Texas Protective Orders

Texas Protective Orders. If you are alleged to have committed assault family violence or domestic violence, whatever term you want to use to describe it, or if, unfortunately, you’re the victim of assault family violence here in Texas, then one of the things that you are going to have to become familiar with, and that I get a lot of questions on, is protective orders. How do they work? What are they? And what can I do? Likewise, if you’re a family lawyer out there that represents people going through a contentious divorce and there’s a violence component to it, or an assault component to that divorce, this is a video that you’re going to want to pay close attention to because I will talk about the three main types of protective orders in Texas, what they are, how they work, and what to know about them. So to stick around.

Happy Friday, everybody. Hope you’re having in a great week and gearing up for the Thanksgiving holiday coming up next week. So like I said, today, I’m going to talk about the three basic types of protective orders here in Texas. Now, I’m going to hit these in broad strokes because I don’t want this to be a 30-minute video. So hopefully, I give you enough information to where you can look up some of this or dive in deeper if you need to, or as always, ask me about it if you need further information. So really, when we talk about protective orders in Texas, there are three main types. There is emergency protective orders. There are contested protective orders. And then there are agreed protective orders. the first thing to know about these protect orders is there does not have to be a criminal case filed for a protective order to be applied for and issued. I’ll get more into that here in just a minute.

So that first type that I talked about, those are emergency protective orders, otherwise known as magistrates orders of emergency protection or MOEPs. MOEPs are put into place anytime there is an arrest made for an assault family violence allegation. Before that person is released from jail, a magistrate judge, as part of the conditions of their bond, are going to issue orders of emergency protection. These are temporary orders. They will last anywhere between 31 and 91 days, depending on the circumstances. They can be custom tailored to the situation. However, more often than not, they’re going to contain a stay away provision and a no contact provision. What that means is the person that is the subject of that protective order must stay away from the residents of the protected individual, and must not communicate directly or indirectly with that individual.

Obviously, that can cause some big problems if the two are married, living together, and have kids. So if you are under an emergency protective order or you know somebody that is, it’s important they get a lawyer right away so that they can look at that and see if the orders can be vacated or modified to try to help that situation out because if you violate them, that’s a new criminal offense and you don’t want to do that.

The second type of protective order, these are what I call contested protective orders. These are the most common. This is when somebody has asked either the state or a judge, “Hey, I need a protective order to be protected from this individual.” Important thing to remember about these, is like I said, they do not require a criminal case to be filed. So if somebody is, let’s say, alleging family violence, the police have not filed a case because, for whatever reason, they don’t find the allegations credible or whatever, that individual can still go and apply for a protective order. The application will be submitted to a court and that court will have to hold a hearing on the issue.

At that hearing, if the court is going to grant the protective order, it must make two very specific findings. First, that court must find that family violence has occurred. So the court will hear the testimony generally of the alleged victim, any potential witnesses, and then they have to make a finding. If they’re going to grant the order, they have to make a finding that based on that, they believe by a preponderance of the evidence that family violence occurred. The second finding that they must make is family violence is likely to occur in the future. So it’s not enough that the court believes something happened, the court must further find that they believe there is a likelihood that family violence will occur again somewhere down the line. If the court makes those two findings, at that point, they grant the protective order and it is put into place.

Big thing to know about these protective orders is they last for, by defaults, two years. There are certain circumstances that they can extend beyond that, but while they are in place, just like the emergency protective orders, while they’re in place, the person that is subject to them cannot possess firearms or ammunition. It is prohibited under federal law. So if you get one of these protective orders placed against you, if you have any guns, you got to get rid of them because otherwise you’re violating federal law.

The other thing about these protective orders is they are a family violence type finding. So now we have this affirmative finding of family violence that can really mess you up later on down the criminal side. It can mess you up in renting apartments. It can become an enhanceable allegation later if you get charged with assault family violence on a different incident. So it’s a bad deal. You don’t want to have this protective order issued against you. So if you have somebody that has applied for one, get a lawyer right away that can defend against it because it does carry with it some pretty hefty consequences on top of the normal stuff that it prohibits you from doing.

The third type is, or are what I consider agreed protective orders. And these are spelled out in chapter 85 of the Texas Family Code. These are what I like to call this good compromise. If you’ve got a situation where two parties are in a contentious divorce or a contentious breakup and there’s allegations of family violence, one of them has applied for a protective order, if you’re the family lawyer trying to dig through all that, the number one thing that I would recommend do is have one of these agreed protective orders issued. The reason being is A, you can set the duration. It’s not two years. You can set it for three months, six months, nine months, whatever you can agree with the other side that’s going to get us through this rough spot. But more importantly, an agreed protect order does not require a court to make any specific findings about family violence. So it’s a way to have this protective order that is enforceable civilly, enforceable criminally without a court finding that your client has engaged in family violence.

So it’s a big win in that regard, and now there’s out this affirmative finding that your client’s done anything criminal. It’s just as a way to make a settlement, to make the piece, we’re going to agree to this protective order. Then you can do mutual protective orders. You can say, we’ll agree to one if you agree to one, and both parties are protected from one another, both parties are instructed they can’t go near one another, but the protective the order doesn’t necessarily say that anybody’s done anything wrong. It doesn’t have that affirmative finding component. So it’s a good way to get through the trouble spot without putting your client at a pretty significant risk with this affirmative finding.

So those are the three main types. As I said, I spoke really, really fast because I could go on, and on, and on about these. There are so many little nuances to protective orders that are worth knowing. There are so many landmines and traps to protective orders. This is why if you know anybody that is either the subjective, a protective order or has had one applied for, and they have this hearing coming up, please tell them to consult with a lawyer. There are a thousand ways these things can go wrong, and you need somebody that knows how to navigate that to protect them.

A lot of family lawyers do it. So if they know a very good family lawyer, they can consult with them. Almost all criminal defense lawyers would be a good resource to contact as well. So if you have any question about this, if you have any questions about what any of this stuff means, or if you just need to dive deeper into a specific issue about protective orders, any of those three types, please shoot me an email, give me a call. I’m happy to answer any questions I can, and help you in any way that it’s possible. So with that, I hope you all have a great weekend, a fantastic next week. I may or may not see you for a video next week, depending on the schedule, but I look forward to these. I look forward to the questions that I get, and I hope you do as well. Hope this helps. And I’ll see you next week. Have a good one. Stay safe.

Author Bio

James P. Whalen

James P. Whalen is the managing attorney and founder of Whalen Law Office, a Texas criminal defense firm offering personalized legal representation for various federal criminal charges. With a commitment to providing comfort and guidance during challenging times, Mr. Whalen serves as both an attorney and counselor to his clients, helping them navigate their cases while striving to restore normalcy to their lives.

In an inherently unbalanced criminal justice system, Mr. Whalen takes on cases with unwavering dedication. With decades of legal experience, he offers representation across various criminal charges, including white-collar crimes, violent crimes, drug charges, and more. Mr. Whalen’s numerous accolades, including Super Lawyer recognition and board certification in Criminal Appellate Law and Criminal Law, reflect his unwavering commitment to ethical and high-quality legal representation.

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