A person can get a restraining order in Texas if she feels threatened or in danger from someone. These orders, also called protective orders, are issued by Texas courts in order to tell one person to stop harming or threatening another person or to stay away. Your options to remove a restraining order depend on whether you are the person who asked for the order or the person against whom an order was entered.
Emergency Protective Orders in Texas
In Texas, someone who feels threatened or in danger can obtain a protective order based on family violence or a protective order based on sexual assault or abuse, stalking or trafficking. These are two separate types of orders with separate requirements.
You can get a family violence protective order when someone close to you is abusing or threatening you. That person can be a spouse, an ex-spouse, someone you cohabit with or have a child with, or someone in your family. If the person you are afraid of isn't someone with whom you have this type of close relationship, you can still get a protective order if you are the victim of sexual assault, abuse, stalking or trafficking.
The first step to get a protective order in Texas is to go into court during business hours or into the magistrate's office after hours and fill out a petition for a protective order. You must identify yourself and the person threatening you and list out the specifics of the abuse. If you feel that you are in immediate danger, the court or magistrate may issue an emergency protective order in Texas. This is ordered ex parte, without hearing from the other person, but the court also sets a hearing date at which the alleged abuser can appear and present his side. The emergency protective order is valid until that hearing.
Read More: How to Lift a Protective Order in Texas
How to Cancel a Protective Order in Texas
Once an emergency protective order is issued, it is valid until the noticed hearing. There is nothing either party can do to cancel it until that hearing. If you are the person who asked for the order, you can "cancel" the process by failing to show up at the noticed hearing. The court will dismiss your petition, and no protective order will be granted.
If you are the person who is the subject of the emergency protective order, you can appear at the hearing and argue that you did not do the acts alleged. If you convince the court that you have not abused the other person and do not present a threat to her, it may refuse to grant the order. Since the emergency order terminates when the hearing is held, the denial of the motion effectively cancels the protective order.
Motion to Dismiss a Protective Order in Texas
Once a protective order has been in place for a year, the person restrained by it can file a motion to dismiss or discontinue the order. The court holds a hearing to determine whether to discontinue it, and both parties can appear and present their positions. The court will hear all of the evidence and argument and then decide whether there is a continuing need for the order.
If you are the person against whom the order was entered, you'll likely have to do more than show you never violated the order. You must convince the court that there is no further need for the order. A court is more likely to grant the order if both parties ask for the protective order to be dismissed.
Seeking Enforcement of a Protective Order
In Texas, like most states, the law is divided into civil law and criminal law. In civil cases, you may seek money or protective orders, but you cannot ask that a person be sent to jail. However, domestic violence situations can be criminal cases brought by the state and can include seeking prison time for the abuser.
If you get a protective order in civil court in Texas, the court has issued the order to protect you from the person abusing you. But if the abuser violates the civil court order, you can report it to the police or you can opt not to. That is, you can drop a case against him if you want to.
However, violations like harassment, assault and rape are tried in the criminal law system. If a criminal complaint is filed against your abuser, it means that he is charged with a crime by the prosecutor. Since it is the government that brings the criminal case, the prosecutor can continue to prosecute the abuser even if you ask that the case be dropped.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.