Criminal & Family Law
Lynn Kamin
Introduction
The story that hit the news wires around the world last summer, about Clara Harris, the Houston woman who killed her philandering husband by driving over him repeatedly with her car, was one that no doubt struck a nerve with most family law practitioners. Given the raw emotions involved in divorce cases, which can drive even the most grounded participants to irrational behavior, most family law practitioners carry in the back of their mind the fear that a violent episode like that could occur in a case in which they are involved. Thus, when one thinks of criminal law in the context of family law matters, the first thing that usually comes to mind is violence or potential violence against a spouse by a spurned partner.
While criminal violence is occasionally an issue in family law cases, there is a wide array of criminal issues that can arise in the context of a family lawsuit, most of which have little to do with the classic example of inter-family violence. In this paper, we shall examine some of the ways in which either a party or a lawyer in a family law case can find himself in violation of a criminal statute.
II. Gun Laws and Family Law
A. Federal Gun Laws, Standard Mutual Injunctions, and U.S. v. Emerson
The most significant recent development in the area of criminal law applicability to family law issues comes in the arena of federal firearm legislation. Federal law makes it a criminal act for certain individuals to possess or obtain firearms. Under 18 U.S.C.A. § 922, now known more commonly as the “Brady Bill”, Congress has outlined a broad collection of restrictions regarding to acquisition or use of firearms for certain classes of individuals.
The section of the act which is most relevant for family law practitioners and their clients is subsection (g). 18 U.S.C.A. § 922(g) states:
“It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
18 U.S.C.A. § 922(g).
The mutual injunctions that are put in place in most family law cases in Texas contain standard language prohibiting the use or threatened use of violence by one party to the divorce case against the other party. Therefore, it would appear that anyone subject to such an injunction in a divorce case is prohibited from possessing a firearm – even if, as in most cases, the language in question is simple formbook language that is included without any judicial finding that there is a credible threat of domestic violence occurring.
This would seem to be solely a theoretical debate over intent and interpretation, unlikely to ever be addressed in a real world situation, since it is difficult to imagine a situation where a person subject to such an injunction would be indicted and prosecuted under federal gun laws, absent some other aggravating circumstance. However, such a prosecution did take place in Texas in 1998, against a defendant who owned a pistol before a temporary injunction was put in place, resulting in a 2001 Fifth Circuit Court of Appeals decision which should trouble family law practitioners.
The case in question is U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001). In
Emerson, the husband/defendant, Dr. Timothy Emerson, appeared pro se and announced ready at a temporary hearing in his divorce case.
Id. at 210. Sacha Emerson, Dr. Emerson’s wife, testified primarily on financial matters, but also offered uncontroverted testimony regarding a threat by Dr. Emerson to kill Ms. Emerson’s paramour.
Id. at 210-11. On September 14, 1998, after hearing the evidence, the Court issued temporary orders which included enjoining Dr. Emerson from twenty two specifically enumerated acts, including:
“2. Threatening Petitioner in person, by telephone, or in writing to take unlawful action against any person.
4. Intentionally, knowingly, or recklessly causing bodily injury to Petitioner or to a child of either party.
5. Threatening Petitioner or a child of either party with imminent bodily injury.”
Id. at 211.
At the time the temporary orders were entered, Dr. Emerson owned a Beretta pistol, which he had purchased a year earlier.
Id. at 212. Dr. Emerson, apparently, never disposed of the pistol, and on December 8, 1998, a federal grand jury for the Northern District of Texas, San Angelo division, returned a five-count indictment against him.
Id. at 211. While four of the counts were eventually dismissed, “Count 1 . . . alleged that Emerson on November 16, 1998, unlawfully possessed ‘in and affecting interstate commerce’ a firearm, a Beretta pistol, while subject to the above mentioned September 14, 1998 order, in violation of 18 U.S.C. § 922(g)(8).”
Id.
The district court ultimately dismissed Count 1 of the indictment on Second and Fifth Amendment grounds, and the state appealed. Id. at 212. On appeal, Dr. Emerson argued that dismissal was appropriate on statutory grounds, claiming that the statute should be read to apply only in those cases where an express judicial finding is made that there is a credible threat of violence, and that the underlying order must be supported independently by sufficient evidence so as to allow an independent determination regarding the validity of the order.
