Okay, here's the deal.

I'm a deputy constable in Montgomery County (and a part-time law student) and this issue has come up recently. A few days go I served a wife and mother of five kids divorce papers. She was the respondent and had absolutely no idea the divorce was happening; she was totally stunned. She had no job as she was a stay-at-home mom. Anyhow, included in the papers I served her was a Temporary Ex Parte Protective Order (TEPPO). Her husband, who had apparently made all sorts of interesting allegations in his divorce paperwork, was waiting down the road for me, and after I served her and was driving away, he flagged me down and demanded that I force her out of the house or arrest her.

I didn't, and I pretty much told the husband to get bent. There was no way in hell I was going to kick that lady out of the house and prevent her from seeing her kids based solely on some crackpot plaintiff's one-sided petition to the judge. I told him I didn't have the authority to do so and that he had to wait until a final Protective Order (or a Magistrate's Emergency Order of Protection) is issued before we can enforce it.

But now this has become a hot topic at my office as two more of these TEPPOs have just been served by other deputies and we are being told by various sources (including a local district judge) that TEPPOs are arrestable - and, in fact, that we have a DUTY to arrest if the respondent does not leave the household after being served with the notice of the TEPPO. The district judge allegedly told one of our deputies that TEPPOs are considered "final orders" as soon as they are served on the respondent and that we needed to make an arrest if the respondent refuses to leave the household.

Now, this just doesn't seem correct to me, but I'll be the first to admit that I could very well be wrong on this issue. (I surely don't want to act like I know more than a district judge!) Anyhow, legislative issues aside, this seems like a basic Constitutional violation of fundamental fairness and due process. But what do I know?

First, Chapter 14 of the CCP states nothing about making an arrest under a TEPPO but only refers to "Protective Orders" under section 25.07 of the Penal Code, which only covers "Protective Orders" issued under Chapter 85 of the Family Code. (Of course, TEPPOs are addressed not addressed in Chapter 85 of the Family Code - they are only mentioned in Chapter 83.)

Furthermore, when reading Chapter 86 of the Family Code - Law Enforcement Duties Relating to Protective Orders - Section 86.003 (regarding TEPPOs) specifically says we (as law enforcement officers) can be ordered, in a separate order from the issuing judge, to escort the applicant to the property, advise the respondent of the order, and protect the applicant while they take possession of the premises - OR - protect the applicant while they gather their personal effects if the respondent refuses to leave the premises. Section 86.004 (Duties under a Final Order) goes on to say that we can "remove and arrest" the respondent if they fail to leave the premises.

Okay, I'm sorry for the long post, but what gives? Who's right and who's wrong? What's the real scoop? Is there some case law or other authority out there that I'm overlooking?

It sure seems clear to me that we cannot make an arrest on a TEPPO, but when a sitting District Judge (and other so-called "knowledgeable sources") tells you otherwise, it makes you question your own working knowledge of the law.

Thanks for taking the time to read this! I appreciate any and all comments on this subject! To me, this is a very serious and important matter and we need it properly answered.

Thank you.

I think you need to read 25.07 again:

"(a) A person commits an offense if, in violation of a condition of bond set in a family violence case and related to the safety of the victim or the safety of the community, an order issued under Article 17.292, Code of Criminal Procedure, an order issued under Section 6.504, Family Code, Chapter 83, Family Code, if the temporary ex parte order has been served on the person,, or Chapter 85, Family Code, or an order issued by another jurisdiction as provided by Chapter 88, Family Code, the person knowingly or intentionally:
* * *
(3) goes to or near any of the following places as specifically described in the order or condition of bond:

(A) the residence or place of employment or business of a protected individual or a member of the family or household; or"

The reference to Ch. 83 was added by Acts 2007, 80th Leg., ch. 1113, §§ 1, 2.

I guess, under 83.006 they are supposed to be evicted and then they can be arrested if they go back. If the officer sees them go back they can be arrested under 14.01(b). If he doesn't see it, he can arrest with PC under 14.03(a)(3).

David,

Thank you for the quick response! I was looking at the Texas Penal Code on the state's website at this URL.

I guess it isn't updated.

Still, I can't find the text you are showing me on any of the sites. I guess I'll go do a quick search of LexisNexis or Westlaw to see if I can find the updated verbage.

Okay, I see it now on LexisNexis. Thank you!

To be honest, I'm completely stunned by this. So, I guess I was supposed to boot that lady out of her house - by force if necessary - and effectively kick her to the curb. She had no job, no money, no resources...as her husband controlled all of it.

And all because her husband was able to surreptitiously go behind her back and hire a private attorney who submitted a barrage of allegations against her, all of which were heard Ex Parte?

Absolutely unbelievable!

I would rather be fired than do that.

If you haven't, you need to get an opinion from your DA or CA on the issue, so everyone there can get on the same-page. (I hate that expression but it fits here).

I read these sections like you do, that it is has to be a "final" order accompanied by a separate order under 86.004 to actually remove a person.

86.003 specifically does not list a duty to remove in dealing with "temporary" orders.

Again, our justice system is based on the legal fallacy that people tell the truth when under oath or when signing legal documents.

The temp ex-parte does kick her out, but he should have had to testify to the judge in person about the need for her to be excluded from the residence. Sct 83.006 requires this and for the order to be valid it should recite that this hearing in fact occurred.

The applicant has to show not only that it was his residence but why it is a family violence situation and that she is the one that should have to leave at that hearing. How in the world can he have alleged this to the judge--but somehow say that she should take the 5 kids with her? I guess he may have assumed the poster would just take her to jail and leave the kids at home waiting for him to come get them, but then law enforcement has a duty to call CPS with family violence allegations in the household.

These laws have helped so many of my victims who really needed a safe refuge from an abuser--makes me sick to see it misused (if that's the case here and mom is not an abuser).

Also, keep in mind that the respondent to a temporary ex parte protective order has the right to request an immediate adversarial hearing, which takes precedence over every other case on the judge's docket. If the woman so desires, she can go straight to the courthouse and demand that the man come forward and prove his case.