The law has many terms that are virtually impossible to figure out without a working knowledge of Latin. But a few are self-explanatory, including "protective order." It is, as it sounds, a court order intended to protect someone. The other name for protective order is "restraining order," which is also easy to understand: a court order restraining or stopping someone from doing something. Taken together, these terms describe a court order that protects someone by stopping someone else from doing hurtful, abusive or illegal things to them.
In Texas, protective orders usually are intended to protect a spouse and minor children against family violence. They can also protect people from a person stalking, abusing or assaulting them without a familial relationship. A permanent restraining order can last for two years or even longer. The person restrained has the right, a year after the order is signed, to make a motion to the court asking it to lift the order.
What Is a Domestic Abuse Protective Order?
If someone has hurt you or threatened to hurt you, you can get help in Texas courts by asking for a protective order. A protective order is a legal document issued by a state court that orders one person to stop harming or harassing another person. These orders are often issued against someone in a close relationship with the petitioner as a result of family or domestic violence. They can also be based on stalking or trafficking.
What kinds of behaviors can a restraining order prevent? First, a protective order can preclude the threatening person from having any contact with the protected person or her family members. A court will grant this when contact between them puts the protected person in danger of getting hurt.
A protective order can also direct the threatening person to stay away a certain distance – often 200 yards away or more – from the petitioner's home, work place and the schools her kids go to. This can also apply to any private place the petitioner goes to regularly. The order can also direct the threatening person to keep away from the petitioner's family members, including children, even if the restrained person is the father of the children. It can further be used to protect domestic animals like cats or dogs belonging to the petitioner by ordering the threatening person to stay away from them. It can also order him to pay child support.
The protective order can tell the threatening person that he must seek counseling. That might include anger management counseling and/or drug and alcohol addiction counseling. Since the state of Texas issues concealed carry permits to residents, the restrained person might have a permit. In that case, the restraining order can direct the person to surrender his gun and carry permit.
Read More: How to Get a Protective Order Removed
What Is a Sexual Assault or Stalking Protective Order?
While family violence protective orders can be issued only against someone in a close relationship with you, like a husband or boyfriend, there are other types of protective orders that can be issued against acquaintances or strangers. For example, a sexual assault, abuse, stalking or trafficking protective order is very much like an order protecting against family violence. However, you do not have to have a close relationship with the perpetrator to get a protective order.
Who is eligible for a sexual assault or abuse, stalking or trafficking protective order in Texas? You are, if you have been the victim of certain crimes, regardless of the relationship between you and the offender. Those crimes include sexual assault, stalking, indecency with a child, continuous sexual abuse of a child, trafficking or forced prostitution.
A restraining order in this type of case can order the perpetrator not to do these things. It can order him not to stalk you, not to follow you and not to communicate with you or harass you directly or through another person.
Protective Orders in Texas
In Texas, the court can issue three types of protective orders based on family violence. These are:
- a TRO, temporary restraining order
- a permanent protective order
- a magistrate's order of emergency protection
Both a TRO and a permanent protective order are issued by Texas civil courts in the region the victim resides. It is not necessary that the perpetrator be put in jail for these to be issued. But if the perpetrator violates a protective order, that act can have criminal consequences and result in arrest and jail time. On the other hand, the criminal court issues the magistrate's order of emergency protection after the person restrained is arrested.
Temporary Restraining Order
The first type of order, a TRO, is an emergency measure. It is issued by a Texas judge at your request. You have to file an application for a temporary protective order setting out what has happened in the past, what you are afraid will happen and why. If you fear your husband or partner will beat you or the kids because he threatened to do so, that's what you put in the petition.
If you apply for a temporary order ex parte, it means that the threatening person is not informed about the hearing or present at the hearing. You fill out the forms and present your application to the court. You will likely be asked if there is immediate danger to you and your family. The court will decide this issue based on the facts in your application and your answers to questions in court. If the court agrees that there is immediate danger, the type of order you will get is a temporary order. The order lasts up to 20 days. The court can extend it for an additional 20 days if you ask that it be extended. It can also be extended if the sheriff has trouble serving the person.