Id. at 212-13. The appeals court disagreed, opting instead for a literal reading of the statute, which states only that the Court must explicitly forbid the use of threats or violence against a spouse or minor child.
Id. at 213-15. Furthermore, the appeals court dismissed Dr. Emerson’s claims that the indictment should be dismissed on Second Amendment, Fifth Amendment, and Commerce Clause grounds, ultimately reversing the trial court’s decision and remanding the case to the lower court for prosecution.
Id. at 264-65.
This decision should raise a red flag for all family law practitioners throughout Texas. Quite simply, the Fifth’s Circuit interpretation of 18 U.S.C. § 922(g) affirms that it a federal criminal offense to possess a firearm while under an injunction, issued after notice and hearing, which contains the standard violence/harassment language which is included in 95% of the mutual injunctions and temporary orders which are entered in family law cases. Given that almost half the households in Texas contain at least one gun, this decision can have very troubling and far-reaching consequences.
First, it should be noted that the Court makes it clear that the law does not apply to an individual served with an ex parte temporary restraining order. The Emerson Court makes a point of clarifying that an August 28, 1998, temporary restraining order which was served on Dr. Emerson was “not the order alleged in the indictment, and in any event it is not within the terms of § 922(g)(8)(A) which requires that the order have been ‘issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate.’ ”
Id. at 211 & n2.
However, if injunctions are put in place as a result of a temporary hearing or after a temporary hearing occurs, the party possessing the firearm is in violation of the federal statute. It would appear that this would be the case even if the parties waive a hearing and enter into agreed mutual injunctions or agreed temporary orders which include the “magic words” regarding threats or violence. Moreover, there are no statutory exceptions included in 18 U.S.C. § 922(g), so it would appear that once the injunction is in place, the ban on possession is absolute, until further order of the Court.
This ruling places on the family law practitioner the duty to explain the ramifications of the boilerplate injunction language. While previously, mutual injunctions could generally be agreed to with a minimal amount of controversy, now the lawyer must clarify whether or not his client possesses any firearms before agreeing to any injunctions containing such language. Should the client own a gun, it will be necessary to eliminate the language from the injunctions which would trigger the applicability of 18 U.S.C. § 922(g).
In a scenario where your client owns a gun and the other side is insisting on including the injunctions against violence or threats in any injunctions, you have little choice but to seek a hearing, unless your client agrees to voluntarily relinquish his firearms during the pendancy of the suit. At the hearing, it will be critical for you to spell out specifically for the Court your concerns regarding the applicability of 18 U.S.C. § 922(g) and the reasons why your client’s right to keep his firearms should outweigh the other side’s equitable right to an injunction. Should the Court issue an injunction anyway, you should ask the Court to specifically order a date and place by which your client must turn over his weapons, and include language regarding his right to retrieve those weapons upon the expiration of the order. Furthermore, to avoid future complications, once the case is resolved, it may be worthwhile to request the Court to enter an order dissolving the temporary injunctions and specifically authorizing your client to re-gain possession of his weapons.
For clients whose occupations require that they be armed, such as law enforcement officers, avoiding having such an injunction imposed by the Court obviously takes on much greater significance. If your client has engaged in behavior that would appear to make him a clear and present danger to the other party or the child, your chances of avoiding the “magic words” from the Court would appear to be slim. If, however, your client’s behavior has not risen to such a level, the fact that the imposition of such an injunction would basically strip him of his livelihood should be enough to prevent the Court from making such a draconian ruling, so long as you make it clear to the Court what the consequences of such a ruling would be, in light of the Emerson decision. If the Court chooses to enter such an injunction anyway, it would appear that mandamus would be the most applicable remedy to pursue.
While the author agrees that, practically speaking, it would be extremely unusual for a federal prosecutor to pursue an indictment against an individual for possessing a firearm while injunctions are in place in a divorce case, where no violence has been, it nevertheless is an issue that, in light of Emerson, one should need. Obviously, the consequences for an individual who is charged with a crime based on such a misunderstanding would be severe; and similarly, the liability for an attorney who allowed such an injunction to be issued without contesting it or advising the client of the possible consequences would be great, as well.
B. Other Consequences of Gun Laws
The State of Texas has also set out provisions in the penal code restricting the possession of firearms by individuals involved in family violence:
“(b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person’s family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of:
(1) the date of the person’s release from confinement following conviction of the misdemeanor; or
(2) the date of the person’s release from community supervision following conviction of the misdemeanor.
