Why I Do It

            From the day I decided that I wanted to go to law school I started to hear all the jokes. Things like “I hope you know how to lie.” and “How much will it cost to talk to you now?” But they’ve never really bothered me. Even when I was practicing personal injury and people would call me an “ambulance chaser” I never felt offended. Because from the time I started my journey to becoming an attorney I knew it was my purpose. And I decided, that no one was going to knock me off course.

I’ve been asked by just about everyone I know, why did I become and attorney and more specifically why did I choose family law? Usually, I’ll give a joke answer like “Because I want an Audi R8.” or “I didn’t choose family law, family law chose me.”. But in reality, I do this because it makes me feel good. There is something about when someone puts their trust in you, then you come through for them that makes the hard days and long nights worth it. I do this for the moments when you get the smile, handshake, or hug in appreciation after helping someone through one of the roughest times in their life.

My family has been plagued with divorce. From the time I was a kid till present day it always seemed like someone was splitting up. When I was younger, I would feel helpless. I wanted to do something about it, be able to help my aunts, uncles, siblings, etc. but there was nothing I could do. But now, I can. I may have been too late to help most of my family, but I’m right on time to help others in the city. Despite my jokes it’s not about the money for me, it’s about doing what I wish I could have done way back then. It’s about protecting single mothers against abusive husbands and boyfriends. It’s about helping fathers who just want to be in their children’s lives, when their mothers do everything they can to keep them out. It’s about keeping a divorce as amicable as possible, so children don’t have to see their parents fight. But most importantly it’s about inspiring the next generation of black attorneys.

prenups postnups and problemsIn this course, we cover premarital agreements, postmarital agreements/partition and exchange agreements, conversion agreements, and nonmarital conjugal cohabitation agreements. What are the differences? What are the similarities? How do you get in one, stay in one, or get out of one?

Watch the live video here: Prenups, Postnups, and Problems Facebook CLE

Download the ppt here: Prenups Postnups and Problems

 

 

 

Today I presented on The Anatomy of Trial Preparation — a free continuing legal education on Facebook for Texas Lawyers. Want to watch my live presentation, click here.

Anatomy of Trial Preparation live Facebook CLE

What is the difference between “getting ready” for trial and “preparing for trial”? To me, the difference is in evaluating and planning strategy for all of the eventualities that could come up. This is playing the chess board in advance of trial. I love the show Queen’s Gambit. Remember how she played through the games on the ceiling while she laid in bed? This is the kind of preparation that I’m talking about.

Outline of Proof

The first step in preparation is to prepare an outline of the issues and method of proof involved in the case. While this step may start early on during the case, usually it is not super effective until much of the discovery has been conducted. I do this outline on a white board and begin by listing the claim – affirmative and defensive – that are on the table. Then, list the elements of proof of each claim. Add under each claim the witnesses and exhibits that are relevant to proving those claims. From here, evaluate what production you have or need to meet the proof on each element. If you know there is a conflict of opinion on the law, identify where those are during this process.

After going through this full analysis, then reverse the analysis into the roadmap for trial, listing the witnesses you’re going to call, the issues you need to address with that witness, and the exhibits you will use with each.

Sometimes there are specific legal issues or skirmishes that you expect to have during the trial. When you can anticipate a particular objection being contested, then write out the objection and the statutory or case law authority on the point so you don’t have to think about it in the heat of the battle; you can just turn to that page in your notebook and read it into the record. You can also prepare trial briefs on particular legal issues to bench file when the issue arises to provide the judge with the legal authority in a short, bite-size document.

From this process, you can begin to prepare your pretrial designations of fact and expert witnesses as well as the list of exhibits.

Notebooks for Trial

I am a big notebook lawyer. When I’m in trial, I like my presentation to be “buttoned-up”, neat and tidy. I detest the pile of paper that ends up being a mess on many lawyers’ trial tables. I also don’t like large notebooks as they are bulky and difficult to maneuver in court. Smaller notebooks are easier to handle and can be put away when you are done with that part of the trial.

