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:
- family violence has occurred; and
- family violence is likely to occur in the future.
Tex. Fam. Code § 71.004 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, but does not include defensive measures to protect oneself;
- 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
- 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.