What’s the difference between a protective order and a restraining order in Texas?
A protective order is an order that is most commonly used to prevent acts of family violence (including violence in a dating relationship) and sexual assaults. Temporary Restraining Orders are used in the civil context to avoid some sort of immediate and irreparable injury, loss, or damage. Temporary Restraining Orders in a family case can bind the other parent or spouse from certain conduct like transporting a child out-of-state, unenrolling them from school, withdrawing funds, taking out loans, or disposing of property.
Protective Orders and Restraining Orders in Texas
Protective Orders in Texas are sometimes confused with Restraining Orders in Texas. Because both terms have multiple meanings under Texas law, the terms are often confused. This article was written in hopes of explaining protective orders and restraining orders in Texas, the types of each order, and the differences between these orders.
Protective Order in Texas
Even lawyers struggle to understand protective orders in Texas – and perhaps for good reason. Most lawyers who deal with protective orders practice either criminal law or family law. Yet, protective orders are found both in the Family Code as well as in the Code of Criminal Procedure.
What types of Protective Orders are there in Texas?
A protective order is a court order issued to prevent continuing acts of family violence, human trafficking, or stalking. There are three types of protective orders in Texas:
- Emergency Protective Orders
- Temporary Ex Parte Protective Orders
- Permanent (or Final) Protective Orders
What types of Restraining Orders are there in Texas?
People also often think about Temporary Restraining Orders when they think about protective orders, so we will cover TROs in this article as well even though they are distinct from Protective Orders. Temporary Restraining Orders themselves take two forms:
- Temporary Restraining Orders (Civil)
- Temporary Restraining Orders (Family)
Magistrate’s Order of Emergency Protection (EPO)
The Magistrate’s Order of Emergency Protection is also referred to as an Emergency Protective Order and is the most common type of protective order in Texas. A magistrate’s order of emergency protection is authorized under Texas Code of Criminal Procedure Article 17.292.
Emergency Protective Orders are Tied to an Arrest
A Magistrate’s Order of Emergency Protection can only be issued after an arrest. You cannot get a Magistrate’s Order of Emergency Protective without an arrest. Additionally, it only applies to the following offenses:
- A family violence offense (this includes dating relationships)
- Trafficking and Continuous Trafficking
- Sexual Assault
- Indecent Assault
- Aggravated Sexual Assault and
A Magistrate’s Order of Emergency Protection does not have to be requested by the alleged victim. It can be ordered at the request of:
- The judge;
- The alleged victim;
- The guardian of the alleged victim;
- A peace officer; or
- The prosecutor.
Discretionary vs. Mandatory Emergency Protective Orders in Texas
The Magistrate’s Order of Emergency Protection is discretionary except in two instances.
The Emergency Protective Order is mandatory:
1. If a person is arrested for a family violence offense and there is either serious bodily injury.
2. If a person is arrested for a family violence offense and a deadly weapon is used or exhibited.
Magistrate’s Order of Emergency Protection Powers
A Magistrate’s Order of Emergency Protection can be used to:
- Prevent further assault, family violence, trafficking, and stalking;
- communicating with a protected person in a threatening or harassing manner;
- threatening any protected person;
- going to or near the residence, place of employment, or business of a protected person or family member;
- the residence, child care facility, or school of a protected child; and
- possessing firearms.
Magistrate’s Order of Emergency Restrictions Require “Good Cause”
All of the powers above can be exercised by the judge without a hearing. However, the judge needs a finding of “good cause” before the judge can subject a person to the following: If good cause is shown, a judge can prohibit any communication with the alleged victim, regardless of whether it is threatening or harassing.
EPO Effect on Protected Person
It is important to remember that the victim is not prohibited from anything. This means that the alleged victim can contact the person who is under the EPO or invite them back to the house. If the accused person responds, this can be a violation of the EPO, and a criminal charge could be brought against them.
What if there is an Emergency Protective Order against me?
It is important to read the EPO to understand what is prohibited and for how long. For instance, does the EPO prohibit all communication or only threatening/harassing communication? Where are you prohibited from going? It is imperative to contact an attorney to understand your rights regarding the EPO. At Varghese Summersett, we have handled thousands of cases involving protective orders both as prosecutors and as defense attorneys. We understand the legal minefield that is created by a protective order and can defend you against further damage.
Unique Features of Magistrate’s Order of Emergency Protection
- A hearing is not required for a Magistrate’s Order of Emergency Protection.
- Doesn’t require a specific relationship between the person that the order applies to and the person being protected.
- Emergency Protective Orders can only be obtained after an arrest.
- The Emergency Protective order only applies to the person who was arrested.
How long does an Emergency Protective Order last in Texas?
These generally are in effect for 31 to 61 days. However, an Emergency Protective Order may be extended to 91 days if the abuser was arrested for assault with a deadly weapon.
What happens if a person violates an Emergency Protective Order?
Violating a protective order can be easier than you think and can often be unintentional. If you are accused of violating a protective order, you can be arrested and charged with an additional criminal offense.
What is the penalty for violating an Emergency Protective Order?
If you are found to have violated a term of the protective order, you could be charged with a Class A misdemeanor and face up to a year in jail and up to a $4000 fine.
You could be charged with a third-degree felony if you have previously been convicted two or more times of violating a protective order. If you have violated the protective order by committing assault or by stalking, you could also be charged with a third-degree felony. This increases the range of punishment to up to 10 years in prison and up to a $10,000 fine.
If you are found to have violated the protective order 2 or more times within a 12-month period, you could face up to 10 years in prison and up to a $10,000 fine.