Master Notebook

The Master Notebook will contain information that will be needed throughout the trial and usually is less substantive than the rest of the notebooks. Here’s some items that may be in this notebook:

  • Players list with contact information for witnesses, parties, or court officials.
  • Travel information
  • Outline of Proof (above)
  • Master witness chart – I do a spreadsheet of all of the fact and expert witnesses listed by any party and where the reference to that witness is.
  • Master exhibit list
  • Discovery index listing each party’s produced documents
  • Timeline of events, if needed
  • Current printed docket sheet
  • Pretrial Disclosure list with fact/expert witnesses and exhibit lists for both parties

Pleadings Notebook

The main Pleadings notebook will contain generally the important pleadings and orders in the case. I always include every petition/counterpetition, even if amended out. All of the temporary orders throughout the case will be included. Any scheduling orders, major discovery rulings, and partial summary judgment orders should also be in this notebook.

You might also have a separate notebook that contains transcripts from various important hearings for reference.

Discovery Notebook

The discovery notebook should contain the pleading portion of all of the live discovery responses. So, if something has been amended, then I’d leave out the prior version, but keep everything that can be relied upon. So, responses to all written discovery as well as document production indexes (repeated from the master notebook). I keep a copy of the master fact and expert lists and pretrial disclosures in this notebook too (also repeated from the master notebook). You might want a master list of audio and video produced for reference.

As to the full document production, you will want to have access to this, just in case you need something that isn’t planned in the exhibit lists. Anymore, having this electronically is probably the best option instead of printing to paper, especially if you have a staff member in trial with you who can quickly access items when needed. Keep in mind that internet at the courthouse is spotty, so have this on thumb drive where you can access it. Also have a Plan B and Plan C for how you will use this information.

You might also want one place where you have all of the deposition transcripts taken in the case for reference.

Outstanding Motions Notebook

If there are pending motions that need to be heard at the beginning of trial and ruled on, I keep those in a separate notebook. At final trial all issues that aren’t ruled upon are set. Most of the pending motions at final trial will relate to evidence that each side wants to keep in or keep out of the trial. Include either side’s motion and all responses, supporting affidavits and declarations. This is also a good place to keep any trial briefs or specific legal arguments that will be made during the trial. If you cite a lot of case law authority, you might have a separate notebook that just contains the case law.

Argument Notebook

I like to have my notes for opening statement and closing argument in one notebook, separate from the rest of the preparation so that it is easily used and put away when not needed. I also like to have a place to keep notes in that notebook for thoughts about things that need to be argued in closing.

If it’s a jury trial, this notebook will house my voir dire outline, notes about perfect juror qualities, a jury seating chart (created in consultation with court staff about how the venire is laid out), motion for jury shuffle, and notes about challenges for cause if I need them.

Also in a jury trial, this will be a good place to keep the proposed jury charge of both sides as well as your tender submission at the ready. Note, in formatting your proposed charge, I always start with a cover sheet that references the proposed charge. Then on each page of the proposed charge I include reference to the PJC or case law authority that supports the wording of definition or question as well as a place where the judge may indicate whether the submission is approve, denied, or modified. You can also use these individual pages as your official tender during the formal charge conference on the record. When the final charge is prepared, hopefully using your version, the processor can simply remove the additional language after the court’s ruling is received.

Witness Notebooks

My preference is to have a separate notebook for each witness that contains everything about that person in one comprehensive place. Some witnesses may be short and can be combined into one notebook with other short witnesses.

I like to have everything about a witness in one place so I don’t have to fumble around with papers. Each witness should have the outline of questions, executed and filed subpoena, highlighted and tabbed deposition, records or documents relevant to that witness, and discovery designations.

