We get this question at our office a lot. How do I get a restraining order? Have you ever heard the phrase, “The law doesn’t protect you until the damage is done”? This phrase is somewhat true.
So, how does someone get a restraining order or a protective order?
What is the difference between a Restraining Order & a Protective Order?
The answer is nothing. Texas law refer to these as “Protective Orders.”
In criminal law, the Texas Code of Criminal Procedure allows for a Magistrate’s Order of Emergency Protection. For short, we refer to this as a “MOEP.”
What is an Emergency Protective Order?
An Emergency Protective Order is a criminally enforceable court order. It can be issued against the accused abuser following an arrest for a family violence allegation. This emergency protective order is only available for allegations of family violence or sexual assault.
Who Can Request the Protective Order?
The victim or “complainant” of the alleged family violence or sexual assault may request the Emergency Protective Order.
If the victim is a minor, the guardian may request the protective order.
The State prosecutor or Assistant District Attorney or the investigating officer may request the protective order.
Finally, the court may order the emergency protective order on its own, and in circumstances the court MUST.
When MUST a Court grant an Emergency Protective Order?
The law says the Court MUST grant the emergency protective order in two instances:
- when there is an allegation of serious bodily injury or
- the allegation includes the use or exhibition of a deadly weapon during an assault.
How Long Does an Emergency Protective Order Last?
The length of time the emergency protective order lasts varies depending the allegations. The judge or magistrate may issue the order for a minimum of 31 days and maximum of 91 days. If a deadly weapon is alleged as part of the incident, then the order must be issued for a minimum of 61 days.
What does a Protective Order Prohibit an alleged Offender from Doing?
An Emergency Protective order prohibits the following:
- The alleged offender is prohibited from communicating with the alleged victim or victim’s family or household (even through a third-party) in a threatening or harassing manner;
- Alleged offender cannot go within 200 yards of the victim’s residence or place of work;
- Cannot commit any acts of family violence or stalking; and
- Cannot possess a gun(s). If the alleged offender has a Concealed Handgun License or License to Carry, the protective order will be sent to the Department of Public Safety and the license will be suspended.
What Happens if the Protective Order is Violated?
Violation of a protective order is a Class A misdemeanor punishable up to a year in County Jail and/or a $4,000 fine. It may also cause the alleged offender to have his or her bond revoked if the violation occurs while the underlying case is still pending.
Who Can Change the Protective Order?
Only the judge can modify the Protective Order. Even if the victim or complainant permits the offender to come to the protected residence or place of employment, it is a violation of the protective order unless the Court has agreed to modify the protective order.
What if the Protected Residence is Owned by the Alleged Offender?
If a couple lives together and the protected residence is the same address where the alleged offender lives, the offender still cannot go home. It does not matter if the offender pays all the bills for the residence. Until the Court order says otherwise, the alleged offender must live elsewhere while the protective order is in place.
Call J.L. Today
If you are charged with family violence and subject to a protective order, you need a lawyer who can assist you in navigating through the ins and outs of the law. Call J.L. Carpenter – (713) 201-6767.
Here is the Applicable Statute from the Texas Code of Criminal Procedure:
Art. 17.292. MAGISTRATE’S ORDER FOR EMERGENCY PROTECTION. (a) At a defendant’s appearance before a magistrate after arrest for an offense involving family violence or an offense under Section 20A.02, 20A.03, 22.011, 22.012, 22.021, or 42.072, Penal Code, the magistrate may issue an order for emergency protection on the magistrate’s own motion or on the request of:
(1) the victim of the offense;
(2) the guardian of the victim;
(3) a peace officer; or
(4) the attorney representing the state.
(b) At a defendant’s appearance before a magistrate after arrest for an offense involving family violence, the magistrate shall issue an order for emergency protection if the arrest is for an offense that also involves:
(1) serious bodily injury to the victim; or
(2) the use or exhibition of a deadly weapon during the commission of an assault.
(c) The magistrate in the order for emergency protection may prohibit the arrested party from:
(A) family violence or an assault on the person protected under the order; or
(A) directly with a member of the family or household or with the person protected under the order in a threatening or harassing manner;
(B) a threat through any person to a member of the family or household or to the person protected under the order; or
(C) if the magistrate finds good cause, in any manner with a person protected under the order or a member of the family or household of a person protected under the order, except through the party’s attorney or a person appointed by the court;
(3) going to or near:
(A) the residence, place of employment, or business of a member of the family or household or of the person protected under the order; or
(B) the residence, child care facility, or school where a child protected under the order resides or attends; or
(4) possessing a firearm, unless the person is a peace officer, as defined by Section 1.07, Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision.
(c-1) In addition to the conditions described by Subsection (c), the magistrate in the order for emergency protection may impose a condition described by Article 17.49(b) in the manner provided by that article, including ordering a defendant’s participation in a global positioning monitoring system or allowing participation in the system by an alleged victim or other person protected under the order.
