Marcus Joseph Roper v. Katherine Elizabeth Jolliffe
493 S.W.3d 624
| Tex. App. | 2015Background
- Roper and Jolliffe were engaged and in a dating relationship; Jolliffe alleged multiple incidents of physical and emotional abuse culminating in a November 2013 incident where police observed marks and she reported being grabbed and pinned.
- Jolliffe filed for a family‑violence protective order; a temporary ex parte order issued and a final hearing was set. Roper was served, filed an answer, sought expedited discovery, and timely demanded a jury.
- Trial court denied the jury demand, allowed limited discovery (depositions of Jolliffe and two friends and limited document production), and conducted an evidentiary hearing before a judge on January 28–29, 2014.
- The court found past family violence and a likelihood of future violence, entered a two‑year protective order barring contact, imposing a 500‑foot exclusion zone, requiring completion of Batterer’s Intervention and Prevention Program (BIPP), and prohibiting firearm possession; the BIPP requirement was stayed pending appeal.
- Roper appealed raising four issues: (1) denial of jury trial; (2) due process violations from limited discovery and use of preponderance of the evidence; (3) the protective‑order procedure burdens his right to keep/bear arms and thus requires more process/higher standard; (4) BIPP requirement violates Fifth Amendment self‑incrimination (also First/Fourteenth claims raised on appeal).
Issues
| Issue | Plaintiff's Argument (Jolliffe/State) | Defendant's Argument (Roper) | Held |
|---|---|---|---|
| 1) Right to jury in Title 4 protective‑order hearing | Title 4 vests courts to make the statutory findings; expedited civil scheme intended judge‑factfinding | Roper: timely demanded jury; constitutional jury rights (art. I §15, art. V §10) require jury on facts | No jury right; statute and constitutional analysis: protective orders are statutory, special‑purpose civil proceedings not analogous to jury‑tried actions in 1876; denial not an abuse of discretion |
| 2) Due process — discovery and disclosure | Court provided expedited discovery and meaningful hearing; respondent had counsel, cross‑examination, expert, and months to prepare | Roper: limited discovery, late disclosure of some materials, two‑hour deposition of applicant denied meaningful defense | No due process violation: procedures (notice, hearing, limited discovery) adequate under Mathews v. Eldridge balancing; respondent had meaningful opportunity to be heard |
| 3) Standard of proof & right to bear arms | Protective orders are civil; preponderance of evidence governs; firearm restriction is collateral and temporary | Roper: order burdens liberty and Second Amendment rights so clear and convincing proof and more process required | Preponderance standard upheld; no constitutional requirement for higher standard; procedural protections deemed sufficient despite firearm prohibition |
| 4) BIPP requirement & self‑incrimination | BIPP is remedial/rehabilitative; trial court stayed BIPP pending appeal | Roper: BIPP conditions (admissions) may compel self‑incrimination; also First/Fourteenth Amendment challenges | Claims not preserved on the merits (First/Fourteenth not raised below); trial court granted requested stay; no reversible error on BIPP issue |
Key Cases Cited
- Mercedes‑Benz Credit Corp. v. Rhyne, 925 S.W.2d 664 (Tex. 1996) (abuse‑of‑discretion standard for denial of jury request)
- Williams v. Williams, 19 S.W.3d 544 (Tex. App.–Fort Worth 2000) (interpreting Title 4 as vesting courts, not juries, as factfinders)
- Barshop v. Medina Cty. Underground Water Conservation Dist., 925 S.W.2d 618 (Tex. 1996) (art. I, §15 jury analysis — right preserved for actions or analogues tried by jury in 1876)
- State v. Credit Bureau of Laredo, Inc., 530 S.W.2d 288 (Tex. 1975) (analysis of whether statutory silence permits constitutional jury right)
- Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993) (special‑circumstances exception to constitutional jury right)
- Ex parte Allison, 90 S.W. 870 (Tex. 1906) (discussing right to jury on permanent injunctions)
- DiGiuseppe v. Lawler, 269 S.W.3d 588 (Tex. 2008) (in equity, jury decides disputed historical facts; judge decides equitable relief)
- Addington v. Texas, 588 S.W.2d 569 (Tex. 1979) (clear‑and‑convincing standard required only in certain civil matters; not applicable here)
- In re G.M., 596 S.W.2d 846 (Tex. 1980) (clear‑and‑convincing standard discussion for parental‑rights termination)