If you are calling a witness by deposition, you will need to decide if you are going to read the testimony into evidence or if you will use clips from a video of the deposition. Either way, have the page and line references for the court reporter and opposing counsel with a highlighted copy of the deposition transcript. If you plan to use video clips, have multiple copies of the clips on thumb drive to give the court reporter and opposing counsel.

If you are asking for attorneys fees, remember to prepare a notebook for yourself as a witness with all of your relevant exhibits (contract, cv, and billing statements).

Regarding exhibits, in a short hearing, I will keep the exhibits to be used with a witness in that witness notebook. My copy of the exhibits will be under tab and extra copies will be in a folder for use in the hearing (or in the electronic folder if a remote hearing). However, in a final trial, I usually gather all of the exhibits into a master notebook which can be more easily reproduced for the judge/jury, court reporter, and opposing counsel. In that event, I will have a list of exhibits that I plan to introduce with that witness contained in the witness notebook with reference to the master exhibit notebook tabs.

Don’t forget to plan for the other side’s witnesses. You may have to do some educated guesswork about who they plan to call.

Exhibit Notebook

As stated above, in a temporary or interim hearing I like to have the pre-marked and numbered exhibits with the witnesses notebooks or tabs and extra copies in a folder with that notebook so everything is contained in one place. In a final bench or jury trial, I like to have master exhibit notebooks where each exhibit is under a tab and corresponds to the number. With the Exhibit Notebook I like to have a master list of exhibits (repeated in the Master Notebook) and a column to note admission of the exhibit as well. Having another copy of the pretrial disclosures of either party would be helpful here also.

If using audio or video exhibits, you will want to have a list of the minute references for those exhibits and have a method of using these types of evidence that isn’t dependent on the internet.

If you have exhibits that are important originals (like certified copies of records or other documents) you might keep a folder for these documents if you need to reference the original copy for some reason.

Final Thoughts

Finally, during trial, I like to use a new yellow pad each day for notes during trial. I also like to have a separate yellow pad for closing argument notes. Or, you can have a section in the Argument Notebook to keep these notes so you have it all in one place when it is time for the final argument to take place.

To download to the white paper The Anatomy of Trial Preparation, click here.

The El Paso Court of Appeals issued a meaningful opinion this week on the rights of same-sex married couples to be found a parent of a child born during the marriage. The case is styled In re D. A. A.-B. — it does not have a case cite yet but the Westlaw cite is 2002 WL 3758574.

In re D.A.A.-B., 2022 WL 3758574 (Tex. App. – El Paso 2002, no pet. history).

Here’s the takeaways:

In that case, the two women were legally married in New Mexico. During the marriage, Andrea became pregnant through informal artificial insemination and gave birth to a child during the marriage. Although Cristina’s name did not appear on the birth certificate, the child was given a hyphenated last name that included hers. The parties operated as parents during the marriage. In the divorce proceedings, the parties did not name the child as a child of the marriage and did not address the parentage issues but continued to operate as co-parents. Thereafter, Cristina filed a SAPCR proceeding seeking adjudication as a parent and orders regarding the child.

The important legal conclusions from this opinion are as follows:

A married same-sex spouse is entitled to the same opportunity to assert parentage to a child born during the marriage as an opposite-sex spouse.

The U.S. Supreme Court held in the Pavan case that all of the benefits of opposite-sex marriage apply also to same-sex marriage. Pavan v. Smith, 137 S.Ct. 2075 (2017).  In D.A.A.-B., the El Paso Court concluded that Christina was conclusively a parent of the child:

“The UPA includes a section stating that the “provisions of this chapter relating to the determination of paternity apply to a determination of maternity.” TEX.FAM.CODE ANN. § 160.106. The unambiguous and plain language of this statute make it clear that the legislature intended to allow female spouses to establish their parentage just as male spouses are allowed to do. When read alongside the U.S. Supreme Court’s holding [in Pavan] that states must extend equal benefits to spouses in same-sex marriages, we reach the inexorable conclusion that the Family Code gives spouses in same-sex marriages the same opportunity to assert their parentage to a child born during the marriage, as it gives to spouses in opposite-sex marriages. This interpretation not only gives effect to all relevant portions of the Code, as written by the legislature, but also avoids an interpretation of the Code that would render it unconstitutional under the U.S. Supreme Court’s holdings.

