Protective orders are used in Texas to provide immediate protection to victims of family violence and other persons in harm’s way. Someone accused of a protective order violation could owe fines and even be sentenced to time in jail. This article summarizes the three different types of protective orders, so you’ll be prepared if you or a loved one are charged with a protective order violation in Dallas.
Protective Orders are Not Restraining Orders
Be careful to distinguish a protective order violation in Dallas and restraining orders, which only occur in civil cases.
What is a Protective Order?
A judge will issue a protective order because some type of family violence has been alleged. The order usually prohibits all types of communication and contact (including all types of social media) between someone accused of wrongdoing and a family member like a spouse, child, and even someone not in the family who has lived with the accused in the past.
What is Family Violence?
Because many protective order cases involve family violence, you must understand its meaning under Texas law. Family violence occurs when a member of a family or household (persons living together, related or unrelated) acts against another family or household member, intending to cause physical harm, assault, sexual assault, or bodily injury.
Additionally, family violence occurs if a family or household member threatens another member in a way that that person would reasonably fear immediate physical harm, assault, sexual assault, or bodily injury.
What Happens If You Violate a Protective Order?
If you’re charged with a protective order violation in Dallas, you could be charged with another criminal offense—a Class A misdemeanor that is punishable by up to one year in jail and a maximum fine of $4,000. But the punishment can be even harsher.
For example, you could be charged with a third-degree felony if:
- You have previously been convicted two or more times of violating a protective order;
- You are alleged to have violated an active protective order by committing assault or stalking; or
- It is alleged you have violated an active protective order twice within the past year.
See Texas Penal Code § 25.07(a), (g)(1)-(2). A third-degree felony is punishable by 2 to 10 years in prison and up to a $10,000 fine.
There are some exceptions, of course. Violating a temporary ex parte protective order (summarized below) doesn’t always result in a separate criminal offense. But a judge could still find you in contempt of court, which means fines and even jail time.
Who Are the Two Most Important People in a Protective Order?
The applicant requests the protective order because of some alleged wrongdoing.
The respondent must abide by the protective order or face the consequences, including jail, fines, or both.
What are the Different Types of Protective Orders?
There are three types of protective orders in Texas:
• Emergency Protective Order;
• Temporary Ex Parte Protective Order;
• Final Protective Order;
What is an Emergency Protective Order?
An Emergency Protective Order (EPO)—also known as a magistrate’s order of emergency protection—is the most common type of protective order issued in criminal cases. See Texas Code of Criminal Procedure Art. 17.292. A magistrate judge only has the power to issue an EPO following the respondent’s arrest for an offense involving family violence or human trafficking, sexual or indecent assault, aggravated assault, and stalking.
Who Can Apply for an EPO?
In addition to an applicant, the applicant’s guardian, a police officer, or a criminal prosecutor may request an EPO.
Can a Court Issue an EPO Without a Hearing?
Yes. A court can issue an EPO without a hearing to prevent further crimes. But the main thrust of an EPO is to stop any threatening or harassing communication with an applicant. Almost always, the EPO will order the respondent not to travel near the applicant’s residence, place of employment, or business. Additionally, most magistrate judges will prohibit the respondent from possessing firearms.
However, to prevent all contact between the applicant and respondent, a court must make a finding of good cause.
How Much Discretion Does the Court Have With EPOs?
A magistrate judge is required to issue an EPO if police arrest a respondent for a family violence offense that involves serious bodily injury or the use of a deadly weapon like a gun or knife.
Does the EPO Prevent an Applicant From Doing Anything?
No. Applicants can contact the respondents or arrested persons. But respondents are prohibited from contacting applicants. This is true even if an applicant persists in reaching out to an arrested person, and the arrested person responds.
How Long Does an EPO Last?
Most of the time, an EPO lasts 31 to 61 days. But EPOs can last up to 91 days if the respondent used or exhibited a deadly weapon during the alleged assault.
Can a Judge Change an EPO?
A judge can modify an EPO if the original order is unworkable, and the new order will not put the applicant in danger or greater danger than the original order.
What is a Temporary Ex Parte Protective Order?
A judge will issue a temporary ex parte protective order (TPO) to protect a family member, household member, or a person in a dating relationship if there is a clear and present danger of family violence. Texas Family Code § 83.001. Additionally, a judge will issue a TPO when there is a threat of immediate danger of abuse or neglect to the child. Tex. Fam. Code § 261.503. Importantly, unlike an EPO, police do not have to arrest a respondent before a court may issue a TPO.
Who Can Apply for a TPO?
