Restraining Orders: Filing a Protective Order in Texas
- June 6, 2018
- The Law Office of Greg Tsioros
- Comments Off on Restraining Orders: Filing a Protective Order in Texas
If you or someone you love is dealing with an abusive partner or spousal relationship, you must take action. You and your children are in danger and need help. A restraining order, also known as a protective order, can help abuse victims to safely move on with life.
This post explains the process of filing a protective order in Texas. Protective orders are also known as Orders of Protection. A protective order demands that the abuser must stay away from the abused and cease any/all contacts with the victim and/or listed children.
Violating a restraining order in Texas subjects the abuser to both criminal and civil penalties.
Texas Protective Order
If your relationship has placed you in a dangerous situation, you must find a safe place first. Contact local law enforcement immediately.
In many instances, the local police will order the abuser to leave the residence for the evening or immediately proceed to make an arrest.
Although it’s possible to obtain a temporary protective order on your own, you should engage an experienced attorney for best results. Preparation and submission of required forms for your county must be properly executed to avoid delay.
An experienced lawyer will help you to immediately file for a temporary restraining order. He will file a petition and obtain a one-sided (ex parte) hearing before the court.
When filing a temporary restraining order in Texas, the defendant (the alleged abuser) does not receive notification of the hearing and is not present.
The judge may order the alleged abuser to break contact with the victim and listed children in the petition. After the court grants the temporary restraining order, a private process server or the local sheriff personally delivers the order to the alleged abuser to ensure its enforceability. The local police department also receives a copy of the order.
A temporary protective order is in force for approximately two weeks. The hearing date for the full protective order is noted on the temporary order.
Full Protective Order Helps Texas Domestic Violence Victims
The defendant receives notice of the full protective order hearing date. He or she is likely to appear with an attorney.
If you’ve been served notice about the full protective order hearing and you disagree with the applicant, it’s imperative that you retain an experienced domestic violence lawyer now.
It’s very important for both parties to be represented by an experienced Texas domestic violence lawyer.
If the temporary restraining order was obtained without the assistance of an attorney, consider engaging one now. It’s in your best interests to put the best foot forward at the full protective order hearing date.
A full protective order can accomplish the following:
- Forbid contact (any/all) between the victim or listed children and the defendant.
- Forbid contact with the victim, children, and the defendant while at work, school, or daycare.
- Grant temporary custody to the protective order holder.
- Order the alleged abuser to vacate the residence.
- Require the alleged abuser to pay spousal support and/or child support.
- Demand that the alleged abuser submit to counseling.
- Prevent the alleged abuser from carrying firearms or weapons at any time.
Violating a Texas Protective Order
If the protective order holder believes that the defendant (alleged abuser) has violated the order, he or she should call “911” and ask the police to arrest the abuser.
Texas law requires a law enforcement officer to immediately arrest the defendant if the officer has witnessed a violation of the protective order. He or she may arrest the abuser if he or she violated the order outside of the law enforcement agent’s presence.
Certain warnings are written in the protective order:
- Temporary (ex parte) and permanent protective orders say that a violation of the order may be deemed contempt of court, punishable by a maximum $500 fine, six months in jail, or both.
- If the defendant commits a forbidden act, according to the order, he or she faces a maximum $4,000 fine, one-year jail sentence, or both.
- If he or she commits an act resulting in family violence, he or she may be separately prosecuted for the crime.
- If the defendant commits a felony, he or she faces a minimum two-year prison sentence.
Write down the police officers’ names and badge numbers to follow-up on the case. Ask the police officers to fill out a police report, even if they don’t make an arrest. Keep legal documentation concerning any protection order violations for your records. These records can assist you in extending or modifying the order at a later date.
Texas Protective Order Myths
#1: Protective orders and restraining orders are identical.
This is false. The Texas Family Code says that a restraining order is actually either 1) an injunction or 2) a temporary restraining order (TRO).
A TRO is usually filed with a lawsuit that affects the parent-child relationship or a petition for divorce. Typically, the TRO contains a lengthy number of prohibitions against the defendant concerning property preservation and protection of the applicant, including threatening/harassing him or her by telephone or in person, damaging property, causing bodily injury to him or her or named children, or similar behaviors.
Unfortunately, if the TRO respondent violates the prohibitions, these aren’t considered criminally enforceable. No automatic or specific civil remedies exist for the TRO holder. He or she must return to court to enforce or contempt action.
Violation of sections relating to threats or harassment doesn’t automatically initiate a criminal investigation, but these items may be used to file a criminal complaint when appropriate.
In contrast, a protective order provides immediate remedies for the holder. If the defendant or alleged abuser violates the restraining order, it may be enhanced to felony charges in some circumstances.
Texas Family Code Title 4, Ch.85 references traditional protective order language. Under Section 85.022, if the court determines that family violence has occurred—and likely to recur—the respondent is banned from many activities, e.g. the commission of family violence, threatening/communicating with family members or the applicant, approaching the applicant’s workplace or resident, harming a companion animal, or possessing firearms or weapons.
Texas Code of Criminal Procedure, Ch. 7A provides Title4-like protection for sexual assault, sexual abuse, trafficking, or stalking victims.
In contrast to Title 4, Ch. 7A prohibitions instruct the court to determine whether reasonable grounds exist that the applicant is an abused victim. In the event that the abuser demonstrates unwanted, repeated contact, the court can extend the duration of the restraining order for years. The flexibility of the protective order allows the applicant to avoid revisiting this issue over and over.
#2. An undocumented individual can’t ask for a protective order because he or she will face immediate deportation.
This is false. An undocumented person with grounds to ask for a restraining order won’t face deportation because of his or her request. Texas Family Code defines dating violence, household, family, household members, and family violence. It doesn’t distinguish the right to request a protective order based on the applicant’s citizenship status.
However, recurrent victimization may be higher for the undocumented or immigrant victim. He or she may have little or no comprehension of legal rights and might not understand that it’s possible to request protection from the abuser. His or her fear of deportation may prevent asking for help from government agencies or the police.
Recurrent victimization is reduced if the victim understands his or her legal rights, how to ask for a restraining order, and how to use it to address his or her security and safety.
#3. A victim still living with, in a relationship with, or still married to the abuser can’t ask for a protective order in Texas.
This is incorrect. Any adult person in a marriage or dating relationship may request a restraining order in Texas. Under Texas Family Code § 71.004(3), either member of the relationship may apply for a protective order.
Statistics show that domestic violence victims may be most vulnerable and at risk of death or serious injury when they take steps to separate from abusers. For this reason, it’s essential for the victim to map out a plan to safety and to move away from the residence before serving notice on the abuser.
Speak with an Experienced Criminal Lawyer to File a Texas Order of Protection
An attorney isn’t needed to file a Texas protective order. However, the best protective order lawyer should understand criminal law and Texas family violence law.
Contact The Law Office of Greg Tsioros to discuss your questions about filing a protection order in Texas at 832-752-5972.