T. Edwin Walker, an attorney at the law firm of Walker & Byington, explains how gun owners can get into Federal trouble if they’re covered by a protective order and even inadvertently possess a firearm.
How does Texas family law affect your gun rights? Family cases are tough emotional legal controversies that sadly have become a part of too many American’s lives. But did you know that there’s a standardized boilerplate Texas temporary restraining order that can turn lawful gun owners into federal felons?
Most people know that a proven allegation of family violence that results in either a protective order or a criminal conviction or result in the loss of somebody’s gun rights and if they’re a license holder will result in the loss of their license to carry a handgun. Both Texas and Federal law prohibit someone who’s been convicted of a misdemeanor or felony crime of family violence or they are the subject of a protective order from possessing a firearm. Most people would agree that this is a reasonable prohibition after a person so accused has had their day in court.
However, what you probably did not know is that in almost all divorce cases, a Texas court will issue what is commonly known as the standard temporary restraining order. This order will tell the parties not to fight with each other, hide the children from one another, destroy marital property, spend marital funds, open each other’s mail, disconnect the household utilities, et cetera. Basically it’s the court’s way of telling the parties to behave like adults and act with common sense. However, the first five provisions of this order direct the parties not to harass, stalk, injure or be violent to the other person.
While this may seem reasonable, the courts will usually order it in all cases, including cases where there has been no allegation of family violence by or against either party, nor has there been any evidence presented that there was ever family violence in the relationship. In fact, there may be a situation where two lawful gun owners are getting a very amicable divorce, but a family court goes ahead and enters the standardized temporary restraining order because, quote, that’s the way we’ve always done it.
If you don’t think this can happen, it already has. In the case of United States v. Emmerson, the 5th Circuit Court of Appeals held that while acknowledging that this order is pervasive and given in cases where there has been no showing of family violence, that it is in fact an order that is designed to prevent family violence, therefore, is a lawful prohibition on firearms ownership. A word of warning to you if you find yourself unfortunate enough to be involved in a divorce. You need to find yourself a lawyer who is very familiar with the impact that the Texas Family Code has on your gun rights.