Domestic Violence in Texas

last updated February 2012

The Texas Department of Public Safety (TDPS) reports that in 2007, there were 201,456 reported victims of family violence in the state, 74.7% of whom were women. The most common victims of domestic violence were wives (19.3% of all family violence) and common-law wives (15.2%). Couples that have a common-law marriage, or an informal marriage, in Texas have the same rights as a legally married couple even with the absence of a formal marriage certificate. A couple seeking to establish a common-law marriage in Texas must sign a formal document. In addition, they must agree to be married, cohabit, and represent to others that they are married.
 
The number of reported victims increased by 2010, with 211,769 reported victims of domestic violence. Wives and common-law wives remained the most common victims, experiencing 16.7% and14.1% of all family violence respectively.  
 
However, Texas authorities believe that family violence is greatly underreported. The Texas Council on Family Violence estimates that in 2006, 982,916 Texas women were battered by family members. In 2002, it found that 47% of all Texans have been victims of family violence at some point, including verbal assault and forced isolation. Among women polled by the Council, 31% said they had been “severely abused” by a family member. The problem appears to be more severe among Hispanic women: 64% of Hispanics reported being victims of some form of abuse, and 39% reported severe abuse by a family member.
 
According to the TDPS, the most common form of family violence in Texas is simple assault (73.3%). Aggravated assault accounts for 15.2%, and intimidation accounts for 8.3%. Sex offenses account for about 2.7% of all family violence. Homicides account for 0.1%. The use of weapons in family violence is relatively rare in Texas: 79% of family violence offenders use only “strong-arms,” defined as the use of the hands, feet, or fists. Only 4% of family violence involves knives, and 2% involves firearms.
 
Chapter 91 of the Family Code requires medical professionals (including doctors, nurses, physicians’ assistants, and emergency medical technicians (EMTs)) to document suspected family violence. Once a medical professional forms a reasonable belief that family violence is responsible for an injury, he or she must inform the victim about the nearest family violence shelter, place a report in the victim’s file, document his or her reasons for believing family violence has occurred, and give the person a written notice. The written notice must contain instructions about how to get help, protective orders, and other relevant information. Section 92.001 grants civil immunity to anyone who reports suspected family violence, unless that person gives such a report in bad faith. For instance, a person who suspected family violence had occurred and reported it to the authorities could not be sued by the accused for defamation, even if the report turned out to be false. SeeRole of Health Care Providers in Domestic Violence,StopVAW.
 
Texas law also protects the identities and locations of women in family violence shelters. Chapter 51 of the Texas Human Resources Code prohibits the Department of Human Services or the Department of Protective and Regulatory Services from releasing any information that would identify a particular shelter location, a particular victim, or a particular employee at any given shelter. This provision helps prevent the perpetrators of family violence from finding their victims or retaliating against the employees of the shelters that help those victims. SeeAdvocacy Guidelines – Confidentiality and Shelters and SafehousesStopVAW.   
 
Texas has over 40 accredited Battering Intervention and Prevention Programs that work with the Texas Department of Criminal Justice to provide prevention education to convicted batterers. The guidelines for operation to receive public funding are outlined in the Texas Code of Criminal Procedure - Article 42.141. See: Batterer’s Intervention ProgramsStopVAW.
 
Texas Penal Code on Domestic Violence
Under Chapter 22 of the Texas Penal Code, which defines assault crimes, most provisions specifically state that an assault is still an assault if perpetrated against one’s spouse. Even though the language of such statutes would apply to spousal violence, these additional provisions emphasize that the legislature recognizes spousal violence as a unique and distinct problem that merits protection on par with non-spousal assaults.
 
Texas law recognizes that domestic violence is not just limited to legal or genetic family members. Section 71.003 of the Texas Family Code defines family: “‘family’ includes individuals related by consanguinity or affinity… individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.” Section 71.004 specifically defines “dating violence” as a form of “family violence.” Thus, all statutes that deal with family violence also apply to dating violence. Judges can issue protective orders in dating violence cases, and men who are convicted of dating violence may be subject to the same restrictions as men who are convicted of family violence. Texas schools are required by law to teach about dating violence pursuant to Texas House Bill 121.
 
Protective Orders in Texas
Texas also provides victims with civil and criminal orders for protection that specifically order an alleged perpetrator of family violence to stay away from his alleged victim. Three protective orders are available in Texas: a civil order; a civil emergency order; and a criminal order. Chapter 85 of the Texas Family Code allows a judge to shape and fashion a protective order to deal with many different contingencies and prevent various forms of conduct. The judge can prohibit the perpetrator from contacting the victim and/or any children in the household, from entering the home (with some limitations), or from removing or otherwise possessing certain jointly-owned property. The court can also suspend the perpetrator’s right to carry or possess firearms. These limitations can stay in place for up to two years. Section 85.064provides that a court may “transfer” a protective order to another court’s jurisdiction because of a victim’s moving, a divorce action, or other contingencies.
 
Section 25.07 of the Texas Penal Code makes it a criminal offense to violate the provisions of all protective orders, criminal and civil. Subsection (g) of that section, passed in 2008, makes the violation of a protection order a Class A misdemeanor, but elevates it to a third-degree felony if the perpetrator has been convicted of violating a protective order twice before, or if the perpetrator violates the order by committing the offenses of assault or stalking.
 
