How to Lift a Texas Domestic Violence Emergency Protective Order

How To Lift an Emergency Protective Order (EPO) Associated with a Texas Domestic Violence Case?

If you were arrested for Assault (Family Violence), chances are that you also received an Emergency Protective Order prohibiting you from going within 500 yards (or similar distance) from the “victim’s” home or workplace, along with other conditions for a period of 31, 61, or 91 days depending on the nature of the alleged assault. Protective Orders can cause big problems, especially when the two parties live together in the same house and share childcare and other family responsibilities.

Can I Lift The Emergency Protective Order So That I Can Go Home?

Yes, you can (in most cases). We are asked this question on a daily basis. A spouse that was arrested for Domestic Violence has been forced to leave the family home because of the EPO. EPOs, however, do not relieve people of their daily responsibilities to take care of children, go to work, or provide for their families. An EPO can certainly throw a wrench into a family dynamic.

We help families modify protective orders to allow a defendant to return home. We do not typically request that the entire EPO be lifted completely, only amended.

Amending an EPO is Not the Same Thing as Lifting an EPO.

So what’s the big difference in lifting an EPO versus amending an EPO. Most judges will not agree to completely lift an EPO, because, as they see it, there was likely a good reason for the imposition of the EPO in the first place. Additionally, in almost every scenario, the District Attorney's office will oppose lifting the EPO. However, many judges will agree to amend or modify an EPO and change some of the conditions. Usually, if the victim requests it, a judge will amend the protective order to allow the defendant to return home or resume contact with the complainant and the family. However, the remaining conditions, usually involving not committing family violence or threatening the victim, remain in place for the duration of the protective order.

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What are the Steps to Amending a Protective Order in Fort Worth?

First, it is important to know that all jurisdictions handle protective orders differently. For instance, the Fort Worth Municipal Court handles protective orders differently from Tarrant County Criminal Court #5. Some courts prefer to hold a formal hearing and others do not. However, in all cases, we request the following:

• An Affidavit from the Victim Requesting a Change of the Protective Order: This can be drafted and signed in our office, but the victim must be present and indicate that this is what he/she wants. In our experience, if the complaining witness does not want the EPO changed, then the judge is not going to change it.
• A Motion to Modify the Protective Order: We draft and file the motion with the court having jurisdiction over the EPO. Texas law requires that we allege 3 things in our motion and that the judge find those 3 things to be true before he/she can modify the EPO:
  • (1) The current EPO is unworkable;
  • (2) Modification of the EPO will not place the victim in a greater risk of harm; and
  • (3) Modification of the EPO will not result in harm to any person protected under the order.

• An Affidavit of Non-Prosecution: This is not a required document, but we allow victims to sign an ANP in our office if they request it. They may end up having to sign another ANP with the prosecutor, but we like to give them the opportunity.
• Formal or Informal Hearing with the Presiding Judge: Some courts will require an actual hearing with witnesses before deciding whether to modify an EPO. Other courts simply prefer the verified documentation and an informal meeting with the state and the defense.
• Filing the Amended Order with the Arresting Agency and Sheriff’s Office: If the judge agrees to amend the protective order, we send a copy of the signed order to the defendant, the complainant, the arresting police agency, and the local sheriff’s office. We also advise our clients to keep a copy of the order near the front door in case a nosy neighbor decides to call the police believing that the EPO is being violated.

I Have an Emergency Protective Order. How Do I Get Started in Amending the Order?

If you have an EPO that was issued against you in response to an allegation of Assault (Family Violence), give us a call today to see if we can assist you in getting the order amended so that you can return home to your family. Every case is different, so we want to speak with you and learn more about your situation. This article will not apply to every case, so call us today at (817) 993-9249. We offer Free Consultations in every case with no obligation.

If You Lie or Exaggerate in a Police Report or File a False Report, You Could be Charged with a Class B Misdemeanor

As Fort Worth criminal defense attorneys, we are often asked by witnesses and victims what might happen if it comes to light that the story they told the police was not exactly true. We often see this in Domestic Violence cases, when a victim decides that the statement he or she gave on the night of the incident was perhaps embellished a little during a fit of anger. Witnesses later become fearful when they realize they might have to take the witness stand and give a different (truthful) account of the event. They worry that they might be charged with a crime themselves for filing a false police report.

Filing a False Police Report in Texas | Texas Penal Code Section 37.08

Section 37.08 of the Texas Penal Code provides:

(a) A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to: (1) a peace officer or federal special investigator conducting the investigation; or (2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.

