Have murky waters invaded the realm of protective orders?

Separate from the provisions of the Texas Family Code, the Texas Code of Criminal Procedure authorizes a magistrate to issue an order for the protection of alleged victims in cases involving family violence.¹ This order can limit the ability of the alleged perpetrator to communicate with specific individuals, to go certain places, to possess a firearm, and can even require the person subject to the protective order to have his or her movements monitored with GPS. The State can prosecute an individual who violates the magistrates order if the individual had notice of the order.2 An individual must have notice of a magistrate’s order prior to the violation; currently, the magistrate must serve the alleged perpetrator with a copy of the order in open court to give that individual notice of the order.3

However, the Texas Legislature has passed a bill during this session, which will permit the magistrate’s order be served in other means (e.g. by a person designated by the magistrate in person or electronically).4 Because the legislature did not define the term “electronically” in the bill, we are left with two important questions whether this electronic form of service includes e-mail and what effect will occur if someone fails to open an e-mail or receive it through electronic means.

Can a Magistrate serve a protective order by e-mail?

The bill, as it was sent to the Governor, does not define what electronically means. However, the legislature had previously authorized the service of subpoenas by electronically transmitting the subpoena through e-mail.5 If this definition applies to the new procedure, a person may find out they are subject to the restrictions of a protective order in his or her e-mail inbox.

If a Protective Order can be served by e-mail, what happens if the person subject to the provisions of the order does not open it?

The Texas Court of Criminal Appeals has held that the procedure of serving an order to the alleged perpetrator in open court exists to ensure that the person knows the terms of the protective order, or at the very least knows that he or she was subject to the issuance of a protective order.6

It is a criminal offense to violate the terms of a protective order, so a person can be subject to serious criminal penalties if an e-mail alone is sufficient notice. Will a spam blocker cause a person to be charged with a Class A Misdemeanor or 3rd Degree Felony? Without clarity from the Court of Criminal Appeals or the legislature, the service of a protective order by e-mail even without showing the individual opened or read the e-mail may be sufficient notice.

[1]Tex. Code Crim. Proc. art. 17.292
[2] Tex. Pen. Code § 25.07
[3] Harvey v. State, 78 S.W.3d 368, 371 (Tex. Crim. App. 2002).
[4] Tex. H.B. 570, 83rd Leg., R.S. (2013).
[5] Tex. Code Crim. Proc. art. 24.04
[6] Harvey , 78 S.W.3d at 372-73 (Tex. Crim. App. 2002).

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