From a Felony to a Phone Call: Texas Prop 13 Will Ensnare Innocent Men

By Michael McCormick and Glenn Sacks

Texas voters will decide on November 6 whether to approve Proposition 13, a dangerous measure which will harm innocent men by greatly eroding the rights of those accused of domestic violence. The measure grants judges the ability to hold without bail those accused of nonviolent, trivial, or accidental violations of temporary restraining orders.

Under current Texas law, the only defendants ineligible for bail are those accused of capital crimes. In addition, judges are provided discretion to deny bail to those who have been both charged with a felony and convicted or indicted for a previous felony. To deny bail, there must be “evidence substantially showing the guilt of the accused.”

Prop 13 obliterates this, and opens the road for many innocent men to be held without bail. Like many states, Texas has adopted aggressive arrest procedures on domestic violence calls. The result has been that men are sometimes arrested for misdemeanor domestic violence based on thin evidence. After the arrest, Emergency Protective Orders are entered against the accused, typically barring him from going home or having any contact with his children. Fathers can violate the orders by innocent acts such as calling their own children, accidentally running into them and their mother in the mall, or going to their Little League games.

Under Prop 13, judges will have the power to incarcerate without bail men who violate their EPOs. Moreover, the Proposition lowers the evidence standard from Substantial Showing to Preponderance of the Evidence, which can rapidly degenerate into a “he said/she said” contest that men usually lose.

Even worse, Prop 13 also encourages the legislature to pass a law which would allow fathers who violate temporary ex parte protective orders to be jailed without bail. Women can obtain these orders by claiming their male partners abused them, and the men are then booted out of their own homes without ever having a chance to defend themselves in court.

It is true that ex parte protective orders can be a useful tool to help protect battered women. However, as the Family Law News, the official publication of the State Bar of California Family Law Section, recently explained:

“Protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody…[the orders are] almost routinely issued by the court in family law proceedings even when there is relatively meager evidence and usually without notice to the restrained person.”

These orders have become so commonplace that the Illinois Bar Journal calls them “part of the gamesmanship of divorce.”

Dallas/Ft. Worth criminal defense attorney Paul Stuckle explains:

“Judges pass out ex parte protective orders like Halloween candy. If judges read the estranged spouse’s affidavits, it is typically a cursory review. The judges are handed a stack of these ex parte applications when they arrive in the morning, and they usually just rubber stamp them. There is rarely any meaningful judicial review.”

According to the Texas House of Representatives’ House Research Organization, Prop 13's proponents claim that accused men “would retain all their rights to due process and other protections. For example, the determination to deny bail would have to be made at a hearing in which the defendant could appeal the denial of bond or make a case for another bond.”

This ignores the fact that protective orders–both the Emergency Protective Orders Prop. 13 will apply to or the ex parte protective orders Prop. 13 encourages the legislature to include–often seriously impair men’s ability to obtain legal representation and defend themselves. Protective orders make men homeless and can cut them off from their financial resources. In cases where they work with or near their wives, or operate businesses partly or wholly out of their homes, their incomes can disappear overnight. By contrast, women obtaining protective orders are afforded free legal services by victim advocates at local domestic violence shelters, and remain in the marital home.

The House Research Organization also states:

“The proposed amendment also could have unfair consequences relating to legislation enacted by the 80th Legislature – HB 1988 by Martinez – which allows some protective orders to be in effect for life. This could result in someone being denied bail for one mistake after years of following a protective order.”

Prop 13 is reflective of a dangerous legal trend. Laws and police policies for those accused of domestic violence have been made increasingly draconian, clogging court calendars with weak or evidence–free cases which, were it any other crime, wouldn’t even be acted upon. At the same time, the judicial system hasn’t devoted substantial additional time and resources to investigating and adjudicating domestic violence claims. The result is often assembly–line justice in Kangaroo Courts. Prop 13 will accentuate this trend, and victimize many innocent men and fathers.