Under Texas law, a restraining order is a court order in a civil case, such as a divorce. It requires certain parties, such as those getting divorced, to not have verbal communication or physical contact with one another. A protective order is an order that a civil court issues when there is a concern regarding domestic violence.
A restraining order and a protective order are both civil orders, but they serve different purposes and have different penalties if violated.
Basics of Restraining Orders
The answer to the query “How to file a restraining order in Texas?” is:
A person in a civil case, like divorce or a child custody dispute, should petition the court for an order restraining another party from having contact with them. Typically, the person does this by submitting a motion with a proposed order. A party who violates a restraining order in the state of Texas commits the offense of contempt of court.
The penalty for contempt of court varies depending on the type of court. There are six types of trial courts in Texas: district courts, constitutional county courts, county courts at law, justice courts, municipal courts and statutory probate courts. A judge in any of these courts can issue a restraining order.
Type of Court
Felony criminal cases; cases involving title to land; election contests; civil cases in which amount of damages is $200 or more; and any matters in which jurisdiction is not placed in another trial court.
Constitutional county courts
Class A and Class B misdemeanors. Also hears appeals from cases from the justice of the peace and municipal courts, except in counties where county courts at law have been established.
County courts at law
Concurrent (the same as) jurisdiction with county and district courts. County courts at law usually hear cases appealed from justice of the peace and municipal courts.
Class C misdemeanor criminal cases, minor civil matters and small claims cases.
Municipal courts exist in incorporated cities such as Houston. They hear cases involving violations of city ordinances and within city limits. Concurrent jurisdiction with justice of the peace courts over Class C misdemeanor cases where punishment is by small fine only. Do not have jurisdiction in most civil cases, but have limited civil jurisdiction in cases that involve owners of dangerous dogs.
Statutory probate courts
Statutory probate courts are established in the more populated counties and exclusively hear probate matters.
The punishment for contempt of court other than in a justice court or municipal court is up to six months' incarceration and a fine up to $500. The punishment for contempt of court in a justice court or municipal court is incarceration up to three days and a fine up to $100.
A person can determine whether they have a restraining order against them by reviewing the documents in the file for their case. The court should have given them notice of the restraining order while the person or their attorney was in court by stating that the order has been issued against them.
Proof Necessary for Restraining Order
A party who requests a restraining order must give the court a valid reason. They can testify (give verbal evidence as a witness in court) and present physical evidence of the necessity of the restraining order. This is the proof needed for the court to make its decision.
For example, a party may testify that another litigant contacted them 40 times before a court hearing to offer a settlement and this was unwanted interaction. The party may also present 40 printed emails from the other litigant to the court to show that the other litigant tried to offer a settlement and this was unwanted interaction.
Requesting a Restraining Order
Typically, a party requests a restraining order during an existing case. If the party is represented by an attorney, the attorney may charge the party fees, as their client, for the cost of preparing and submitting the motion for the order, and for arguing the order in court.
How much a civil attorney charges for this work depends on the amount of material the attorney has to review, how much time is required to write the motion and argue it in court.
How a Restraining Order Works
A restraining order works by restraining the party named in the order. The court may decide to restrain additional parties beyond those that a litigant has requested be restrained. For example, if an accident victim sued two people who hit their car, the victim may request that the first perpetrator be restrained from contacting them.
The court can require both perpetrators be restrained from contacting the victim, even if the victim did not request that the second party be restrained.
A party who is not restrained by the order will not face a penalty if they contact the person who is restrained. Generally, however, a party should not contact another party directly if the other party is represented by an attorney; instead they should contact that party’s attorney.
Basics of Protective Orders
A protective order exists to restrain an individual who is alleged to have threatened or committed family violence. Family violence is defined in Texas as:
- Act by a member of a family or household against another member of the family or household intended to result in physical harm, bodily injury, assault or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault. It does not include defensive measures to protect oneself, such as shielding oneself during an attack by another person.
- Abuse by a member of a family or household toward a child of the family or household.
- Dating violence, defined as violence that is committed against a victim or applicant for a protective order with whom the individual to be restrained has, or has had, a dating relationship or marriage.
There are two basic types of protective orders, a temporary ex parte protective order and a standard protective order. A temporary ex parte protective order is requested before the hearing on a standard protective order. It is effective for 20 days.
Extending a Temporary Ex Parte Order
A judge can extend a temporary ex parte protective order for additional periods of 20 days at a time. A standard protective order typically lasts two years. A judge can extend the standard protective order to last the length of the restrained person’s life.
Violating a protective order is typically charged as a Class A misdemeanor, punishable by incarceration up to one year and a fine up to $4,000.