Id. at *7 (internal citations omitted, emphasis added). The El Paso Court further provided that a parent has a fundamental liberty interest in being recognized as a parent and a same-sex spouse cannot be denied the right to seek parentage based on gender-specific definitions in the Texas Family Code. Id. at *8. Given the conclusive evidence that the child was born during the marriage of the parties, Cristina is considered the presumed parent of the child. Id.

The marriage parental presumption for fathers applies to non-gestational mothers as well.

The Texas Family Code provides that a married father is presumed to be the parent of a child born during the marriage. That presumption applies to maternity as well. Tex. Fam. Code §160.106. The Treto case first applied the parentage presumption to a same-sex couple. Treto v. Treto, 622 S.W.3d 397 (Tex. App. – Corpus Christi 2020). Thus, the El Paso Court confirms that the marriage presumption also applies to same-sex couples:

“We agree with the court’s analysis in Treto in applying the presumption of parentage to same-sex spouses, and add the observation that applying the presumption promotes the long-standing principle that the “best interest of the child is always the primary consideration of the court in determining issues of conservatorship and possession of or access to a child.” And in turn, it is presumed to be in a child’s best interest for parents to be appointed joint managing conservators, and to allow a child to have ‘frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, and to encourage parents to share in the rights and duties of raising their children after the parents have separated or dissolved their marriage.’”

Id. at *8 (internal citations omitted, emphasis added).

Where a child is conceived during a marriage through formal or informal assisted reproduction, the spouse is the parent of the child (not just presumed parent).

When a same-sex couple seeks to have a child, assisted reproduction methods are used. With a lesbian couple, the spouses may use medical providers to formally conduct artificial insemination procedures. On the other hand, oftentimes couples use informal methods of artificial insemination to become pregnant. Likewise, a couple may sign a formal written consent to the procedure or a couple may consent informally by treating the child as their own. The Texas Family Code clearly provides that a spouse is the parent of a child that results from assisted reproduction where consent occurs either in writing or by conduct. Tex. Fam. Code §160.703(a), 160.704(b). The El Paso Court conclusively applies this provision to same-sex couples despite the gender-specific language in the statute:

“As set forth above, the Code provides that a husband who has consented to ‘assisted reproduction’ by his wife—either formally or informally—is considered the father of the ‘resulting child.’ Id. § 160.703. And, in turn, the Code defines ‘assisted reproduction’ to mean ‘a method of causing pregnancy other than sexual intercourse,’ to include, among other things, ‘intrauterine insemination.’ Id. § 160.102(2)(A).”

Id. at *9.

“…under the plain language of the statute, if both spouses have signed a written consent document agreeing to the insemination, or if they have openly treated a child born through that method as their own after its birth, the trial court may still find that the non-gestational spouse is the parent of the child born in this way. Id. § 160.704(a), (b).”

Id. at *10.

What is the remedy?

What is the remedy for a failure to find parentage in this situation? Suit may be brought as part of the divorce/SAPCR cause of action. Or, an independent suit for adjudication may be brought under the parentage statutes.

“The UPA provides that a party may bring an independent civil suit seeking the adjudication of his or her parentage of a child. See Tex. Fam. Code §160.601(a).” Id. at *13.

