Protective Orders in Texas

							                                   Protective Orders in Texas

Emergency Order for Protection, Article 17.292, Code of Criminal Procedure
       (also known as Magistrate’s Order for Emergency Protection, or MOEP)
Issued by a magistrate after an arrest for family violence, generally when the defendant is being
arraigned. Good for up to 61 days.

Temporary ex parte protective order (TEXPO), Ch. 83, Family Code
Issued by a judge on an application for a TEXPO, accompanied by an affidavit from the
applicant. Issued ex parte, so no advance notice or opportunity to be heard is given to the
respondent. The TEXPO is served on the respondent after issuance. TEXPOs are valid for 14 to
20 days.

Protective Order, Ch. 85, Family Code
       (sometimes called “permanent” protective orders, or “final” protective orders)
Issued after a hearing and evidence presented by both sides. Includes findings of fact regarding
family violence. Criminally enforceable. Good for up to two years. Can also be issued as an
agreed order without a hearing, if both parties agree to the terms and agree to forego the hearing.

All of these orders can include a prohibition on contacting or coming near the victim of family
violence.


                                       Process Illustration

      Domestic violence incident occurs. Police may or may not be called.

      If police are called and an arrest is made, a MOEP may be sought at the arraignment,
       which takes place within a short time of the arrest, often within hours. The MOEP may be
       good for up to 61 days.

      Whether or not the police are called, a victim may seek a protective order.

      If the victim lives in a county where either the County Attorney or District Attorney
       handles protective orders, she can go to that office, fill out an application and swear out
       an affidavit. She can do this at a time of her choosing, though many counties have a
       requirement that the time between the incident and her application not be more than a
       certain amount (in Travis County, for example, the domestic violence must have occurred
       in the last 30 days).

      The application and affidavit for a protective order require that the victim give
       considerable personal, perhaps embarrassing information, about the violence.

      Once it is determined that the victim is eligible for a protective order, she can be issued a
       TEXPO. This generally happens quickly, sometimes the same day, usually within a few
       days.
      The TEXPO is good for 14 to 20 days, during which time the respondent is served with
       the TEXPO and notice of a hearing on a protective order. (Within 14 days in small
       counties; within 20 days in counties of 1.5 million or more.)

      The hearing on the protective order generally happens within 21 days, and both parties
       may present evidence and be represented by counsel. These are generally very
       intimidating processes for the victim, because the batterer is there, and because she
       typically will have to repeat detailed descriptions of the abuse she has suffered. The
       respondent also has an opportunity to present evidence and to dispute the claims of the
       victim.

      Once the protective order is issued, it is good for up to two years.

(Note that this is the basic process. Circumstances of a case and differing practices from
jurisdiction to jurisdiction may cause cases to vary from this model.)

      If the victim is not in a county where the County or District Attorney handles protective
       orders and she needs to find a private lawyer (often Legal Aid) that may extend the
       process before filing the application.


Other orders in the Family Code:
Titles 1 and 5 of the Texas Family Code address the marriage relationship and the parent-child
relationship. There are various orders that a court may issue under these titles. One of the orders
under Title 1 is a temporary injunction under Ch. 6 of the Family Code. It is possible that such an
order could be used to address family violence issues during a divorce action (“the court may
issue, after notice and hearing, a temporary injunction for the … protection of the parties….”),
however, it is worth noting that Section 6.504 of the Family Code states that “On the motion of a
party to a suit for dissolution of a marriage, the court may render a protective order as provided
by Subtitle B, Title 4” [family violence protective orders]. This appears to be encouragement for
judges to use the protective orders in Ch. 85 and elsewhere in Title 4 to address family violence
issues.