Protective orders and due process
The Court's recent decision in Stary v. Ethridge may affect pending petitions for review
Last Friday, May 2nd, the Court delivered its opinion in 23-0067, Stary v. Ethridge, holding that a protective order prohibiting contact between a mother and her children for the mother’s entire lifetime—a protective order that rested on a “more likely than not” evidentiary standard—violated the mother’s due process rights. “We hold,” Justice Bland wrote for a unanimous Court, “that constitutional due process requires clear and convincing evidence to support a protective order prohibiting contact between a parent and her children under the statute authorizing protective orders for longer than two years.” (Emphasis added.)
Stary is obviously an important win for parental rights, which the Court has often described as having “constitutional dimensions.” But it may also have important implications for other constitutional rights, including the right possess firearms under the Second Amendment and Article I, section 23 of the Texas Constitution.
As the third installment of BOM Watch noted, the Court recently requested briefing for two cases in which the petitioners complained of overly broad protective orders—one that lasted 35 years and another a lifetime—prohibiting them from (among other things) possessing firearms. Notably, like the protective order in Stary, these orders were issued after findings made based merely on a preponderance-of-the-evidence standard.1 And in at least one of the petitions, the court of appeals partly rationalized its judgment affirming the duration of trial court’s protective order on the ground that the petitioner still retained the right under Texas Family Code § 85.025(b) to file two motions to vacate the order—a rationale that may be difficult to reconcile with language in Stary. See slip op. at 14 (“Two chances for review does not erase the fundamental similarity of these orders in imposing a ‘unique kind of deprivation’ of a parent’s fundamental right.”).
So, given the constitutional interest implicated here (and thus whatever the merit of the alleged constitutional violation), the protective orders may have been at least procedurally problematic—a conclusion in accord with the separate writings of some justices on the Court and at least one judge on the Fifth Circuit.2
The important question for these pair of gun-rights petitions is what should happen to them now that Stary is on the books. I see three options.
The first is to deny them. This, of course, is always an option, even if the petitioners have made out facially meritorious post-Rahimi constitutional challenges to the protective orders. In each of these petitions, there are contested questions as to whether the petitioners preserved their constitutional challenges for review. If they haven’t, that may be reason enough to deny them.
The second would be to grant the petitions, set them for oral argument, and resolve the gun-rights issues (among others) head-on based on the forthcoming briefing. While there may now only be marginal benefit in exploring these issues after Rahimi, at least one of the petitions may give the Court reason to think that it provides a suitable vehicle to explore whether article I, section 23 of the Texas Constitution meaningfully differs from the Second Amendment.
And the third, it seems to me, would be to GVR in light of Stary. Again, I don’t think the petitioners have to be correct that their constitutional rights to possess a firearm have been violated to benefit from Stary; it should be enough that their constitutional rights have at least been implicated to warrant a more meaningful evidentiary hearing with a higher burden of proof. See Stary slip op. at 15-16 (“When a lengthy deprivation of a fundamental right is at risk . . . the social cost of even occasional error is sizable.”). But whether these petitions should be GVR’d is a different question. It may depend on the merits and the underlying equites. If it turns out, for example, that more process would not result in a different outcome, then perhaps GVR’ing would be pointless. But on the other hand, due process is not concerned with outcomes; it’s concerned with, well, process. So the fact that the outcome may not change could be beside the point.
I haven’t delved into the petitions and responses enough to have a strong opinion on the best course. But even if the petitioners have not expressly raised due process challenges, the ensuing merits briefing in each of the cases may still benefit from discussing what effect, if any, Stary has on their positions.
See 24-0023, Noyes v. State, petition for review at 11 (“Tim’s lifetime ban occurred without discovery, at a summary hearing based on the preponderance of the evidence, and without a jury.”); see also 23-0839, Henry v. Whitlock-Henry, petition for review at 9 (“Specifically, as of September 1, 2023, a protective-order proponent need only establish, by a preponderance-of-the-evidence, that a single episode of “family violence” in the past has occurred to justify a lifetime protective order.”).
See generally Ferguson v. Department of Public Safety, 629 S.W.3d 903 (2021) (Blacklock, J., dissenting) (joined by Devine, J.) (expressing skepticism of a law that deprived a man of his Second Amendment rights without an adequate hearing); see also United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023) (Ho, J., concurring) (noting the abuse of protective orders).