The Complete Guide to Protective Orders in Texas

To receive an ex parte protective order, the victim or their attorney must fill out an application. If the court decides there is a clear and present danger of family violence, the judge will hold a hearing without the abuser present. The judge will decide to grant the order without speaking to the abuser, and the abuser will not receive notice that the application has been filed.

However, to file a kick-out order with the ex parte protective order, the victim must file a sworn affidavit describing the incidents and patterns of behavior that merit requiring the abuser to be kept out of the home in detail.

Further, the victim must appear in person and testify at a hearing to explain why the order should be issued without notice to the abuser. The victim does not have to own or lease the home for an ex parte protective order to be filed.

However, it is important to note that this protective order does not change the legal ownership of the property. In other words, if the abuser owns the property, the ex-parte order will prevent him from entering the home, but the abuser will still own it.

At the hearing, the ex parte protective order can be converted into a final protective order.

Final Protective Order

A final protective order, also called a permanent protective order, is a longer-lasting protective order granted at a hearing. Similar to an ex-parte protective order, a victim of family violence must submit an application to the court in the county where either the victim or abuser lives.  It can be filed in conjunction with an ex parte protective order or separately from an ex parte order.

To grant a final protective order, the court will schedule a hearing no less than 14 days from when the application is received. Unlike the ex parte order, both the victim and the abuser must be present at this hearing; failing to appear could result in a default judgment for the opposing party.

A final protective order can be issued for any amount of time, up to two years. However, the law allows a judge to grant a protective order for longer than two years if:

• The abuser caused serious bodily harm to the victim or a member of the victim’s household, o
• Two or more protective orders have been issued against the same abuser.

In each case, the judge determined the abuser had either: 1) committed family violence and was likely to do so again, or 2) if the abuser committed an act of family violence against the victim or a member of the victim’s household.

These acts could be considered felonies, regardless of whether the abuser had actually been charged or convicted for the act. It is important to note that only one of the criteria is needed to get the final protective extended past the two-year limit, not all three.

Suppose a victim gets a final protective order and the abuser is incarcerated on the date it is set to expire. In that case, the judge will extend the order based on the abuser’s term of imprisonment. If the abuser is imprisoned for more than five years, the final protective order will expire a year from when the abuser is released. If the abuser was imprisoned for less than five years, the final protective order would expire two years from when the abuser was released.

If the protective order lasts longer than a year, the abuser will have the right to file a motion to have the final protective order discontinued after a year has passed. The judge will evaluate whether there is a continuing need for the order. If the court determines there is no longer a need for the final protective order, it will be discontinued. If the protective order lasts longer than two years, the abuser will have a second chance at having the protective order discontinued a year after the first motion was filed.

Magistrate’s Order for Emergency Protection

A magistrate’s order for emergency protection, also referred to as an emergency protective order, is issued by a court after an abuser has been arrested for committing family violence, stalking, indecent assault, sexual abuse, or sexual assault.

The duration of a magistrate’s order for emergency protection varies based on the nature of the abuser’s offense. In most cases, the order will last for 31 to 61 days. However, suppose the abuser committed an act of family violence that resulted in serious physical injury or the abuser displayed a deadly weapon during the act. In that case, the order will last for 61 to 91 days.

A unique feature of the magistrate’s order for emergency protection is that it may be filed by the court or government officials on their initiative. For example, suppose an abuser committed an act of family violence that resulted in serious physical injury or the abuser displayed a deadly weapon during the act.

In that case, the law mandates that the court shall issue the 61-to-91-day magistrate’s order for emergency protection. Similarly, a 31-to-61-day order may be issued after an abuser has been arrested for family violence on the motion of a police officer, state attorney, or the judge. Thus, it is the case that the victim may not have to appear in court or at a hearing to get this protective order.