If you have a protective order filed against you, this post explains everything you need to know about how protective orders (POs) work in Texas.
Protective Order Defined
A protective order is a court order that states an individual must not contact another person. Unlike a restraining order, the police can enforce a PO.
The person seeking a PO is the petitioner, complainant, or applicant. The person subject to the terms of the PO is called the respondent. The respondent is regarded as an alleged abuser, domestic violence offender, or family violence offender.
The judge can issue a default protective order if the petitioner appears in court, but the respondent does not. No protective order will be issued if the respondent appears, but the petitioner does not.
POs can extend to more than one individual. They can include:
- Anyone related by blood or marriage
- Former spouses
- Parents of the same child
- Foster parents and stepparents
- Individuals living in the same house (household members)
A protective order forbids the respondent and alleged abuser from hurting, threatening, or harassing a specific individual or their children, directly or through another individual. The respondent must stay away from the individual, their home, workplace, and children’s daycare or school.
The respondent is also forbidden to carry a gun, even with a license.
An individual can apply for a PO even if they are still in a relationship, living with, or married to the respondent. Undocumented persons can request a PO without fear of deportation or dealing with ICE.
Someone can even apply for a protective order without abuse reports to the police or any proof of abuse.
POs can be issued for threats such as imminent physical harm and bodily injury to a victim who feels reasonable fear of bodily injury or death to themselves, a family or household member, or damage to property. Actual harm is not necessary for a protective order.
POs are available even for those who complete or file an Affidavit of Non-Prosecution (ANP) in a criminal case.
Judges can add restrictions and orders to POs, such as:
- The separation of a petitioner’s cell phone plus the phone used by children in the petitioner’s custody if the phones are under or connected to the respondent’s account
- The payment of child support and medical support
- Terms and conditions for child visitation
- Attendance at anger management classes
- Drug testing
- Attendance in a substance abuse program
- Leaving the home (a “kick-out order”)
Different types of protective orders cover domestic abuse, dating violence, sexual assault, stalking, and human trafficking.
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Types of Protective Orders in Texas
Protective orders can be temporary ex parte, final (permanent), and emergency, also called a magistrate’s order of emergency protection (MOEP), which a criminal court orders. Temporary ex parte and final POs are ordered through the civil court.
Temporary ex parte provides the applicant immediate protection from the respondent without the need for a hearing. There is no need to arrest the respondent to obtain a temporary ex parte PO. The judge must believe the respondent presents a clear and present danger of family violence to the petitioner and their family.
A temporary ex parte order lasts for the time stated in the order, typically 20 days. A judge can extend it for an additional 20-day period if requested, or if the respondent has not yet been served.
A final or permanent PO is not really permanent. It can last up to two years and expires on the second anniversary of the issue date if no period is written into the order. The judge could order a more extended period if the respondent committed an act that could be considered a felony offense against the petitioner, their family, or household, even if the respondent is never charged or convicted of a felony.
Although the hearing may be held in criminal court, it is a civil procedure. There is still no need for the respondent’s arrest, but obtaining a final PO does require a hearing where the petitioner and respondent provide testimony and evidence. After one year, the respondent can file a motion for the discontinuation of the PO.
A magistrate’s order of emergency protection is issued through the criminal court. Also known as an emergency PO, it doesn’t require a hearing, and the petitioner need not appear in court. MOEPs last for 31 to 61 days unless the respondent is arrested for crimes involving family violence where they used or displayed a deadly weapon. Then the duration extends to 61 to 91 days. Also, if a deadly weapon is involved, the magistrate must issue an emergency protective order even if nobody specifically requests it.
MOEPs are issued against an individual arrested for committing:
The purpose of the MOEP is to protect the person or family from possible further harm.
Protective Order Provisions
POs may include one or more of the following provisions:
- No contact – the respondent cannot email, text, call, stalk, hit, attack, or disturb the petitioner.
- Move out – the respondent must move out of a home shared with the petitioner.
- Stay away – the respondent must remain a specific distance from the victim and their home, car, job, or school — typically 100 yards.
- Peaceful contact – the respondent may communicate peacefully with the petitioner for child visitation and other matters.
The judge determines the inclusion of provisions according to the circumstances of each case and as documented in the protective order request.
Who Can Get a Protective Order and How?
Any of the following can request a protective order:
- A prosecuting attorney
- An adult member of a family or household
- An adult on behalf of a child
- The Texas Department of Human and Regulatory Services
The petition must include the name of the petitioner, their county of residence, the name, address, and county of the alleged offender, the relationship between the two, and a statement requesting a protective order.
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Penalties for Violating a Protective Order
In Texas, the penalties for violating a protective order for domestic violence are much higher than for other PO violations, such as divorce or other proceedings. The violator can face serious criminal charges and contempt of court charges. The charges and penalties depend on the severity of the violation and whether violations occurred previously.
If a respondent violates a PO repeatedly, they could be arrested on felony charges.
Why You Need an Attorney
If you are the subject of a protective order, you need an attorney who understands Texas laws and regulations surrounding the various types of orders. An experienced attorney can guide you in obeying the restrictions and through the process of requesting removal.
If you violate a protective order, you need an attorney to represent you for any charges brought by the court or the respondent. The Law Office of Brett Podolsky has the experience you need to fight a protective order. Contact our office today for a free consultation.