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’
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
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 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.
“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” 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.
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
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
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
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.