PREVENTION AND SUPPRESSION OF OFFENSES

CHAPTER FIVE—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, § 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 Section 71.01, Family Code.

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

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, § 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.

(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:

"NOTICE TO ADULT VICTIMS OF FAMILY VIOLENCE

"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.

"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, § 1, eff. Sept. 1, 1985. Amended by Acts 1991, 72nd Leg., ch. 366, § 4, eff. Sept. 1, 1991; Subsec. (c) amended by Acts 1995, 74th Leg., ch. 1024, § 24, eff. Sept. 1, 1995; Subsec. (a) amended by Acts 1997, 75th Leg., ch. 1193, § 23, eff. Sept. 1, 1997; Subsec. (c) amended by Acts 1997, 75th Leg., ch. 610, § 2, eff. Sept. 1, 1997.

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, § 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.

(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.

(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.

Added by Acts 1985, 69th Leg., ch. 583, § 1, eff. Sept. 1, 1985. Subsec. (d) amended by Acts 1989, 71st Leg., ch. 614, § 27, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 739, § 8, eff. Sept. 1, 1989; Subsec. (a) amended by and Subsec. (e) added by Acts 1993, 73rd Leg., ch. 900, § 8.01, eff. Sept. 1, 1993.

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, § 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 614, § 28, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 739, § 9, eff. Sept. 1, 1989. Subsec. (c) added by Acts 1995, 74th Leg., ch. 564, § 2, eff. Sept. 1, 1995; added by Acts 1995, 74th Leg., ch. 1024, § 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, § 29, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 739, § 10, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 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.