CHAPTER 5. FAMILY VIOLENCE PREVENTION - Texas Statutes

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 5. FAMILY VIOLENCE PREVENTION

Art. 5.01. LEGISLATIVE STATEMENT. (a) Family violence is a

serious danger and threat to society and its members. Victims of

family violence are entitled to the maximum protection from harm

or abuse or the threat of harm or abuse as is permitted by law.

(b) In any law enforcement, prosecutorial, or judicial response

to allegations of family violence, the responding law enforcement

or judicial officers shall protect the victim, without regard to

the relationship between the alleged offender and victim.

Added by Acts 1985, 69th Leg., ch. 583, Sec. 1, eff. Sept. 1,

1985.

Art. 5.02. DEFINITIONS. In this chapter, "family violence,"

"family," "household," and "member of a household" have the

meanings assigned by Chapter 71, Family Code.

Added by Acts 1985, 69th Leg., ch. 583, Sec. 1, eff. Sept. 1,

1985. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 7.002(c),

eff. Sept. 1, 2003.

Art. 5.03. FAMILY OR HOUSEHOLD RELATIONSHIP DOES NOT CREATE AN

EXCEPTION TO OFFICIAL DUTIES. A general duty prescribed for an

officer by Chapter 2 of this code is not waived or excepted in

any family violence case or investigation because of a family or

household relationship between an alleged violator and the victim

of family violence. A peace officer's or a magistrate's duty to

prevent the commission of criminal offenses, including acts of

family violence, is not waived or excepted because of a family or

household relationship between the potential violator and victim.

Added by Acts 1985, 69th Leg., ch. 583, Sec. 1, eff. Sept. 1,

1985.

Art. 5.04. DUTIES OF PEACE OFFICERS. (a) The primary duties of a

peace officer who investigates a family violence allegation or

who responds to a disturbance call that may involve family

violence are to protect any potential victim of family violence,

enforce the law of this state, enforce a protective order from

another jurisdiction as provided by Chapter 88, Family Code, and

make lawful arrests of violators.

(a-1) A peace officer who investigates a family violence

allegation or who responds to a disturbance call that may involve

family violence shall determine whether the address of the

persons involved in the allegation or call matches the address of

a current licensed foster home or verified agency foster home

listed in the Texas Crime Information Center.

(b) A peace officer who investigates a family violence allegation

or who responds to a disturbance call that may involve family

violence shall advise any possible adult victim of all reasonable

means to prevent further family violence, including giving

written notice of a victim's legal rights and remedies and of the

availability of shelter or other community services for family

violence victims.

(c) A written notice required by Subsection (b) of this article

is sufficient if it is in substantially the following form with

the required information in English and in Spanish inserted in

the notice:

"It is a crime for any person to cause you any physical injury or

harm EVEN IF THAT PERSON IS A MEMBER OR FORMER MEMBER OF YOUR

FAMILY OR HOUSEHOLD.

"NOTICE TO ADULT VICTIMS OF FAMILY VIOLENCE

"Please tell the investigating peace officer:

"IF you, your child, or any other household resident has been

injured; or

"IF you feel you are going to be in danger when the officer

leaves or later.

"You have the right to:

"ASK the local prosecutor to file a criminal complaint against

the person committing family violence; and

"APPLY to a court for an order to protect you (you should consult

a legal aid office, a prosecuting attorney, or a private

attorney). If a family or household member assaults you and is

arrested, you may request that a magistrate's order for emergency

protection be issued. Please inform the investigating officer if

you want an order for emergency protection. You need not be

present when the order is issued. You cannot be charged a fee by

a court in connection with filing, serving, or entering a

protective order. For example, the court can enter an order that:

"(1) the abuser not commit further acts of violence;

"(2) the abuser not threaten, harass, or contact you at home;

"(3) directs the abuser to leave your household; and

"(4) establishes temporary custody of the children and directs

the abuser not to interfere with the children or any property.

