You may have heard of the legal term “restraining order.”
But what does it mean? And are there domestic violence restraining orders in Texas?
Let us help answer these questions for you.
First, what is a restraining order?
Simply put, it is a legal order requiring someone to do or not do certain things.
Restraining orders typically are sought during lawsuits or court cases to dictate what people can and cannot do. For instance, in a divorce proceeding someone could seek a restraining order to prohibit the other party from selling assets or withdrawing funds from a bank account.
In Texas, domestic violence cases do not involve restraining orders but rather what are known as protective orders. The rules and laws for issuing a protective order in Texas can be found in the state’s Family Code statute (Title 4, Subtitle B, Chapter 85, Subchapter A).
A victim of domestic abuse or family violence in Texas can receive 1 of 3 types of such protective orders:
If a judge believes an abuser presents a clear and present danger of family violence, he or she can issue this temporary order for immediate protection. Such orders often last for 20 days, and they can be renewed.
Such protective orders may last for up to 2 years, and they can last longer. But after 1 year, an abuser can file a motion seeking the order to be discontinued via a hearing on its merits.
Unlike the first 2 orders, which are issued by civil courts without the abuser being arrested, this “stay away” order is issued by a criminal court after the abuser has been arrested for family violence, sexual assault, sexual abuse, indecent assault, human trafficking or stalking.
Such emergency protection usually lasts for 31 to 61 days. But if the abuser was arrested for a family violence crime involving use or display of a deadly weapon, the emergency order can last for up to 91 days, and the magistrate must issue it even if no one requests it. The same goes for a family violence crime which resulted in serious physical injury.
On top of that, a temporary protective order or a permanent protective order then may be sought by complainants in a family court hearing, where a family judge can enter more extensive orders.
There are still more facets of domestic violence protective orders in Texas which you should know if you face a family violence accusation, claim or charge. For instance, protective orders can include provisions for such things as:
Protective orders may also require that the abuser not possess or carry a firearm, even with a license. In addition, they may require that the abuser attend anger management or other types of counseling.
A judge can also order an abuser to submit to drug testing, to attend a substance abuse treatment program, and to pay medical support and child support.
Protective orders can extend to the victim’s children, roommates, current romantic partners, and even pets.
For a protective order for domestic violence to be issued, requirements include establishing that family violence has occurred and is likely to occur again without such an order.
The burden of proof for a protective order to be issued in Texas involves what is known as a “preponderance of evidence” favoring the accuser. That is a lower burden of proof than that of a criminal trial, which requires proof “beyond a reasonable doubt.”
Also, keep in mind that police can enforce protective orders, though they have no authority over restraining orders.
Protective orders are decided at hearings in which the applicant (the person seeking protection) and the respondent (the person being accused) provide testimony and evidence. Such hearings are civil procedures, though they may be held in a criminal court.
A hearing is required for a permanent, or 2-year, protective order. A hearing is not required for a judge to issue a 20-day temporary ex parte protective order, or a 31- to 91-day emergency protective order.
It could be that, rather than have a hearing to fight the protective order, you may want to negotiate an agreed disposition, or perhaps default and allow the order to be granted. Such strategies can protect your legal options in the ensuing criminal case, since a protective order hearing could void your Sixth Amendment right to confront witnesses in your later criminal trial.
Even if you feel you could prevail at a protective order hearing, it might not be worth doing so if that in turn could compromise your legal defenses in a later criminal trial. Ask your defense attorney for advice.
In Texas, penalties for violating protective orders for domestic violence are much higher than for violating restraining orders in, say, a divorce or other civil proceeding.
A person who violates a protective order can face serious criminal charges, along with a contempt of court charge for violating the court order. Criminal charges and penalties would depend on the circumstances of the case, such as the severity of the violation and whether there had been previous transgressions.
If you face a criminal charge for domestic violence along with a protective order issued against you, please know that you can talk to an experienced Houston criminal defense lawyer to protect your legal rights.
Whether you live in Houston, Harris County, Sugar Land, Fort Bend County, The Woodlands, Conroe or Montgomery County, you can contact the Neal Davis Law Firm for a legal review of your case.