required by Tex. Fam.
Code Ann. § 85.001(a)(2). See: In the Interest of J.A.T., 2005 Tex.
App. LEXIS 6618 (Tex. App.- Corpus Christi 2005).
• Protective order was dissolved where the record did not support a
finding that the former husband threatened the wife in such a manner
as to reasonably place her in fear of imminent physical harm or bodily
injury. The evidence presented to the trial court was in the nature of
harassment and at some point harassment could transform into an
active threat; however, the wife repeatedly admitted that the former
husband had never threatened her with physical harm, and the only
physical contact that occurred was caused by the wife's husband, in
response to the former husband's goading. See: Thompson v.
Thompson-O'Rear, 2004 Tex. App. LEXIS 5033 (Tex. App.-
Texarkana 2004).