(d) The victim of the offense need not be present when the order for emergency protection is issued.
(e) In the order for emergency protection the magistrate shall specifically describe the prohibited locations and the minimum distances, if any, that the party must maintain, unless the magistrate determines for the safety of the person or persons protected by the order that specific descriptions of the locations should be omitted.
(f) To the extent that a condition imposed by an order for emergency protection issued under this article conflicts with an existing court order granting possession of or access to a child, the condition imposed under this article prevails for the duration of the order for emergency protection.
(f-1) To the extent that a condition imposed by an order issued under this article conflicts with a condition imposed by an order subsequently issued under Chapter 85, Subtitle B, Title 4, Family Code, or under Title 1 or Title 5, Family Code, the condition imposed by the order issued under the Family Code prevails.
(f-2) To the extent that a condition imposed by an order issued under this article conflicts with a condition imposed by an order subsequently issued under Chapter 83, Subtitle B, Title 4, Family Code, the condition imposed by the order issued under this article prevails unless the court issuing the order under Chapter 83, Family Code:
(1) is informed of the existence of the order issued under this article; and
(2) makes a finding in the order issued under Chapter 83, Family Code, that the court is superseding the order issued under this article.
(g) An order for emergency protection issued under this article must contain the following statements printed in bold-face type or in capital letters:
“A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT RESULTS IN A SEPARATE OFFENSE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE, AS APPLICABLE, IN ADDITION TO A VIOLATION OF THIS ORDER. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS. THE POSSESSION OF A FIREARM BY A PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO THIS ORDER MAY BE PROSECUTED AS A SEPARATE OFFENSE PUNISHABLE BY CONFINEMENT OR IMPRISONMENT.
“NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER.”
(h) As soon as possible but not later than the next business day after the date the magistrate issues an order for emergency protection under this article, the magistrate shall send a copy of the order to the chief of police in the municipality where the member of the family or household or individual protected by the order resides, if the person resides in a municipality, or to the sheriff of the county where the person resides, if the person does not reside in a municipality. If the victim of the offense is not present when the order is issued, the magistrate issuing the order shall order an appropriate peace officer to make a good faith effort to notify, within 24 hours, the victim that the order has been issued by calling the victim’s residence and place of employment. The clerk of the court shall send a copy of the order to the victim at the victim’s last known address as soon as possible but not later than the next business day after the date the order is issued.
(h-1) A magistrate or clerk of the court may delay sending a copy of the order under Subsection (h) only if the magistrate or clerk lacks information necessary to ensure service and enforcement.
(i) If an order for emergency protection issued under this article prohibits a person from going to or near a child care facility or school, the magistrate shall send a copy of the order to the child care facility or school.
(i-1) The copy of the order and any related information may be sent under Subsection (h) or (i) electronically or in another manner that can be accessed by the recipient.
(j) An order for emergency protection issued under this article is effective on issuance, and the defendant shall be served a copy of the order by the magistrate or the magistrate’s designee in person or electronically. The magistrate shall make a separate record of the service in written or electronic format. An order for emergency protection issued under Subsection (a) or (b)(1) of this article remains in effect up to the 61st day but not less than 31 days after the date of issuance. An order for emergency protection issued under Subsection (b)(2) of this article remains in effect up to the 91st day but not less than 61 days after the date of issuance. After notice to each affected party and a hearing, the issuing court may modify all or part of an order issued under this article if the court finds that:
(1) the order as originally issued is unworkable;
(2) the modification will not place the victim of the offense at greater risk than did the original order; and
(3) the modification will not in any way endanger a person protected under the order.
(k) To ensure that an officer responding to a call is aware of the existence and terms of an order for emergency protection issued under this article, not later than the third business day after the date of receipt of the copy of the order by the applicable law enforcement agency with jurisdiction over the municipality or county in which the victim resides, the law enforcement agency shall enter the information required under Section 411.042(b)(6), Government Code, into the statewide law enforcement information system maintained by the Department of Public Safety.
(k-1) A law enforcement agency may delay entering the information required under Subsection (k) only if the agency lacks information necessary to ensure service and enforcement.
(l) In the order for emergency protection, the magistrate shall suspend a license to carry a handgun issued under Subchapter H, Chapter 411, Government Code, that is held by the defendant.
(m) In this article:
(1) “Family,” “family violence,” and “household” have the meanings assigned by Chapter 71, Family Code.
(2) “Firearm” has the meaning assigned by Chapter 46, Penal Code.
(3) “Business day” means a day other than a Saturday, Sunday, or state or national holiday.
(n) On motion, notice, and hearing, or on agreement of the parties, an order for emergency protection issued under this article may be transferred to the court assuming jurisdiction over the criminal act giving rise to the issuance of the emergency order for protection. On transfer, the criminal court may modify all or part of an order issued under this subsection in the same manner and under the same standards as the issuing court under Subsection (j).