• Any adult that’s part of a household;
• A person in a dating relationship;
• Any adult to protect a child;
• Attorneys; or
• The Texas Department of Family and Protective Services.
Is a Hearing Required for a TPO?
Not always. When a court concludes there is a clear and present danger of family violence after reviewing a request for a TPO, the order may issue an order without a hearing. Also, a TPO may issue without a hearing if there is an immediate danger of abuse or neglect of a child.
A court can use a TPO to require the respondent to do – or not do – particular things. For example, the order can exclude persons from living in their homes. Tex. Fam. Code § 83.006.
What is the Duration of a TPO?
A TPO can last 20 days and may be extended for another 20 days upon request.
Can a Judge Change a TPO?
Yes, the respondent can file a motion at any time to throw out the TPO. The court must set a hearing to address the motion as soon as possible.
What is a Final Protective Order?
There are two types of final protective orders in Texas. This article will summarize the Texas Family Code’s final protective orders first.
Family Code Final Protective Orders
Under the Family Code, a court will issue a final protective order to protect an applicant if it is determined that (1) family violence has occurred and (2) family violence is likely to occur in the future. Tex. Fam. Code § 85.001(a)-(b).
As is true when applying for a TPO, any adult in a household, a person in a dating relationship, any adult to protect a child, an attorney, or the Texas Department of Family and Protective Services can apply for a final protection order.
Additionally, a judge can issue a final protective order if the respondent violated a protection order already in place. Tex. Fam. Code § 85.002.
Is a Hearing Required?
Yes. In most cases, a hearing must be set within 14 days of application for the protective order.
How Long Can It Last?
Final protective orders usually last for no more than two years, but they can last for longer than two years–including the lifetime of the respondent–in three situations:
- The respondent committed a felony crime involving family violence against the protected person, a household member, or a family member;
- The respondent 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.
If there is no time 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).
A respondent can file a motion to request the court review the original order, but only after the first anniversary of the order going into effect. The court will have a hearing to determine whether there is a “continuing need for the order.” Tex. Fam. Code § 85.025(b).
Code of Criminal Procedure Final Protective Orders
These types of final protective orders function much like the protection orders found in the Family Code version above–the content of the orders and hearings are the same. However, the most significant difference is the applicant and respondent do not need to know each other.
So, for a judge to issue this type of final protective order, a judge must only find reasonable grounds that the applicant is a victim of stalking, human trafficking, or sexual assault. Texas Code of Criminal Procedure Article 7B001(a).
How Long Can It Last?
Again, similar to the Family Code Final Protective Orders, they can last up to the respondent’s lifetime, but if no time is noted in the order, then the order expires within two years of the issue date. Tex. Code of Crim. Proc. Art. 7B007(a).
Can a Court Change the Original Order?
The law is unclear. The Code of Criminal Procedure doesn’t prohibit a respondent from filing a motion with the court to request if there is still a need for the order. So, a respondent most likely can file a motion to ask the court to review the original order after the first anniversary of the order going into effect. See Tex. Code of Crim. Proc. Art. 7B007(c); Tex. Fam. Code § 85.025(b).
Consequences of a Family Violence Finding
If you are convicted of violating one of the protective orders in this blog, a court has most likely made a family violence finding. Accordingly, if you are charged with another criminal offense in the future that involves family violence, you could lose your right to possess a firearm (18 U.S.C. § 922(g)(9)) and face harsher criminal penalties under Texas law.
Be Wary of Bond Conditions
If you have a pending criminal case, you posted a bond when you were released from jail, and at some point after that, you were given bond conditions. Protective orders are separate from bond conditions. For example, if a protective order only prohibits threatening or harassing contact, a bond condition could still prohibit all contact with the applicant. So, follow both.
As you can see, you have much to lose if you’re facing a charge for a protective order violation in Dallas. That’s why you must contact an experienced Dallas Criminal Defense Attorney at Varghese Summersett.
We Will Fight for You
Varghese Summersett’s criminal defense attorneys have more than 100 years of combined experience handling protective order violations in Dallas and the rest of North Texas. Most of our Dallas criminal defense attorneys are former prosecutors skilled in all aspects of investigations, defenses, and mitigating factors. We are relentless in the courtroom and will pursue every possible angle to get you the best possible outcome.
You are more than a client to us. We listen to your story. We will always keep you updated with the latest results in your case and will answer all of your questions. Our goal is to give our clients unmatched service.
If you or someone you know has been accused of a protective order violation in Dallas, you should never leave anything to chance. You need the absolute best team in your corner. Call 214-903-4000 today for a free consultation with an experienced Dallas Protective Order Violation Attorney. Find out why our experience and credentials set us apart.