Protective orders under the Texas Family Code  are intended to protect a person from family violence, but this protection cannot be obtained by violating the constitutions of both the United States and Texas. Texas Family Code chapter 83 addresses temporary ex parte protective orders. Texas Family Code chapter 85 addresses final protective orders. It is Texas Family Code chapter 84 where the unconstitutional statutes lie. Specifically, Tex. Fam. Code §§ 84.001, 84.002 and 84.004.

The Texas Constitution, the United States Constitution and Justice Require a Meaningful Opportunity to be Heard

The United States Constitution, the Texas Constitution, and justice all demand that in every single case, a defendant be afforded notice, an opportunity to be heard, and a meaningful trial. A meaningful trial is not trial by ambush. A meaningful trial is one where a defendant is given notice of the claims asserted against him or her, adequate time to prepare for trial – including conducting discovery and deposing witnesses, and an opportunity to be heard on the matter at a meaningful time and in a meaningful manner. Texas Workers’ Comp. Comm’n v. Patient Advocs. of Texas, 136 S.W.3d 643, 658 (Tex. 2004); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

The United States Constitution requires that every defendant receive a meaningful trial. The 14th Amendment states that “no state . . . shall deprive any person of life, liberty or property without due process of law.” This ideal is at the very foundation of our nation. The Texas Constitution goes beyond the United States Constitution in its requirements for a meaningful trial:

No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”

Tex. Const. Art. 1, Sec. 19. This ideal is at the very foundation of our state.

Justice itself requires a meaningful trial. Trial by ambush goes against the values and ideals on which our justice system was built. A defendant cannot be hauled into court to defend himself without proper notice and time to prepare a meaningful defense. Both the United States Constitution and Texas Constitution are written such that a defendant is afforded all necessary legal protections to prevent trial by ambush and give the defendant the opportunity to be heard.

All Defendants are Afforded Due Process – Except Defendants in Protective Order Suits.

Our laws are written to afford parties in nearly all cases due process and a meaningful trial. Parties in a breach of contract case are afforded a meaningful trial and we understand why. A party defending a breach of contract case has an interest in protecting their property and an equitable resolution. They are afforded notice of the claims against them; time to conduct discovery; time to interview and depose witnesses; time to strategize and prepare for trial.

Parties in a divorce matter are afforded a meaningful trial and that, too, makes perfect sense. A wife in a divorce, for example, has an interest in protecting her property and her right to raise her children as she sees fit, among numerous other social and political factors. Parties in a divorce case are afforded notice, adequate time to prepare for trial, and an opportunity to be heard.

Parties in a criminal case are afforded the highest level of protections because there are serious implications in depriving an individual of due process. Those implications include losing jobs, losing family, losing reputation, losing freedoms, losing the right to vote, losing the right to bear arms, and even losing life. Because there is so much to lose in a criminal case, our laws provide extra protections to defendants in criminal matters. Criminal defendants are afforded additional notice by being afforded the right to have their charges read to them; they are afforded additional time to meaningfully prepare for trial through the right to counsel and rules requiring district attorneys to turn over all evidence; and they are afforded a meaningful trial through additional protections in their rights to confront witnesses.

A Protective Order and a finding of family violence have serious implications just like a criminal case. The implications range from limiting a defendant’s constitutional rights to detrimental social implications. Defendants may be prevented from:

  • Moving about freely – constitutional liberty interest;
  • Remaining in their homes – constitutional property interest;
  • Using or possessing their property – constitutional property interest;
  • Maintaining custody and control of their children – constitutional liberty interest and right to parent/social implications;
  • Possessing a firearm – constitutional right to bear arms;
  • Communicating freely – constitutional right to free speech;
  • Remaining in the United States – immigration implications;
  • Possessing their pets – constitutional property interest;
  • Working at their jobs – social implications;
  • Maintaining relationships with friends and family – social implications.

But despite the serious implications that come from a family violence finding and a protective order, defendants are given little to no notice of trial. The rules for pleadings in a protective order case are very vague and do not require a petitioner to set forth in specific details the basis for the request.

Defendants are given no meaningful time to prepare for hearing. A meaningful defense against an accusation of family violence requires an opportunity to obtain rebuttal evidence and the application of a standard of proof that accurately reflects the value of the rights that are at stake. Tex. Fam. Code § 84.001 requires a trial be held not later than the 14th day after the application is filed. In limited circumstances, a defendant will be afforded 20 days to prepare after the application is filed. Tex. Fam. Code § 84.002. Shockingly, however, the minimum amount of required notice afforded to a defendant in a protective order suit is only 48 hours’ notice prior to final trial. Tex. Fam. Code § 84.004.

These limitations do not allow for a meaningful trial. It is not enough time to conduct discovery. While the current Texas Rules of Civil Procedure have done away the requirement of initial disclosures in protective order cases, the remaining discovery avenues are not prohibited: depositions; requests for production; requests for interrogatories; and requests for admissions. Under the Texas Rules of Civil Procedure, a party has 30 days to respond to a discovery request. A party seeking discovery by subpoena from a non-party must serve notice at least 10 days prior to serving the subpoena. Forty-eight hours’ notice prior to a protective order trial, as allowed by Tex. Fam. Code § 84.004, is not enough time to meaningfully strategize and prepare for a final trial. This is especially true for a final trial that can result in a final protective order that deprives the defendant of all contact with a child for two years or more.

