   OFFICE   OF THE ATronNtv   GENERAL.   STATE   OF TEXAS

   JOHN CORNYN




                                             September 22, 1999



The Honorable Michael Wenk                                  Opinion No. X-01 12
Hays County Criminal District Attorney
110 East Martin Luther Ring Boulevard                       Re:    Whether article 5.045, Code of Criminal
San Marcos, Texas 78666                                     Procedure, applies when a police officer escorts a
                                                            victim of family violence back to scene of assault,
                                                            and related questions (RQ-0053)



Dear Mr. Wenk:

        You have asked this office two related questions about “civil standbys,” the practice in which
peace officers accompany victims of domestic violence to the residence typically shared by victim
and assailant in order to protect the victim while she or he is taking her or his personal property and
the property of a minor child in her or his custody from the residence to a place of safety. You are
concerned both with the general application of article 5.045 of the Code of Criminal Procedure,
which authorizes such “civil standbys” and immunizes the peace officer participating in them, and
with the interaction of article 5.045 and article 17.292 ofthe Code of Criminal Procedure or chapter
85 of the Family Code, which govern the issuance and form of protective orders designed to prevent
domestic violence.

         You first ask whether the protection from liability afforded by article 5.045 is available when
the victim of family violence returns to the scene of the assault as well as at the time of the original
assault. We conclude that it is, and that indeed the statute was particularly designed for such a
situation.

        Second, you ask whether a magistrate or lawyer may request that a peace officer escort a
victim who has received a protective order back to the residence to retrieve personal property, and
ifthe provision of such assistance to the victim would be in violation of the protective order. In our
view, the situation about which you have asked-namely the provision of such an escort to the victim
of family violence--does   not present difficulties under the protective order statutes or under article
5.045.    However, the factual situation which, you inform us, was the occasion for your
question-namely,     the provision of such an escort to the perpetrator of family violence-is        not
within the contemplation of article 5.045, and might well violate the terms of a protective order
issued pursuant either to article 17.292 or to chapter 85. According to article 17.292 and to section
71.16(c) of the Family Code, such a violation cannot be cured or excused by the consent of the
The Honorable Michael Wenk - Page 2              (X-0112)




victim or any other person. The terms of a protective order under either statutory framework can,
as those statutes make explicit, only be modified by the court.

       Article 5.045 was added to the Code of Criminal Procedure in 1995. Act ofMay 24,1995,
74th Leg., R.S., ch. 565, sec. 1, 1995 Tex. Gen. Laws 3362 (eff. Jun. 14, 1995). It provides:

                    (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.

TEX. CODE GRIM. PROC. ANN. art. 5.045 (Vernon Supp. 1999).

         Your first question suggests that it is unclear whether a “civil standby” under article 5.045
is authorized at a time other than that during which the police are investigating a complaint of
domestic assault. Since the phrase “the officer may stay” might be read to authorize his remaining
on the scene at the time of the domestic assault, or his returning to the scene and remaining with the
victim at a later time, the statutory language by itselfis somewhat ambiguous. However, we believe
that an examination of the provision’s legislative history indicates that later “civil standbys” were
specifically within the contemplation of the legislature.

       The need for a statute such as article 5.045 had been suggested by the Senate Interim
Committee on Domestic Violence’s Report to the Seventh-fourth Legislature [hereinafter Interim
Committee Report]. Recommendation     VIII.4 of that report reads:

                        Grant immunity for peace officers who wish to provide
               protective standby assistance to a victim of domestic violence who is
               leaving their batterer in order to prevent future acts of violence. The
               victim is to be informed that the police officer is only there to protect
               him/her from violence, the officer will not assist in making any
               decisions regarding the division of property.
The Honorable Michael Wenk - Page 3             (X-0112)




       In the Commentary    to their recommendation,   the Interim Committee    wrote:

                       A victim of domestic violence may plan to leave an abusive
              partner at a time when violence is not occurring. Research has shown
              that victims of domestic violence are in greater danger of serious or
              fatal injury when they leave their abuser than when they stay. (Hart,
               1992). Many victims request protective assistance from their local
              police department when they attempt to leave. If the victim is not
              asking for the police to investigate a crime that has already been
              committed, this assistance is often called a “civil standby.” Although
              many police departments provide this type ofassistance to victims of
              domestic violence, others refuse on the basis of not wanting to get
              involved in a “civil” matter.




                       Police departments who do not provide protective assistance
              to victims express a fear of civil litigation as the barrier.

