Can a Texas judge order police to escort a domestic violence offender back home to get belongings?

Plain-English summary

A state senator asked the Attorney General to clarify an earlier opinion, JC-0112, about family-violence protective orders. The two questions were whether a judge may write into a protective order a provision letting the perpetrator return to the shared family home, escorted by a police officer, to collect personal property, and ordering the police to provide that escort; and, if so, whether article 5.045 of the Code of Criminal Procedure would shield the officer from civil liability for doing it.

On the first question, the Attorney General concluded that neither article 17.292 of the Code of Criminal Procedure nor chapter 85 of the Family Code explicitly permits or specifically prohibits such a provision. Because the statutes are silent, whether to include it falls within the judge's discretion. The opinion noted that a court can instead award the perpetrator's personal effects, papers, license, medication, tools of trade, and vehicle by ordering the protected person to hand those items to a neutral third party, which would seem to make a supervised in-person appearance at the victim's home unnecessary. But the office does not find facts, so it could not judge the wisdom or necessity of such a provision in any given case.

On the second question, the Attorney General concluded that article 5.045 does not apply. That statute was meant to reassure officers who accompany victims to the home so the victim can remove property safely; it immunizes an officer who stays with a victim to let the victim retrieve property and get to safety. As JC-0112 had already held, escorting a perpetrator back to the shared residence, whether or not it violates a protective order, is not the standby assistance article 5.045 contemplates. The opinion added that an officer might still raise official immunity (state claims) or qualified immunity (federal claims), but only if the act complained of was discretionary rather than ministerial and was done in good faith within the officer's authority, all of which turn on fact questions the office cannot resolve.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Judges issuing protective orders (what the opinion held for them): The opinion held that the protective-order statutes neither authorize nor forbid an escort-the-perpetrator provision, so the choice to include one rested in the judge's discretion. It pointed to the neutral-third-party handoff of belongings as an alternative that would seem to avoid an in-person return.

Police officers asked to provide the escort (what the opinion held for them): The opinion held that article 5.045 gave them no immunity for escorting a perpetrator to the home, because that is not the victim-standby situation the statute covers. Whether official or qualified immunity might apply depended on whether the act was discretionary and done in good faith, which the office could not decide.

Domestic-violence victims and the perpetrators subject to orders (what the opinion held for them): The opinion described the statutory backdrop without resolving any individual case; it confirmed that a protective order can route the perpetrator's belongings through a neutral third party rather than a return visit.

Common questions

Can a Texas judge order police to take a domestic-violence offender back to the home for their things?
The opinion concluded the statutes are silent, so the judge has discretion to include or omit such a provision. It is neither required nor prohibited.

Is there a way to return the offender's belongings without sending them back to the house?
Yes. The opinion noted that a court can award the offender's personal effects, papers, license, medication, tools of trade, and vehicle and order the protected person to deliver those items to a neutral third party for pickup.

If an officer provides that escort, does article 5.045 protect the officer from being sued?
No. The opinion concluded article 5.045 covers staying with a victim during property retrieval, not escorting a perpetrator to the home, so it does not immunize the officer for that act.

Could the officer still claim some other immunity?
Possibly. The opinion explained that official immunity (state law) and qualified immunity (federal law) can apply only to discretionary acts performed in good faith within the officer's authority, and whether those elements are met is a fact question the office could not answer.

Background and statutory framework

The request asked the office to clarify JC-0112 (1999), which had held that article 5.045 protects officers who provide "civil standby" assistance to victims retrieving property but does not protect an officer who escorts a perpetrator of family violence back to the shared residence. JC-0289 took the two follow-up questions in turn.

On the judge's authority, the opinion observed that article 17.292 of the Code of Criminal Procedure and chapter 85 of the Family Code are silent on whether a protective order may direct such an escort, neither permitting nor prohibiting it. Treating the matter as committed to judicial discretion, the opinion quoted the definition of discretion in Tuck v. State, 231 S.W.2d 436, 442 (Crim. App. 1950), and reiterated that the office does not resolve fact questions (citing JC-0020 (1999), M-187 (1968), and O-2911 (1940)).

On immunity, the opinion quoted article 5.045's text immunizing an officer who stays with a victim to allow removal of property to safety, and concluded its language and legislative history (detailed in JC-0112) do not reach an officer bringing a batterer to the home. Turning to the suggested fallback defenses, it set out official immunity under Travis v. City of Mesquite, 830 S.W.2d 94, 102 (Tex. 1992), and qualified immunity under Streetman v. Jordan, 918 F.2d 555, 556 (5th Cir. 1990) (quoted in City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)). Both defenses require a discretionary, not ministerial, act (Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994); Chambers, 883 S.W.2d at 654). The opinion noted the split over whether executing an arrest warrant is ministerial (Copeland v. Boone, 866 S.W.2d 55, 57 (Tex. App.—San Antonio 1993, writ dism'd w.o.j.); City of San Antonio v. Duncan, 936 S.W.2d 63, 66 (Tex. App.—San Antonio 1996, writ dism'd w.o.j.)) or may involve enough discretion to qualify (Davis v. Klevenhagen, 971 S.W.2d 111, 116-18 n.10 (Tex. App.—Houston [14th Dist.] 1998, no pet.)), and observed that any tort claim would likely target a negligent or intentional act connected to carrying out the order, not the bare act of following it. Whether the defense is available in a given case requires good-faith and scope-of-authority findings the office cannot make.

