What is a Protective Order in a Texas Domestic Assault Case?

court orderA protective order is a court order that limits the freedom of a person who has been accused of committing a crime involving family violence, sexual abuse, or stalking. Some types of non-violent child abuse may also serve as the basis for a “family violence” protective order. Failure to comply with certain terms of a protective order can also be a criminal offense.

Call (512) 480-9020 to hire us on a Protective Order case in Travis County.

Types of Family Violence Protective Orders

The limits that a protective order can impose on a person’s freedom depend on which type of protective order is granted. The are four different types of protective orders that may may be issued after an accusation of domestic assault:ball-and-chain

Who are the Applicant and Respondent?

Applicant – The applicant in a protective order case is the person seeking protection for themselves or for their children. The role of the applicant is roughly equivalent to the role of plaintiff in a civil lawsuit or the role of the prosecution in a criminal case.

Respondent – The respondent in a protective order case is the person against whom the applicant seeks protection. A judge may order the respondent to do (or not do) certain things to protect the safety of the applicant. The role of respondent in a protective order is roughly the same as the role of defendant in a civil lawsuit or criminal case.

Call (512) 480-9020 to hire us on a Protective Order case in Travis County.

What Happens at a Protective Order Hearing?

A protective order hearing is much like a civil bench trial for the limited purpose of determining if the judge will grant a protective order. Lawyers ask the witnesses questions and they answer under oath. The judge enforces the rules and the court reporter records the testimony. At the end, the judge decides whether or not to grant the application. Essentially, it is everything people imagine a trial to be, except shorter and without a jury.

trialIn a typical protective order hearing, the applicant first provides testimony and evidence and is then cross-examined by the respondent’s attorney. Next, the respondent provides testimony and evidence and is then cross-examined by the applicant’s attorney. Either side may call additional witnesses to testify. After all testimony and evidence is presented, followed by any oral argument from the attorneys, the judge decides whether or not the applicant has met the burden of proof to justify granting a protective order.

A hearing is required when the applicant is seeking a Two-Year Protective Order or a Lifetime Protective Order. However, a judge can issue an EPO or Twenty-Day Protective Order without holding a hearing or providing any advance notice to the respondent.

Note: This is a civil hearing so the rules of civil procedure apply, even though it may be held in a criminal court.

Call (512) 480-9020 to hire us on a Protective Order case in Travis County.

What are my Options as a Protective Order Respondent?

You have several options if you have been named as the respondent in an application for protective order:

  • optionsOption A: Do not fight it and allow the order to be granted by default.
  • Option B: Negotiate the terms of an agreed order or Rule 11 agreement.
  • Option C: Have a hearing in court to fight the application for protective order and deny the accusations.

Options A & B – Defaulting and Negotiating

None of the above options is best for every situation. Allowing the order to be granted by default is generally the easiest and least expensive option but not one that we recommend because it gives you the least control over the conditions that are imposed by the court. Negotiating the terms of an agreed protective order often makes sense for couples with children, especially when the possibility of divorce is looming.

elevenThat said, both a default order and an agreed order include consequences that are necessarily attached to a family violence protective order and can be problematic for some respondents and even for some applicants. It is sometimes possible to negotiate a Rule 11 agreement that includes some protections for the applicant without incurring the negative collateral consequences for the respondent. However, the applicant may not be motivated to engage in such negotiations unless the respondent has an attorney who is prepared to fight the application in a hearing.

jail-releaseIf criminal charges have been filed that are directly related to any incident that is directly referenced in the protective order application, then defaulting or negotiating an agreed disposition will usually be a better choice than having a hearing to fight the order. Your Sixth Amendment right to confront witnesses at trial can be satisfied if the witness testifies in a protective order hearing. Even if your attorney does not actually cross-examine the witness about the specific incident that led to criminal charges, you still lose the right to insist that the person testify in the related criminal matter because you had the opportunity to confront the witness under oath.

gambleWinning a protective order hearing is not worth compromising your possible defenses in a criminal case. If there is the slightest chance that the applicant or other witness might testify at a protective order hearing, but later refuse (or otherwise be unavailable) to testify against you in a criminal trial, then you should not fight the protective order in court without first consulting your criminal defense attorney about the confrontation issue in light of the famous case of Crawford v. Washington, 541 U.S. 36 and its state court progeny.