Seeking Legal Advice for a Protective Order
A victim can request either type of protective order on their own or they can hire an attorney to represent or assist them with filing a petition. A victim is not guaranteed the right to an attorney for this service.
A victim who qualifies as indigent (cannot afford an attorney based on their income) may be eligible to qualify for free legal assistance and/or representation from their local legal aid office.
Protection of the Person's Household Members
A protective order can protect individuals of the protected person’s household, such as minor children, as well as the protected person’s pets. The person restrained by the protective order is ordered not to go within a certain number of feet of the victim’s residence, work, school or the school and child care facility regularly attended by the victim’s children.
The protected person and their minor children are not restrained by the protective order.
Additional Conditions Available in a Protective Order
In a protective order, a judge can also order the alleged abuser to attend a substance abuse treatment program and/or anger management classes, pay medical support to the victim and leave the victim’s home. This is true even if the victim and the alleged abuser share the residence.
If the alleged abuser and the victim have minor children in common, the judge can set terms for visitation with the children. Further, the judge can order the alleged abuser to pay child support.
What to Include in the Court Petition
In the petition for a protective order, an individual should show that the alleged abuser engaged in or threatened violence, stalking, sexual assault or human trafficking. It is helpful if the victim lists incidents of abuse or threats of abuse in chronological order, beginning with the most recent.
If there are police or sheriff’s reports showing that the victim made calls or gave statements to law enforcement officers, the victim should attach these to the petition. They should also provide photographs of injuries and copies of relevant voice messages, texts and emails from the alleged abuser.
Emergency Protective Orders
An emergency protective order (EPO) is different from a temporary ex parte protective order and a standard protective order. A court issues an EPO in a criminal case in which an alleged offender has been arrested for a crime involving family violence or sexual assault.
An EPO lasts for between 31 and 91 days. Violation of an EPO in Texas is typically charged as a Class A misdemeanor.
Confidentiality and Pseudonyms
A victim of family violence can keep their home address confidential with the state’s Address Confidentiality Program (ACP). The program provides the victim with a substitute address and mail forwarding service for themselves and members of their household. ACP is not a witness protection program or guarantee of safety.
In order to enroll in the program, an applicant should:
- Meet with a local domestic violence shelter, sexual assault center, law enforcement office like a sheriff’s office, or a member of a government prosecutor’s office to discuss a safety plan and enroll in the program.
- Submit an application to the Texas Office of the Attorney General with a copy of the protective order or crime report.
A person can obtain an ACP application by calling 888-832-2322. Victims of family violence can request to have their names removed from public documents and records relating to the incidents, such as police summary reports, press releases and court records of proceedings.
A victim does this by completing a Pseudonym Form and returning it to the law enforcement agency investigating the offense. The pseudonym is used only for records relating to the offense; it does not apply to other publicly available records. The Pseudonym Form and instructions are found on the crime victims forms and publications website of the Attorney General of Texas.
How to Check Protective Orders
A person can determine whether there is a protective order against them or another person by checking Texas Online Public Information for courts. They should have the first name, last name, birth year and county of issuance for the person restrained by the protective order.
Information on the registry is not an official court record. A person can get an official record of court proceedings directly from the court that maintains the record.
Typically, a protective order does not show up in a criminal record. The exception is if the alleged abuser violated the protective order. In that case, the arrest for the violation or the conviction of the charge involving the violation will show up in the individual’s criminal record.
Removing a Protective Order
When a protective order expires, it is no longer in place, and the person restrained by the order cannot be arrested for, or charged with, violating it. A person who is restrained by a temporary ex parte protective order can argue against the court issuing a standard protective order at the hearing on the standard order.
A person may hire a criminal or family law attorney to represent them at the hearing date for the standard protective order and to argue against the extension of a standard protective order.
- Texas Government Code: Title 2, Judicial Branch, Chapter 21, General Provisions
- Texas Family Code: Chapter 85 Issuance of Protective Order
- Texas Courts: Protective Order Registry of Texas
- Texas Judicial Branch: Trial Courts
- Texas Family Code: Chapter 83 Temporary Ex Parte Orders
- Texas Family Code: Title 4 Protective Orders and Family Violence, Chapter 71 Definitions
- Attorney General of Texas: Family Violence Facts
- Texas Penal Code: Title 3 Punishments, Chapter 12 Punishments
- Attorney General of Texas: Crime Victim Forms and Publications
- Texas Judicial Branch: Protective Order Registry
- Texas Code of Criminal Procedure: Title 1 Code of Criminal Procedure, Chapter 17 Magistrate's Order for Emergency Protection
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.