Did you mean Protective Order vs Restraining Order?
What is the difference between a Restraining Order and a Protective Order?
|What does it do?
|In civil cases it orders someone to do or refrain from doing something to protect property or a child in family cases
|It orders someone to leave a violence victim alone from harm, threatening or coming near a person for a certain period of time
What is a Temporary Ex Parte Protective Order?
‘Ex Parte’ means contacting the court without the other side being involved. An application is filled out and filed with the court clerk.
Texas Family Code Sec. 82.009 requires and applicant to provide 1) a detailed description of the facts and circumstances of the alleged family violence and need for a protective order and 2) be signed by each applicant under oath that the described circumstances in the application are true and correct to the best knowledge and belief of the applicant(s).
The judge will review it for ‘clear and present danger of family violence’. If found, the judge will enter a temporary ex parte order for protection of the applicant without further notice or hearing. The court may order the respondent to do or not do a specified act.
The temporary ex parte order lasts a maximum of 20 days and may be extended on the court’s own motion or the applicant’s.
What is a Protective Order in Texas?
In case you meant to read about a protective order instead of restraining order I will discuss a P.O. first. An application for a protective order must be filled out by the victim or another adult member of the household and filed with the court clerk.
For a dating relationship any adult may apply for a protective order to protect a child. Also a prosecuting attorney or Department of Family and Protective Services may file for a P.O. for a victim.
According to Texas Family Code Sec. 82.004 the contents of the application must state:
(1) the name and county of residence of each applicant;
(2) the name and county of residence of each individual alleged to have committed family violence;
(3) the relationships between the applicants and the individual alleged to have committed family violence;
(4) a request for one or more protective orders; and (5) whether an applicant is receiving services from the Title IV-D agency in connection with a child support case and, if known, the agency case number for each open case.
Where can I file for a Protective Order?
The proper venue is in the county where the applicant resides, the respondent resides, or the county where the alleged family violence occurred.
Any individual affected by the protective order my file a Motion to Vacate and the court will set a date for a hearing on the motion as soon as possible.
Can a Temporary Ex Parte Protective Order Kick me out of my House?
The only way a person can be excluded from their residence by a temporary ex parte order is the following according to Texas Family Code Sec 83.006 when the applicant:
(1) files a sworn affidavit that provides a detailed description of the facts and circumstances requiring the exclusion of the person from the residence; and
(2) appears in person to testify at a temporary ex parte hearing to justify the issuance of the order without notice.
(b) Before the court may render a temporary ex parte order excluding a person from the person’s residence, the court must find from the required affidavit and testimony that:
(1) the applicant requesting the excluding order either resides on the premises or has resided there within 30 days before the date the application was filed;
(2) the person to be excluded has within the 30 days before the date the application was filed committed family violence against a member of the household; and
(3) there is a clear and present danger that the person to be excluded is likely to commit family violence against a member of the household.(c) The court may recess the hearing on a temporary ex parte order to contact the respondent by telephone and provide the respondent the opportunity to be present when the court resumes the hearing. Without regard to whether the respondent is able to be present at the hearing, the court shall resume the hearing before the end of the working day.
What About Filing a Protective Order During a Divorce or Child Custody Battle?
The application must be filed in the county where the applicant’s suit is pending or the county which the applicant resides.
What is in a Notice of Application for a Protective Order?
CONTENTS OF NOTICE OF APPLICATION: a) A notice of an application for a protective order must:(1) be styled “The State of Texas”;
(2) be signed by the clerk of the court under the court’s seal;
(3) contain the name and location of the court;
(4) show the date the application was filed;
(5) show the date notice of the application for a protective order was issued;
(6) show the date, time, and place of the hearing;
(7) show the file number;
(8) show the name of each applicant and each person alleged to have committed family violence;
(9) be directed to each person alleged to have committed family violence;
(10) show: (A) the name and address of the attorney for the applicant; or (B) if the applicant is not represented by an attorney:(i) the mailing address of the applicant; or(ii) if applicable, the name and mailing address of the person designated under Section 82.011; and
(11) contain the address of the clerk of the court. (b) The notice of an application for a protective order must state: “An application for a protective order has been filed in the court stated in this notice alleging that you have committed family violence. You may employ an attorney to defend you against this allegation. You or your attorney may, but are not required to, file a written answer to the application. Any answer must be filed before the hearing on the application. If you receive this notice within 48 hours before the time set for the hearing, you may request the court to reschedule the hearing not later than 14 days after the date set for the hearing. If you do not attend the hearing, a default judgment may be taken and a protective order may be issued against you.”
