Whether you need a Protective Order for the protection of you or your family or you are the subject of a protective order for the benefit of someone else, our attorneys have decades of experience handling your situation.
What is a Protective Order?
A Protective Order is an order signed by a judge prohibiting a specific person (the respondent) from engaging in certain behaviors for the safety and benefit of another person (the applicant). It is a court order intended to prevent future acts of violence.
A judge may sign a Protective Order when he or she believes the respondent has committed an act of family violence or has threatened family violence, and that family violence is likely to occur in the future to the applicant or the applicant’s family. The Protective Order may also require a person to:
- Move out of a shared residence with the applicant
- Stay away from the applicant or members of the applicant’s family or household including their home, school or work
- Prohibit any future acts of violence or threats of violence
- Prohibit any contact with the applicant, family or household
- Prohibit the Respondent from threatening or harassing the applicant
A Protective Order is enforceable by a law enforcement officer who has the authority to make an arrest when he or she has probable cause to believe the order has been violated. Depending on the type of violation, the respondent may be punished either as a misdemeanor or as a felony under the Texas Penal Code.
The duration of each Protective Order can be different and will be reflected within the order itself. Typically, a Protective Order is put in place for one to two years, but can be extended in some circumstances for as long as the court believes is necessary to insure the safety of the applicant.
How is a Protective Order different from a Restraining Order?
Restraining Orders are very common in divorce proceedings to prevent one or both spouses from engaging in conduct that may interfere with a division of the assets by destroying community property or hiding assets or by not discussing the litigation or disparaging the other party in order to ensure both parties are acting in the best interest of the children. Restraining Orders are very common in divorce proceedings.
It is possible to restrict the behavior of one or both parties in a manner similar to a Protective Order however, a Restraining Order cannot be enforced by law enforcement and the criminal justice system. A person who is accused of violating a Restraining Order need only answer to the judge who signed the order through a contempt proceeding.
Because the exposure to penalty for violating a Restraining Order is far less than for violating a Protective Order, the requirements to obtain a Restraining Order are not as strict. The mere request from a party in a divorce or custody proceeding may give rise to a court order prohibiting certain conduct. A Restraining Order has no requirement for proving past violence or likelihood of future violence. The violation of the Restraining Order concerns only the Family Court, not law enforcement. The penalties for violating a Restraining Order are determined a judge after a hearing the evidence of the alleged violations and may include fines and some jail time. The penalties for violating a Protective Order can be up to ten years in prison, depending on the circumstances.
What is an Emergency Protective Order?
An Emergency Protective Order may be requested by law enforcement, a district attorney or a victim to a family violence offense. An Emergency Protective Order is often signed by a magistrate after someone has been arrested for an offense involving family violence, oftentimes without regard to what the victim of the alleged crime wants.
If an Emergency Protective Order was issued on your behalf, you cannot simply agree to relax the conditions or fail to contact authorities if the respondent violates the Court’s order. The Emergency Protective Order can only be modified by a judge. A Respondent’s failure to strictly follow the terms of the Emergency Protective Order may lead to their arrest and incarceration.
An Emergency Protective Order typically lasts only between 31 and 61 days. If the Emergency Protective Order was issued as a result of conduct that involved a deadly weapon or caused serious injury to the victim, the duration can last between 61 and 91 days. In all cases, the duration of the order will be reflected within the order itself.
Often, the Emergency Protective Order is a good safeguard until divorce or custody proceedings can be started. The issuance of an Emergency Protective Order does not take away the necessity of pursuing a Protective Order under the Family Code which has much greater protections.
How do I Qualify for a Protective Order?
In order to meet the requirements for a Protective Order, you first must be able to prove one of the following:
- You are a blood relative of the Respondent;
- You have lived in the same household as the Respondent;
- You have a child with the Respondent; or
- You are in a dating relationship with the Respondent.
Second, you must prove that “Family Violence” has occurred in the past and is likely to occur in the future.
What is Family Violence?
The Texas Family Code defines Family Violence as an act intended to result in physical harm, bodily injury, assault, or sexual assault, or a threat that reasonably places another in fear that those things will happen, and is committed by someone who is a member of the same household or in a dating relationship with the actor.
How do I get a Protective Order?
You must file an application with the Court, including a sworn affidavit, explaining in detail the reasons you feel you are in need of protection from the respondent and describing the facts and events which prove to the Court that you qualify for a Protective Order. Based on your application and affidavit alone, the Court may sign a Temporary Protective Order before the Respondent has been served with notice. The Court will then set the matter for a hearing and will then hear evidence directly from you and/or other witnesses who can help support the facts in the affidavit. Also, the respondent will have the opportunity to challenge the facts through cross examination and testimony in an effort to convince the judge that the Protective Order should not be issued.
How long does a Protective Order last?
Generally, a protective order lasts 2 years. There are circumstances where a Protective Order can last the lifetime of the perpetrator, depending on the type of abuse, the severity of the harm, past abuse, and likelihood of future abuse.
If my Protective Order is about to expire, can I get it extended?
Yes. We can ask the judge to extend the duration of your Protective Order to extend past the original duration under certain circumstances. For example, if the underlying conduct that resulted in the Protective Order originally being issued would constitute a felony offense or resulted in serious physical injury to you, a judge may determine, for your safety, that the Protective Order should remain in effect, even if it was originally set to expire after two years. There are other circumstances which could also result in an extension of the terms of a Protective Order. Contact us to determine what your options are for your unique situation.
What should I do if the Respondent violates the terms of the Protective Order?
Call 911 immediately. If the police have probable cause to believe the Respondent has violated the Protective order, he or she will be arrested.
What should I do if someone has asked for a Protective Order against me?
Hire an attorney experienced in handling these matters to discuss your options. Depending on your situation, it may be possible to convince the Court to vacate the Protective Order and get your case dismissed.
The Price Firm can help.
You want attorneys who have the litigation experience to tell your story and advocate for your rights. Our attorneys have spent their careers in the courtroom, fighting for children and families. Because Protective Orders are often a part of divorce and child custody litigation, you need attorneys who understand and practice both criminal and family law.
In most cases, Protective Orders require an adversarial hearing. The judge will require proof, usually in the form of testimony, of past incidents of family violence before issuing a Protective Order unless the opposing party agrees to the order. Having an attorney on your side with unparalleled courtroom experience provides a significant advantage in preparing and presenting evidence in support of your case whether you are applying for or responding to an Application for a Protective Order.
A Protective Order is a powerful tool that when used properly can protect your safety and the safety of your children and can give you some piece of mind in a tumultuous situation. On the other hand, it is a tool that when incorrectly applied can have long-lasting and severe consequences. Regardless of your situation, you want experienced attorneys to assist you in planning the best course of action for you and your family. Contact us today for a consultation to discuss what the appropriate strategy is for you.