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 14^th 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.