What is a Restraining Order?
In general, a restraining order is an order issued by a judge prohibiting an individual from interacting improperly with another person. It can also prohibit violence, destruction of property, hiding of effects, or threats of violence of illegal action. But, just like many other aspects of the law, the legal definition of a restraining order is more complicated. There are a variety of orders, all falling within the idea of a restraining order with the public consciousness.
In many cases, especially domestic violence, and other violent crimes, the victim seeks a protective order. This article explains what these terms mean and their differences under Texas law.
If you have any questions about obtaining, modifying, or enforcing an order, our attorneys here at Jackson, Landrith and Kulesz, PC can help you.
Restraining Orders vs. Protective Orders
Under Texas law, a “restraining order” is not typically associated with a criminal case. For example, they are used in civil actions like divorce cases to prevent one of the parties from withdrawing excessive money out of a bank account or taking the children out of the state.
A restraining order is a temporary measure not lasting longer than 14 days in this context. This idea is that a judge should decide what should be done at a hearing. However, the opposing party is currently in a position to do something harmful, and it is in their interest to take this action. Since the damage the opposing party could do is so great and the likelihood of them doing so is equally high, the court should formally restrain them from taking that action until a judge can decide what should be done.
On the other hand, what is commonly thought of as a restraining order is referred to as a “protective order” under Texas law. Widely used in domestic violence cases and other criminal cases, a protective order is a court order that protects a victim from another individual that has been violent or threatened to be violent against them. Violence has a broad scope under the law, and victims of actions that are not physically violent, like stalking, might be able to get a protective order against the perpetrator.
The Three Types of Protective Orders
In Texas, protective orders are available to assist victims of family violence. This is defined as any act committed by one family member against another that is intended to cause:
- physical harm,
- bodily injury,
- assault,
- sexual assault, or a threat that reasonably places a family or household member in fear of the offenses mentioned above.
In this context, a protective order can mandate that the abuser stop all forms of communication with the victim directly or through a third party. The protective order further mandates that the abuser:
- Stop committing acts of family violence and any other acts that are reasonably likely to annoy, alarm, abuse, or torment the victim,
- Stay away from the victim’s home and place of employment
- Stay away from other places, such as the school or daycare of a child protected by the order, and
- Not harm or threaten the victim’s pets.
In addition, upon finding that the abuser has committed an act of family violence, the judge should suspend his license to carry a firearm.
Under Texas law, there are three kinds of protective orders:
1) the temporary ex parte protective order,
2) the final protective order, and
3) the magistrate’s order of emergency protection.
Read on to learn more about each type of protective order.
Ex Parte Protective Orders
An ex parte protective order is a short-term protective order that can include a kick-out order, which is a way to force an abuser out of the home. It lasts for twenty days and, depending on the circumstances, can be extended by another twenty days.
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.
How to Get a Protective Order
To obtain an ex parte or final protective order, one or their attorney must complete an application. After completing it, the application must be filed with the court in the county where the victim or abuser lives.
There are no time requirements to establish residency for these purposes, and protective orders are available in every county in Texas. Accordingly, if an abuser moves out of state, the victim will still be able to obtain a protective order in Texas in the county where she lives.
Consequences of Violating a Protective Order
If the abuser violates the protective order, they will be arrested. The judge will then hold a hearing to determine if the abuser violated the order with the intent to commit more family violence. If the judge finds this so, the abuser can be held in jail until trial without bail.
If the abuser is convicted at trial for violating a protective order, they will be found to have committed a Class A misdemeanor. This crime is punishable by up to one year in jail and a fine not to exceed $4,000. If the abuser has two previous convictions, the violation is upgraded to a third-degree felony with a maximum sentence of ten years and a fine not to exceed $10,000.
Questions?
Involvement with any type of order in Texas can seem overwhelming. Our legal team of experienced lawyers has years of experience helping our clients with all types of orders.
Contact us today for a consultation about any protective order you might need, how to enforce your protective order, or how to modify your protective order.
