Hammack v. Texas (original by judge newell)
Annotate this CaseIn 2018, a school counselor contacted the Texas Department of Family and Protective Services (“the Department” or “TDFPS”) regarding her concerns about potential child abuse involving Appellant Michael Hammack’s sixteen-year-old daughter. Department Investigator Amber Davidson opened a case and called Appellant, telling him about the investigation. Later that day, Davidson went to Appellant’s home to investigate, but Appellant told her to get off his property and to come back with a court order. Davidson did obtain: (1) an Order of Protection of a Child in an Emergency (“the Order”) that awarded custody of Appellant’s child to the Department; and (2) a Writ of Attachment that commanded any sheriff or constable in Texas to take the child and deliver her to the Department’s possession. This order granted sole managing conservatorship of the child to TDFPS as well as sole right of possession and custody of the child. That same day, Davidson returned to Appellant’s residence, accompanied by another investigator, to serve Appellant the Order. The investigators identified themselves and explained to Appellant that, pursuant to the Order, they were there to take custody of the child. Appellant immediately became aggressive and ordered them off his property. The issue this case presented for the Texas Court of Criminal Appeals’ review centered on whether the State had to prove that a defendant was served with a copy of an emergency protection order to establish that a person “Interfere[s] with Child Custody.” The Court held no: the plain terms of the statute only required proof that the person who takes or retains a child in violation of a judgment or order, including a temporary one, knows that he or she is doing so in violation of such an order. “Proof that the person has been served with a temporary order may satisfy the State’s burden to prove such knowledge, but it is not required if knowledge can be proven through other means.” In this case, the State presented sufficient evidence that Appellant knew about the existence and relevant terms of the emergency protection order even though the evidence showed he had successfully avoided service.
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