2023 Legislative Update

Restricting Marital Spying

In our blog titled “Think Before You Spy,” we outlined the concerns and potential dangers found in the Texas Penal Code of tracking your spouse’s motor vehicle using a tracking device without their consent. Those concerns remain true today and will now be more directly prohibited by Texas family courts through the enactment of Section 6.501(a)(27) of the Texas Family Code.

Beginning on September 1, 2023, after a party files a suit for the dissolution of the marriage, the Court may grant a temporary restraining order and include an order prohibiting one or both of the parties from “tracking or monitoring personal property or a motor vehicle” in a party’s possession without that same party’s “effective consent.” As seen in “Think Before You Spy,” the ability to track another person has never been easier. An order under Section 6.501(a)(27) prohibits:

• using a tracking application on the other party’s personal electronic device (think, as a possible example, Find My iPhone for your opposing party spouse);
• using a tracking device to follow that person (such as installing an AirTag on their person, property, or vehicle, even if the property is in your name too); and
• physically following that party or causing another to physically follow that party (having a friend secretly go to a restaurant where your spouse eats or hiring a private investigator to follow your spouse’s movements).

The extent of the application of this temporary order is unclear at this point and will likely cause significant debate within the legal community. Traditional ways of serving parties or gathering evidence about a party’s misdeeds will become more difficult with the addition of an order under Section 6.501(a)(27) of the Texas Family Code. Once again, work with your attorney to consider all restrictions on your activity before you spy on your spouse and harm your case.

One Violent Act Is All It Takes

The issuance of a protective order against a party attaches a host of requirements and limitations upon that party, including attending battering intervention and prevention programs, restrictions upon that party’s ability to go near the residence or workplace of the protected adult and the residence or schoolhouse of the protected child, and, beginning on September 1, 2023, restrictions against the tracking or monitoring of personal property or a motor vehicle of the protected person as discussed above. A person accused of committing family violence wants to avoid a finding of family violence due to possible future repercussions.

Chapter 81 of the Texas Family Code allows parties to apply for and obtain protective orders against violent family members. To obtain a protective order under Section 81.001 of the Texas Family Code, Texas law requires evidence of the occurrence of physical or sexual violence against a member of the family or household, or the threat of such violence which reasonably places that family or household member in fear of imminent harm. In addition, to succeed on an application for a protective order, Texas law previously required that family violence was likely to occur in the future. In 2023, the Texas Legislature eliminated the requirement that family violence be likely to occur in the future.

The elimination of the requirement to find that future occurrences of family violence will be likely increase the chances of succeeding on a protective order application. The change in the legal requirements also will shift your counsel’s strategy from whether violence will occur in the future to whether it occurred now as defined under Section 71.004 of the Texas Family Code. Honesty and candor with your legal counsel will assist in achieving your goals whether you are requesting a protective order or defending against the issuance of one.

Speeding Up The Legal Process

Lastly for this legislative update blog, the Texas Legislature considered reforms to address the logjam of cases filling up courts’ dockets across the state. Especially in the Houston area, the disasters of Hurricane Harvey and the COVID-19 pandemic continue to devastate courts in the surrounding area and cause substantial backup in each court’s case load. Two recent bills attempt to speed up the legal processes and provide relief for litigants stuck in the legal conveyer belt.

The first change addresses the scheduling of temporary orders hearings and required mediations beforehand. The Texas Family Code permits courts to order parties to mediate before entertaining a temporary orders hearing. Often, litigants seek a temporary orders hearing as soon as possible and arrive at court without having completed the local mediation requirement. Under Section 105.001(a-1) of the Texas Family Code, the Texas Family Code now requires courts to reschedule the temporary orders hearing no later than 30 days after the initial setting. Hopefully, this rescheduling requirement will provide litigants with relief sooner rather than later while still incentivizing mediation before a temporary orders hearing.

The second reform enacted to address stagnation in the courts is Sections 72.024 and 72.083 of the Government Code. Needless to say, faith in governmental officials is at a low point in American society. Under Section 72.024(b-1), the State will be developing “standards for identifying courts that need additional assistance to promote the efficient administration of justice.” Provision of assistance to promote an efficient judiciary will be useful for litigants seeking a quick divorce or other relief of their case. Section 72.083(b) orders the creation of an annual report assessing the performance measures for each district or county court, including clearance rate, average time from case filing to disposition, and the age of the court’s active pending caseload. This report will be published annually specifically naming each court. The State’s overseeing of each court’s caseload and efficiency will likely incentivize courts to dispose of cases based on age alone, whether those cases should be disposed of or not. While speed may assist litigants obtain timely relief, an obsession over efficiency may result in a negative correction and lead to unnecessary dismissal of cases still in need of relief. In the pursuit of efficiency, costs may rise for patient or forgetful litigants.

Conclusion

The changes outlined in this blog represent a few of a host of other changes made in Austin to the Texas Family Code and the practice of family law in Texas. The Texas Family Law Foundation The Law Office of Sam M. (Trey) Yates, III, P.C., remains updated and informed with legislative reforms and follows practice-changing opinions rendered by the Texas Supreme Court and the 14 appellate courts across the state. No matter who you choose for representation in your divorce or child-related legal matter, be sure to choose someone curious and knowledgeable about these and many other updates to the wild west of Texas family law.