Filing a false report under Section 37.08 is a Class B Misdemeanor, punishable by up to 180 days in jail and a fine up to $2,000.

*Filing a false report about a missing child or missing person is a Class C offense, punishable by fine only.

Charges for Filing a False Report Do Not Happen Very Often in Texas

In our line of work, we see false reports on a daily basis. Be they embellished statements, outright lies, or  statements that simply omit important details, false reports happen all the time. In over 10 years, we have yet to see a case filed on a victim or witness for filing a false report or giving a false statement. While we're sure it has happened, it doesn't happen very often in our experience.  Perhaps it is because the state does not want to chill victims from reporting or because no one knows which story was actually true.  Either way, it is unlikely that a victim or witness who changes their story is going to be charged with an offense. Regardless, we always tell witnesses to simply TELL THE TRUTH.  If you tell the truth, even if the truth has changed since the first time you told the story, you'll probably be in good shape.

*Note: this post does not discuss the offense of Perjury, which is a separate offense involving swearing to a false statement. See Texas Penal Code Section 37.02.

Family violence stories permeate the news, as domestic violence-related cases continue to fill both Texas criminal and family court dockets alike. The Texas Council On Family Violence reports that one in three Texans will experience domestic violence in their lifetimes. (Texas Council On Family Violence, accessed 23 April 2018.) In 2016, the National Domestic Violence Hotline received over 17,000 outcries for help. A societal scourge that is found across all racial, socio-economic, financial, educational and religious stratifications, domestic violence continues to wreck families and ruin the lives of victims. What protections exist in Texas for victims? What behaviors rise to the level to trigger a protective order issued by the courts? What happens when a protective order is violated? In Wagner v. State, the Texas Court of Criminal Appeals recently considered whether numerous texts and emails can rise to the level of harassing behavior and violate a protective order.

Read the case here: Wagner v State (Tex. Crim. App 2018)

Domestic Violence Leads to a Protective Order for Victim

One month after separating from her abusive husband, LW was granted an Order of Protection from a district court. Based on the testimony presented, the district court found that not only had family violence occurred, it was likely to occur again in the foreseeable future. In her affidavit to the court, LW described an array of abusive behaviors including yelling and screaming, breaking objects around the house, destroying a car with a hammer, locking LW out of her own house, among other “strange and violent behavior.”

The Protective Order restricted her ex-spouse, Paul-Henri Wagner, from a laundry-list of communications and activities ranging from direct communication by phone to physical presence within 500 feet of LW’s residence. Specifically, Paul-Henri was prohibited from communication made to LW in a “threatening or harassing manner.” One week after the protective order was issued, Paul-Henri and LW sent text messages and email to each other, regarding financial and logistical obligations to their children. Eventually, LW told Paul-Henri to communicate via email only, asking him to “respect her wishes” by not sending her text messages. Shortly thereafter, Paul-Henri began sending emails professing his longing for reconciliation. LW told him to stop. Paul-Henri started sending text messages again—a dozen in fact. Soon the communication became a mix of texts and emails professing his undying love for LW. After a few days of the messages, LW told Paul-Henri to stop sending texts. Paul-Henri barraged LW with emails begging for reconciliation. Paul-Henri even went so far as to drag church members to contact LW for reconciliation.

Based on his incessant communications with LW, Paul-Henri was charged with a Class A misdemeanor Violation of a Protective Order for violating Texas Penal Code Section 25.07(a)(2), which provides (in relevant part:

(a) A person commits an offense if, in violation of a condition of bond set in a family violence case related to the safety of the victim, the person knowingly or intentionally: (2) communicates: (A) directly with a protected individual or a member of the family or household in a threatening or harassing manner;

Ultimately, a jury convicted Paul-Henri for violating the protective order, finding that he communicated with LW “in a harassing manner.”

Wagner Appeals the Violation of Protective Order Conviction | Void for Vagueness Argument

On direct appeal, Paul-Henri challenged the constitutionality of the Texas Penal Code, stating that §25.07(a)(2)(A) is overbroad and vague. The court of appeals rejected Paul-Henri’s argument, stating:

(1) that the term “harass” can be defined using a standard dictionary, (2) that harassment is not protected speech under the First Amendment, and (3) that the statute is not vague because Paul-Henri either knew or should have known that his repeated communications with LW would eventually pester her.

Paul-Henri then appealed to the Texas Court of Criminal Appeals, which granted his petition for discretionary review to determine the constitutionality of §25.07(a)(2)(A).