(c) A person, other than a peace officer, as defined by Section 1.07, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order.”
Tex. Pen. Code § 46.04(b)-(c).
Tex. Pen. Code § 22.01, referenced in the excerpt above, is the code section criminalizing assault. Thus, an individual convicted of assault on a family member cannot legally possess a firearm until five years after his release from jail or the end of his probation period.
If an individual is subject to a protective order under § 6.504 of the Texas Family Code, he is also prohibited from possessing a firearm. This is covered both by state law, under Tex. Pen. Code § 25.07(a)(4), and by federal law, under 18 U.S.C.A. § 922(g)(8). While violation of a protective order is a criminal offense, as discussed in more detail below, the existence of both federal and state criminal statutes which prohibit an individual subject to a protective order from even possessing a firearm is a detail which family law practitioners must be aware of.
III. Information Crimes and Family Law
A. Communications Interception
The Texas Penal Code prohibits the interception of communications as follows:
“(b) A person commits an offense if the person:
(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;
(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(3) intentionally uses or endeavors to use the contents of a wire, oral, or electronic communication if the person knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(4) knowingly or intentionally effects a covert entry for the purpose of intercepting wire, oral, or electronic communications without court order or authorization; or
(5) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when the device:
(A) is affixed to, or otherwise transmits a signal through a wire, cable, or other connection used in wire communications; or
(B) transmits communications by radio or interferes with the transmission of communications by radio.”
Tex. Pen. Code § 16.02(b).
The definitions of the terms used in § 16.02 are set out in Tex. Crim. Proc. Art. 18.20. The unlawful interception of a communication under § 16.02(b) is a second degree felony. Tex. Pen. Code § 16.02(f).
While this statute applies to non-consensual recording of conversations, it is not necessary for both parties to the conversation to consent for the recording to be legal. So long as one party to the conversation consents to the conversation being recorded, the act of recording is consensual.
Esterline v. State, 707 S.W.2d 171, 173 (Tex. App. – Corpus Christi 1986, pet. ref’d).
On the other hand, some people seem to believe that recording conversations involving one spouse that occur within the household, or on phones that are maintained in the household, are exempt from the wiretapping statute, this is not the case. Texas courts have repeatedly rejected the argument that a party is entitled to intercept the communications of a spouse through electronic means. See, e.g.,
Kent v. State, 809 S.W.2d 664 (Tex. App. – Amarillo 1991, pet. ref’d);
Collins v. Collins, 904 S.W.2d 792 (Tex. App. – Houston [1st Dist.] 1995,
writ denied per curiam, 923 S.W.2d 569 (Tex.1996)); Duffy v. State, 33 S.W.3d 17 (Tex. App. – El Paso 2000, no writ).
The interception of communications is also a violation of federal law, under 18 U.S.C.A. § 2510(5). The Texas penal provision is not pre-empted by the federal statute. Op.Atty.Gen.1982, No. MW-463.
B. Pen Registers and Trap and Trace Devices
Through the marvels of modern technology, private individuals are now able to purchase electronic devices that seem to be straight out of a James Bond movie. One of those devices is a “pen register”. A pen register is defined under Texas law as a “device that attaches to a telephone line and records or decodes electronic or other impulses to identify numbers dialed or otherwise transmitted on the telephone line”. Tex. Crim. Proc. Art. 18.20.
Texas law provides that:
“(a) A person commits an offense if the person knowingly installs or uses a pen register or trap and trace device to record or decode electronic or other impulses for the purpose of identifying telephone numbers dialed or otherwise transmitted on a telephone line.”
Tex. Pen. Code § 16.03(b).
Violation of this statute is a state jail felony. Tex. Pen. Code § 16.03(d).
C. Stored Electronic Communications
As our society advances technologically, more and more sensitive information is being sent and stored electronically. As a result, however, such information is vulnerable to remote attack or access by technologically savvy third parties, particularly when the information is being stored by someone who does not anticipate an attack or is not aware of the vulnerabilities of their electronic security system. The legislature has made improper access to stored electronic communications a crime as follows:
“(b) A person commits an offense if the person obtains, alters, or prevents authorized access to a wire or electronic communication while the communication is in electronic storage by:
(1) intentionally obtaining access without authorization to a facility through which a wire or electronic communications service is provided; or
(2) intentionally exceeding an authorization for access to a facility through which a wire or electronic communications service is provided.”