Option C – Fighting the Protective Order in Court

There are several completely different reasons that one might choose to fight a protective order, each requiring a different approach. Three common strategies are the deposition-style hearing, a miniature bench trial, and a cross application counterattack.

Fighting Strategy 1 – Deposition-Style Hearings

If the respondent does not particularly care about losing the hearing, he can still contest the protective order while asserting his Fifth Amendment privilege against self-incrimination.

strategyThis strategy can make sense because, unlike defendants in civil cases, criminal defendants do not normally have a opportunity to question the alleged victim under oath in a pre-trial deposition. In a protective order hearing, the applicant’s testimony is “on the record.” This means that the respondent can purchase the transcript from the court reporter. The transcript can be an extremely valuable tool for the defense in any criminal proceedings relating to the applicant’s accusations.

liarIf the alleged victim’s testimony at the protective order hearing is not truthful then at least the transcript commits her to a specific story and provides some protection against additional future fabrications. The defendant’s attorney may also be able to use the transcript to investigate any claims or accusations that can either be verified or discredited. Finally, the hearing transcript may come in handy later if the alleged victim tells a slightly different story when testifying at trial. It can be difficult for the alleged victim to tell the same lie twice without making mistakes.

Fighting Strategy 2 – Miniature Bench Trials

When the respondent has a specific need to avoid losing the hearing, the best option might be to approach the protective order hearing as a bench trial. These types of hearings often feature testimony from third-party witnesses as well as testimony from both the applicant and respondent. Unlike a regular criminal trial, the judge does not need to be convinced beyond a reasonable doubt to grant a protective order against the respondent.

Specific needs for avoiding a protective order include situations where the respondent is not a U.S. citizen because violation of a protective order may result in deportation under Section 237(a)(2)(E)(ii) of the Immigration and Nationality Act.

soldiersThe bench trial strategy is also appropriate for respondents with careers in the military or law enforcement who cannot afford, for professional reasons, to lose the right to legally possess a firearm or ammunition. State law has an exception for licensed peace officers but federal law does not.

This approach may also be warranted in some situations where criminal charges have not (yet) been filed or to preserve a child custody position in a nasty divorce case. Finally, some people are interested in fighting a protective order not for pragmatic reasons but simply for the principle of the matter.

Fighting Strategy 3 – Cross-Application Counterattacks

counter-attackWhen the applicant was actually the first aggressor then the respondent might choose to file his or her own cross-application seeking a protective order AGAINST the applicant. This type of hearing has all the features of the miniature bench trial except that each side is seeking a protective order against the other. This type of approach is most likely to be appropriate in a contentious self-defense case.

Technically this is a counter claim rather than a cross claim. People around the Travis County courthouse use the term “cross application” so, as they say, “when in Rome do as the Romans do.”

Note: The state of Texas requires electronic filings in civil cases in Travis County and other counties with at least 500,000 residents.

Call (512) 480-9020 to hire us on a Protective Order case in Travis County.

Magistrate’s Order for Emergency Protection (EPO)

protectionThis type of protective order is typically issued without a hearing while the defendant is still in jail after being arrested for family violence, sexual assault, aggravated sexual assault, or stalking. Although it is technically named a “Magistrate’s Order for Emergency Protection,” this type of order is more commonly known as an Emergency Protective Order, or simply an “EPO.”

By law, an EPO must be issued in family violence cases involving a deadly weapon or serious bodily injury.  An EPO may also be issued in less serious cases if it is requested by the alleged victim, the guardian of the alleged victim, a peace officer, or a prosecutor. A judge may also decide to issue an EPO on her own simply based on the nature of the accusations. The duration of most EPO’s is either 31 or 61 days except that those based on a deadly weapon have a duration of either 61 or 91 days.

Call (512) 480-9020 to hire us on a Protective Order case in Travis County.