Can you lift a restraining order? This type of temporary protective order cannot be lifted. It is issued by the court and runs until it expires. Neither the protected person nor the restrained person can arrange to have it stopped or discontinued. However, if the protected person does not show up at court for the next hearing, the court may dismiss the case.
When the court signs an ex-parte temporary restraining order, it must be personally served on the person to be restrained. The clerk of the court issues a Notice of an Application for a Protective Order stating that the person has been accused of committing family violence. She also arranges for service of the notice and the temporary ex parte order on the other person. The notice also tells him of the hearing date for the permanent order.
Permanent Protective Order
Although you can get the TRO without the threatening person informed of the hearing, this is not the case with a permanent order in Texas or any other state. To get a permanent order, the court will hold a hearing where the threatening person can appear, and both sides have an opportunity to present evidence and testimony.
As the petitioner, you must show up at the court hearing. If you don't, your case can be dismissed and you lose the protective order. If you have an attorney, all the better, but one is not required. If a state prosecutor filed the protective order papers for you, she will probably show up in court and represent you. Between you and your attorney, you must convince the judge that it is more likely than not that the other person committed family violence against you in the past and likely will again in the future. If the court is convinced of that, it will issue a permanent protective order.
How Long Is a Permanent Protective Order?
A permanent protective order can be effective for up to two years from the date it is issued. The court will set out in the order its expiration date. If you look at the Texas order and there is no expiration date, it means that the order is for two years. It will expire exactly two years after entry.
In very rare cases, the court can issue a permanent protective order that will last longer than two years. The circumstances that cause this type of order must be severe. The court will consider granting a longer order if the person committed family violence that would have been considered a felony had he been charged with the offense. It can also grant a longer order if the person seriously injured you or a family member. Finally, a longer order may be mandated if this is your second or third protective order against this person and he violated each of the former orders by committing family violence.
Motion to Dismiss Protective Order in Texas
The person restrained by a permanent protective order cannot try to discontinue the permanent order in Texas until it has been in effect for a year. One year after it goes into effect, the restrained person has the right to file a motion to dismiss or discontinue the order. The court holds a hearing to determine whether to discontinue it.
The question before the court is "whether there is a continuing need for the order." Evidence that the person restrained has not violated the order is not usually sufficient to get the order lifted in a Texas court. If the judge is convinced that there is no further need for the order, she can terminate the order. If she denies the motion to dismiss the order, the person restrained can make the motion again a year later.
Emergency Protective Orders in Texas
The official name is "magistrate's order for emergency protection," but most people call this order an emergency protective order. This is the only type of protective order issued by the criminal court in Texas. The court issues an emergency protective order after the police arrest the person for committing one of the crimes a protective order is designed to prevent: family violence, sexual assault, sexual abuse, stalking or trafficking.
The magistrate in Texas criminal court can issue this order if you or someone else asks for it. The request can come from a police officer, that prosecutor or the state attorney. He can also simply act on his own decision to issue the order. When the crime the person is arrested for resulted in serious physical injury or if he used a deadly weapon while assaulting you or a family member, it is mandatory under the law that the magistrate issue this order.
How long does an emergency protective order in Texas last? A magistrate's order for emergency protection is generally effective for between 31 and 61 days. In some particularly egregious family violence cases, it can be good for up to 91 days. There is no procedure in Texas by which the arrested person can ask to have an emergency protective order dropped.
- According to Texas law, violation of a protective order can be punishable by a fine of up to $4,000 and a year in jail. Texas court documents for protective orders carry the following warning: "No person, including a person who is protected by this order, may give permission to anyone to ignore or violate any provision of this Order. During the time in which this Order is valid, every provision of this Order is in full force and effect unless a court changes the Order."
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.