FAMILY VIOLENCE PROTECTIVE ORDERS
What is a Protective Order?
A protective order is a court order that can protect the life, limb, and emotional well-being of you or a family member (the "Protected Person"), from someone who has committed an act of family violence (the "Restricted Person"). Typically, a protective order prohibits the Restricted Person from contacting, going near, harassing, or threating the Protected Person. For example, a protective order may prohibit the Restricted Person from "going to or near, or within 300 yards of, any location where any Protected Person is known to be," and/or it may prohibit an individual from "communicating directly with any Protected Person in a threatening or harassing manner." Any violations of a protective order can subject the Restricted Person to contempt of court, or even arrest.
Keep in mind that there are three types of protective orders: temporary ex parte, final, and a magistrate's order for emergency protection.
A temporary ex parte protective order should be sought and obtained if you are in immediate need of protection from an individual. If you are able to present evidence of a clear and present danger, a court will issue a temporary ex parte order that typically lasts up to 20 days or until there is a hearing on the matter.
A final protective order is usually granted after both parties have a hearing in front of the judge on the issue. If a court finds that (1) there is evidence that family violence has occurred; (2) that family violence is likely to occur in the future; or (3) that there has been a violation of a previously rendered protective order, the court will grant a final protective order. According to section 85.025(a) of the Texas Family Code, a final protective order is generally valid for up to two years. However, under limited circumstances, which can be found in section 85.035(a-1), a judge may issue a final protective order that is effective for more than two years.
A magistrate's order for emergency protection is issued after a person has been arrested for family violence, sexual assault, aggravated sexual assault, or stalking. In addition, a magistrate's order for emergency protection can be issued without notice or a hearing, and lasts between 31 and 91 days depending on the reason for the arrest.
Is a Protective Order the Same as a Restraining Order?
No. It is a common misconception that a protective order is the same thing as a restraining order. Even lawyers tend to use both terms interchangeably, however they are not the same. As mentioned above, the purpose of a protective order is to protect the life, limb, and emotional well-being of people who have been victims of family violence. A restraining order, on the other hand, is an order that the court imposes on one or both parties in a divorce or suit affecting the parent child relationship. Further, restraining orders often contain boilerplate language consisting of a long list of prohibitions against the Restricted Person, including, but not limited to, threatening or harassing the Protected Person, damaging the Protected Person's property, causing bodily injury to the Protected Person or her children, incurring new debt, confiscating mail, emptying a bank account, etc. In addition, restraining orders are not enforceable by the police or Sheriff's Department, instead, violations of a restraining order must be brought to the attention of the court. Although the court has the power to place the Restricted Person in jail, on the first violation, the court will likely just tell the Restricted Person to behave better going forward.
Who Can Get a Protective Order?
Anyone can get a protective order, but statistically, more protective orders are issued against men than against women. However, as long as the following requirements are met, anyone can obtain a protective order.
Generally, protective orders are granted based on an act of "family violence." According to sections 71.0021 and 71.004, "family violence" is defined as (1) violence by a member of the family or household against another member of the family or household; (2) abuse by a member of the family or household against a child of the family or household; or (3) dating violence against a member of a dating relationship or third party victim.
Violence by a member of the family or household against another member of the family or household refers to an act that is intended to result in physical harm, bodily injury, assault, or sexual assault. It also refers to a threat that reasonably places the family or household member in fear of imminent physical harm, bodily injury, assault, or sexual assault.
Abuse against a child of the family or household refers to (1) any physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child; (2) any sexual conduct that is harmful to a child's mental, emotional, or physical welfare; or (3) compelling or encouraging a child to engage in any sexual conduct.
Dating violence against a member of a dating relationship or third party victim refers to an act that is (1) intended to result in physical harm, bodily injury, assault, or sexual assault; or (2) a threat that reasonably places the member of the dating relationship or third party victim in fear of immediate physical harm, bodily injury, assault, or sexual assault. Although the term "dating violence" is essentially defined the same as the term "violence," a protective order can only be issued on this ground if the violence was committed against (1) someone who has or had a "dating relationship" with the alleged abuser; or (2) the new spouse or boyfriend/girlfriend of someone the alleged abuser is or was married to, or someone who was or is in a "dating relationship" with the alleged abuser. The term "dating relationship" is defined as a relationship between individuals who currently have or had a continuing romantic or intimate relationship.
In addition to the above-mentioned grounds, a protective order may also be obtained if you have had a protective order against the alleged abuser before and that alleged abuser violated the protective order. Also, a protective order may be obtained if you have been sexually assaulted or stalked, even if the alleged abuser is not a family member or member of the household.