Alternatively, the D.A.A.-B. opinion supports the legal theory that the divorce decree between the parties is either void or lacks finality for failure to adopt the parentage finding. First the El Paso Court opens the possibility of the voidness of the decree in this circumstance:

“In fact, at least one court has held that the parties’ failure to follow the Code’s mandatory joinder requirements renders a divorce decree void. See, e.g., Soliz v. Soliz, No. 13-02-010-CV, 2003 WL 21025900, at *2 (Tex.App.– Corpus Christi–Edinburg May 8, 2003, no pet.) (mem. op.), citing Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex.App.- -Corpus Christi 2001, no pet.).”

Id. at *14, fn 16. Further, the El Paso Court opines that the decree is interlocutory and cannot be final absent the mandatory joinder of the SAPCR:

“A divorce decree that mistakenly states that no children were born during the marriage, or which fails to include all of the children who were born during the marriage, cannot be considered final.”

Id. at *15.

 

Read the opinions here:

IN THE INTEREST OF DAA-B A CHILD

Pavan v Smith

Treto v Treto

 

On June 17, 2021, President Joe Biden signed a bill designating Juneteenth as a federal holiday. Since Juneteenth was on a Saturday in 2021, the holiday did not impact the Father’s Day weekend possession schedule last year. Juneteenth does impact possession this year though.

This weekend is a third weekend which is normally the possessory conservator’s regular weekend possession. Under section 153.314(5) of the Texas Family Code, however, Father’s Day weekend possession begins on Friday at 6 pm and ends for most fathers on Sunday at 6 pm (or on Monday at 8 am depending on the order) (see section 153.317(a)(6)).

So how does the Juneteenth federal holiday impact possession this weekend? Under section 153.315(a):

If a weekend period of possession of the possessory conservator coincides with a . . . federal, state, or local holiday that falls on a Monday during the summer months in which school is not in session, the weekend possession shall end at 6 p.m. on Monday.

Possessory conservator fathers whose time would normally end at 6 p.m. Sunday (or 8 a.m. Monday) get to keep possession of the child until Monday, June 20, 2022 at 6 p.m. under the Texas Family Code standard possession schedule and recognition of the Juneteenth federal holiday on Monday.

What if Mother is the possessory conservator?

What happens in the case of the mother being the possessory conservator? June 17 – 19, 2022 is a third weekend meaning that a possessory conservator mother would normally be entitled to possession under a standard possession order. However, the Father’s Day holiday trumps the normal third weekend possession schedule so that fathers will have possession Father’s Day weekend.

Fathers Day possession generally ends at 6 pm Sunday. Since Juneteenth is on Sunday, June 19th this year, the holiday’s federal recognition will be on Monday, June 20th.  A possessory conservator mother would therefore be entitled to possession from 6 pm Sunday (the end of Father’s Day weekend possession) until 6 pm Monday for the federal holiday. The parents’ regular summer schedule then resumes on Monday at 6 pm.

Summer Schedule Caveat

As with most family law matters, there is a caveat. Most orders have designated times during the summer for extended summer possession. The above explanation of the federal holiday does not take into account extended summer possession schedules designated by the parents. As always, consult your own order for exact language that pertains to your case.

In a Texas divorce, there are several issues that are unique to considering a business as an asset in the property division. The normal property division issues of identification, characterization, valuation, and division each have intricacies for businesses that need to be considered.

Addressing the type of entity (corporation, partnership, sole proprietorship) is important because the rules for a Texas divorce differ depending on the type of entity.

Determining the date of formation of the business entity may be crucial to the characterization as either separate property or community property.

Any changes in the formation of the entity during the marriage could change the characterization and are an important factor to note.

And, vital to any business operating during a divorce is the question of how to continue to operate the business without suffering a devaluation of the interest while the divorce proceeds. The day-to-day operation issues and protecting the business’ ability to make profit flow through to the value that the business has to the marital estate and the parties individually.

Lastly, evaluation of where the customers come from, which is an essential component of determining the business’ commercial goodwill as a factor of value of the entity versus the owner’s personal goodwill which is not a marital asset, will be important.