What Restrictions Does an EPO Include?

authorized-personnel-onlyAn EPO may forbid the defendant from going to, or even near, the residence, workplace, or school of the alleged victim, his or her children, and other household members. This requirement may be enforced by GPS and often amounts to a short-term eviction when the applicant and respondent live together. In Travis County family violence cases, GPS is more likely to be a condition of release from jail on personal bond than part of an EPO.

An EPO typically includes a temporary suspension of firearm rights, even for defendants with a concealed handgun license.  Most EPO’s also ban several acts that are already illegal like threats, stalking, and additional violence.  Because violation of a protective order is a separate crime, violating an EPO order by committing a new crime gives the prosecution a chance to really pile on the punishment.

communicationMany people mistakenly assume that an EPO forbids any communication with the alleged victim. Currently, an EPO forbids only THREATENING communications, but beginning September 1, 2015, a new law allows a magistrate to prohibit all communications except through an attorney. In Travis County, it is more likely that a ban on communications will be enforced as a condition of release from jail on personal bond.

Call (512) 480-9020 to hire us on a Protective Order case in Travis County.

Can an EPO be Dropped or Removed?

paper-in-trashThe alleged victim can NOT give the defendant permission to visit the protected residence or otherwise violate an EPO. The judges in Travis County are unlikely to vacate or drop a protective order but, if the alleged victim agrees, the judge may be willing to modify the order to remove the “stay away” restriction.

When the alleged victim wants the defendant to return home, they may choose to work together using this Do-It-Yourself EPO modification packet instead of hiring an attorney to file a Motion to Modify. The DIY packet was created by an attorney that is not affiliated with this office in any way so I cannot vouch for it personally but I can say that some of my clients have used it successfully in the past.

There are some advantages to using an attorney when seeking modification. At the modification hearing, the magistrate may ask tough questions about the police accusations and about the defendant’s compliance with the EPO. Except in cases of blatant non-compliance, denial of the modification is usually the worst that will happen, but the questions can be nerve-wracking. Some people handle it well and others are extremely anxious and just feel better working with an experienced guide rather than facing the court system alone.

drafting-legal-motionAlso, in some situations, the attorney may draft the Motion to Modify such that it includes the basis for the defense against the assault charge. Any advantage in getting an early start presenting the defensive theory must be weighed against the disadvantage of losing the element of surprise and the delay required to prepare fact-specific pleadings. These considerations combined with the relatively short time frame of EPO’s cause most people to either wait for the EPO to expire normally or seek modification using the DIY packet mentioned above.

Call (512) 480-9020 to hire us on a Protective Order case in Travis County.

Twenty-Day Temporary Ex Parte Protective Order

calendarA judge that finds a clear and present danger of family violence may issue a twenty-day Ex Parte protective order under Chapter 83 of the Texas Family Code after reviewing an application that was prepared pursuant to Chapter 82. Unlike an EPO, the respondent can be excluded from his residence only if the applicant files a sworn statement explaining why it is necessary AND personally appears in court to testify at the temporary ex parte hearing. The law does not contain an exhaustive list of which freedoms may (or may not) be limited with this type of order. It simply states that the court may direct a respondent “to do or refrain from doing specified acts.”

This type of protective order can be the basis for terminating a lease under Texas Property Code 92.016.

When the conditions of this type of order are in conflict with a custody order (AKA a “SAPCR” order), the terms of this order prevail during the 20-day period. A temporary ex parte order may be extended for additional 20-day periods.

Call (512) 480-9020 to hire us on a Protective Order case in Travis County.

Two-Year Protective Order

do-not-enter-signThe rules of a Two-Year protective order are outlined in Chapter 85 of the Texas Family Code. This type of protective order is granted if the judge determines that family violence, dating violence, or child abuse has occurred in the past and is likely to occur again in the future.

Although the criminal offense of assault may be committed intentionally, knowingly, or recklessly, a two-year protective order must be based on an act of intentional violence.

The term of this type of protective order can be longer than two years if the judge finds that the respondent has been the subject of two or more previous protective orders or that the respondent engaged in domestic violence that caused serious bodily injury.

