On Sunday, February 22, 2015, NASCAR drivers competed in the Daytona 500, one of its’ most prestigious races. This year, it was run without one if its’ stars, Kurt Busch, and it all stems from a ruling in a family law case.

On Monday, February 16, Commissioner David Jones of Kent County, Delaware issued a protective order (called an Order for Protection from Abuse) against Busch for abuse against his ex-girlfriend, according to this USA Today article, “by manually strangling her by placing his left hand on her throat, while placing his right hand on her chin and face and smashing her head into the wall of his motor home, thereby recklessly placing (her) in reasonable fear of physical injury.” According to the same story, the hearing on whether to grant the protective order lasted four days and stretched over two months.

As a result, NASCAR suspended Busch indefinitely.

When reporting on the legal system, in particularly family law, the media consistently misses the boat. In many of those stories, insight into the legal system is needed to get a full picture of the situation. Consider this article by Dan Wetzel that appeared on Yahoo Sports, discussing Busch’s suspension in the wake of the Ray Rice scandal:

“Kurt Busch has never been arrested for allegedly assaulting his one-time girlfriend, Patricia Driscoll, on Sept. 26, 2014, inside his motorhome at Dover International Speedway.

Kurt Busch has never been charged with that crime. Kurt Busch has never been convicted of that crime. Kurt Busch never settled the case, in part, because there is no case to settle. There have been no criminal or civil charges filed against him.”

According to Delaware law, he doesn’t have to be charged with a crime to be the subject of an Order for Protection from Abuse (although Busch may end up being charged with a crime after the results of the criminal investigation are released). The Court shall grant an application for protective order if the Court finds by a preponderance of the evidence that the alleged domestic violence has occurred, or if the respondent consents to entry of a protective order. Therefore, to say that “there is no case to settle” is highly misleading. The victim in this case filed an action against Busch, and he could have agreed to a protective order. Wetzel continues:

“The decision by commissioner David Jones came after an expansive hearing process in which the commissioner determined Driscoll’s story (that Busch strangled her inside his motorhome) was more believable than Busch’s story (that he simply cupped her head and asked her to leave) in part because of photos of injuries on her neck, in part because Driscoll presented testimony in a more believable way (in the commissioner’s determination) than Busch and in part because Busch’s explanation was deemed “simply implausible.”

Fair enough. A restraining order should always err on the side of caution, and reading Jones’ extensive ruling, it’s a reasonable conclusion. Busch certainly could’ve done it and keeping these two apart is definitely a good idea.

Still, as Busch kept showing up at NASCAR headquarters on Saturday, as the roar of race cars echoed from the Daytona International Speedway across the street, it was also reasonable to keep repeating that he’s never been arrested, charged, found actually guilty or anything else in this case.”

Again, Busch’s hearing lasted four days. Wetzel even admits it was an expansive hearing process. It sounds like Busch had his day in Court, and lost. The ruling is not based on erring on the side of caution, and is not saying Busch “could’ve done it.” A preponderance of the evidence means it is more likely that he did it. That was enough for NASCAR to issue the suspension.

I am not saying whether NASCAR should have suspended Busch. They had a right to suspend him, and they exercised that right. I am also not saying whether Commissioner Jones should have granted the protective order. I was not at the hearing, and I do not know who was telling the truth. He was in a much better position to make that call. However, I am saying that, when reporting and/or commenting on legal matters, try to accurately report the process.

Protective Orders in Texas

The statutes governing protective orders in Texas are similar to those in Delaware. In Texas, a victim of family violence is entitled to a protective order if the victim can show the Court that family violence has occurred and is likely to occur in the future. The focus of a protective order is the protection of the victim, and a Texas Court has a wide variety of options, including, but not limited to, prohibiting the respondent from:

• committing family violence,
• communicating a threat to the protected person,
• going to or near the residence, place of employment, child-care facility or school of a protected person,
• possessing a firearm
• harming or threatening a pet, companion animal or assistance animal

If a protective order is granted, it can remain in effect for up to two years, and even more if the respondent caused serious bodily injury or was the subject of two or more previous protective orders rendered to protect the victim.

Difference Between a Restraining Order and a Protective Order

The difference between a temporary restraining order and a protective order can be confusing, as many people use them interchangeably. After all, the Court can grant a temporary restraining order (or temporary or permanent injunction) with the same terms as a protective order. However, these are two different types of legal remedies, with the primary difference lying in the methods of enforcement.

If a respondent violates a temporary restraining order, he/she could face contempt of Court. The victim would file a Motion to Enforce the restraining order (or injunction), and a hearing would be held, with notice to the other party. If the Court finds that the Respondent violated the restraining order, he/she may be sentenced to a fine and/or confinement as punishment.

On the other hand, the violation of a protective order is itself a criminal offense. If a respondent violates a protective order, he/she is subject to arrest for the separate criminal offense of violating a protective order (a Class A Misdemeanor), and can be arrested immediately and taken to jail. Protective Orders are also entered into a statewide law enforcement system maintained by the Department of Public Safety to ensure that law enforcement officers are aware of the existence of protective orders when responding to calls.

In short, protective orders do a better job of immediately protecting the victim from continued abuse than a temporary restraining order. In many instances, it is even more desirable than waiting for the criminal process to conclude. After all, the criminal process can take months and even years. In the meanwhile, the victim is subject to continued abuse while the abuser is out on bail. It is also why criminal charges are often pressed after protective orders are entered. Unfortunately, this has not been part of the discussion.

If you have more questions about family violence and protective orders, contact Gregory S. Beane at VernerBrumley. He can be reached by phone at 214-526-5234 or by email at [email protected].