Here is a video of a talk that I gave on The Business Owner’s Divorce — which is approved for 1.0 hours of Texas CLE Credit, Course # 174151052: The Business Owner’s Divorce

Here is the powerpoint paper referenced in my talk:

Small Business Issues in a Texas Divorce

Here are two other white papers that could be useful for representing a spouse in a Texas divorce when a business is at issue:

10 Documents to gather for business in divorce

Top Five Concerns Regarding Small Business Ownership and Divorce in Texas

 

 

 

This post continues the discussion of the unconstitutionality of protective orders under the Texas Family Code and picks up from Part I previously published.

Testimony in a Civil Protective Order Case Violates the Fifth Amendment of the United States

The Fifth Amendment to the United States Constitution holds:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Put simply, a person cannot be required to confess by law.

Tex. Fam. Code § 85.001(a) requires:

(a)       At the close of a hearing on an application for a protective order, the court shall find whether:

  1. family violence has occurred; and
  2. family violence is likely to occur in the future.

Tex. Fam. Code § 71.004 defines family violence as:

  1. 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, but does not include defensive measures to protect oneself;
  2. abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J). (K), and (M), by a member of a family or household toward a child of the family or household; or
  3. dating violence, as that term is defined by Section 71.0021.

Defense of the Application for Protective Order Would Always “Lead To Incriminating Evidence”

The Fifth Amendment protection encompasses compelled statements that lead to discovery of incriminating communications that are testimonial in character. Doe v. U.S. 487 U.S. 201, 208 (1988). The act of exhibiting physical characteristics such as providing a blood sample, a handwriting exemplar, or a recording of a person’s voice is not the same as a sworn communication expressing assertions of fact. U.S. v. Hubbell, 530 U.S. 27 (2000); Pennsylvania v. Muniz, 496 US 582 (1990).

Further, the answers to the questions posed by the statute itself do not have to entirely encompass a criminal offense to be protected by the Fifth Amendment. See Hoffman v. U.S., 341 U.S. 479 (1951). The Fifth Amendment Privilege protects answers which would furnish a link in the chain of evidence needed to prosecute.

Assault is defined in Sec. 22.01 of the Tex. Penal Code.

Sexual assault is defined in Sec. 22.011 of the Tex. Penal Code.

Bodily injury is defined in Sec. 1.07(a)(8) of the Tex. Penal Code, and injury to a child due to bodily injury is defined in Sec. 22.04(a) of the Tex. Penal Code.

Bodily injury, assault, and sexual assault are not defined in the Texas Family Code. It is not possible to defend against the accusations of assault / threat of assault, sexual assault / threat of sexual assault, or bodily injury / threat of bodily injury without creating a chain of evidence needed to prosecute those same crimes under the Texas Penal Code.

When a person is compelled by its government to defend against a civil statute by admitting information which “would lead to” incriminating evidence under a criminal statute – that civil statute compels testimonial information. Therefore, testimony by the defendant in a Tex. Fam. Code chapter 84 Protective Order trial violates the Fifth Amendment to the U.S. Constitution.

Protective Order Trials Under the Texas Family Code are Quasi-Criminal.

Protective Orders under the Texas Family Code are quasi-criminal. The Corpus Christi Court of Appeals states:

We note that, unlike any other ‘civil’ proceeding in which injunctive relief is sought, a petitioner for a protective order is statutorily guaranteed counsel. See Tex. Fam. Code Ann. § 81.007(a) (Vernon 2000). Moreover, the statute specifically states that ‘The county attorney or the criminal district attorney is the prosecuting attorney responsible for filing applications under this subtitle . . . .’ Id. Examining the nature of a protective order, the method by which it is prosecuted, the sanctioned deprivations of liberty and property which are possible pursuant to such an order, and the possibility of incarceration, we believe the proceeding is quasi-criminal in its nature.”

Striedel v. Striedel, 15 S.W.3d 163, 167 fn. 2 (Tex. App.—Corpus Christi 2000, no pet.).

