Texas Protective Order

Attorney Eric Torberson

A Texas Protective Order begins with an application. Under the Texas Code of Criminal Procedure Chapter 7A a victim, or parent or guardian of a victim younger than 17, who is the victim of continuous sexual abuse of a child, indecency with a child, sexual assault, aggravated sexual assault, and stalking may apply for a protective order.

A victim, or parent or guardian if the victim is younger than 18, may also apply for an application for the offenses of trafficking, continuous trafficking, and compelled prostitution.

A prosecutor may apply for a protective order for a victim under all the circumstances listed above.

Where is a Protective Order Filed?

It may be filed in district court, juvenile court with jurisdiction of a district court, statutory county court, and constitutional county court.

It can be filed in the county in which the applicant resides, where the alleged offender resides, any county where an element of alleged offense occurred, or any court with jurisdiction over a protective order under Title 4 of the Family Code involving the same parties named in the application.

Protective Order Hearing

At the hearing, where the victim must testify, the judge will determine whether there are reasonable grounds to believe the applicant is the victim of sexual assault or abuse, stalking, or trafficking. If the judge decides yes, the court shall issue a protective order that includes a statement of the required findings. Even testimony of past family violence, without a police report, may be enough to persuade the judge to sign a protective order.

Hearsay of Child Victim Admissible

A statement made by a child younger than 14 years who is a victim of continuous sexual abuse of a child, indecency with a child, sexual assault, or aggravated sexual assault is admissible as hearsay evidence in a hearing for application for a protective order.

What Can a Protective Order Make Me Do? 

Under Chapter 7A.05. CONDITIONS SPECIFIED BY ORDER. The protective order may order the alleged offender to take action that the court determines is necessary to prevent or reduce the likelihood of future harm to the applicant or a member of the applicant’s family or household; or prohibit the alleged offender from:

(A) communicating:

(i) directly or indirectly with the applicant or any member of the applicant’s family or household in a threatening or harassing manner; or

(ii) in any manner with the applicant or any member of the applicant’s family or household except through the applicant’s attorney or a person appointed by the court, if the court finds good cause for the prohibition;

(B) going to or near the residence, place of employment or business, or child-care facility or school of the applicant or any member of the applicant’s family or household;

(C) engaging in conduct directed specifically toward the applicant or any member of the applicant’s family or household, including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person; and

(D) possessing a firearm, unless the alleged offender is a peace officer, as defined by Section 1.07, Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision.

(b) In an order under Subsection (a)(2)(B), the court shall specifically describe each prohibited location and the minimum distance from the location, if any, that the alleged offender must maintain. This subsection does not apply to an order with respect to which the court has received a request to maintain confidentiality of information revealing the locations.

(c) In a protective order, the court may suspend a license to carry a handgun issued under Section 411.177, Government Code, that is held by the alleged offender.

How Long Does a Protective Order Last?

If a period is not stated in the order, it is in effect for 2 years from the date it was signed. It could be ordered for the rest of the parties lives or any shorter amount of time. The victim, or the victim’s parent/guardian listed above, may at any time file a motion to rescind the protective order.

What is an Emergency Protective Order?

This order takes place after an arrest for an offense involving family violence or any of the offenses stated above. This order can be issued at the request of the magistrate, victim, guardian of victim, peace officer, or prosecutor. It is only available at the time of arrest for family violence or sexual assault. It is temporary and it cannot be extended.

The order will last up to 61 days and not less than 31 days. If the arrest includes use or exhibition of a deadly weapon during the commission of an assault, it will last up 91 days and not less than 61 day.

This is an optional order for a magistrate to issue unless the arrest involves serious bodily injury, or use or exhibition of a deadly weapon during the commission of an assault, in which case it is mandatory.

Can I Get the EPO Dropped?

It is possible to modify or dismiss the EPO. It is not easy and definitely requires the victims agreement and assistance. Once the EPO has been in place the State usually prefers to let the process play out out in court. By letting it expire at the statutory deadline they cover themselves in case there is further violence. This can be very inconvenient to the person having to stay away. Its especially a problem if the original victim complaint was a lie to the police or the judge that violence took place.

What is Violation of a Protective Order?

By Family Violence

A person violates a protective order or similar order when the person commits family violence while the following are in place: an act warned about in bond conditions, a protective order, emergency protective order, or family case orders. The crime is complete when the person intentionally or knowingly commits the acts of family violence, trafficking, sexual assault, aggravated sexual assault or stalking.

An offense generally is a Class A misdemeanor. It is a 3rd degree felony if the defendant:

  • Has previously been convicted of this section or other bond conditions in Penal Code Ch 25 (2 or more times).
  • Has previously been convicted of this section AND other bond conditions in Penal Code Ch 25.
  • Has violated the protective order by committing an assault or stalking.

By Communication or Threat

A person violates a protective order or similar order when the person communicates or threatens while the following are in place :an act warned about in bond conditions, a protective order, emergency protective order, or family case orders. The crime is complete when the person intentionally or knowingly commits the acts of communicating directly, communicating a threat, or communicates in any manner with the protected individual except through the attorney.

An offense generally is a Class A misdemeanor. It is a 3rd degree felony if the defendant:

  • Has previously been convicted of this section or other bond conditions in Penal Code Ch 25 (2 or more times).
  • Has previously been convicted of this section AND other bond conditions in Penal Code Ch 25.
  • Has violated the protective order by committing an assault or stalking.

Other Violation of Protective Order Crimes

  • Disobeys Geographic Restrictions.
  • Possesses a Firearm.
  • Harms, Threatens or Interferes with Animal.
  • Removes, Attempts to Remove, or Tampers with GPS.

Arson, Criminal Mischief and Graffiti

These offenses are lined out in Texas Penal Code 25.071, Violation of a Protective Order Preventing Offense Caused by Bias or Prejudice. They relate to committing an offense, communication or threat, and disobeying geographic restriction. The penalties are similar to that listed above.

Repeated Violation of Court Orders

A person who violates orders 2 or more times under Chapter 25 during a 12 month period faces a 3rd degree felony punishable by a possible 2-10 years prison and up to a $10,000 fine.

Texas Protective Order Defense Lawyer

For a violation of protective order charge, it is highly advisable that you call me. I deal with these type of serious cases. My clients are very happy because I get them good results. Look at my home page for more information. https://www.erictorberson.com.