When do Communications Become “Harassing” Under the Law? | The Court of Criminal Appeals Weighs In

So when do multiple emails and texts become “harassment” in violation of a protective order language or the Penal Code (or do we even know)? The CCA held that the Penal Code was not unconstitutionally vague on this point and explained that:

"a person communicates in a harassing manner if the...method by which he communicates…would persistently disturb, bother continually, or pester another person…[Such behavior] necessarily requires multiple events of harassing communication…[and would be] troubling [to] someone with frequent…requests or interruptions."

Here, Paul-Henri repeatedly contacted LW, even after she demanded that he stop. The court reasoned that the average person, with average intelligence, would conclude that his behavior was bothersome, and that he should have stopped. However, Paul-Henri did not stop his efforts to contact his victim. Furthermore, added the CCA, “the First Amendment does not prohibit a court from imposing reasonable restrictions on an abuser’s speech for the protection of his victim.” For those who have protective orders restricting communication, yes, multiple texts and emails may rise to the level of “harassing” behavior in Texas. Those who have been served protective orders need to understand the restrictions placed upon them in their orders and abide accordingly.

Family and intimate partner violence follows escalating patterns of behavior that are predictable and preventable. Understanding the facts about domestic violence is the first step in supporting victims in their safety planning and in holding abusers accountable for their actions.

What is the Lautenberg Amendment?

Senator Frank Lautenberg was the chief sponsor of this amendment. The purpose behind this amendment is to keep firearms out of homes where a domestic violence relationship exists. Lautenberg presented it with the idea that domestic violence and firearms are a deadly combination and enacting this amendment would lessen the likelihood of a victim to die during a domestic violence episode. 142 Cong Rec S 11872. Additionally, since there was already a firearm ban in place for felony convictions, this Amendment combats the devastating loophole that previously allowed persons with misdemeanor convictions of domestic violence to fall through the cracks and be permitted to own firearms. United States v. Hayes, 555 U.S. 415.

When Does the Lautenberg Amendment Apply?

The Lautenberg Amendment will not have any impact until a person has a misdemeanor conviction of domestic violence. 18 U.S.C. § 922(g)(9). That is, a misdemeanor that

“has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”

18 U.S.C. § 921(33).

A defendant will not be considered convicted unless they were represented by an attorney or “knowingly and intelligently” waived that right and the case was prosecuted at a jury trial or the defendant “knowingly and intelligently” waived that right by a guilty plea or otherwise properly waived that right. Id.

If you have been charged with a qualifying misdemeanor conviction, the amendment has no impact on you until you have received a final conviction. However, if you are subject to a protective order, the Gun Control Act and the State of Texas separately provide that you cannot use, possess, or transfer firearms. 18 U.S.C. § 922(d)(8); Tex. Fam. Code § 85.022(b)(6); Tex. Pen. Code § 46.04(c).

In Texas, if you have disposed of your case through deferred adjudication, which is not a final conviction, and you successfully complete the deferred adjudication, the amendment will not impact you since the statute requires a conviction. 18 U.S.C. § 921(33). Additionally, the conviction element of this statute will not be satisfied if the conviction is expunged, set aside, or the defendant has been pardoned. Id.

What Impact Does the Lautenberg Amendment Have on the Military Defendant?

Prior to the Lautenberg Amendment, 18 U.S.C. § 925(a)(1) provided a military and law enforcement exception to the Gun Control Act. The Lautenberg Amendment contains no similar exception.

What this means for the military defendant that gets a conviction is that his service could be compromised since they can no longer use, possess, or transfer a firearm. This conviction can impact their ability to re-enlist, cause a transfer to a military occupational specialty (MOS) that doesn’t require the handling of firearms, and affect the ability to be deployed. Many servicemembers that receive a domestic violence conviction will be processed for administrative separation.

According to the Supreme Court, What Cases are Considered Misdemeanor Convictions of Domestic Violence?

In Voisine v. United States, the Supreme Court clarified that the federal firearm ban under the Lautenberg Amendment applied to every case where the underlying conduct was an act of domestic violence, regardless of whether the state court made an affirmative finding of domestic violence (or family violence in Texas). This means that persons with misdemeanor convictions anywhere from a Class C simple assault* to a Class A assault with or without a domestic violence finding are banned from using, possessing and transferring firearms if their victim was one with whom they had a domestic relationship.

Voisine v. United States dealt with two domestic violence-related cases from Maine where both defendants’ previous convictions were based on reckless conduct, not intentional or knowing conduct. Thus, they argued that the Lautenberg Amendment didn’t apply to them. The Supreme Court ruled that the firearm ban did apply to them for two reasons:

1. Reckless use of force is use of force the same as if it was intentional or knowing; and
2. The legislative history and plain language of the statute lead to such a conclusion.

