In Texas, there are two types of restraining orders available: family violence protective orders and sexual assault protective orders. These are issued by a judge following application by a plaintiff who alleges and then proves that a legally defined form of family violence or sexual assault has occurred. The orders can be very difficult to combat.
Restraining orders are intended to protect victims of harassment, stalking and abuse from further violence. They are filed with the court clerk in the county of the plaintiff or defendant's residence; the application is reviewed by a judge. Following review, the judge will determine whether to grant a temporary restraining order, based on the plaintiff's testimony; this is called an ex parte restraining order. The judge will then set a hearing date where plaintiff and respondent can present testimonies and evidence for or against the order.
Finding Out About a Restraining Order
You will learn a restraining order was taken out against you when you are "served"--delivered papers notifying you of the allegations, the hearing, and (if one has been issued) the existence of a temporary restraining order. Service is typically completed by law enforcement, a professional server or friend or family member of the plaintiff.
Once served, you are responsible to follow the terms of the order and can be held in contempt of court and arrested for violating any part of it. You do not have to sign it for it to be legally binding; if you refuse to accept service, the server will leave the paperwork with you and you will can be punished for violation. Acceptance of service does not imply admittance of guilt. You may (but are not required to) file a response to the order upon receipt.
Restraining Order Hearing
The first opportunity to fight a restraining order is at the full hearing, typically held five to 30 days following application for the order. You are entitled to legal representation at this hearing, which can be helpful.
To get the order dropped, you must demonstrate you did not commit family or dating violence or sexual assault against the plaintiff. Compile witness testimony and any other evidence you may have to demonstrate your innocence. Practice telling your side of the story clearly and calmly. If the order is granted, it will be valid for a specified amount of time, not to exceed two years, or, if no time is specified, for two years.
Dropping an Existing Restraining Order
You are entitled to review of the restraining order after one year. You may file a motion (with the same court that issued the order) requesting a review to determine whether the order is still necessary. The hearing for this review is similar to the initial hearing; you will be allowed to present evidence in your defense.
Penalties for Violation
Violating a restraining order is a serious crime for which you can be held civilly or criminally responsible. Depending on circumstances, penalties include up to $4,000 in fines and up to two years in jail. Make sure you understand the terms of the order. Restraining orders are issued by the court and are legally binding until rescinded by the court; the plaintiff cannot legally permit you to violate it. Even if the plaintiff says it is OK, do not violate the order until it has been legally rescinded by a judge.