Texas Penal Code 25.071 – Violation of Protective Order Preventing Offense Caused By Bias or Prejudice

WHAT IS VIOLATION OF PROTECTIVE ORDER PREVENTING OFFENSE CAUSED BY BIAS OR PREJUDICE IN TEXAS?

Texas law permits issuing protective orders for victims of hate crimes, and creates an independent offense if a person violates the protective order preventing an offense caused by bias or prejudice.

• Texas hate crimes: What is bias or prejudice? Pursuant to Article 42.014 of the Code of Criminal Procedure, a person commits a hate crime, or a crime due to bias or prejudice, if the person intentionally selected the victim against whom the offense was committed, or the victim’s property that was damaged or affected, based on the person’s bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference or by status as a peace officer or judge.

• What are the required findings to issue a protective order prohibiting an offense motivated by bias or prejudice in Texas? Chapter 7B of Code of Criminal Procedure authorizes a court to issue a protective order under Chapter 85 of the Family Code, if the judge finds there is probable cause to believe a person committed arson, criminal mischief, or graffiti, or an offense under Title 5 of the Penal Code because of bias or prejudice, and is likely to engage in such conduct due to bias or prejudice in the future. The protective order may prohibit a person from:

• • assaulting the protected person;
  • communicating directly with the protected person, or the protected person’s family or household member;
  • communicating in a threatening or harassing manner with the protected person or the protected person’s family or household member;
  • communicating a threat through any other person to the protected person, or a member of the protected person’s family or household;
  • harming, threatening, or interfering with the protected person’s pet or companion animal;
  • going to or near the protected person’s or protected person’s family’s residence, business, place of employment, or a protected child’s school or child care facility;
  • possessing a firearm, unless the person is a peace officer.

WHAT IS THE VIOLATION OF PROTECTIVE ORDER PREVENTING OFFENSE CAUSED BY BIAS OR PREJUDICE LAW IN TEXAS?

Tex. Penal Code § 25.071. VIOLATION OF PROTECTIVE ORDER PREVENTING OFFENSE CAUSED BY BIAS OR PREJUDICE.

(a) A person commits an offense if, in violation of an order issued under Subchapter C, Chapter 7B, Code of Criminal Procedure (“Protective Orders”), the person knowingly or intentionally:

(1) commits an offense under Title 5 or Section 28.02, 28.03, or 28.08 and commits the offense because of bias or prejudice as described by Article 42.014, Code of Criminal Procedure;

(2) communicates:

(A) directly with a protected individual in a threatening or harassing manner;

(B) a threat through any person to a protected individual; or

(C) in any manner with the protected individual, if the order prohibits any communication with a protected individual; or

(3) goes to or near the residence or place of employment or business of a protected individual.

(b) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections.

(c) A peace officer investigating conduct that may constitute an offense under this section for a violation of an order may not arrest a person protected by that order for a violation of that order.

(d) An offense under this section is a Class A misdemeanor unless it is shown on the trial of the offense that the defendant has previously been convicted under this section two or more times or has violated the protective order by committing an assault, in which event the offense is a third degree felony.

WHAT IS THE PENALTY CLASS FOR VIOLATION OF PROTECTIVE ORDER PREVENTING OFFENSE CAUSED BY BIAS OR PREJUDICE IN TEXAS?

Violation of a protective order preventing an offense caused by bias or prejudice, by default, is a Class A misdemeanor, punishable by up to one year in county jail.

The offense becomes a third degree felony, punishable by two to ten years in prison, if a person:

• violates the order by committing assault; or
• has been previously convicted two or more times of violating a protective order preventing an offense caused by bias or prejudice.

Texas Penal Code Section 12.47 enhances a third degree felony to a second degree felony, punishable by two to 20 years in prison, if a judge makes an affirmative finding under Article 42.014 of the Code of Criminal Procedure that the offense was committed because of the person’s bias or prejudice against the victim or victim’s property. If the affirmative finding is made for a Class A misdemeanor, the minimum jail time is 180 days.

WHAT IS THE PUNISHMENT RANGE FOR VIOLATION OF PROTECTIVE ORDER PREVENTING OFFENSE CAUSED BY BIAS OR PREJUDICE IN TEXAS?

The punishment range for violation of a protective order preventing an offense caused by bias or prejudice charged as a Class A misdemeanor is up to one year in jail, and a maximum $4,000 fine. Upon an affirmative finding of bias or prejudice, the punishment range becomes 180 days to one year in jail.

If the violation of a protective order preventing an offense caused by bias or prejudice is charged as a third degree felony, the punishment range is two to ten years in prison, and a maximum fine of $10,000. If enhanced to a second degree felony after an affirmative finding that the offense was committed because of bias or prejudice, the punishment range is two to 20 years in prison, and a maximum fine of $10,000.

WHAT ARE THE PENALTIES FOR VIOLATION OF PROTECTIVE ORDER PREVENTING OFFENSE CAUSED BY BIAS OR PREJUDICE IN TEXAS?

A person charged with violation of a protective order preventing an offense caused by bias or prejudice may be eligible for probation after a conviction, or deferred adjudication without a conviction. If charged with a Class A misdemeanor, the period of community supervision may not exceed two years. Community supervision for a second degree or third degree felony may not exceed ten years.

Pursuant to Texas Code of Criminal Procedure article 42A.501, a person is not eligible for community supervision if the person has been previously convicted of an offense committed because of bias or prejudice.

WHAT ARE THE DEFENSES TO VIOLATION OF PROTECTIVE ORDER PREVENTING OFFENSE CAUSED BY BIAS OR PREJUDICE IN TEXAS?

The statute does not authorize specific defenses to violation of a protective order preventing an offense caused by bias or prejudice. A person accused thereof may attempt to negate one of the elements the State must prove at trial.

• What if the accused did not read or get a copy of the protective order? Only a temporary ex parte protective order issued under Texas Family Code Section 83.001 must be served on a person before he can be accused of violating it. Otherwise, a person must only be served with a copy of the application for a protective order, and given notice of the hearing. If the person violates the protective order after it is issued, and has been served with the application and hearing notice, he cannot then claim lack of notice or knowledge. See Harvey v. State, 78 S.W.3d 368 (Tex. Crim. App. 2002).

WHAT IS THE STATUTE OF LIMITATIONS FOR VIOLATION OF PROTECTIVE ORDER PREVENTING OFFENSE CAUSED BY BIAS OR PREJUDICE IN TEXAS?

The limitation period for violating a protective order preventing an offense caused by bias or prejudice categorized as a Class A misdemeanor is two years. If it is a third degree felony, the limitation period is three years.

VIOLATION OF PROTECTIVE ORDER PREVENTING OFFENSE CAUSED BY BIAS OR PREJUDICE IN TEXAS

Texas law prohibits violating a protective order preventing an offense caused by bias or prejudice, whether by communicating with the protected person, or going near a protected location. The Legislature created this law in response to the rise in hate crimes in order to punish purposeful targeting of people based on race, religion, color, national origin, gender, or sexual preference.