Interim Committee   Report, at 63 (emphasis added).

       In testimony before the Senate Jurisprudence Committee on January 3 1,1995, Rob Kepple,
General Counsel of the Texas District and County Attorneys Association, who spoke in support of
the measure which became section 5.045, said the following:

              I think what [the] bill was aimed to do was in those instances where
              someone has left the house because of domestic violence-perhaps
              a protective order or charges have been filed-and     they wanted to go
              back to the house and pick up personal items but they’re fearful to do
              that, police officers, it’s my understanding, a lot of times would like
              to help out. They’d like to make sure that the person can do that and
              that there’s no further violence. So what the committee’s tied to do
              is draft a bill that allows the officer to accompany a person to the
              home just to pick up personal property.

       Finally, in a colloquy with one member of the committee during the same hearing, Senator
Brown, the sponsor of the legislation, answers as to its intent:

               Q.: So, Mr. Chairman, for purposes of intent, what we are attempting
               to do-this   particular scenario that’s addressed in the bill addresses
               an issue prior to a divorce? Is that correct? Senator Brown?

               Senator Brown:    Yes.
The Honorable Michael Wenk - Page 4                  (JC-0112)




                Q.: And we have violence that’s perpetrated upon one of the spouses
                and the spouse leaves with a child or children? And then we have a
                police officer that wants to assist so if there’s a standby assistance
                request that the police ofJicer goes back with that victim to the
                residence to pick up personal property?           That’s what we’re
                contemplating in terms of intent, regardless of judges and whoever
                else needs to interpret?

                Senator Brown:     That’s correct.

Hearings on Tex. S.B. 284 Before the Senate Jurisprudence Comm., 74th Leg., R.S. (Jan. 3 1,1995)
(transcript available from Senate Staff Services Office) [hereinafter Senate Jurisprudence Comm.
Hearings].

         You first ask whether article 5.045(b) provides “the same protection against civil or criminal
liability when a peace officer escorts the victim       back to the scene.     after the initial assault to
allow the victim to retrieve personal items. 7” Letter from Michael Wenk, Hays County Criminal
District Attorney, to Honorable John Comyn, Attorney General 3 (Apr. 6, 1999) (on file with
Opinion Committee) [hereinafter Request Letter]. As the foregoing legislative history suggests, we
conclude that it does. The Interim Committee’s Commentary notes that the victim may decide to
leave “at a time when violence is not occurring.”            Interim Committee Report, at 63. The
Commentary defines a civil standby as occurring when “the victim is not asking for the police to
investigate a crime that has already been committed.” Id. The testimony of Mr. Kcpple indicates
that the bill was concerned with what happens “in those instances where someone has left the home
because of domestic violence.” Senate Jurisprudence Comm. Hearings, supra. And the colloquy
between the bill’s sponsor and a member of the Senate committee considering it indicates that the
law’s intent is to cover a situation in which a “police officer goes back with th[e] victim [ofdomestic
violence] to the residence to pick up personal property.” Id. In light ofthis, we conclude that article
5.045 of the Code of Criminal Procedure protects, and was expressly intended to protect, law
enforcement officers who accompany victims of domestic violence to their residences for the
purpose of collecting personal property after those victims have vacated the premises from civil
liability for acts or omissions that arise in connection with such assistance, as well as from civil or
criminal liability for any wrongful appropriation of personal property by the victim.

         Your second question is whether any magistrate or lawyer may request that the police escort
a victim, and whether the police may provide such an escort to a victim when a protective order is
in place. As the testimony quoted above from Mr. Kepple would indicate, it was certainly within
the contemplation of the legislature that civil standbys might occur when “perhaps a protective order
or charges had been filed.” Id. Moreover, we do not believe that such an escort to a victim, whoever
may have requested it, is likely to violate such an order, precisely because it is not the victim but the
perpetrator of family violence who is to be restrained by the order.
The Honorable Michael Wenk - Page 5              (JC-0112)




         The relevant statutory provisions here are article 17.292 of the Code of Criminal Procedure
(relating to emergency protective orders) and section 85.022 of the Family Code, and in particular
section 85.022(b)(3), which provides:

                   (b) In a protective order, the court may prohibit theperson found
               to have committedfamily violence from:




                       (3) going to or near the residence or place of employment     of
                a member of the family or household.