In 2007, Texas voters approved Proposition 13, also known as the Family Violence Amendment. Whereas Texas’ Constitution, Article I, Section 11 gives most offenders a right to bail, Proposition 13 changed the Constitution to reduce the availability of bail for perpetrators of family violence who violate protective orders. Under Article I, Section 11b, as amended in 2007, anyone who is charged with a crime involving family violence, “who is released on bail pending trial, and whose bail is subsequently revoked or forfeited for a violation of a condition of release” may then be “denied bail pending trial,” if the judge believes the accused is a threat to the alleged victim or to the community. Article I, Section 11c allows the legislature to create a law that denies bail to someone who is accused of family violence if he has violated a protective order.
 
In 2001, Texas passed the Uniform Enforcement of Protective Orders Act, which is now codified at Chapter 88 of the Family Code. It provides that Texas will enforce other states’ protective orders, even if they give victims more rights than they would have under Texas’ own protective order laws. The Act was originally written by the National Conference of Commissioners on Uniform State Laws (NCCUSL), who refer to it as the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act. The Act has been passed by 17 other states, the District of Columbia, and the U.S. Virgin Islands.
 
Chapter 86 of the Family Code imposes certain duties on law enforcement officers regarding protective orders. Under Section 86.002, if a gun dealer seeks a background check on a person with a protective order, the sheriff must inform the gun dealer about the protective order and that the gun sale is prohibited. Sections 86.003 and 86.004 compel police officers to provide some specific protections at the victim’s request, including accompanying the victim to her home, helping her take possession of the home from the perpetrator if the order requires him to leave, and removing and arresting the perpetrator if he refuses to leave. SeeLaw Enforcement, Prosecutions, and the JudiciaryStopVAW.
 
Civil Protective Orders. Chapter 81 of the Family Code addresses procedures for obtaining a protective order. Section 81.001 refers to an “entitlement” to a protective order, and says that a judge “shall” issue one if the judge finds that a person has committed family violence and is likely to do so in the future. Section 81.002 prohibits localities from charging victims fees for protective orders; Section 81.003 says that the perpetrator must pay those fees unless he is indigent or otherwise shows he cannot pay. Sections 81.005 and 81.006 also force the perpetrator to pay any attorney’s fees associated with a protective order, both to the victim’s attorney, and to the county government (for the prosecuting attorney’s time).
 
Ex Parte Protective Orders. Texas law recognizes that even though some victims of family violence might be reluctant to report a loved one’s abuse, those victims still need protection. Chapter 82 of the Family Code allows a prosecuting attorney, the Department of Regulatory and Protective Services, or any “adult member of the family or household” to file for a protective order on the victim’s behalf. Section 83.001 also allows a court to issue a protective order ex parte with some limitations. Ex parte protective orders are effective for the amount of time specified within the order, not to exceed 20 days. The ex parte protective orders are not issued in consideration of when a hearing has been scheduled. However, the order may be extended by the applicant or the court’s own motion for additional 20 day periods. Section 85.007 allows the court to remove certain information from a protective order in order to conceal the victim’s location and phone number, or any threatened children’s potential locations.
 
Third-party intervention, which allows a person other than the victim to file for a protective order without victim consent, can be problematic. These protective orders may be issued independent of the adult victim’s wishes or requests and potentially without the involvement of advocates who work with victims and can best represent their interests. Such third party requests may jeopardize the safety and other interests of the adult victim. A primary goal of government intervention in cases of domestic violence should be to respond to the needs of victims. Thus, wherever possible and particularly in cases involving court ordered measures for protection, the adult victim’s wishes and needs should be paramount. 

Women who are victims of violence are most often the best judges of the dangers presented to them by violent partners. From: Domestic Violence, Explore the Issue, Victim Protection Support and Assistance, Safety PlanningStopVAW. Therefore, it is not advisable to exclude them from the decision to apply for protection measures. This is particularly true since research shows that one of the most dangerous times for many women is when they separate from their abusers. A 2003 study described by a leading domestic violence agency in the United States, Futures without Violence (formally Family Violence Prevention Fund) confirmed that "[s]eparating from an abusive partner after having lived with him, leaving the home she shares with an abusive partner or asking her abusive partner to leave the home they share were all factors that put a woman at 'higher risk' of becoming a victim of homicide." It is very important for an adult victim of domestic violence to make her own decision to leave a relationship because she is in the best position to assess the potential danger.
 
Magistrate’s Order for Emergency Protection.Article 17.292 of the Texas Code of Criminal Procedure establishes the process of the state criminal emergency protective order, called the Magistrate’s Order for Emergency Protection. The criminal court system issues the protective order after the perpetrator has been arrested specifically for family violence, stalking, sexual assault, or aggravated sexual assault. By definition, these crimes are not limited to family members, so victims of dating violence may apply for this order. Because these orders are issued in criminal court, a Magistrate’s Order for Emergency Protection criminally enforceable, and the offender may be arrested for violating such an order.
 
Advocates have expressed some concerns with the procedure this law establishes, since the order may only be issued if the offender is under arrest. The Magistrate’s Order may be requested by the victim, a police officer, or the District Attorney’s Office. If the crime for which the offender is arrested involved serious physical harm or the use of a deadly weapon, the magistrate may issue the protective order even if it is not requested.  The Order for Emergency Protection is enforced for 31 – 61 days, unless the offense was assault with a deadly weapon. In that case, the order lasts from 61 – 91 days.
 
The victim does not need to be present in court when the order is issued, but the Magistrate may wish to speak with the victim on the phone. If the victim is seeking an Order for Emergency Protection, he or she should provide a phone number to victim services.