Finally, defendants in protective order cases are not given a meaningful opportunity to be heard. Without time to adequately prepare for trial, a defendant absolutely cannot put forth a meaningful defense. A defendant is prevented from cross-examining witnesses and putting forth their own evidence as they are completely ambushed by the opposing party, who has complete control over the case. The negative implications from being denied a meaningful opportunity to prepare for trial and be heard are amplified when a protective order is sought in a separate cause number by either local rule or policy, as is required in Collin County, because the protective order is a final order and is subject to appeal. See Tex. Fam. Code §81.009(a). The defendant is not entitled to request a rehearing or ongoing discovery as he would be if the protective order was filed in a divorce cause number where the protective order does not become a final order until the decree of divorce becomes a final order. See Tex. Fam. Code § 81.009(b).

Each of these procedural limitations affects a party’s constitutional rights. Next week I will discuss how testimony in a civil protective order case violates the Fifth Amendment of the United States Constitution.

A common question in a divorce is who gets to keep the pets. Whether it be a dog, cat, parrot, fish, bearded dragon, or snake, most pets are considered members of the family. There is no doubt that many people will advocate for their rights as a pet parent. But is there a required possession schedule so that each person has continued rights to visit the pet? In Texas, the answer is no.

Pets are property in Texas

Texas law treats animals as property. Beginning in 1858 with the Texas Supreme Court case of Howard v. York, Texas established that, not only are animals property, but they are characterized as either separate property or community property. Howard v. York, 20 Tex. 672 (Tex. 1858). Texas case law continued to develop and addressed that when an animal increases in value, the characterization of the value is the same as the animal’s characterization as separate or community property. See Stringfellow v. Sorrells, 18 S.W. 689 (1891) (Tex. Comm’n app. op. adopted). In 2010, the Austin Court of Appeals affirmed that pets purchased with a spouse’s separate property money remain the separate property of the spouse.  For the past 160+ years, Texas has not changed its position that animals are property.

How are pets handled in a divorce?

At a final trial in Texas, animals are divided between the husband and wife just like all other property. One of the parties is going to be awarded the pet. This isn’t the case in all states though. Other states take a different approach. Alaska became the first state to consider the “well-being of the animal” in 2016. Illinois passed a similar law in 2018 requiring the court to determine sole or joint ownership of the pet. A recent law in New York (signed on October 25, 2021) requires courts to consider the best interest of a pet or companion animal during a divorce. The court is then required to take the best interest of the pet into consideration when awarding possession. It will be interesting to see the case law develop in New York as to the “best interest” factors of the animal and how best interest is determined.

What are the options for pets in a Texas divorce?

Outside the trial court, the parties can be creative with what happens to their pets. A possession schedule can be created very similar to the possession schedule for a child. Terms can be established for vet care and other pet expenses, similar to regular payments of child support. You can have an order for end-of-life care for pets that are older. You can have complex possession schedules including rights of first refusal if a party will be away from the pet overnight, as well as notice provisions when a party will be leaving town without the pet. Without agreements though, the trial court will divide pets as property along with all other property. It is important to understand how the Texas court will view your pet when going through a divorce.

 

Texas starts 2022 with three new district courts.

The 478th Judicial District Court of Bell County will be in session on the first Mondays in January, April, July, and October. This court will have concurrent jurisdiction with the 27th, 146th, 169th, 364th, and 426th Judicial District Courts currently serving Bell County. No judge as been appointed for this court yet.

The 481st Judicial District Court of Denton County is a general jurisdiction court. Judge Crystal Edmonson Levonius was appointed by Governor Greg Abbott to serve as judge of this court. Judge Levonius will be up for election in November 2022.

The 485th Judicial District Court of Tarrant County is a general jurisdiction court with preference for criminal cases. No judge has been appointed for this court yet.

The next wave of new courts will go online in September and October 2022.

The 476th Judicial District Court of Hidalgo County and the 483rd Judicial District Court of Hays County will begin September 1, 2022.

The 474th Judicial District Court of McLennan County and the 480th Judicial District Court of Williamson County will begin October 1, 2022.

The 87th Texas Legislature added more courts for 2023.

The 475th Judicial District Court of Smith County will begin January 1, 2023. Several County Courts at Law will also begin.

As Texas continues to grow, it is expected that the Texas Legislature will take up creation of new courts during its 88th Session beginning January 2023. For now, our judiciary will continue working diligently in 2022 with the help of a few more courts.

Enforcements actions can be a source of confusion for many. While enforcement actions actually allow for many different remedies, many view them in the family law context as being simply synonymous with contempt of court.

Enforcement is the act of compelling observance or compliance with a law, rule or obligation. An enforcement case in family law compels compliance with a court order.

