Texas Family Code Protective Order Burden of Proof
This post continues the give-and-take of the unconstitutionality of protective orders under the Texas Family Code and picks upwardly from Part I previously published.
Testimony in a Civil Protective Order Case Violates the Fifth Amendment of the Usa
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 One thousand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in fourth dimension of State of war or public danger; nor shall any person be discipline for the aforementioned offence to exist twice put in jeopardy of life or limb; nor shall be compelled in any criminal example to be a witness against himself, nor be deprived of life, liberty, or holding, without due procedure of police force; nor shall private property be taken for public utilise, without just compensation.
Put simply, a person cannot exist 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 probable to occur in the future.
Tex. Fam. Code § 71.004 defines family unit violence as:
- an act past 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 attack or that is a threat that reasonably places the member in fear of imminent concrete harm, bodily injury, set on, or sexual assail, but does not include defensive measures to protect oneself;
- abuse, as that term is defined by Sections 261.001(ane)(C), (E), (G), (H), (I), (J). (1000), and (Grand), by a member of a family or household toward a child of the family unit or household; or
- dating violence, as that term is divers by Section 71.0021.
Defence of the Application for Protective Order Would Always "Lead To Incriminating Prove"
The Fifth Amendment protection encompasses compelled statements that pb to discovery of incriminating communications that are testimonial in graphic symbol. Doe v. U.S. 487 U.South. 201, 208 (1988). The act of exhibiting concrete characteristics such as providing a claret sample, a handwriting exemplar, or a recording of a person's vocalisation is not the same as a sworn communication expressing assertions of fact. U.Southward. v. Hubbell, 530 U.S. 27 (2000); Pennsylvania v. Muniz, 496 Us 582 (1990).
Farther, the answers to the questions posed by the statute itself exercise non have to entirely embrace a criminal offense to be protected by the 5th Amendment. Run into Hoffman five. U.S., 341 U.S. 479 (1951). The Fifth Amendment Privilege protects answers which would furnish a link in the concatenation of evidence needed to prosecute.
Assault is divers in Sec. 22.01 of the Tex. Penal Lawmaking.
Sexual assault is divers 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 divers in Sec. 22.04(a) of the Tex. Penal Code.
Actual injury, assault, and sexual assault are not divers in the Texas Family Code. Information technology 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 concatenation of evidence needed to prosecute those same crimes nether the Texas Penal Code.
When a person is compelled by its government to defend confronting a ceremonious statute by albeit information which "would lead to" incriminating testify under a criminal statute – that civil statute compels testimonial information. Therefore, testimony by the accused in a Tex. Fam. Code affiliate 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 unit 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 lodge 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 commune attorney is the prosecuting chaser responsible for filing applications nether this subtitle . . . .'Id. Examining the nature of a protective guild, the method past which information technology 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.West.3d 163, 167 fn. ii (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 consequence in concrete harm, bodily injury, set on, or sexual assault or were a threat that reasonably placed the family unit member in fear of imminent physical harm, bodily injury, set on, or sexual attack. These are criminal actions equally defined by the Texas Penal Lawmaking and confidence of which requires proof across a reasonable doubt. Even so, in a civil protective order trial, the Court must merely find that the defendant has committed family violence and is likely to commit family violence in the future by a preponderance of the testify. Roper v. Jollife, 493 South.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 exist made by more than than a preponderance of the testify. Addington v. Texas, 441 U.Southward. 418, 423 (1978). Given that a defendant in a protective order trial is existence accused of criminal actions, the higher burden of proof of across a reasonable dubiety must be applied to the quasi-criminal protective social club case.
Remaining Silent to Protect Against Self-Incrimination is Presumed as a Negative Inference in Civil Protective Guild Trials and Violates the Fifth Amendment.
The Fifth Amendment prohibits the prosecution from using a defendant'due south silence in the confront of pre-arrest, pre-Miranda, questioning confronting him equally part of its instance-in-chief at trial. Nether Griffin 5. California, the prosecution may not apply a accused's failure to testify against him at trial. 380 U.South. 609, 615 (1965). Using a person'due south silence in the face of pre-arrest, pre-Miranda questioning against him would leave the person no style to avert creating evidence against himself. The 5th Amendment guarantees that "the State which proposes to convict and punish an individual [must] produce the prove against him by the contained labor of its officers, non by the simple, cruel expedient of forcing information technology from his own lips." Mitchell v. United States, 526 U.Southward. 314, 326 (1999).
Unfortunately, a political party or witness in a civil proceeding may not refuse to be called equally a witness. See McInnis five. State, 618 S.W.2d 389, 392 (Tex. Civ. App. Beaumont 1981, writ ref'd northward.r.east), cert. denied, 456 U.Southward. 976 (1982). One time 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: Reject to evidence to protect against criminal self-incrimination as afforded under the Fifth Subpoena or testify and invoke the Fifth Subpoena against cocky-incrimination but suffer the negative inference drawn past the trier of fact.
This legal quandary therefore violates the accused's protections afforded under the Fifth Amendment to the Us Constitution.
Texas Family unit Code §§ 84.001, 84.002 and 84.004 are Unconstitutional.
A defendant in a protective order suit, who has everything to lose and goose egg 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 take a fundamental right under the federal constitution to be heard at a meaningful fourth dimension and in a meaningful manner."
Dodd v. Dodd, 17 Due south.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 exist meaningful heard in a meaningful manner. It is imperative that defendants in a protective lodge adjust exist afforded the same ramble rights equally defendants in any other lawsuit, including defendants in criminal prosecutions. A defendant in a protective gild suit has the correct to be fabricated fully aware of the specific allegations lodged against him; exist given an acceptable time to fix for trial, including time to deport discovery and depose witnesses; and have an opportunity to defend himself in a meaningful manner 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 gild suit? The reply is that it is not possible. The Texas Constitution forbids it. The U.s.a. Constitution forbids it. Justice forbids it.
Source: https://www.dallastxdivorce.com/2022/02/articles/protective-order/the-unconstitutionality-of-protective-orders-under-the-texas-family-code-part-ii/
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