How do I know if I have a Protective Order Hearing?
This does not apply to an Temporary Ex Parte Protective Order.
A respondent is entitled to notice of the application of a protective order. The service of notice of a protective order is done in the same way as a citation under the Texas Rules of Civil Procedure Rule 106 such as is filed in a lawsuit or a divorce. Service by publication is not allowed.
How do I know if I have a Protective Order against me?
A protective order signed by the judge must be delivered to the respondent to be valid. Under Texas Family Code Sec 85.041 it shall be delivered in one of the following ways:
(1) delivered to the respondent as provided by Rule 21a, Texas Rules of Civil Procedure;
(2) served in the same manner as a writ of injunction; or
(3) served in open court at the close of the hearing as provided by this section.
(b) The court shall serve an order in open court to a respondent who is present at the hearing by giving to the respondent a copy of the order, reduced to writing and signed by the judge or master. A certified copy of the signed order shall be given to the applicant at the time the order is given to the respondent. If the applicant is not in court at the conclusion of the hearing, the clerk of the court shall mail a certified copy of the order to the applicant not later than the third business day after the date the hearing is concluded. (c) If the order has not been reduced to writing, the court shall give notice orally to a respondent who is present at the hearing of the part of the order that contains prohibitions under Section 85.022 or any other part of the order that contains provisions necessary to prevent further family violence. The clerk of the court shall mail a copy of the order to the respondent and a certified copy of the order to the applicant not later than the third business day after the date the hearing is concluded. (d) If the respondent is not present at the hearing and the order has been reduced to writing at the conclusion of the hearing, the clerk of the court shall immediately provide a certified copy of the order to the applicant and mail a copy of the order to the respondent not later than the third business day after the date the hearing is concluded.
What is a Magistrates Emergency Protection Order?
After an arrest for a family violence (or sexual assault, indecent assault, aggravated sexual assault just to name a few others) an order for emergency protection may be issued because of a concern of the magistrate, victim, guardian of victim, peace officer, or attorney for the state.
The emergency protection order from the magistrate is mandatory if there is serious bodily injury of the victim or use of a deadly weapon during the alleged assault.
The E.P.O may prohibit further family violence, communication in a threatening manner, and an indirect threat to the person protected. Also if the magistrate finds good cause the arrested party may be prohibited from going near the residence, place of employment, or child care facility or school of a child protected under this order.
Unless the person named in the E.P.O is a full time paid law peace officer firearms may be ordered to remain out of the arrested person’s possession.
Will an Emergency Protective Order Affect My License to Carry (LTC)?
How long does a Emergency Protective Order last?
The E.P.O. lasts at least 31 to 61 days if not involving a deadly weapon. If the arrested person allegedly used a deadly weapon the length of the E.P.O. is a minimum of 61 to 91 days. The order can be modified in a noticed hearing if unworkable.
|No Deadly Weapon
|Allegedly Used Deadly Weapon
|At least 31-61 days
|At least 61-91 days
What is a Restraining Orders vs. Protective Order?
A Temporary Restraining Order or a Restraining Order’s purpose is to preserve status quo of a situation at the last actual peaceable, non-contested status that preceded the controversy.
The order can be prohibitive or mandatory. Prohibitive orders would strictly prohibit a party from taking certain actions as opposed to requiring an action. Sometimes order or injunctions require an action that is mandatory to maintain the status quo such as requiring a person to maintain property from loss, damage or destruction.
Unless a T.R.O is for a divorce case with children and the T.R.O. is seeking to attach a child there is no need for it to verified or an affidavit attached.
For more information on protective orders click this previous blog link http://erictorberson.com/protective-order-texas.
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