Often called a “restraining order,” in Texas, an alleged victim of domestic violence, sexual assault, stalking, and human trafficking, can seek a Protective Order against the accused.
- What is a protective order?
A Protective Order is a court order that is designed to thwart the reoccurrence of domestic violence by identifying the conduct the accused must refrain from doing. In Texas, there are three types of protective orders: Temporary Ex Parte Protective Order, Permanent Protective Order, and an Emergency Protective Order. The first two types of Protective Orders, the Temporary Ex Parte Protective Order and Permanent Protective Order, are civil in nature and the Emergency Protective Order is a criminal matter following an arrest.
However, the protective orders listed below should not be confused with conditions of bail. Conditions of bail in an assault family violence case will often include “non-contact orders” or “non-contact provisions” that stay in effect throughout the pretrial phase of a case or until the order is lifted. Your lawyer can try to get the non-contact order lifted from bond conditions through a Motion to Modify Bail Conditions. Additionally, the protective orders listed below should not be confused with conditions of community supervision (a.k.a. probation). The protective orders discussed in this blog are one of several tools that judges impose to protect the safety of alleged victims.
- Temporary Ex Parte Protective Order
- Once an alleged victim files a petition for a Final Protective Order in civil court, but before the official court hearing, a judge may grant a Temporary Ex Parte Protective Order if there is a clear and present danger of family violence. The judge will make this determination based on the information included in the application for a protective order. This type of order can be valid for up to 20 days but can be extended if the respondent (accused) has not been served with the order.
- Permanent or Final Protective Order
- A civil judge may grant a Final Protective Order if there is a finding that family violence occurred and is likely to occur in the future. Although notice to the accused and an official court hearing is required for the Final Protective Order to be issued. The Final Protective Order is valid for up to 2 years. However, this Order can be extended beyond 2 years if the accused caused serious bodily injury to the applicant or applicant’s family or if the accused has been subject to two or more protective orders rendered to protect the same victim.
- Emergency Protective Order
- Once an arrest has been made for assault-family member violence, sexual assault, aggravated sexual assault, indecent assault, human trafficking, continuous trafficking of persons, or stalking, the magistrate judge can issue an Emergency Protective Order. This type of protective order is often referred to as a “MOEP,” Magistrate’s Order for Emergency Protection. Following the arrest, the Order will be valid for a minimum of 31 days and a maximum of 91 days. However, a magistrate judge must issue an Emergency Protective Order if the magistrate finds that the offense involved serious bodily injury, the use of a deadly weapon, or exhibition of a deadly weapon during the assault (Tex. Code Crim. Proc. Ann. art. 17.292). If a deadly weapon was used or displayed during the assault, the Order must be issued for a minimum of 61 days. Although, the alleged victim, victim’s guardian, peace officer, or the state’s attorney can also request an emergency protective order (Tex. Code Crim. Proc. Ann. art. 17.292). Unlike the civil protective orders, notice to the accused and a hearing on the Emergency Protective Order is not
- This type of protective order is extremely popular in Harris County. In fact, most clients are more likely to encounter a MOEP than any other type of protective order. This order typically prohibits the accused in an assault family member case to stay away from and not communicate in a threatening manner with the complainant.
- Can I have the Emergency Protective Order dismissed or modified?
Yes, in most cases. Although, most judges will not completely dismiss the Emergency Protective Order because in their eyes, there was a valid basis for its imposition during the duration of the criminal process. However, you may be able to modify the Emergency Protective Order’s conditions. For example, if the alleged victim requests for the modification because they would like for you to return home to help with the children, a motion can be filed and a hearing will be held in front of the judge to determine the modification.
- What if you and the alleged victim are back together or on better terms?
It does not matter! Even if your relationship with the victim has improved or if the alleged victim continues to contact you, if the Protective Order is still valid, you should avoid all forms of contact to prevent violations of a Protective Order. If the alleged victim attempts to contact you while the Protective Order is in place, keep records of the attempts as it may be beneficial in a future legal proceeding. But most importantly, do not respond. If you have any questions or concerns that need to be discussed with the alleged victim, all communication should be directed to and facilitated by your attorney.
- What happens if you violate the protective order?
A protective order is a direct order from a judge therefore, a violation of a protective order will cause additional penalties to the accused. The accused can violate a protective order if he or she commits another act of family violence, communicates directly to the protected individual or member of the family in a threatening or harassing manner, goes to or near the residence, place of employment, or any location specifically described in the order, possesses a firearm, interferes with care, custody or control of a pet that is possessed by the protected person, or by interfering with the GPS monitoring system (Tex. Penal Code 25.07).
A conviction for violating a protective order is a Class A misdemeanor, punishable by up to one year in county jail and/or a fine up to $4,000.00. Although, if the accused has two or more previous convictions for violating a protective order, it becomes a third-degree felony, punishable by two to ten years in prison and a fine not to exceed $10,000.00.
Contact an Expert in Criminal Law
If you or a loved one has been arrested for assault-family member violence or violation of a protective order, you need to do everything possible to avoid a conviction. Scheiner Law Group, P.C., is an excellent choice to defend you and aggressively fight the charge in court on your behalf. Our goal is a dismissal or acquittal, whenever possible. Call us during normal business hours at (713) 783-8998. After hours and on weekends, text (713) 581-4540.
The information contained in this blog post is current as of September 1, 2019, and is current through the end of the 2021 Regular and Called Sessions of the 87th Legislature.