Tex. Pen. Code § 16.04(b).
Electronic storage is defined as “(A) a temporary, intermediate storage of a wire or electronic communication that is incidental to the electronic transmission of the communication; or (B) storage of a wire or electronic communication by an electronic communications service for purposes of backup protection of the communication.” Tex. Crim. Proc. Art. 18.20. Violation of this statute is a state jail felony. Tex. Pen. Code § 16.03(d)
This is a relatively new area of the law, and it remains to be seen how the courts will administer it in the domestic context. Something to keep in mind, however, is that this criminal statute would appear to be applicable in cases where one spouse accesses the email account of another spouse, and reads and/or downloads the email messages. Electronically stored data is discoverable and should be requested by the family law practitioner in a case where the data may be relevant.
D. Tracking Devices
One of the elements of science fiction which has recently come to life and been made available to the common person is vehicular tracking devices. These have become quite common in our society, as companies such as Lojack promote the installation of devices on cars which can allow the company to use satellite technology to locate the car with precision anywhere in the world.
However, while these devices are promoted as a way to eliminate car theft, they can also be used by for less wholesome purposes by someone who wishes to simply track the whereabouts of another person. This issue has been recently addressed by the Texas legislature, and the Texas Penal Code now provides:
“(b) A person commits an offense if the person knowingly installs an electronic or mechanical tracking device on a motor vehicle owned or leased by another person.”
Tex. Pen. Code § 16.06(b).
A “mechanical tracking device” is defined as “a device capable of emitting an electronic frequency or other signal that may be used by a person to identify, monitor, or record the location of another person or object.” Tex. Pen. Code § 16.06(a)(1). Violation of this statute is a Class A misdemeanor.
One gray area that appears to exist in this law is its applicability in a divorce case. The statute prohibits the installation on a vehicle “owned or leased” by another. However, in a hypothetical situation where a community property vehicle is in the name of husband, but driven by wife, it could be argued that husband, legally, may install the tracking device on wife’s car and monitor her movements, as he is the “owner” of the car.
IV. Physical Crimes and Family Law
A. Assault
The Texas Penal Code statute relating to assault is as follows:
“(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
(1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; or
(2) a member of the defendant’s family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant’s family or household under this section.
(c) An offense under Subsection (a)(2) or (3) is a Class C misdemeanor, except that an offense under Subsection (a)(3) is a Class A misdemeanor if the offense was committed against an elderly individual or disabled individual, as those terms are defined by Section 22.04.
(d) For purposes of Subsection (b), the actor is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant.
(e) In this section:
(1) “Family” has the meaning assigned by Section 71.003, Family Code.
(2) “Household” has the meaning assigned by Section 71.005, Family Code.
(f) For the purposes of this section, a defendant has been previously convicted of an offense against a member of the defendant’s family or a member of the defendant’s household under this section if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision.”
Tex. Pen. Code § 22.01.
The primary point for the family law practitioner to be aware of is the provision under (a)(2), criminalizing credible, immediate threats against the family. While there is often a misconception that mere threats are not actionable, they can constitute criminal assault if there is an immediate danger to the victim. Moreover, by bringing charges and obtaining a conviction under such a circumstance, should actual violence against the family occur at a subsequent point in time, the statute heightens the new charge from a misdemeanor to a felony. On that new charge, all that the court must find is that there has been a previous conviction of assault against a family member; it is not necessary to re-litigate the previous criminal case as part of the subsequent case in order for the state to prove that there has been previous family violence.
State v. Eakins, 71 S.W.3d 443, 444-45 (Tex. App. – Austin 2002, no writ).
B. Harassment
So what remedy does a person have if their spouse or ex-spouse has not acted in a way that gives rise to a criminal assault charge, but has instead behaved in a generally obnoxious manner? The legislature has codified a set of behaviors which, if directed towards another person, can give rise to criminal prosecution for harassment. The Texas Penal Code states that:
“(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:
(1) initiates communication by telephone, in writing, or by electronic communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;
(2) threatens, by telephone, in writing, or by electronic communication, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of his family or household, or his property;
(3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;
(4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another;
(5) makes a telephone call and intentionally fails to hang up or disengage the connection;
(6) knowingly permits a telephone under the person’s control to be used by another to commit an offense under this section; or
(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.”
