Generally, protective orders are sought against people who are related by consanguinity (blood, including by adoption), affinity (marriage, so in-laws are included), members of the same household, regardless of whether or not they are related to each other, and by a party who is in or has had a dating relationship with the applicant. Divorced couples are still considered to be related. A protective order case is a civil case under the Texas Family Code.
In order for a Court to issue a protective order, the Court has to find that family violence has occurred, and that family violence is likely to occur again in the future. Texas Family Code Section 85.001(a).
According to Texas Family Code, “Family Violence” is defined as:
(1) An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
(2) Abuse by a member of a family or household toward a child of the family or household; or
(3) Dating violence.
The parties, instead of proceeding with a hearing, can agree to the issuance of a protective order without an explicit finding by the Court that family violence has occurred, as would be required for the issuance of a protective order were a hearing to be held. An attorney should always be consulted before agreeing to such an order.
While any lawyer or individual can bring a suit for a protective order, in El Paso County suits for protective orders are usually brought be the El Paso County Attorney’s Office. When protective orders are issued in El Paso County, they are typically issued for a period of two years, although they can be issued for lesser periods. On rare occasion, a court may render a protective order for a period of longer than two years if it makes certain special findings.
Protective orders usually require the respondent, or the person against whom a protective order is sought, to stay away from the applicant, and sometimes also to stay away from children of the applicant. Protective orders also prohibit the possession of a firearm unless a person is a peace officer as defined in Section 1.07 of the Texas Penal Code. A fuller list of the requirements a protective order imposes upon the respondent, or the party against whom the protective order is issued, can be found in Texas Family Code Section 85.022.
WHY YOU NEED A LAWYER IN A PROTECTIVE ORDER CASE
While the law regarding protective orders is well intentioned, in our practice we have also seen applications for protective orders brought in bad faith by persons attempting to obtain an advantage in divorce or custody proceedings, or by persons trying to use the court system as a means of retaliation. In several cases, we have seen protective order applicants try to obtain an order to get our client ejected from the family home. In at least one case it was so the applicant could get our client removed from the family home so that the applicant could move in her boyfriend. Other cases have been used to get quick possession of the children and a child support order before the main custody fight. Protective order cases have also been abused by some undocumented immigrants to obtain legal status to remain in the United States as alleged victims of domestic violence under the Violence Against Women Act (VAWA). The Act shields alleged domestic violence victims from deportation if they pursue a protective order or criminal case against their alleged abuser whether they win the case or not.
Also, a violation of a protective order is a criminal offense under Texas Penal Code Section 25.07. So if a protective order has been issued against you, any complaint to law enforcement that you violated the order can result in your arrest, detention, having to post bond, and having to go through a criminal case. Violation of a protective order is usually a Class “A” misdemeanor punishable by up to one (1) year in prison, but can sometimes be charged as a felony. Hence, the issuance of a protective order, depending on the circumstances, might make a person vulnerable to false allegations of violations of a protective order and to criminal prosecution if he or she is the subject of a vendetta.
If you are already facing criminal charges related to the incident giving rise to the application of for a protective order, it is important to have an attorney to negotiate on your behalf or to defend you to prevent the protective order proceedings from being used against you in the criminal case.
If you are not a citizen of the United States, you also need to take extra precautions in protective order proceedings to try to avoid any finding of family violence that would impact the often simultaneous criminal charge of Assault Family Violence that comes with a protective order case, as a conviction for Assault Family Violence is a deportable offense. Because of the potential consequences under family, criminal and immigration law, and because persons sued for a protective order are not provided free counsel, you should always retain an attorney before appearing at your first protective order hearing. The lawyer bringing the protective order case will try to: 1) pressure you to agree to a protective order at the very first hearing, and 2) pressure you to waive or give up your right to appeal or undo the order before you lawyer up.
HOW PROTECTIVE ORDER PROCEEDINGS DIFFER FROM OTHER TYPES OF CASES
In almost all civil and criminal proceedings you are entitled to know the allegations against you before you go to court. That knowledge is important to have so that you can adequately defend yourself. However, the Texas Family Code does not require the applicant or the applicant’s attorney to tell you what you are accused of in a protective order case. (There is an exception for Temporary Ex-Parte Protective Orders, which will be discussed below). The Texas Family Code requires protective order cases to move quickly, so if you are served with an Application for Protective Order it is important that your lawyer move quickly to establish your defense. For example, our firm, in cases such as these, will search public databases and issue subpoenas to law enforcement for information regarding the applicant and our client which assists us in ascertaining what the allegations will be, and how we can best defend our client against them.
TEMPORARY EX-PARTE PROTECTIVE ORDERS
Temporary Ex-Parte Protective Orders are protective orders that are issued without the respondent’s knowledge, before the respondent is served, usually ejecting a respondent from the household. For a Temporary Ex-Parte Protective Order to be issued the Family Code requires that the application “contain a detailed description of the facts and circumstances concerning the alleged family violence and the need for the immediate protective order” and “be signed by each applicant under oath that the facts and circumstances contained are true to the best knowledge and belief of each applicant.” Texas Family Code Section 82.009.
When you are served with a Temporary Ex Parte Order, Texas Family Code Section 83.004 provides that you can Motion to Vacate the Order. Our office has done this successfully, leading to the dismissal of an application for protective order.
OPTIONS IF A PROTECTIVE ORDER HAS ALREADY BEEN ISSUED
If a protective order is issued against you, the applicant for that order cannot legally authorize you to violate the order. The violation of the order is considered a criminal offense, even where the applicant says he or she no longer wants the order enforced against you.
The modification of a protective order is possible under the Texas Family Code. Texas Family Code Section 87.001 provides that if a protective order has been issued, “On the motion of any party, the court, after notice and hearing, may modify an existing protective order to: (1) exclude any item included in the order; or (2) include any item that could have been included in the order.”
EARLY TERMINATION OF PROTECTIVE ORDER
The Texas Family Code provides that the subject of a protective order, after one year has passed, can ask the court to determine whether there is a continuing need for the protective order, and if no continuing need is found, can allow it to expire early.
Specifically, the code states “ A person who is the subject of a protective order may file a motion not earlier than the first anniversary of the date on which the order was rendered requesting that the court review the protective order and determine whether there is a continuing need for the order. “ Texas Family Code Section 85.025(b).