Looking to the statutory definition of an applicable misdemeanor conviction provided above, there is no specific mental state required. The definition provides that the Amendment applies to any misdemeanor under federal, state, or tribal law that was committed by a person through use of physical force against a victim with whom they have a domestic relationship.

*Class C is the same level as a traffic ticket.

Texas Specific Firearm Bans for Domestic Violence Convictions

In Texas, a person who has been convicted of a misdemeanor involving family violence cannot possess or transfer a firearm or ammunition for 5 years after they are released from confinement or after they have completed and been released from community supervision following the conviction. Tex. Pen. Code § 46.04(b).

The Texas Family Code defines family violence as “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault.” Tex. Fam. Code § 71.004. Additionally, under Section 22.01 of the Texas Penal Code an assault involving the person’s family or household occurs if the person causes bodily injury to another, threatens a person with “imminent bodily injury,” or causes physical contact with someone that they know or should know would find “offensive or provocative.” From these definitions you can see that a misdemeanor conviction of domestic violence in Texas expands the qualifying convictions beyond those that qualify under the Lautenberg Amendment.

If a person is convicted of a misdemeanor offense of family violence the court must notify them that it is against the law for them to possess or transfer firearms or ammunition. Tex. Code Crim. Proc. art. 42.0131. Additionally, if a defendant decides to enter a plea of guilty or nolo contendere for a misdemeanor involving family violence the court must, before accepting the plea, admonish the defendant with the following:

“If you are convicted of a misdemeanor offense involving violence where you are or were a spouse, intimate partner, parent, or guardian of the victim or are or were involved in another, similar relationship with the victim, it may be unlawful for you to possess or purchase a firearm, including a handgun or long gun, or ammunition, pursuant to federal law under 18 U.S.C. Section 922(g)(9) or Section 46.04(b), Texas Penal Code. If you have any questions whether these laws make it illegal for you to possess or purchase a firearm, you should consult an attorney.”

Tex. Code Crim. Proc. Art. 27.14.

Texas law does not require the defendant to surrender firearms or ammunition once the possession is prohibited. Neither does Texas law specifically authorize or require the removal of firearms or ammunition from the scene of a domestic violence incident.

In short, Texas law provides a prohibition of gun possession for five years after release from confinement or probation in more circumstances than under the Lautenberg Amendment. However, if your conviction is also a qualifying conviction under the Lautenberg Amendment then your right to possess a firearm is indefinitely prohibited. If you find yourself in that situation your only option to restore your firearm rights is to request a full pardon and restoration of civil rights in your pardon paperwork.

Are You Currently FacingDomestic Violence Assault Charges in Tarrant County?

Whether you have already been convicted or are currently facing charges of assault it is extremely important to know the heavy consequences that are attached to convictions where the underlying conduct is considered domestic violence. There are many misconceptions out there on whether federal firearm ban applies to a specific assault case. It is important that you know for a fact whether it applies to you so that you don’t risk violating federal law. If you are facing charges for an offense involving family violence under Texas law, contact our criminal defense team and schedule a free consultation to discuss and determine what consequences you are facing and whether the federal and/or Texas firearm ban applies to you.

“Firearms and Domestic Strife are a Potentially Deadly Combination,” says the Supreme Court

Voisine v. United States (US Supreme Court, 2016)

Voisine v. United States consolidates two domestic violence-related cases from Maine. In both cases, the petitioner-defendants were previously charged with “reckless” misdemeanor assaults, and both were found later to own guns in violation of a federal statute prohibiting gun ownership by those convicted of domestic violence. The Supreme Court weighed the differences between intentional and knowing domestic assaults versus a reckless “heat of passion” type assault to reach it’s conclusion.

Voisine’s Domestic Violence Case

In 2004, Stephen Voisine was charged with and convicted of a domestic violence assault of his girlfriend, in violation of §207 of the Maine Criminal Code, which penalizes “intentionally, knowingly, or recklessly causing bodily injury or offensive physical contact to another person.” Me. Rev. Stat. Ann. Tit. 17-A, §207(1)(A). A few years later, Voisine killed a bald eagle—a federal offense. During the investigation of the bald eagle crime, investigators discovered Voisine owned a rifle. Background checks reflected his prior domestic violence conviction, so prosecutors charged him with violating 18 U.S.C. §922(g)(9).

Armstrong’s Domestic Violence Case

In 2008, William Armstrong pleaded guilty to a domestic violence assault of his wife, in violation of the Maine Criminal Code. A few years later, law enforcement was investigating a narcotics ring, and discovered six guns and ammunition on Armstrong’s property. Like Voisine, Armstrong was charged with violating 18 U.S.C. §922(g)(9), unlawfully possessing firearms.