Tex. Pen. Code § 42.07(a).
An offense under this code section is a Class B misdemeanor, unless the defendant has previously been convicted under this section for another act, in which case it is a Class A misdemeanor. Tex. Pen. Code § 42.07(c).
Obscenity is defined within the statute, and covers a standard laundry list of acts which would be considered an “ultimate sex act”. Tex. Pen. Code § 42.07(b). Threats, on the other hand, are judged by an objective standard, and need not be express, but rather, can be veiled or implied, and still be actionable.
Manemann v. State, 878 S.W.2d 334, 337 (Tex. App. – Austin 1989, pet.
ref’d).
This section covers a variety of actions which also are commonly covered in a temporary restraining order or temporary injunctions. A party who believes that the court will not be sympathetic to a contempt action brought for such behavior may feel that seeking relief through the criminal justice system may be a better alternative. Additionally, a party who is harassed in a circumstance where, for whatever reason, injunctions are not in place may only be able to turn to the criminal justice system in order to achieve some results.
C. Stalking
In the wake of various well-publicized stalking episodes, various states, including Texas, have adopted stalking statutes. While stalking episodes are rare in the family law context (most of the time, each party wants to avoid the other party, rather than obsessively follow her), when it does occur, it can be a frightening, traumatic experience for both the party and her attorney. Thus, it is important to be familiar with the parameters of behavior forbidden by the Texas stalking statute, and be prepared to counsel your client as to what actions can be taken in such a situation.
The criminal stalking statute states:
“(a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct, including following the other person, that:
(1) the actor knows or reasonably believes the other person will regard as threatening:
(A) bodily injury or death for the other person;
(B) bodily injury or death for a member of the other person’s family or household; or
(C) that an offense will be committed against the other person’s property;
(2) causes the other person or a member of the other person’s family or household to be placed in fear of bodily injury or death or fear that an offense will be committed against the other person’s property; and
(3) would cause a reasonable person to fear:
(A) bodily injury or death for himself or herself;
(B) bodily injury or death for a member of the person’s family or household; or
(C) that an offense will be committed against the person’s property.”
Tex. Pen. Code § 42.072(a).
The heightened significance placed by the state on stalking is reflected in the classification of a conviction under the statute. A violation of the stalking statute is considered to be a third degree felony, unless the stalker has previously been convicted under the stalking statute for another act, in which case it is a second degree felony. Tex. Pen. Code § 42.07(b).
The stalking statute is relatively new, having only been enacted in 1997. Nevertheless, the statute has survived challenges to its constitutionality.
Sisk v. State, 74 S.W.3d 893, 901-02 (Tex. App. – Fort Worth 2002, no writ);
Battles v. State, 45 S.W.3d 694, 702-03 (Tex. App. – Tyler 2001, no writ). Obviously, it is only is certain rare circumstances that a criminal stalking complaint may be brought; in such circumstances, it would also be advisable for the family law practitioner to concurrently seek a protective order in the family courts.
V. Violations of Court Orders
A. Interference With Child Custody
While failure to respect a valid order in regards to access and possession of a minor child can lead to sanctions from the trial court in the form of a contempt action, it can also give rise to criminal charges. Texas law provides:
“(a) A person commits an offense if the person takes or retains a child younger than 18 years when the person:
(1) knows that the person’s taking or retention violates the express terms of a judgment or order of a court disposing of the child’s custody; or
(2) has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child.
(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.”
Tex. Pen. Code § 25.03(a)-(b).
This offense is classified as a state jail felony. Tex. Pen. Code § 25.03(d).
This provision of the penal code gives a parent an additional avenue to pursue when attempting to bring a recalcitrant spouse or former spouse to heel. However, it should be noted that a party who is convicted on criminal contempt charges for interfering with the custody of a child cannot be later prosecuted in a separate criminal action under § 25.03 for the same act.
Ex parte Rhodes, 974 S.W.2d 735, 741-42 (Tex.Crim.App – 1998). Once the criminal contempt is prosecuted, jeopardy attaches, and therefore, the defendant is exempt from prosecution on the criminal charge on double jeopardy grounds.
Id.
Thus, from the standpoint of the attorney representing the aggrieved spouse, consideration should be made as to whether the client is better served by pursuing a contempt action, or by seeking to have the case prosecuted in the criminal courts. On the other hand, from the standpoint of the attorney representing the misbehaving spouse, awareness of the double jeopardy defense can provide the client with some leverage in certain circumstances.