"A VIOLATION OF CERTAIN PROVISIONS OF COURT-ORDERED PROTECTION

(such as (1) and (2) above) MAY BE A FELONY.

"CALL THE FOLLOWING VIOLENCE SHELTERS OR SOCIAL ORGANIZATIONS IF

YOU NEED PROTECTION:

"____________________________

"____________________________."

Added by Acts 1985, 69th Leg., ch. 583, Sec. 1, eff. Sept. 1,

1985. Amended by Acts 1991, 72nd Leg., ch. 366, Sec. 4, eff.

Sept. 1, 1991; Subsec. (c) amended by Acts 1995, 74th Leg., ch.

1024, Sec. 24, eff. Sept. 1, 1995; Subsec. (a) amended by Acts

1997, 75th Leg., ch. 1193, Sec. 23, eff. Sept. 1, 1997; Subsec.

(c) amended by Acts 1997, 75th Leg., ch. 610, Sec. 2, eff. Sept.

1, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

524, Sec. 2, eff. June 16, 2007.

Art. 5.045. STANDBY ASSISTANCE; LIABILITY. (a) In the discretion

of a peace officer, the officer may stay with a victim of family

violence to protect the victim and allow the victim to take the

personal property of the victim or of a child in the care of the

victim to a place of safety in an orderly manner.

(b) A peace officer who provides assistance under Subsection (a)

of this article is not:

(1) civilly liable for an act or omission of the officer that

arises in connection with providing the assistance or determining

whether to provide the assistance; or

(2) civilly or criminally liable for the wrongful appropriation

of any personal property by the victim.

Added by Acts 1995, 74th Leg., ch. 565, Sec. 1, eff. June 14,

1995.

Art. 5.05. REPORTS AND RECORDS. (a) A peace officer who

investigates a family violence incident or who responds to a

disturbance call that may involve family violence shall make a

written report, including but not limited to:

(1) the names of the suspect and complainant;

(2) the date, time, and location of the incident;

(3) any visible or reported injuries; and

(4) a description of the incident and a statement of its

disposition.

(a-1) In addition to the written report required under

Subsection (a), a peace officer who investigates a family

violence incident or who responds to a disturbance call that may

involve family violence shall make a report to the Department of

Family and Protective Services if the location of the incident or

call, or the known address of a person involved in the incident

or call, matches the address of a current licensed foster home or

a verified agency foster home as listed in the Texas Crime

Information Center. The report under this subsection may be made

orally or electronically and must:

(1) include the information required by Subsection (a); and

(2) be filed with the Department of Family and Protective

Services within 24 hours of the beginning of the investigation or

receipt of the disturbance call.

(b) Each local law enforcement agency shall establish a

departmental code for identifying and retrieving family violence

reports as outlined in Subsection (a) of this section. A

district or county attorney or an assistant district or county

attorney exercising authority in the county where the law

enforcement agency maintains records under this section is

entitled to access to the records. The Department of Family and

Protective Services is entitled to access the records relating to

any person who is 14 years of age or older and who resides in a

licensed foster home or a verified agency foster home.

(c) In order to ensure that officers responding to calls are

aware of the existence and terms of protective orders, each

municipal police department and sheriff shall establish

procedures within the department or office to provide adequate

information or access to information for law enforcement officers

of the names of persons protected by a protective order and of

persons to whom protective orders are directed.

(d) Each law enforcement officer shall accept a certified copy of

an original or modified protective order as proof of the validity

of the order and it is presumed the order remains valid unless:

(1) the order contains a termination date that has passed;

(2) it is more than one year after the date the order was issued;

or

(3) the law enforcement officer has been notified by the clerk of

the court vacating the order that the order has been vacated.