The Big Issue before the Supreme Court - Is there a difference between "Reckless" domestic violence and "Intentional" domestic violence for 922(g)(9)?

Both Voisine and Armstrong appealed their respective cases to the First Circuit, arguing that they were “not subject to the federal firearm prohibition described in §922(g)(9) because their prior convictions could have been based on reckless, rather than knowing and intentional, conduct.” United States v. Armstrong, 706 F.3d 1, 4 (2013); United States v. Voisine, 495 Fed. Appx. 101, 102 (2013) (per curiam).

After several appeals in Maine, both Voisine and Armstrong filed a petition to the Supreme Court. The Supreme Court granted the petition for review, specifically to resolve a circuit split over the issue at hand.

The Supreme Court must determine whether misdemeanor assault convictions for reckless domestic assaults invoke the federal firearms ban. What difference, if any, is there between intentional and knowing assaults versus a reckless assault? Does the type of assault even matter?

What is the current law regarding Federal firearm restrictions after a conviction for a domestic violence incident?

Under Federal law, any person convicted of a "misdemeanor crime of domestic violence" is prohibited from possessing a firearm. 18 U.S.C. §922(g)(9). This includes any misdemeanor that involves the “use of physical force.” §921(a)(33)(A).

The Supreme Court Weighs In

In the opinion released Tuesday, the Supreme Court discusses the mens rea (state of mind) for a reckless domestic violence assault, which a is “conscious disregard of a substantial risk that the conduct will cause harm to another.” ALI, Model Penal Code §2.02(2)(c) (1962). Reckless conduct, the Court says, is not an accident. Reckless conduct involves a deliberate decision to endanger others. Reckless conduct involves making a decision—it is a purposeful act.

Here, the Supreme Court holds that yes, misdemeanor assault convictions for reckless domestic assaults do trigger the federal firearms ban, for two main reasons.

I. It’s Common Sense--Plain Language Read of the Statute Renders this Result

Both Voisine and Armstrong took issue with the phrase “use of force”—namely the word “use.” However, “nothing in the word “use” indicated that the federal firearm ban applies exclusively to misdemeanor assaults that are knowingly or intentionally committed,” says the Supreme Court. Further, “dictionaries consistently define the noun “use” to mean the act of employing something.” Webster’s New Int’l. Dictionary 2806 (2d ed. 1954); Random House Dictionary of the English Lang. 2097 (2d ed. 1987); Black’s Law Dictionary 1541 (6th ed. 1990). “On that common understanding, the force used [in an assault] must be volitional.” In sum, a person who “assaults another recklessly uses force, no less than one who carries out that same action knowingly or intentionally.”

II. Congress Intended to Include All Types of Misdemeanor Domestic Assaults in §922(g)(1).

The federal firearm ban for those convicted of misdemeanor domestic assaults was enacted by Congress in the late 90s to “close a dangerous loophole in gun control laws.” United States v. Castleman, 572 U.S. __, __ (2014)(slip op., at 2)(quoting United States v. Hayes, 555 U.S. 415, 426 (2009)). At the time, a law prohibiting those with felony domestic violence convictions was already on the books. §922(g)(1)(1994 ed.).

Unfortunately, says the Court, many domestic violence assaults are prosecuted as misdemeanor crimes or have a statutory penalty that results in misdemeanor convictions, “notwithstanding the harmfulness of their conduct.” Castleman, 572 U.S. at __(slip op. at 2). Using the Commerce Clause of the US Constitution as a hook for the law, Congress added the federal firearm ban for any person “convicted of a misdemeanor crime of domestic violence…from possessing any gun or ammunition with a connection to interstate commerce.”

Further, Congress defined “misdemeanor crime” as any misdemeanor under federal, state, or tribal law, committed by a person with a…domestic relationship with the victim that has…physical force.” In sum, the “statutory text and background alike lead us to conclude that a reckless domestic assault qualifies as a misdemeanor crime of domestic violence” under federal statutes.

Dissenters in the Crowd

Supreme Court Justices Thomas and Sotomayor disagreed with the majority. Both Justices aver that mere recklessness should not invoke a firearm ban because “recklessness does not necessarily involve the use of physical force.” [The Supreme Court] has routinely defined “use” in a way that makes clear the conduct must be intentional. Bailey v. United States, 516 U.S. 137 (1995). “The use of physical force against a family member refers to intentional acts of violence against a family member.”