B. Criminal Nonsupport
Much like with interference with child custody situations, the failure to properly support a minor child makes a parent subject to criminal prosecution. Moreover, it is irrelevant whether or not the support is court ordered. Texas law states:
“(a) An individual commits an offense if the individual intentionally or knowingly fails to provide support for the individual’s child younger than 18 years of age, or for the individual’s child who is the subject of a court order requiring the individual to support the child.
(b) For purposes of this section, “child” includes a child born out of wedlock whose paternity has either been acknowledged by the actor or has been established in a civil suit under the Family Code or the law of another state.”
Tex. Pen. Code § 25.05(a)-(b).
An offense under § 25.05 constitutes a state jail felony. Tex. Pen. Code § 25.03(f). Although an inability to pay may be raised by the defendant as an affirmative defense, Tex. Pen. Code § 25.03(d), this statute nevertheless appears to be quite draconian. Indeed, it has been suggested that the statute is meant to impose criminal liability on every parent who fails to timely pay child support ordered by a court.
Belcher v. State, 962 S.W.2d 653, 657 (Tex. App. – Austin 1998, no pet.) (citing 6 Michael Charleton, Texas Criminal Law § 14.5 at 177 (Texas Practice 1994)). Nevertheless, getting the state to bring forth criminal charges would appear to be difficult in all but the most egregious circumstances.
The Belcher case provides an interesting case study in an area where the case law has been sparse over the last few decades. In
Belcher, the husband was ordered to pay $70 per week in child support for his two children.
Belcher, at 655-56. Although a wage withholding order was issued, and husband’s employer withheld $70 per week from his pay for most of the period in question, some support payments apparently were not timely made, and husband ultimately accrued over a fourteen month period a total support arrearage of $1,073.29.
Id. at 656. A jury ultimately determined that he knowingly failed to provide the support he had an obligation to give, and found him guilty, resulting in a punishment of two years’ imprisonment, probated for four years, as well as 150 hours of community service, restitution of $3,906.57, and a fine of $500.00.
Id. at 656.
The appeals court noted that, although the child support order is relevant evidence of what an appropriate level of support should be under § 25.05, it is not necessarily conclusive evidence of the amount of support that should be provided.
Id. at 657-58. In this case, in some of the months in question, the arrearages were just $23.33 per month.
Id. at 659. Nevertheless, the appeals court ultimately found that the husband had notice of the fact that there were arrearages, and that he had a court ordered obligation to pay a certain amount of child support, which, taken together, were sufficient to uphold the jury’s conviction.
Id. at 660.
Again, this would appear to be a situation where, in the absence of extenuating circumstances, it would appear unlikely that prosecution would ensue. Nevertheless, it is important to keep in mind that, at least theoretically, any failure to timely pay a child support obligation could subject one to criminal prosecution.
C. Violation of a Protective Order
Seeking a protective order is an act which one does not enter into lightly in a family law case. Moreover, given the standards which an applicant must meet, a trial court will generally not enter a protective order unless it has serious concerns about the safety of the applicant and the danger posed by the opposing party. Therefore, the violation of a protective order is an action which generally will produce a more rapid response from both police and prosecutors than some other criminal offenses outlined herein. The Texas Penal Code provides:
“(a) A person commits an offense if, in violation of an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, the person knowingly or intentionally:
(1) commits family violence or an act in furtherance of an offense under Section 42.072;
(2) communicates:
(A) directly with a protected individual or a member of the family or household in a threatening or harassing manner;
(B) a threat through any person to a protected individual or a member of the family or household; and
(C) in any manner with the protected individual or a member of the family or household except through the person’s attorney or a person appointed by the court, if the order prohibits any communication with a protected individual or a member of the family or household;
(3) goes to or near any of the following places as specifically described in the order:
(A) the residence or place of employment or business of a protected individual or a member of the family or household; or
(B) any child care facility, residence, or school where a child protected by the order normally resides or attends; or
(4) possesses a firearm.”
Tex. Pen. Code § 25.07(a).
Violation of the statute is a Class A misdemeanor, unless the defendant has been convicted of violating a protective order two or more times, or violated the protective order by committing an assault or “stalking”, in which case the offense is a third degree felony. Tex. Pen. Code § 25.07(g).