To enter a final civil protective order, the Court is required to find that the defendant’s actions intended to result in physical harm, bodily injury, assault, or sexual assault or were a threat that reasonably placed the family member in fear of imminent physical harm, bodily injury, assault, or sexual assault. These are criminal actions as defined by the Texas Penal Code and conviction of which requires proof beyond a reasonable doubt. However, in a civil protective order trial, the Court must only find that the defendant has committed family violence and is likely to commit family violence in the future by a preponderance of the evidence. Roper v. Jollife, 493 S.W.3d 624, 638 (Tex. App.—Dallas 2015, pet. denied). This simply does not make sense.

When a litigant is faced with loss of fundamental rights, due process requires that fact findings be made by more than a preponderance of the evidence. Addington v. Texas, 441 U.S. 418, 423 (1978). Given that a defendant in a protective order trial is being accused of criminal actions, the higher burden of proof of beyond a reasonable doubt must be applied to the quasi-criminal protective order case.

Remaining Silent to Protect Against Self-Incrimination is Presumed as a Negative Inference in Civil Protective Order Trials and Violates the Fifth Amendment.

The Fifth Amendment prohibits the prosecution from using a defendant’s silence in the face of pre-arrest, pre-Miranda, questioning against him as part of its case-in-chief at trial. Under Griffin v. California, the prosecution may not use a defendant’s failure to testify against him at trial. 380 U.S. 609, 615 (1965). Using a person’s silence in the face of pre-arrest, pre-Miranda questioning against him would leave the person no way to avoid creating evidence against himself. The Fifth Amendment guarantees that “the State which proposes to convict and punish an individual [must] produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.” Mitchell v. United States, 526 U.S. 314, 326 (1999).

Unfortunately, a party or witness in a civil proceeding may not refuse to be called as a witness. See McInnis v. State, 618 S.W.2d 389, 392 (Tex. Civ. App. Beaumont 1981, writ ref’d n.r.e), cert. denied, 456 U.S. 976 (1982). Once a party or witness invokes the Fifth Amendment privilege, the trier of fact may draw a negative inference. A defendant in a civil protective order trial is therefore faced with an impossible situation: Refuse to testify to protect against criminal self-incrimination as afforded under the Fifth Amendment or testify and invoke the Fifth Amendment against self-incrimination but suffer the negative inference drawn by the trier of fact.

This legal quandary therefore violates the defendant’s protections afforded under the Fifth Amendment to the United States Constitution.

Texas Family Code §§ 84.001, 84.002 and 84.004 are Unconstitutional.

A defendant in a protective order suit, who has everything to lose and nothing to gain, is no exception to our very innate ideals of fairness and justice, and Tex. Fam. Code §§ 84.001, 84.002 and 84.004 are unconstitutional. Texas legislators have crafted an unconstitutional statutory exception to both the United States Constitution and Texas Constitution that completely deprives defendants of the right to a meaningful trial in a protective order suit.

All litigants who are forced to settle disputes through the judicial process have a fundamental right under the federal constitution to be heard at a meaningful time and in a meaningful manner.”

Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex. App.—Houston [1st Dist.] 2000, no pet.). The Constitution is clear that there are no exceptions to the right to be meaningful heard in a meaningful manner. It is imperative that defendants in a protective order suit be afforded the same constitutional rights as defendants in any other lawsuit, including defendants in criminal prosecutions. A defendant in a protective order suit has the right to be made fully aware of the specific allegations lodged against him; be given an adequate time to prepare for trial, including time to conduct discovery and depose witnesses; and have an opportunity to defend himself in a meaningful way in court.

How is it possible that a defendant in a mere contract dispute can be afforded more protection than a defendant in a protective order suit? The answer is that it is not possible. The Texas Constitution forbids it. The United States Constitution forbids it. Justice forbids it.

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.