(e) A peace officer who makes a report under Subsection (a) of

this article shall provide information concerning the incident or

disturbance to the bureau of identification and records of the

Department of Public Safety for its recordkeeping function under

Section 411.042, Government Code. The bureau shall prescribe the

form and nature of the information required to be reported to the

bureau by this article.

(f) On request of a victim of an incident of family violence,

the local law enforcement agency responsible for investigating

the incident shall provide the victim, at no cost to the victim,

with any information that is:

(1) contained in the written report prepared under Subsection

(a);

(2) described by Subsection (a)(1) or (2); and

(3) not exempt from disclosure under Chapter 552, Government

Code, or other law.

Added by Acts 1985, 69th Leg., ch. 583, Sec. 1, eff. Sept. 1,

1985. Subsec. (d) amended by Acts 1989, 71st Leg., ch. 614, Sec.

27, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 739, Sec. 8,

eff. Sept. 1, 1989; Subsec. (a) amended by and Subsec. (e) added

by Acts 1993, 73rd Leg., ch. 900, Sec. 8.01, eff. Sept. 1, 1993.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

524, Sec. 3, eff. June 16, 2007.

Acts 2007, 80th Leg., R.S., Ch.

1057, Sec. 2, eff. September 1, 2007.

Art. 5.06. DUTIES OF PROSECUTING ATTORNEYS AND COURTS. (a)

Neither a prosecuting attorney nor a court may:

(1) dismiss or delay any criminal proceeding that involves a

prosecution for an offense that constitutes family violence

because a civil proceeding is pending or not pending; or

(2) require proof that a complaining witness, victim, or

defendant is a party to a suit for the dissolution of a marriage

or a suit affecting the parent-child relationship before

presenting a criminal allegation to a grand jury, filing an

information, or otherwise proceeding with the prosecution of a

criminal case.

(b) A prosecuting attorney's decision to file an application for

a protective order under Chapter 71, Family Code, should be made

without regard to whether a criminal complaint has been filed by

the applicant. A prosecuting attorney may require the applicant

to provide information for an offense report, relating to the

facts alleged in the application, with a local law enforcement

agency.

(c) The prosecuting attorney having responsibility under Section

71.04(c), Family Code, for filing applications for protective

orders under Chapter 71, Family Code, shall provide notice of

that responsibility to all law enforcement agencies within the

jurisdiction of the prosecuting attorney for the prosecuting

attorney.

Added by Acts 1985, 69th Leg., ch. 583, Sec. 1, eff. Sept. 1,

1985. Amended by Acts 1989, 71st Leg., ch. 614, Sec. 28, eff.

Sept. 1, 1989; Acts 1989, 71st Leg., ch. 739, Sec. 9, eff. Sept.

1, 1989. Subsec. (c) added by Acts 1995, 74th Leg., ch. 564, Sec.

2, eff. Sept. 1, 1995; added by Acts 1995, 74th Leg., ch. 1024,

Sec. 25, eff. Sept. 1, 1995.

Art. 5.07. VENUE FOR PROTECTIVE ORDER OFFENSES. The venue for an

offense under Section 25.07, Penal Code, is in the county in

which the order was issued or, without regard to the identity or

location of the court that issued the protective order, in the

county in which the offense was committed.

Added by Acts 1989, 71st Leg., ch. 614, Sec. 29, eff. Sept. 1,

1989; Acts 1989, 71st Leg., ch. 739, Sec. 10, eff. Sept. 1, 1989.

Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.16, eff. Sept.

1, 1995.

Art. 5.08. MEDIATION IN FAMILY VIOLENCE CASES. Notwithstanding

Article 26.13(g) or Section 11(a)(16), Article 42.12, of this

code, in a criminal prosecution arising from family violence, as

that term is defined by Section 71.004, Family Code, a court

shall not refer or order the victim or the defendant involved to

mediation, dispute resolution, arbitration, or other similar

procedures.

Added by Acts 1999, 76th Leg., ch. 389, Sec. 1, eff. Aug. 30,

1999.