Clarification of Answer by
tutuzdad-ga
on
27 May 2004 13:26 PDT
Again, this research is not legal advice and is in no way intended to
circumvent or replace the counsel of a licensed attorney:
For all practical purposes, you, as the landowner, are the landlord
and Grandmother is a tenant. Consider the definitions in:
Texas Property Code Ann. §§ 91.001-92.354
http://www.capitol.state.tx.us/statutes/pr.toc.htm
?§ 92.001. DEFINITIONS. Except as otherwise provided by this
chapter, in this chapter:
(1) "Dwelling" means one or more rooms rented for use as a permanent
residence under a single lease to one or more tenants.
(2) "Landlord" means the owner, lessor, or sublessor of a dwelling,
but does not include a manager or agent of the landlord unless the
manager or agent purports to be the owner,
lessor, or sublessor in an oral or written lease.
(3) "Lease" means any written or oral agreement between a landlord
and tenant that establishes or modifies the terms, conditions, rules,
or other provisions regarding the use and occupancy of a dwelling.
(4) "Normal wear and tear" means deterioration that results from the
intended use of a dwelling, including, for the purposes of Subchapters
B and D, breakage or malfunction due to age or deteriorated condition,
but the term does not include deterioration that results from
negligence, carelessness, accident, or abuse of the premises,
equipment, or chattels by the tenant, by a member of the tenant's
household, or by a guest or invitee of the tenant.
(5) "Premises" means a tenant's rental unit, any area or facility the
lease authorizes the tenant to use, and the appurtenances, grounds,
and facilities held out for the use of
tenants generally.
(6) "Tenant" means a person who is authorized by a lease to occupy a
dwelling to the exclusion of others and, for the purposes of
Subchapters D, E, and F, who is obligated under the lease to pay
rent.?
http://www.capitol.state.tx.us/statutes/docs/PR/content/htm/pr.008.00.000092.00.htm#92.001.00
NORMALLY, unless some type of other agreement exists between you and
Grandmother, SHE, as the occupant, would determine or permit access to
property by her guests and invitees as she sees fit. NORMALLY, if
Grandma doesn?t mind Brother #2 coming over to visit ?an old junk car
housed in a metal barn for over 25 years? and this is not a problem
for you, the property owner, then the neighbor, Brother #1, has no say
in the matter.
However, whenever ANY PERSON (particularly a family member) behaves in
such an abusive manner that his actions pose an obvious threat or
intentionally instill fear in the mind of someone, his normal rights
to access property in close proximity to the victim under the Texas
Property Code would undoubtedly take a back seat to the laws designed
to protect citizens under the Texas Family Violence statutes. A
testament to this fact is this: Let?s say Brother #2 was coming to
Grandmother?s house to visit his children rather than his old car. And
let?s say, for the sake of showing a really good example, that he even
had a court order allowing him to do so. If Brother #1 were to obtain
a protective order against Brother #2 which prevented him from coming
within so many feet of his home, business or person, Brother #2?s
previous order would no longer afford him the legal right to visit
Grandmother?s house if the property was within the specified boundary
of protection in Brother #1?s protective order. In other words,
Brother #2?s court order would be superceded by Brother #1?s court
order (either temporarily or permanently, depending on the nature of
the protective order). In this scenario he would have to make
arrangements to visit his children elsewhere, at least until the order
expired or was lifted.
?If the emergency order has a condition imposed that conflicts with an
existing court order granting possession of or access to a child, the
condition imposed under the emergency protective order prevails for
the duration of the order for emergency protection.?
RESTRAINING ORDERS, PROTECTIVE ORDERS AND PEACE BONDS
http://www.thecolonypd.org/restraining_orders.htm
In this example, even though Brother #1 is just a neighbor and has no
real interest or authority over his neighbor?s property, Brother #2
would be precluded from coming near the neighbor?s property too,
provided it was within the boundaries specified in the protective
order, even, as we have seen, if it were to see his children. Needless
to say, the importance of visiting his Grandmother and his old car
cannot be compared to something as important as his children. I say
all that to say this: If a person can get a protective order against
someone to keep them from visiting their own children, they would
probably have no problem getting one that keeps an abuser from coming
near their home on the excuse that they need to periodically visit a
Grandmother or an old junk car stored for 25 years. Having said that,
it is logical to assume that the presence of Brother #2?s car on a
neighboring piece of property is not nearly enough to legally keep
Brother #1 from obtaining a protective order. It may be that Brother
#2 just needs to make arrangements to visit Grandmother elsewhere, or
take him old junk car home with his if he wishes to commiserate with
it. If Brother #1 sought a protective order, I think, under the
circumstances you described (and certainly if backed with undisputable
proof), the court may also share that sentiment.
?Does the presence of the personal property of the abusive brother
have any bearing on whether a restraining or protective order can be
issued to the abusive brother??
The short answer is NO, of course not. The presence of Brother #2?s
old junk car (potentially abandoned), or even the presence of his
Grandmother on the property, with whom he would ordinarily be welcomed
to visit, gives him no extraordinary right to be excluded from being
the subject of a protective order for his abusive behavior.
A protective order can be issue against ANYONE, in ANY circumstance
deemed appropriate by the court, for ANY period of time the court
desires. How long with will be and what the ultimate provisions and
exclusions are however is at the court?s discretion and one only knows
for certain how long or how detailed this order will be when one
pursues it.
As for your statement:
?I will encourage my brother #1 to install a video monitoring system
to deter or record any activity which may used to incriminate brother
#2 relating to threats, etc. I understand this will be necessary to
have a judge issue a protective order (proof of threats).?
I am not recommending (or even suggesting) you do this as a necessary
PREREQUISITE to obtaining a protective, but only to aid in
facilitating the complaint. As they say, a picture is worth a thousand
words ? and having testified in criminal cases hundreds of times
myself I can attest to the accuracy of this old adage. You should
understand though that pictures and video ARE NOT SPECIFICALLY
REQUIRED, nor in some cases even necessary to obtain a protective
order, but convincing proof is. In my personal opinion though, if a
victim CAN discreetly obtain irrefutable proof like pictures or video
that these threats are taking place without antagonizing his abuser or
further jeopardizing himself, knowing that such proof would help make
his case, he would be a fool not to.
I hope this adds significantly to what we have already discussed. I
look forward to your rating and final comments. Again, thank you for
bringing your question to us.
Regards;
Tutuzdad-ga
