Originally published by jennifer long.
Now It’s Easier for Victims to Get a Protective Order Against Repeat Offenders
House Bill 1782 extends the Court’s ability to grant a Protective Order beyond its prior capacities on paper, though maybe not as a practical matter. A protective order, as opposed to a restraining order, prevents someone from coming to or near the protected person. If there is a violation of the Order, the police may be called and the offender can be arrested. A restraining order may prevent almost the exact same thing, but if it’s violated, the remedy is to file a Motion for Enforcement and wait to get to court before a Judge can do something; the police don’t generally get involved.
To qualify for a Protective Order, the applicant (or victim, if you prefer the term), must show that family violence has occurred in the past and is likely to occur in the future. Showing that violence has occurred in the past is a matter of presenting evidence of that violence: police and medical records, testimony, or other similar evidence is most common. Showing that it will likely occur in the future does not require a crystal ball and Judges are human. That means showing a pattern of violence in the past, an emotional defect which makes the offender dangerous, or even a one-time incident that was particularly terrible.
In most circumstances, a Protective Order hearing has this as its main focus: proving that family violence occurred in the past and is likely to occur in the future.
Burden of Proof Shifts from Victim to Offender
The new house bill 1782 creates a presumption regarding a person who has been convicted or taken deferred adjudication for harming a child under title 5 (offenses against the person) or title 6 (offenses against the family) of the Texas Penal Code, has had his or her parental rights terminated, and is trying to contact the child. Under these circumstances, the presumption is that family violence has occurred in the past and is likely to occur in the future. That shifts the burden of proof from the person seeking the protective order to the person defending it.
That may not sound like much, but under this new law, the applicant for a protective order will have to prove almost nothing and the offending person is left with proving a negative.
It’s All About Evidence
So why does this not necessarily change things as a practical matter? It’s all because of evidence. Without this new law, an applicant seeking a protective order, who comes into court and proves that the offender was convicted under Title 5 or 6 of the Texas Penal Code, has had their parental right terminated, and is trying to contact the victim/child, is almost assured of a win. The new law just makes it easier.
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from Texas Bar Today http://ift.tt/1X0Olxf
via Abogado Aly Website