Again, one of the important issues to note is that a party subject to a protective order cannot, under any circumstances, possess a firearm. Once a protective order is issued, the family law practitioner has a duty to ensure that her client does not own any firearms, or if they do, that they are turned over to some other party for safekeeping until the protective order expires.
Moreover, a restriction against going “to or near” the applicant’s residence or place of business is one which a party subject to a protective order does not always understand is absolute, absent a specific exception contained in the order. A protective order, for example, which forbids someone from going to a party’s residence, but which then provides that the individual may go to the residence for a specified purpose (i.e., picking up a child), is considered to be enforceable, and not inherently contradictory.
Collins v. State, 955 S.W.2d 464, 467 (Tex. App. – Fort Worth 1997, no pet.).
Finally, it should be pointed out that the party protected by a protective order does not subject himself to criminal liability by violating the protective order himself. Tex. Pen. Code § 25.07(e). Additionally, agreements between the parties to ignore or disregard the protective order, in whole or in part, does not alter the enforceability of the order. Tex. Pen. Code § 25.07(d). Thus, if you represent a client who informs you that his spouse has agreed to drop the protective order, you must get that protective order dissolved before you allow your client to take any action which would be in violation of that order.
VI. Crimes Within the Judicial Process
A. Bribery and Improper Gifts
Bribing, or attempting to bribe, a judge, whether done by an attorney or a client, is not only unethical behavior; it is also criminal behavior. Under Texas law:
“(a) A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another:
(1) any benefit as consideration for the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter;
(2) any benefit as consideration for the recipient’s decision, vote, recommendation, or other exercise of official discretion in a judicial or administrative proceeding;
(3) any benefit as consideration for a violation of a duty imposed by law on a public servant or party official; or
(4) any benefit that is a political contribution as defined by Title 15, Election Code, or that is an expenditure made and reported in accordance with Chapter 305, Government Code, if the benefit was offered, conferred, solicited, accepted, or agreed to pursuant to an express agreement to take or withhold a specific exercise of official discretion if such exercise of official discretion would not have been taken or withheld but for the benefit; notwithstanding any rule of evidence or jury instruction allowing factual inferences in the absence of certain evidence, direct evidence of the express agreement shall be required in any prosecution under this subdivision.”
Tex. Pen. Code § 36.02(a).
An offense under this section of the penal code is a second degree felony. Tex. Pen. Code § 36.02(e).
Bribery is something which most people know is inappropriate; however, even more subtle attempts at influence which fall short of out-and-out bribery can still be subject to criminal prosecution under the penal code. The applicable statute states:
“(a) A person commits an offense if he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law.”
Tex. Pen. Code § 36.04(a).
An offense under this code section is a class A misdemeanor. Tex. Pen. Code § 36.04(c).
While prosecutions under this statute are rare, they do occasionally occur. See, e.g.,
City of Stephenville v. Texas Parks & Wildlife Dep’t, 940 S.W.2d 667, 671 (Tex. App. – Austin 1996, no pet.). Most often, it would seem that prosecutions brought under § 36.04 are brought in conjunction with an action under § 36.02, as a fallback position in case the higher standard under § 36.02 cannot be met at trial.
While it is hoped that bribery or attempts to influence the judiciary are rare, more common among family law attorneys is the giving of gifts, at holidays or at other times, to Judges or their staff. While the sentiment behind such gifts is almost always pure, it nonetheless can subject the giver to criminal sanctions. The relevant Texas Penal Code section relating to gifts to judges states:
“(a) A person commits an offense if he offers, confers, or agrees to confer any benefit on a public servant that he knows the public servant is prohibited by law from accepting.”
Tex. Pen. Code § 36.09(a).
Such an infraction is a Class A misdemeanor. Tex. Pen. Code § 36.09(b).
Since a judge is prohibited from accepting a gift from a person who is interested in, or is likely to become interested in, any matter in that Judge’s court, Tex. Pen. Code § 36.08(e), attorneys face potential criminal charges if they give any sort of gift to a Judge. While § 36.10 does provide for a few exceptions to § 36.08, including campaign contributions and non-cash gifts with a value of less than $50, this nonetheless is a little-known pitfall that could result in an attorney inadvertently facing criminal charges over what he perceived to be an innocent Christmas gift.
