Introduction

In the realm of domestic violence and stalking, abusers often resort to tracking and monitoring their victims' movements as a means of harassment and intimidation. To address this issue and strengthen existing laws surrounding protective orders and temporary restraining orders in dissolution of marriage suits, the Texas Legislature passed HB 2715. This legislation prohibits the tracking or monitoring an individual's personal property or motor vehicle without their effective consent.

Summary

Effective September 1, 2023, House Bill 2715 brings amendments to the Code of Criminal Procedure and Family Code. It empowers courts to prohibit individuals under emergency protection orders, temporary restraining orders, or protective orders from tracking or monitoring personal property or a motor vehicle without effective consent. The bill also enables magistrates to impose such prohibitions as conditions of release on bond for defendants charged with family violence offenses.

HB 2715 outlines specific conduct constituting harassment, including tracking or monitoring personal property or a motor vehicle without effective consent. This encompasses various methods, such as using tracking applications or physically following (or causing another to follow) the individual without consent. 

Notably, the legislation presumes a lack of consent if protective orders have been filed against the actor, the individual has initiated divorce proceedings or is divorced from the actor.

Amendment to Section 6.501(a) of the Family Code (the laundry list of ex parte TROs)

The long list of injunctions under Section 6.501(a) of the Family Code now includes tracking or monitoring personal property or a motor vehicle without effective consent as grounds for granting temporary restraining orders in dissolution of marriage suits. The prohibition extends to tracking applications or devices and physically following the party without consent. This effectively ends the practice of hiring private investigators to surveil spouses, as it's now considered a violation of the law.

Section 6.501(a), Family Code, now includes Subsection (27), as follows:

(a)  After the filing of a suit for dissolution of a marriage, on the motion of a party or on the court's own motion, the court may grant a temporary restraining order without notice to the adverse party for the preservation of the property and for the protection of the parties as necessary, including an order prohibiting one or both parties from:  

(27)  tracking or monitoring personal property or a motor vehicle in the possession of a party, without that party's effective consent, including by:

(A)  using a tracking application on a personal electronic device in the possession of that party or using a tracking device; or 

(B)  physically following that party or causing another to physically follow that party. 

By dissecting the new TRO/injunction, practitioners can better understand the broad tracking or monitoring prohibitions and better counsel clients to avoid behaviors that can result in violations of the TRO and possible criminal charges. Prohibited behavior now includes:

• Tracking or monitoring personal property or a motor vehicle in the possession of a party
• Without that party's effective consent (non-consent is presumed in protective order and divorce cases), including by:
  • Using a tracking application on a personal electronic device
  • Using a tracking device
  • Physically following that party, or
  • Causing another to physically follow that party.

Amendment to Section 25.07(a) of the Penal Code

Section 25.07(a) of the Penal Code is amended to include tracking or monitoring personal property or a motor vehicle without effective consent as a criminal offense. This applies when such conduct violates conditions of bond set in family violence, sexual assault, stalking, or related cases. The amendment underscores the severity of the offense and the importance of respecting individuals' privacy rights.

Section 25.07(a), Penal Code, has been amended to read as follows:

(a)  A person commits an offense if, in violation of a condition of bond set in a family violence, sexual assault or abuse, indecent assault, stalking, or trafficking case and related to the safety of a victim or the safety of the community, an order issued under Subchapter A, Chapter 7B, Code of Criminal Procedure, an order issued under Article 17.292, Code of Criminal Procedure, an order issued under Section 6.504, Family Code, Chapter 83, Family Code, if the temporary ex parte order has been served on the person, Chapter 85, Family Code, or Subchapter F, Chapter 261, Family Code, or an order issued by another jurisdiction as provided by Chapter 88, Family Code, the person knowingly or intentionally:

(7)  tracks or monitors personal property or a motor vehicle in the possession of a protected individual or of a member of the family or household of a protected individual, without the individual's effective consent, including by:

(A)  using a tracking application on a personal electronic device in the possession of the protected individual or the family or household member or using a tracking device; or

(B)  physically following the protected individual or family or household member or causing another to physically follow the individual or member.

Implications for Family Law Cases

The enactment of HB 2715 has profound implications for family law practitioners and their clients. It necessitates a thorough understanding of the new provisions and their application in divorce and custody cases. For example, consider a scenario where a spouse hires a private investigator to gather evidence of infidelity. Previously, this might have been a common practice in family law litigation, but it now constitutes a violation under the new law. Family law practitioners must take care to advise clients about spousal surveillance's legal and ethical implications, emphasizing the potential consequences of violating criminal statutes.

Conclusion

The ban on spousal surveillance introduced by HB 2715 marks a significant step towards protecting individuals' safety rights in Texas family law cases. By prohibiting tracking or monitoring without effective consent, the legislation aims to prevent harassment and intimidation in domestic relationships. Family law practitioners must adapt to these changes, ensuring compliance with the law while upholding ethical standards of legal practice.

I hope this post helps demystify this new injunction for you. Of course, we're always ready to assist with your mediation or arbitration needs, so don't hesitate to give us a call.

ARMATYS MILLARD IS HERE TO HELP!

Walter Armatys and John Millard have significant family law experience as trial lawyers and Family Court Judges. This judicial experience gave Walter and John a keen insight into how Judges think, what persuades them, what annoys them, and, importantly, what information Judges need to make an appropriate ruling. Armatys Millard provides mediation and arbitration services for family law disputes pending in Fort Bend, Harris, and surrounding counties. You can count on our extensive family law experience and judicial wisdom to help successfully resolve your case.

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If you need to mediate or arbitrate a divorce, custody dispute, or other family law issue, Armatys Millard, PLLC, can help. Check availability and book your session online, or call our office at 281-313-6800. We're here to help!