By: Mark Diaz
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Galveston Criminal Attorney Discusses Do’s and Don’ts Under a Restraining Order
What should you do if you are the subject of a restraining order?
Before I get into that, it’s not always just a restraining order. Sometimes it’s bond conditions instead of a restraining order, sometimes it’s a temporary restraining order. In more extreme cases, there are restraining orders that last for years.
These restrictions are only issued in victim cases. They can be issued in domestic violence cases, robbery cases, aggravated assault cases, anything involving a victim, where there’s some concern that the defendant knows the victim and has contact with the victim. The goal is to get you away from the victim. They will put conditions on you so that you cannot have contact with the victim.
We see this the most in domestic violence cases. It often causes a problem because if it’s a couple, and they tell you that you can’t be around your wife or husband, where are you supposed to go? People often call complaining that the effect of the restraining order can make them homeless. Most courts will allow us to have a hearing, where we can go in and ask the court to remove the order if the victim in the case is asking the court to remove the order.
There are a lot of cases where an instance of violence is a one-off, there’s not a history of violence between these people. There’s no need for a continued restraining order. Of course, the difficulty is that if you get arrested today, and you get issued a temporary restraining order on your way out of jail. No, I can’t go into court tomorrow to get it lifted. In order to have a hearing, we have to file motions, give notice to the state, etc. Generally, the minimum notice is three days, unless we can get the state to waive notice. It could be a week before we can get the hearing. It’s possible that you could be homeless for that week, right?
If that’s the situation that you find yourself in, and of course, no one wants to see that. The best advice I can give you is to follow the conditions of the restraining order to the tee. It’s in writing, and you must follow it. The person who has the restraining order, whoever is listed as the victim, does not have the legal authority to waive that restraining order. If it’s your spouse, they can’t say hey, it’s okay, just come over. They may say that, but the problem is if something happens and the police encounter you, you’re going to jail or you’re going to have your bond revoked. It happens a lot, many times without the knowledge or request of the victim in the case.
Why? The state is trying to protect the victim. The state is worried that if someone is arrested because the police were called, that the person who got arrested may be so angry that they’ll get out of jail and immediately commit another act of violence against that person. The state feels like they need legal protection for that person. The issue is that they do it even when people don’t request it. This doesn’t make sense to me, if the victim doesn’t want a restraining order then the state shouldn’t be stepping in and trying to manage their relationship for them.
In these cases where you are issued a restraining order, you can’t communicate with the victim. The rules are very specific. You can’t call, you can’t text. The problem with calls and texts is, they are evidence that you have tried to communicate with the victim. If they desire, they can go to the DA and report that, and then you’re in trouble. As I said, the best thing I can advise is to just follow the written order to the best of your ability. If there are things in the order that are making your life extremely difficult, to the point where you could be homeless, get with your attorney, and have your attorney return to court and amend it.
Many times, I see the situation where my client can afford to stay outside of the house, but they still have to have some type of contact with the victim, because they have children together. So we go to court and we make those adjustments as soon as possible. Until then you just obey the order. As soon as you tell me that there’s a problem, and we need to fix it, we’ll go to court and get it fixed. Don’t take it upon yourself to make a verbal agreement with the other person, because again, it’s not that person’s choice. If police find out that you violated the order, you will be arrested.
In regards to interference with child custody, why isn’t it enforced? Why don’t the police make arrests for this?
I suppose the answer is out of ignorance. I don’t mean that the police are ignorant. I mean that this is not a commonly charged offense. So, the officers that are responding are likely to think this is just a family law matter, and that it needs to be worked out in family court. If this is happening to you, and the police are not acting when you call, and someone is interfering with your child custody, then I would begin to make video evidence. If possible, I would have a witness with me and have them film what’s going on.
For misdemeanors, the police don’t have to call the DA intake office to make the charges. Though there is an intake DA always at the DA’s office. So, if you’re repeatedly being subject to some type of interference with your child custody, and you have a witness and video proof, you could take that to the DA’s office and hopefully have them accept charges.
The other option I might say is to carry a copy of it with you and whenever something happens, when you call the police, have them come out and show it to them. Then hopefully the officer will be more responsive. I think it’s not that Galveston County does not want to enforce this matter, it’s just that the officers responding probably aren’t very familiar with this. If you help educate the officer, that it is indeed a violation, then that may help you.
What are the most common crimes in Galveston County?
That’s a hard question to answer. Drugs are going to be at the top, DWI’s are also up there. DWI’s spike up on holiday weekends, and during the summer months, because of all the tourists and people on the beach. Then there are other times when DWI’s are slow because not much is happening on the island. More like in the offseason months. Drugs are year-round, possession charges, manufacturing and delivery charges, etc.
We have a lot of assault cases, misdemeanor assault, mostly the family violence type. That happens a lot. Again, there’s also a spike in those cases during the tourist season. For the same reason as the DWI, people are drinking all day on the beach, and things tend to happen when there’s alcohol involved. It’s really hard to pick one crime that is the most common here in Galveston County unless you just say drugs because they are always going to be a common issue. Others fluctuate up and down depending upon what’s going on on the island at the time.
We went through a period a while back where there was a bunch of burglary of motor vehicle cases, there were so many break-ins that it appeared to be a group of people committing these crimes. So, for a while, it seemed like BMV’s were being reported every night. For a while, we had a problem with catalytic converters thefts, now that has slowed down, or it’s just not being reported anymore. So, the most common crimes in Galveston County will typically be anything involving drugs.
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