So, if you believe the physical safety of you or a member of your family or household is being threatened by another family member or member of the household, please take actions to obtain a protective order.
How Do I Obtain a Protective Order?
The process for obtaining a protective order is meant to be simple, which is why there are no fees associated with a request for a protective order. The first step in obtaining a protective order is to apply for one in the county in which you live, or in the county in which the alleged abuser lives. However, if you are requesting a protective order that is associated with a pending divorce, the order must be requested in the same county in which the divorce is occurring.
When you are filling out the application for a protective order, you will be asked some basic information, such as your contact information, your relationship with the alleged abuser, and ways to identify the alleged abuser. In addition, as part of the application for protective order, you will need to complete an Affidavit or Declaration. An affidavit should be completed if you want your date of birth and address to be kept confidential. An affidavit will also need to be signed in front of a notary. A declaration, on the other hand, should be used if you want your date of birth and address to be public information. A declaration does not need to be signed in front of a notary.
Once the application is complete, take two copies to the proper court. The court clerk will present the application to a judge. At that time, the judge will either (1) grant a temporary ex parte protective order; and/or (2) set the matter for hearing, which will typically occur within two weeks of the initial request. Please note that if you do not receive an order titled "Temporary Ex Parte Protective Order" that is signed by the judge, you do not have a protective order in place yet. Instead, you have to attend the hearing set by the judge. At the hearing, the judge will review the evidence of family violence, paying particular attention to whether there is evidence of violence committed against you in the past and the likelihood violence will occur again in the future. If the judge finds there is evidence of past family violence and a likelihood family violence will occur again in the future, the judge will grant a final protective order.
If you are in need of a protective order, but feel intimidated by the application process, please contact an experienced family law attorney to help you navigate the process. If you are unable to hire an attorney at this time, go to www.texaslawhelp.org/protectiveorderkit for assistance. This website not only provides the necessary forms needed to obtain a protective order, but there is also an instruction sheet for each form.
Help! I've Been Served with a Protective Order. What do I do?
If you have received a Notice of an Application for Protective Order, the first thing you should do is mark the date of the hearing on your calendar. Please note that the date of the hearing should be at least 3 days from the date you were served with the Notice of Application for Protective Order. If not, you may be allowed to request a continuance from the judge, meaning you may be able to ask the judge to move the hearing back because you were not provided enough notice.
At the hearing, you will have the opportunity to argue that there is no justification for a protective order to be issued against you. Of course, the Applicant, the person who requested the protective order, will be arguing that there is justification. Ultimately, it will be up to the judge to determine whether a protective order should be issued against you and for how long the protective order should last. Remember, protective orders typically last for no more than 2 years.
If the court issues a protective order against you, you will be required to abide by each term of the order. So, you will likely be required to remain a specific distance away from the Applicant's home and workplace, i.e. 200 feet, and be required to refrain from threatening, harassing, stalking, or abusing the Applicant. Additionally, you may be required to stay away from the school or daycare of a child who is considered a "Protected Person", attend counseling, turn over firearms, etc. Please make sure to take all necessary precautions to abide by the order because any violations, even if the contact is consensual with the Applicant, is considered a contempt of court and may result in jail time. So, if the Applicant asks you to go to dinner to talk, do not go because that consensual dinner could result in you ending up in county jail.
If you are served with a Notice of an Application for Protective Order, I would recommend hiring an experienced attorney to help you prove there is no justification for the protective order. Although the standard for obtaining a protective order is considered a "high" one, protective orders are issued more frequently than you may think.
Other Frequently Asked Questions
I'm undocumented, can I still request a protective order? - Yes! Any individual who meets the requirements for obtaining a protective order can request one regardless of their citizenship status.
What if I do not speak English, will someone help me with the application process? - If you do not speak English, it is okay. When you go to file your application, just let the clerk know that you will need an interpreter. If there is not an interpreter available, feel free to bring someone to interpret for you.
Will I be able to keep my personal information confidential? - Yes! You may request the court to remove your address and phone number of your residence, workplace, and child's daycare or school from the protective order. You should also let the court's clerk know that you do not want the alleged abuser to have that information.
I have never reported abuse to the police, can I still get a protective order? - Yes! The Texas Family Code does not require that an Applicant provide "proof" of abuse. In fact, many victims of family violence do not report it to the police. That may be why an Applicant's testimony alleging family violence is sufficient to support the issuance of a protective order.
How will I be protected if the Restricted Person and I live together? - You will still be protected even if you and the Restricted Person live together. The judge can make orders indicating who gets the house, apartment, car, etc. If you and the Restricted Person have children, the judge can also make orders regarding child custody.