So if enforcement of a judgment is the right – what are the remedies for that right? Remember that at law a right goes with a remedy (or more than one remedy). A legal remedy is the MEANS by which a court of law enforces a right. “For every right there is a remedy. Where there is no remedy, there is no right.” (William Blackstone)

Generally, remedies are in two broad categories – judicial remedies or those that a judge can award — versus extrajudicial remedies or self-help that keeps people out of the court system.

Judicial remedies generally fall in 3 categories – monetary damages, declaratory relief, and equitable remedies like injunctions or specific performance or even contempt of court.

In this continuing legal education presentation, I discuss the different remedies for enforcement beyond contempt. I also deep dive into contempt actions — how to prosecute them, how to defend them and how to appeal them.

This presentation is approved for 1.0 hour of CLE credit by the State Bar of Texas.

Watch here: https://fb.watch/9rW1HFWQLW/

Here’s my written notes from the presentation: Enforcement versus Contempt

When are you entitled to a jury trial in family law cases?

Only 11 states allow jury trials for divorces. Texas is the only state that allows a jury trial for custody matters. The Texas Constitution guarantees your right to jury trial in civil cases.

The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.”

TEX. CONST. ART 1, § 15.

The Texas Constitution further states:

In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.”

TEX. CONST. ART 5, § 10.

What can a jury decide in a divorce?

A jury can give binding verdicts on limited issues a divorce. A jury can determine the grounds for divorce. Texas has seven grounds for divorce which are found in chapter 6 of the Texas Family Code. The grounds are divided between no-fault grounds and fault grounds. The three no-fault grounds are: 1) Insupportability; 2) Living apart for three years or longer; and 3) Confinement to a mental hospital where one spouse has been confined for at least three years and it is unlikely that, if adjustment occurs, a relapse is probable. The four fault grounds are: 1) Cruelty; 2) Adultery; 3) Abandonment; and 4) Conviction of a felony.

A jury can also determine the character of property. Is the property separate property? Is the property community property? Is the property mixed character such that it is part separate property and part community property? The jury can determine the value of the property with the jury question being similar to: “State in dollars the value of Property X.” A reimbursement claim by one marital estate to another marital estate, as well as whether an offset against such reimbursement claim exists are also a jury questions.

A jury is prohibited from giving a binding verdict on the following matters: how the property will be divided between the parties; whether a premarital agreement is unconscionable; attorney’s fees to be awarded; and costs of court to be awarded.

What can a jury decide in a suit affecting the parent-child relationship?

Child issues come before the court when married parents get divorced and the Suit Affecting the Parent-Child Relationship (SAPCR) is combined with the divorce. Child issues also come before the court when unmarried parents file an original SAPCR or when unmarried or formerly married parents file a petition to modify the parent-child relationship.

A jury can decide the following child related issues:

  1. Whether a party will be appointed a sole managing conservator and the identification of which parent will be appointed the sole managing conservator;
  2. Whether the parties will be appointed joint managing conservators;
  3. Whether a possessory conservator will be appointed and the identification of that possessory conservator;
  4. Which joint managing conservator will have the exclusive right to designate the primary residence of the child;
  5. Whether there will be a geographic restriction on the primary residence of the child; and
  6. If there is a geographic restriction, determination of what that geographic restriction will be (i.e., State of Texas; Dallas County; Collin County and counties contiguous to Collin County).

A jury cannot give any opinion on issues regarding parentage, child support, the terms or conditions of possession or access, or what rights and duties the conservators will have (not including who has the exclusive right to determine the child’s primary residence).

Many factors go into deciding whether to ask for a jury trial. While Texas gives litigants the opportunity to have the case decided by a jury, knowing what a jury can actually decide is a helpful starting point when analyzing your case strategy.

 

Our October monthly free lawyer’s continuing education presentation focused on new cases and legislation affecting Texas family law.

Here’s a link to watch the video on Facebook: https://fb.watch/8SJMhZFiJF/

Here’s the presentation with all the details: What’s New in Texas Family Law This Fall?

Here’s a link to Elisa Reiter’s excellent articles about the new legislation (read them together because the second article updates the first one):

TexasLawyerRevisionstotheTexasFamilyCodethatEveryAttorneyShouldKnow

art-texas-lawyer-governor-abbott-vetoes-bill-requiring-standardization-of-protective-order-applications-7-20-21

 

 

I heard from several judges that there are many lawyers across the state that aren’t clued into the new discovery rules and are messing things up. They asked me to redo my presentation so there would be one link and one place to go to learn about them. So, I did!

Here’s the link to the video on FB Live: The New Discovery Rules Six Months Later.

Here’s the pdf download of the slides from the video: A Practical Guide to the New Mandatory Discovery

Here’s the Motion for Protection that we filed when someone sent us an RFD on a new rules case. [will upload soon — check back]

Here’s the Notice of Exemption that we filed on an “other action involving domestic violence” exempting from the Initial Disclosure rule. Notice of Exemption

Here’s link to the new 2021 discovery rules since they aren’t in the books yet.