What Constitutes Domestic Violence In Houston, Texas?
Domestic violence is legally defined under Texas Penal Code, Title 5, Chapter 22, Section 22.01. The statute for domestic violence defines the criminal act as “an assault against a family member, household member, or a current or past dating partner.” Another definition provided by the National Center for State Courts’: State Guide to Statistical Reporting 2009states domestic violence is characterized as, “criminal cases involving violence, coercion, or intimidation by a family or household member against another family or household member.”
Assault, as used in the Texas statute, is further defined as:
- Any intentional, knowingly or reckless act causing any bodily injury to another person
- Any intentional or knowing threatening of another person with imminent, or specific forthcoming, bodily injury
- Intentionally or knowingly committing an act that the wrongdoer should know would be offensive to the victim
If a defendant is found criminally guilty of domestic violence the penalties range considerably depending on the relationship to the victim, defendant’s past convictions, and if suffocation or strangulation were part of the domestic violence act. These penalties begin with a conviction of a “Class C” misdemeanor, which has a maximum jail sentence of one year and a fine.
Typically, the first step the alleged victim will take is to hire a domestic violence attorney and obtain a protective order. A protective order is generally assigned to a civil court, typically family court.
There are three types of protective orders: emergency protective orders, temporary protective orders, and permanent protective orders.
- An emergency protective order, governed by TX Code of Criminal Procedure (TCCP) §17.292, is given by a police officer or a magistrate. If an emergency protective order is granted during the police response to a domestic violence complaint, the accused is required to leave the home. The victim can request that the offender not be arrested, butthey must find another place to live while the emergency order is in effect, usually three to seven days. This time allows the alleged domestic violence victim the opportunity to obtain a temporary protective order if they chose.
- A temporary protective order, governed by TX Family Code (TFC) §83, allows an alleged victim to obtain a protective order without the accused being present in the courtroom or given notice of the hearing. However, in order to obtain a protective order, that appears to take away rights of the accused without the opportunity to be heard, the alleged victim must prove the accused poses a clear danger of imminent injury to the victim.
- This standard requires specific threats, a continued pattern of abuse, or a documented history of violence or threats. For this type of protective order to be granted, the victim must show that they are in immediate danger.
A temporary protective order lasts approximately twenty days and can be extended an additional twenty days if needed. The temporary protective order’s purpose is to obtain immediate protection and give the accused notice of the permanent protective order hearing. Since permanent protective orders can last two years or longer, the final protective order hearing is more formal and gives the accused an opportunity to refute any false accusations.
- A permanent, or final, protective order, governed by TFC §71, 81-82, 84-88, CCP 7A, CCP 6.09, is granted after a hearing is held and the judge believes that the order is necessary or appropriate to prevent or reduce the likelihood of family violence or future harm. Generally final protective orders last two years. After the first year, the accused can petition the court to have the protective order removed. If it is not removed, the accused can petition again after the second year is complete and the judge will decide whether the need for a permanent protective order is still necessary.
There are specific requirements in the domestic violence protective order that the accused must abide by while any protective order is in place. These include:
- No-contact: The accused cannot call, text, e-mail, stalk, attack, hit, or otherwise disturb the individual the order is protecting. This provision protects others in the family if they are listed on the protective order.
- Peaceful Communication: If communication is necessary, such as coordinating school events or child custody arrangements, then the communication must only cover the approved subject, be peaceful, and only last as long as necessary to address the subject at hand.
- Stay-Away Order: These orders are very common, they state that the accused must stay a certain number of feet or yards away from the protected individual. This can include the alleged domestic violence victim’s home, place of business, school, child’s school, or their car. The average stay away order distance is three hundred feet.
- Move-Out Order: If you and the alleged victim lived together, it is not uncommon to require the accused to vacate the home, even if the home is solely in the accused name. Often a police officer will escort the accused to the shared home so that they can retrieve personal and business items.
- Relinquishment of Firearms: In Texas, individuals can own firearms and can be issued concealed carry licenses that allow them to carry a firearm on their person in public as long as it is concealed. If there is a protective order issued, the accused will have to surrender their firearm and their concealed carry permit will be suspended for the duration of the protective order.
- Counseling Attendance: As part of the protective order the accuser may be required to complete group therapy, Alcoholics Anonymous, anger management, batterer’s intervention program, and individual counseling.
- Payment of Medical Expenses: While the accused may not be automatically required to pay for the alleged victim’s medical expenses that originated from the initial domestic abuse, the judge has wide gdiscretion to order the accused to pay the protected individuals medical bills and any other costs associated with the domestic violence episode.
If you have immigrated to the United States, a conviction of domestic violence is a serious event requiring you to speak to a domestic violence attorney immediately. Regardless if you are a citizen or have lived in the United States for your whole life, you could still be deported if you plead guilty or no contest to a domestic violence charge.
Immigration takes crimes of moral turpitude, an act or behavior that seriously violates the morals and standards of society, very seriously and will deport if this type of crime is committed. Domestic violence is considered a crime of moral turpitude.
What Type Of Penalties Do I Face If Convicted?
There are a variety of penalties, both criminal and through civil consequences for being convicted of domestic violence, protective orders, and violating a protective order. Those penalties are listed below.
Criminal Conviction of Domestic Violence
- Class A Misdemeanor, no weapons or serious bodily harm, one year in jail and $4,000 fine
- Third Degree Felony, domestic violence conviction twice within a twelve month period involving violence against a family member, two to ten years in a state prison and a $10,000 fine.
- First Degree Felony, domestic violence charge involves weapons or serious bodily harm, five to ninety-nine years in state prison and a fine of $10,000
- Violence occurs during a violation of a final protective order, two years in jail
- Violence occurs during a violation of a temporary protective order, six months in jail and/or $500 fine
- State and Federal ban on ownership of firearms
- Loss of employment if your job requires you to carry a firearm
- Permanent criminal record which makes passing a background check difficult
- No contact with protected person or persons, including children of the relationship
- Federal ban on owning firearms
- State ban on owning firearms and a carry permit
- Mandatory Batterer’s Intervention Program
- Move Out Requirement
- Stay Away Provisions for a certain distance
- Possible payment of medical expenses for the victim
Violating Protective Orders
- Class A misdemeanor, maximum $4,000 fine and/or jail for up to one year
- If family violence occurred, this can be considered a criminal violation and face misdemeanor or felony charges; minimum of two years in jail for a final protective order violation; minimum of six months for violation of a temporary order
- Repeated violations are considered felonies; two or more violations in a twelve-month period is considered a third degree felony, two to ten years in the state prison and a fine up to $10,000
Contact A Skilled And Experienced Domestic Violence Attorney If You Think Your Rights Have Been Violated
Consulting with a domestic violence attorney as soon as possible in the event you have been arrested for domestic violence or you have been served with a protective order is very important. Hiring an attorney helps to preserve your rights, understand the law, ensure evidence is properly
A domestic violence attorney can help protect you and advise you on your rights during the criminal process and protective order procedure.