B. Witness Tampering
Either an attorney or his client can be subject to criminal charges if they improperly influence a witness in a proceeding. The Texas Penal Code states:
“(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:
(1) to testify falsely;
(2) to withhold any testimony, information, document, or thing;
(3) to elude legal process summoning him to testify or supply evidence;
(4) to absent himself from an official proceeding to which he has been legally summoned; or
(5) to abstain from, discontinue, or delay the prosecution of another.”
Tex. Pen. Code § 36.05(a).
A conviction under this statute is a state jail felony. Tex. Pen. Code § 36.05(d).
It is important to note that this does not include just “paying off” a witness. The statute also prohibits the use of coercion against a witness. Thus, a family law attorney who, for instance, suggests to a witness that a client will lose custody of his child if the witness does not testify the way that the attorney wants could be subject to criminal prosecution under this statute. Frightening a witness to the extent that he refuses to testify also can lead to criminal prosecution under this statute.
Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App. – 1999).
C. Evidence Tampering
An attorney or a party who tampers with evidence to a civil proceeding can also be subject to criminal prosecution. The relevant code section states:
“(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; or
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.”
Tex. Pen. Code § 37.09(a).
A violation of this statute is a third degree felony. Tex. Pen. Code § 37.09(c). Documents subject to a privilege claim are exempt from this rule, however. Tex. Pen. Code § 37.09(b).
While most people inherently know it is wrong to do any of the things described in the above passage, most people do not realize that taking such action can subject the actor to a felony charge. Given the existence of the statute, the attorney has a duty to explain to the client that not only must all evidence be turned over, but that, should the client destroy relevant evidence, he could be subject to criminal prosecution.
D. Perjury
As the tribulations of William Jefferson Clinton made clear, lying about something as seemingly trivial as an affair can lead to perjury charges. In the family law context, perjury charges are rare, but they can arise. Perjury is defined as follows:
“(a) A person commits an offense if, with intent to deceive and with knowledge of the statement’s meaning:
(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or
(2) he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.”
Tex. Pen. Code § 37.02(a).
For simple perjury, materiality is irrelevant; an individual can be found guilty of perjury regardless of whether the false sworn statement was in regards to a material issue in the case.
Vaughn v. Texas Employment Commission, 792 S.W.2d 139, 143-44 (Tex. App. – Houston [1st Dist.] 1990, no writ). Simple perjury is a Class A misdemeanor.
Aggravated perjury is more serious. Aggravated perjury occurs when a party makes a statement defined as perjury under § 37.02(a) in an official proceeding regarding a material fact or issue. Tex. Pen. Code § 37.03(a). A statement is deemed to be material, regardless of admissibility, if it could have affected the course or outcome of the official proceeding. Tex. Pen. Code § 37.04(a). A belief that a statement is immaterial is not a valid defense to an aggravated perjury charge. Tex. Pen. Code § 37.04(b). Aggravated perjury is a third degree felony. Tex. Pen. Code § 37.03(b).
Perjury charges are rarely brought in conjunction with family law cases, but they do occasionally occur. See, e.g.,
Mayes v. Stewart, 11 S.W.3d 440, 446 & n.1 (Tex. App. – Houston [14th Dist.] 2000, pet. denied);
Hutcheson v. State, 980 S.W.2d 237, 237-38 (Tex. App. – Eastland 1998, pet ref’d). The family law practitioner should ensure that the client understands what perjury is and the penalties for perjury.
VII. Conclusion
While some attorneys do handle both criminal and family law cases, most family law practitioners generally deal with criminal law only on those rare occasions when it arises in the context of a family law case. We hope that, by outlining the criminal statutes which would be most likely to arise in the family law setting, this paper is a useful guide in providing the family law practitioner with the information necessary to make sure that both
practitioner and client are protected.
Lynn Kamin graduated from South Texas College of Law in 1988, after obtaining a Masters at San Francisco State University, University of California, Berkley in 1975. She has been in the practice of family law since that time, is Board Certified in Family Law, a Fellow of the American Academy of Matrimonial Lawyers and the Texas Academy of Family Law Specialists. She served on the Houston Bar Association – Family Law Section Board of directors for many years, and was the first family law attorney named to Chair the Houston Bar Foundation. Lynn has been with the Houston law firm of Short & Jenkins,
(now Short • Jenkins • Kamin, L.L.P.) for 15 years.
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