Citations

Statutory provisions:

• Tex. Code Crim. Proc. Ann. art. 5.045 (Vernon Supp. 2000); art. 17.292
• Tex. Fam. Code ch. 85

Cases and prior opinions:

• Tuck v. State, 231 S.W.2d 436 (Crim. App. 1950)
• Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992)
• Streetman v. Jordan, 918 F.2d 555 (5th Cir. 1990)
• City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1994)
• Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994)
• Copeland v. Boone, 866 S.W.2d 55 (Tex. App.—San Antonio 1993, writ dism'd w.o.j.)
• City of San Antonio v. Duncan, 936 S.W.2d 63 (Tex. App.—San Antonio 1996, writ dism'd w.o.j.)
• Davis v. Klevenhagen, 971 S.W.2d 111 (Tex. App.—Houston [14th Dist.] 1998, no pet.)
• Tex. Att'y Gen. Op. No. JC-0112 (1999); see also JC-0020 (1999), M-187 (1968), O-2911 (1940)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0289
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0289.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

October 3, 2000

The Honorable Florence Shapiro
Chair, State Affairs Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. JC-0289

Re: Whether a protective order may permit a perpetrator of family violence to collect his personal property from the residence he shared with his victim: Clarification of Attorney General Opinion JC-0112 (1999) (RQ-0231-JC)

Dear Senator Shapiro:

You have asked this office two questions relating to the statutes considered in Attorney General Opinion JC-0112. That opinion considered whether article 5.045 of the Code of Criminal Procedure protected law enforcement personnel who accompanied victims of domestic violence to their residences to obtain personal property from liability for claims arising from this so-called "civil standby." It concluded that article 5.045 did provide such protection from liability, and that it was specifically intended to do so. See Tex. Att'y Gen. Op. No. JC-0112 (1999) at 1. On the other hand, however, it concluded that article 5.045 would not provide immunity to a police officer who brought a perpetrator of family violence back to the family residence: "An escort of a perpetrator of family violence to the residence shared with the victim, whether or not it violates the terms of a protective order, is not the provision of standby assistance contemplated by article 5.045 of the Code of Criminal Procedure." Id. at 6 (emphasis added).

In light of Attorney General Opinion JC-0112, you ask first whether a judge may include in a domestic violence protective order a provision permitting the perpetrator to go to the family residence accompanied by a police officer to pick up personal property, and ordering the police to provide the perpetrator with such an escort; and second, "if so, whether Article 5.045 of the Texas Code of Criminal Procedure will protect the peace officer from civil liability in connection with such assistance."[1]

As to your first question, we note, as do you, that "Article 17.292 of the Texas Code of Criminal Procedure and Chapter 85 of the Family Code are silent as to whether the [c]ourt may include [such] a provision" as you enquire about. Request Letter, note 1, at 2. These provisions neither explicitly permit, nor specifically prohibit, the inclusion of such a provision. We note further that it is possible, as in the sample protective order you provided with your request, for the court to award the perpetrator his or her "personal effects, personal papers, driver's license, prescription medication, tools of trade, and vehicle which Respondent customarily drives," and to order "the protected person . . . to deliver these items or make same available to a neutral third party for retrieval by Respondent." See id. (Attachment: Court Order for Emergency Protection). Such a provision would seem to obviate the necessity for the supervised appearance of the perpetrator at the victim's home. However, particularly given that the statutes are silent, we think that this decision is committed to the discretion of the judge, which has been defined as "[t]he option a judge has in deciding between the doing or not doing of a thing which cannot be demanded as an absolute right." Tuck v. State, 231 S.W.2d 436, 442 (Crim. App. 1950). Moreover, this office does not find facts in the opinion process, and cannot therefore determine the wisdom or the necessity of such a provision as that about which you inquire in any particular instance.[2]