TEX. FAM. CODE ANN. 5 85.022 (Vernon         Supp. 1999). Similarly, article 17.292 provides that a
magistrate “may prohibit the arrestedparty from           going to or near       the residence      of a
member of the family or household or of the person protected under the order.” TEX. CODE GRIM.
PROC.ANN. art. 17.292 (Vernon 1999) (emphasis added). The plain language ofthe statutes makes
it clear that the person restrained from going to or near a residence is the assailant, not the victim.
Accordingly, neither a request for assistance to the victim of the sort governed by article 5.045 nor
the provision of such assistance to the victim is likely to violate a protective order.

        We caution, however, that the factual situation which, you inform us, gave rise to your
questions presents a very different picture. As you describe it, a Hays County constable was
“contacted by an accusedwho had been placed under a magistrate’s order for emergency protection”
and asked by him to accompany him to his residence, which was also that of the victim, to retrieve
personal papers. Request Letter, supra. The accused asserted that the justice of the peace who
issued the order had told him to ask the constable to accompany him to the residence, but he had no
written order to this effect. Upon contacting the victim to see what arrangements could be made so
that the accused could get his papers, the constable was told by the victim “that she had been
expecting his call since the District Attorney’s Office and the justice of the peace had informed her
that a peace officer would be escorting her husband to the residence at some time.” Id.

         We do not have all the facts necessary to make a judgment in this situation and cannot find
facts in the opinion process, and therefore we cannot address the particular concerns the constable
had in this instance.    However, on a more general level, his apparent concern that bringing a
perpetrator of family violence back to the scene might violate the terms of a protective order may
very well be justified. Moreover, such an act is clearly not exempted from liability by article 5.045.
That statute speaks only to the provision of assistance to the victim of domestic violence. It does
not offer such assistance to batterers.

        As to whether such assistance to the perpetrator might violate the terms of a protective order,
that would of course depend on the terms ofthe order in question. However, as section 85.022(b)(3)
and article 17.292, quoted above, make clear, it is certainly possible that such an escort might
The Honorable Michael We&             - Page 6           (X-0112)




contravene a term of the order “prohibit[ing] the person found to have committed family violence
from      going to or near the residence     of a member of the family or household.”

        Moreover, as you point out, protective orders, whether issued pursuant to article 17.292 or
chapter 85 of the Family Code, routinely contain certain prominently displayed language mandated
by either article 17.292(I) or section 85.026(c), to this effect:

                 NO PERSON, INCLUDING A PERSON WHO IS PROTECTED
                 BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO
                 IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER.
                 DURING THE TIME IN WHICH THIS ORDER IS VALID,
                 EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND
                 EFFECT UNLESS A COURT CHANGES THE 0RDER.r

         Neither the victim, nor an attorney, has the power to authorize what a protective order
forbids. While pursuant to section 87.001 of the Family Code a protective order may be modified
after notice to the other parties and a hearing, such modification must in our view be in writing and
certainly requires more than a statement by the victim that the district attorney or a magistrate had
told her to expect the police to arrive escorting her assailant.

        In the event that there is in place a protective order forbidding a perpetrator of family
violence from going to or near the family residence, unless and until that order is formally modified
by the court, an officer ofthe law would be ill-advised to aid, or indeed to permit, the subject of such
an order to go to the prohibited dwelling for any purpose. An escort of a perpetrator of family
violence to the residence shared with the victim, whether or not it violates the terms of a protective
order, is not the provision of standby assistance contemplated by article 5.045 of the Code of
Criminal Procedure.




         ‘Effective September 1, 1999, this language will be found in section 85.026(a) rather than section 85.026(c).
See Act of May 30, 1999,76th Leg., RX, SD. 50, 5 4 (to be codified at TEX. FAM. CODE ANN. 5 85.026).
The Honorable Michael Wenk - Page 7             (X-0112)




                                      SUMMARY

                       Article 5.045 ofthe Code of Criminal Procedure protects, and
              was expressly intended to protect, law enforcement officers who
              accompany victims of domestic violence to their residences for the
              purpose of collecting personal property after those victims have
              vacated the premises from civil liability for acts or omissions that
              arise in connection with such assistance, as well as from civil or
              criminal liability for any wrongful appropriation ofpersonal property
              by the victim. Neither a request for assistance to the victim of the
              sort governed by article 5.045 nor the provision of such assistance to
              the victim is likely to violate a protective order. An escort of a
              perpetrator of family violence to the residence shared with the victim,
              whether or not it violates the terms of a protective order, is not the
              provision of standby assistance contemplated by article 5.045 of the
              Code of Criminal Procedure.




                                             Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