Additionally, you can be denied bail if you violate a PO. If you are on bond for a family violence offense and violate a bond condition, you can be held without bond until trial. If you violate a protective order by going to or near a protected place, you can also be held without bond pursuant to Code of Criminal Procedure Sec. 17.152.
Can an EPO be lifted?
Judges are very hesitant to lift a protective order even at the request of the victim, however they might agree to modify an Emergency Protective Order. There are a number of challenges when it comes to modifying an emergency protective order.
First, the magistrate who set the EPO is unlikely to change it. So you’re generally waiting for the case to be filed into a county or district court. That may take weeks. Then if the prosecution is unwilling to agree to the modification, it is likely the judge will set the matter for a hearing.
Depending on how busy the court’s docket is, you might be at the end of your EPO before you get the hearing. So from a practical standpoint, it is very difficult to change an Emergency Protective Order, even if the alleged victim is on your side.
Protective Orders vs. Bond Conditions
It is also important to remember that a protective order is separate and distinct from bond conditions. So where a protective order only prohibits threatening or harassing contact, a condition of bond could still prohibit any and all contact with the alleged victim. If you are facing a PO or have been accused of violating a PO, give us a call today to help you navigate these treacherous waters. We have the experience and skills you need to help you find solid ground.
Temporary Ex Parte Protective Orders
Temporary ex parte protective orders can be granted to protect a family or household member when there is a clear and present danger of family violence. See Tex. Fam. Code § 83.001(a). To grant the order, the judge must find there is a clear and present danger of family violence to the applicant or a family member. Tex. Fam. Code § 83.002.
Another basis for the granting of a temporary ex parte protective order is when there is a threat of immediate danger of abuse or neglect to the child. Tex. Fam. Code § 261.503.
What can a Temporary Ex Parte Protective Order do?
A temporary ex parte protective order can be used to make the respondent do – or not do – certain things. Tex. Fam. Code § 83.001(b).
A temporary ex parte protective order can exclude a person from returning to a residence under certain circumstances. Tex. Fam. Code § 83.006.
What is the length of an ex parte protective order in Texas?
These are usually in effect for up to 20 days and may be extended for another 20 days upon request. Tex. Fam. Code § 83.002.
What is the result of a violation of a Temporary Ex Parte Protective Order in Texas?
A violation of a temporary ex parte protective order in Texas can result in contempt of court, unlike a violation of an Emergency Protective Order which is a separate criminal offense.
Permanent (Final) Protective Orders
Permanent Protective Orders, more appropriately called Final Protective Orders in most cases, generally last for up to two years, but the judge may issue an order for longer than two years if:
- The abuser caused serious bodily injury to the applicant or their family or household; or
- The same applicant has had two or more protective orders issued against the same abuser in the past and in both cases the judge found the abuser committed family violence and was likely to commit family violence in the future.
In other words, if there is no time period stated on the final protective order, it expires on the second anniversary of the date it was issued. Tex. Fam. Code § 85.025(a-1).
Motion to Discontinue a Final Protective Order
After one year, a person subject to a Final Protective Order can petition the court to have the order discontinued. For orders lasting more than two years, a person subject to a Final Protective Order can petition the court to have the order discontinued a second time, after the passing of another year. The court will have a hearing to determine whether there is a “continuing need for the order.” The judge can either continue the order or decide not to. Merely showing a lack of violations is not sufficient to have the order discontinued. There are also rules that address an automatic extension of the order if a person is in jail or prison.
1 Tex. Fam. Code § 85.025(a)
2 Tex. Fam. Code § 85.025(a-1)
3 Tex. Fam. Code § 85.025(b), (b-1), (b-2)
4 Tex. Fam. Code § 85.025(c)
Restraining Orders in Texas
A restraining order in Texas is an order from a civil court or family court that either prevents certain actions or avoids immediate and irreparable harm.
Types of Temporary Restraining Orders (TROs) in Texas
There are two types of Temporary Restraining Orders: TROs in the civil context and TROs related to family cases.
Temporary Restraining Order (Civil)
A civil TRO can be obtained when an immediate and irreparable injury, loss, or damage will occur if the ex parte relief is not granted. See Texas Rules of Civil Procedure 680, 682. It is often used to prevent individuals from not making contact with one another.
Texas Rules of Civil Procedure 68 provides that a TRO shall not exceed 14 days unless there is good cause shown or the person against who the order applies agrees to a longer period. (A civil temporary TRO can be followed by a temporary injunction and then a permanent injection.)
Generally, a civil Temporary Restraining Order cannot be granted unless notice was provided to the other party. However, a court can grant a civil TRO if immediate and irreparable injury, loss, or damage will result before notice can be served.
Temporary Restraining Order (Family)
Temporary restraining orders in family court are filed for the protection of a spouse, a child, or the preservation of property in the context of a divorce or custody case. See Family Code 6.501(a); 105.001(a). These can be granted “ex parte” meaning they can be filed without notice to the other side. Ex parte temporary restraining orders are good for 14 days unless they are extended or withdrawn.
Unlike civil TROs, a family TRO can be issued without a showing that immediate and irreparable injury, loss, or damage will result before notice can be served and a hearing can be held. See Family Code Section Secs. 6.503, 105.001.
It is critically important to understand that a temporary restraining order is not effective until the person the order restrains receives actual notice of the restraining order. When it comes to temporary restraining orders in divorce cases (Texas Family Code Sec. 6.501), the petition only needs to allege that the order is “necessary for the protection of the parties and for the preservation of their property.” This section also provides a non-exhaustive list of twenty-six different types of conduct a court can prohibit parties from engaging in. However, a court’s ability to restrict a spouse from entering an occupied residence is very restricted. See Texas Section 6.501(b).