However, article 5.045 does not apply in the situation you describe. As Attorney General Opinion JC-0112 pointed out, the concern that statute was intended to address was the apparent fear of certain law enforcement officers and agencies that, should the officers accompany victims of domestic violence to the family home, they might expose themselves to liability. Tex. Att'y Gen. Op. JC-0112 (1999) at 2, citing Report of Senate Interim Committee on Domestic Violence. The specific language of the statute immunizes a police officer who "stay[s] with a victim of family violence to protect the victim and allow the victim to take the personal property of the victim or of a child in the care of the victim to a place of safety in an orderly manner." TEX. CODE CRIM. PROC. ANN. art. 5.045 (Vernon Supp. 2000) (emphasis added). Neither the language nor the legislative history of the statute, which Attorney General Opinion JC-0112 details at some length, see Tex. Att'y Gen. Op. No. JC-0112 (1999) at 2-4, suggests that the statute would protect a police officer bringing a batterer to the family home. Indeed, this office there concluded that, "An escort of a perpetrator of family violence to the residence shared with the victim, whether or not it violates the terms of a protective order, is not the provision of standby assistance contemplated by article 5.045 of the Code of Criminal Procedure." Id. at 6. Accordingly, police officers who engage in such an escort may not rely upon the protection of article 5.045.

You suggest that, even so, "peace officers in defense of any claims [based on an escort of a perpetrator ordered by a judge as a term of a protective order] could still reasonably rely upon the defense of official immunity for state law claims and qualified immunity for any federal claims." Request Letter, supra note 1, at 2. The doctrine of official immunity under Texas law has been described as follows: "When a government employee carries out the discretionary duties of his job in good faith and acts within the scope of his authority, the employee is entitled to official immunity from suit." Travis v. City of Mesquite, 830 S.W.2d 94, 102 (Tex. 1992) (Cornyn, J., concurring). Similarly, the United States Court of Appeals for the Fifth Circuit has written of the federal defense of qualified immunity, "Qualified immunity cloaks a police officer from personal liability for discretionary acts which do not violate well-established law." Streetman v. Jordan, 918 F.2d 555, 556 (5th Cir. 1990) quoted in City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994). Whether particular acts were taken in good faith is a question of fact, and accordingly this office cannot determine the applicability of these immunity doctrines in any given instance.

We note, however, that the act for which the defenses may be plead must be characterizable as discretionary. "Ordinarily, official immunity extends to any action or decision by a [public] employee that is 'discretionary.' Discretionary functions receive protection, but ministerial duties do not." Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994). "Under federal law, the act in question must be discretionary as a prerequisite to an extension of qualified immunity." Chambers, 883 S.W.2d at 654. A discretionary function "involves personal deliberation, decision and judgment . . . ; actions which require obedience to orders, or the performance of a duty to which the actor has no choice, are ministerial." Id.

One court of appeals has held that the execution of an arrest warrant, for instance, is a ministerial act for which a deputy sheriff is not entitled to the defense of official immunity. Copeland v. Boone, 866 S.W.2d 55, 57 (Tex. App.—San Antonio 1993, writ dism'd w.o.j.); see also City of San Antonio v. Duncan, 936 S.W.2d 63, 66 (Tex. App.—San Antonio 1996, writ dism'd w.o.j.). On the other hand, another court of appeals has taken the view that the manner in which an arrest warrant is executed may involve sufficient discretion on the officer's part for the defense to be available. See Davis v. Klevenhagen, 971 S.W.2d 111, 116-18 n.10 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (distinguishing Copeland). "The distinction between these two categories is often one of degree, since any official act that is ministerial will still require the actor to use some discretion in its performance." Id. at 117. Moreover, it would appear unlikely that the injury to be plead in any tort action based upon such an escort would be the mere following by the officer of the court's directive. Rather, the injury would presumably be some allegedly negligent or intentionally tortious act or omission by the officer that was somehow connected with the carrying out of the order.

To recapitulate, if the acts of a law enforcement officer complained of in a civil action cannot be characterized as discretionary, the officer will not be entitled to the immunity defense. See Kassen, 887 S.W.2d at 9. However, if such acts can be so characterized, and in addition were within the scope of his authority and performed in good faith, he will be so entitled. See Travis, 830 S.W.2d at 102-03 (detailing elements of official immunity defense). We note again that judging whether the defense is available in any particular instance would require factual determinations we cannot make. See note 2, supra.

SUMMARY

Neither the domestic violence protective order sections of the Family Code or of the Code of Criminal Procedure explicitly permit, or specifically prohibit, a judge to include in such an order a provision requiring a police officer to escort a perpetrator of domestic violence to the family home to retrieve personal property. Article 5.045 of the Code of Criminal Procedure is not by its terms applicable in such a situation, and accordingly does not provide immunity from liability for a police officer providing such an escort.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee

[1] Letter from Honorable Florence Shapiro, Chair, State Affairs Committee, to Elizabeth Robinson, Chair, Opinion Committee (May 9, 2000) (on file with Opinion Committee) [hereinafter Request Letter].

[2] See, e.g., Tex. Att'y Gen. Op. Nos. JC-0020 (1999) at 2 (stating that investigation and resolution of fact questions cannot be done in opinion process); M-187 (1968) at 3 ("[T]his office is without authority to make factual determinations."); O-2911 (1940) at 2 ("[T]his presents a fact question which we are unable to answer.").