R. M. v. Michael Swearingen

Citations: 510 S.W.3d 630; 2016 Tex. App. LEXIS 8466; 2016 WL 4153596Docket: 08-15-00359-CV

Court: Court of Appeals of Texas; August 5, 2016; Texas; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

R.M. appealed the trial court's decision to terminate her protective order against Michael Swearingen, which had been issued on August 4, 2014, based on allegations of family violence and sexual assault. The trial court had determined there were reasonable grounds for the order, noting the likelihood of future violence. Swearingen, who complied with the order, filed a motion to terminate it one year later, citing an administrative investigation by his employer, the U.S. Border Patrol, as a barrier to transferring offices. He argued that lifting the order could help resolve the investigation, although he acknowledged that it might not end it.

During the hearing, R.M. expressed her anxiety about the potential for Swearingen to be near her if the order were lifted, stating it made her feel nervous and scared. She indicated that she would feel safer if Swearingen were not in town. The trial court expressed concern about the appropriateness of a ten-year protective order, suggesting that shorter durations are more typical and that living in a small town increases the risk of encountering each other. Ultimately, the court decided to lift the protective order, leading to R.M.'s appeal. The Court of Appeals reversed the trial court's decision and reinstated the protective order.

Mr. Swearingen was informed that the protective order currently in effect for 14 months will be lifted, as the trial court determined there was no ongoing need for it. He was cautioned to contact his attorney if he feels unsafe in the future. The appellate court will address the interpretation of the recently amended procedures surrounding protective orders related to sexual assault and family violence. The key legal frameworks involve the Texas Family Code and the Texas Code of Criminal Procedure. Under the Family Code, a protective order is warranted if family violence is found to have occurred and is likely to recur, with a maximum duration of two years unless specific conditions are met. Conversely, the Code of Criminal Procedure allows for protective orders without a prior relationship requirement between victim and assailant for certain crimes, with no additional evidence needed beyond victim status. These protective orders can last for the lifetimes of the offender and victim unless specified otherwise. The criteria for rescinding orders differ between the two legal frameworks.

The Family Code permits either the applicant or the individual subject to a protective order to request a court reconsideration of the order's necessity after one year. In contrast, under the Code of Criminal Procedure, protective orders related to sexual assault can only be rescinded at the victim's request, which can be made at any time. The protective order provisions in both codes should be interpreted together, but the Code of Criminal Procedure explicitly allows only the victim to file for rescindment, omitting any mention of the offender's right to challenge the order. 

Previously, victims were required to demonstrate a reasonable fear of further harm to obtain a protective order; however, this requirement was removed in 2011 to better support victims fearing ongoing emotional abuse. The legislative intent aimed to simplify the process by allowing victims to seek protective orders without proving a threat of future harm. The inclusion of only victims in the rescindment process shows the Legislature’s intention to prevent offenders from challenging such orders. 

In this case, the trial court mistakenly entertained the offender's request to modify the protective order, which was issued under both the Family Code and the Code of Criminal Procedure. Since the latter's provisions take precedence and only allow victims to seek rescindment, the offender lacked standing to challenge the order. Consequently, the trial court's ruling is reversed, and the protective order is reinstated, as the issue regarding the order's continuing need is deemed unnecessary to address.