This type of protective order can be the basis for terminating a lease under Texas Property Code 92.016.

Call (512) 480-9020 to hire us on a Protective Order case in Travis County.

What restrictions are included in a Two-Year Protective Order?

The judge may order the respondent to perform any action deemed necessary to reduce the likelihood of family violence, including:

  • Attending the Batter Intervention and Prevention Program (BIPP) or equivalent counseling for domestic violence offenders.checklist
  • Having no direct communication with the applicant or members of the applicant’s family or household.
  • Staying away from the residence of the applicant or other household members, including children.
  • Staying away from the workplace of the applicant or other household members, and staying away from the school or childcare facility of the children.
  • Refraining from harming, threatening, or interfering with the custody of a pet or service animal.
  • Refraining from following any person protected under the order or otherwise engaging in conduct directed specifically toward a protected person that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person.

firearm-banWhen this type of protective order is granted, the respondent is forbidden under federal law (US Code Title 18 Section 922(g)(8)) from possessing a firearm or ammunition for the duration of the order and any Texas concealed handgun license is suspended. The judge may also order the respondent to pay for the applicant’s attorney, even in cases with an agreed order.

Requirements Applied to Both Parties

Additionally, when granting this type of protective order the judge may issue certain commands that apply to either the respondent or the applicant, or to both. The court may:

  • Determine who is allowed to stay at the residence and who must leave.
  • Decide child custody and visitation schedules.
  • Prohibit moving the children out of the county or state.
  • Require child support payments.
  • Specify who should have possession and use of property or items that are jointly owned or leased by both parties.
  • Prohibit one or both parties from selling, taking loans against, or otherwise disposing of property or items that are jointly owned or leased.
  • Decide custody of a pet or service animal.

Call (512) 480-9020 to hire us on a Protective Order case in Travis County.

Lifetime Protective Order

The alleged victim may apply for a lifetime protective order in cases involving Indecency With a Child, Continuous Sexual Abuse of Children, Sexual Assault, Aggravated Sexual Assault, Stalking, Human Trafficking, or Compelling Prostitution.

Most of the details of a lifetime protective order are exactly the same as the Family Violence Two-Year order described above. The primary differences, as explained in Chapter 7A of the Texas Code of Criminal Procedure, are:

  • The Chapter 7A order may last a lifetime.
  • The Chapter 7A order is not limited to family violence cases and is available to the alleged victims of other crimes.
  • Hearsay testimony of a child victim is admissible.
  • There is no statutory limit on the duration of a Temporary Ex Parte Order granted under Chapter 7A. This type of Temporary Order has the same terms as the lifetime order and the statute provides no definition of the term “temporary.”

When this type of protective order is granted, the respondent is forbidden under federal law (US Code Title 18 Section 922(g)(8)) from possessing a firearm or ammunition for the duration of the order and any Texas concealed handgun license is suspended. The judge may also order the respondent to pay for the applicant’s attorney, even in cases with an agreed order.

Call (512) 480-9020 to hire us on a Protective Order case in Travis County.

How do I get my property out of my home?

Only a judge can modify the terms of a protective order. So if the terms of a protective order evict you from your home, the person protected by the order can not give you permission to come in, even to get your stuff.

move-outAssuming that the protected person is cooperative then the quickest way to retrieve your clothes and other personal effects may be to arrange to have them transferred by a neutral third party. However, making such arrangements might be difficult or impossible when “No Contact” is a term of the protective order or a condition of release on bond.

A “civil standby” is a process in which a law enforcement officer serves as a witness for the property transfer. In some cases, this can help both the protected person and the neutral third party feel more comfortable with the property transfer. Contact your local constable’s office for more information about this service.

If the person protected by the order is NOT cooperative you will either have to seek a modification from the judge, wait until the protective order expires, or file a civil lawsuit to recover your property.

In 2015, the Texas Legislature amended the Property Code by adding Chapter 24A. This new law makes it possible to apply for a court-ordered police escort to enter your former home for the purpose of recovering personal property after the protective order expires or is otherwise terminated.

Call (512) 480-9020 to hire us on a Protective Order case in Travis County.