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Blog 2020 June Protective Orders and How They Help
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Protective Orders and How They Help

Posted By Kathryn Marteeny || 19-Jun-2020

The legal process can be a lengthy one. When someone is being abused, and their abuser is arrested, there are all manner of events that could keep the abuser out of custody. They could make bail; there could be a mistrial; etc. Now the perpetrator is free, and their victim is scared. Victims know that the abuser could return, and these vulnerable people need help.

This is where the use of a protective order, sometimes known as a restraining order, is helpful. Obtaining a protective order is a quicker process than a case grinding through the criminal justice system. Protective orders provide extra security to someone who may be in danger, even though their abuser is currently walking the streets.

How Do Protective Orders Help?

The abuser will be ordered to keep their distance from the victim. They cannot come close to the victim or their work, home, school, kids, kids’ school, etc.

Protective orders explicitly state that the abuser cannot harm or harass someone or their children. Obviously, these actions are already crimes. When someone is being harassed or harmed, it becomes a police matter. Anyone can be arrested, charged, and tried for these crimes, even when there is no protective order.

Protective orders include this language about harm and harassment to create extra protection for victims. It’s easy to charge someone immediately for violating protective orders and give quick, direct consequences for these actions.

In Texas, abusers with a protective order against them lose their second amendment rights. For the duration of the order, their conceal carry license is suspended, and they may not even own a firearm during this time.

Types of Protective Orders

There are three kinds of protective orders issued in Texas. Two of them are issued by civil courts, the other is ordered by a criminal court.

Civil Court Protective Orders

When a citizen needs to request a protective order against someone, they take the matter to civil court. There are two kinds of protective orders issued by civil courts.

Temporary Ex-Parte Protective Order

A person who has been harmed and believes that they will be harmed again can go to the courts and ask for a temporary protective order. The victim needs to prove to the court that they were abused and are at risk of further abuse. If the judge believes the evidence is sufficient, they will issue the order, which will be in effect for 20 days. “Ex-parte” means that the order can be issued without the accused appearing in court.

Final or Permanent Protective Order

Requesting a final or permanent protective order is going to involve an actual court case. The accused will be present, and they and their lawyers will present a defense. If the judge sides in their favor, they won’t be ordered to stay away from the plaintiff. The prosecution is going to need to present a case that a protective order is crucial to the safety of the accuser.

Once the order is issued, it typically lasts for two years. Judges may decree that the order lasts longer, depending on the severity of the accusation.

Also, the order can last for longer than two years if the abuser is in jail or prison when the order expires. If the abuser has been locked up for over five years, and the protective order expired while they were in custody, the order will now expire one year after the date of their release. If their sentence was for less than five years, and the order expires while they’re incarcerated, the order will now expire two years after the date of their release.

Reasons for Civil Court Protective Orders

Family Violence

Family violence in Texas is defined as an act that is intended to cause physical harm, including sexual assault. Also, any threats to cause harm are eligible for a protective order.

Sexual Assault

“Assault” is considered a single act of aggression, not a pattern of behavior. Sexual assault, in Texas, is defined a few different ways. One definition involves sexual acts committed without the other person’s consent. Sexual acts between an adult and a minor, even if consensual, fall under the category of “assault” in Texas. The law has very direct, clear examples of what it considers a sex act as well.

Sexual Abuse

Sexual “abuse” refers to a pattern of behavior. Sexual assault happens once, sexual abuse is continuous. Examples include routine abuse of a child, human trafficking/forced prostitution, etc.

Stalking

The legal language that defines stalking is very close to what defines abuse. Stalking is behavior that threatens the safety of a person, their loved ones, or their property. Beyond behavior that is just threatening, stalking may actually cause harm to a person, loved ones, or property.

The major differences between stalking and abuse are:

  • The victim is being specifically targeted by the stalker.
  • The victim, even if they’ve never been directly harmed, can reasonably argue that the stalker’s actions make them feel threatened.

Criminal Court Protective Order

Magistrate’s Order of Emergency Protection

In a criminal case, a judge can order a “magistrate’s order of emergency protection,” also known as an “emergency protective order.” This judge may issue the order at the request of the victim, but there are instances where a judge is expected to give the emergency order.

An emergency protective order cannot be rescinded by the victim. Even if the order was requested by the victim, this order is handed down by the courts as part of a criminal case.

May vs. Shall

In the following examples, the victim may ask for a magistrate’s order, and the judge will decide if the request is valid:

  • Family violence
  • Sexual assault
  • Stalking

The minimum length of this magistrate’s order is 31 days. The maximum is 61.

However, a judge must issue an emergency protective order in the event of:

  • family violence resulting is serious injury.
  • family violence involving a deadly weapon.

The minimum length of this magistrate’s order is 61 days, and the maximum is 91.

Violation of Protective Orders

Violation of a protective order is a Class A misdemeanor in Texas. Abusers may face either a $4,000 fine or one year in jail. Repeated breaking of a protective order – three or more times – becomes a third-degree felony. Once that line has been crossed, the lawbreaker can face 2 to 10 years in prison.

If the violation of a magistrate’s order resulted in family violence or stalking, it may be charged as a separate felony. When a violator is found to have a gun, and they are not a police officer, they can go to prison.

Modification of a Protective Order

If the offender violates a protective order, it is grounds for renewal. Within 30 days of the order’s expiration, the victim can go to court with their original order and a description of what happened that caused harm.

When the order has expired, violation of the order could be used to file for a new order. If the perpetrator has committed any new harmful acts that qualify for a protective order, then the victim can file for a new protective order.

Out-of-State Protective Orders

If a protective order was issued and served in another state, it is transferrable to Texas, with some exceptions. The abuser must have been given the opportunity to defend themselves. With temporary or emergency orders, the abuser has the opportunity to plead their case to a Texas judge. If the abuser wasn’t served the order in the original state, Texas police are required to inform them of the order and make the effort to serve them the original order.

Moving to Another State

Rules vary from state to state, but generally, a protective order issued in Texas should be enforceable in another state.

Protective orders are simply a means of adding an extra layer of security to a volatile situation. They disincentivize abusers from continuing their behavior, and they give more peace of mind to someone who needs protection.

If you need a protective order, we can help. Consultations are free and there’s no risk involved, so call today at (713) 936-2300 or contact us online.

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