Texas Protective Orders

Protective Orders and TROs are Not the Same

In Texas, protective orders are different from temporary restraining orders, or TROs. Only protective orders are criminally enforceable. This means that if a person subject to a protective order violates the terms of the order, he or she can be arrested and may face jail time for violating the order. For example, if the alleged abuser shows up at the victim's house late at night, the victim can call the police and have the abuser arrested for violating the order.

Temporary restraining orders, on the other hand, are only enforceable by a judge. TROs are typically filed in cases where the parties already have a lawsuit pending, like in a divorce, in order to protect property and the parties in the case. For example, TROs generally are automatically issued in divorce cases to prevent one spouse from destroying or selling property owned jointly or by the other spouse. TROs also can order one party not to harm, threaten or harass the other party or their children.

In general, protective orders offer greater protection to victims of domestic violence than restraining orders. An individual can file for both types of orders. In some cases, however, a person may not qualify for a protective order, but will qualify for a restraining order. For example, those who fear they may be harmed by a loved one but have not yet been harmed or threatened may file for a restraining order.

Applying for a Protective Order

In Texas, a victim of family violence can obtain a protective order from a district or county attorney, a legal aid lawyer or with the help of a private attorney. A lawyer can obtain a protective order as part of a divorce proceeding or without one. In general, it does not cost anything to file a protective order, unless a private attorney is used, in which case the only expense will be the attorney's fee. Even though many protective orders can be obtained through a local District Attorney's office, it is often quicker to obtain one through a private attorney. For victims who want immediate assistance filing the order, a private attorney may be the best option.

A protective order must be filed with the court in the county in which the victim or the alleged abuser lives. Within 14 days of the filing, a hearing will be scheduled with a judge, who will determine whether to issue the protective order and for how long. Protective orders can last for up to two years. The victim must be present at this hearing. If the victim does not show up at this hearing, then the court will not issue the protective order unless both parties have signed an agreed protective order.

While many protective orders are ordered by the court, a party charged with a protective order can agree to the entry of a protective order with the victim's private attorney without having to actually appear in front of a judge.

If the victim is in immediate threat of danger, the court may issue a temporary ex parte order for up to 20 days. The victim may have to testify before a judge or magistrate at the time of filing the protective order petition in order to obtain a temporary ex parte order.

Family Violence Protective Orders

One of the primary legal tools victims of domestic violence can use to protect themselves and their children is the protective order. Protective orders can be issued when a person has been a victim of family violence. Texas law defines family violence as:

* Acts intended to result in physical harm, bodily injury, assault or sexual assault or

* Threats that reasonably place an individual in fear of immediate physical harm, bodily injury, assault or sexual assault

In order to be eligible for a protective order, the victim and the alleged abuser must have one of the following relationships:

* Current or former spouses

* Current or former dating relationship

* Lived together currently or in the past

* Share a child in common

* Related by blood

So long as a judge finds that family violence has occurred in the past and/or is likely to happen in the future, then the judge will issue the protective order. The judge has great discretion in deciding what will be included in the protective order and may include anything to "stop all acts of violence and those reasonably likely to harm, annoy, alarm, abuse, torment or embarrass."

For example, the protective order may require the alleged abuser to vacate the home he or she shares with the victim, cease all communication with the victim and victim's children and prohibit the alleged abuser from showing up at the victim's home, place of employment and/or the child's school and daycare.

In addition to requiring the alleged abuser to maintain no or little contact with the victim, the protective order also may require the alleged abuser to:

* Turn over any firearms he or she owns to the police

* Pay temporary child and/or spousal support

* Complete a family violence counseling program

* Limit visitation with a shared child

* Prohibit the sale or transfer of jointly owned property

Conclusion

Domestic violence is a serious problem. In 2005, the San Antonio Police Department received more than 12,600 reports of domestic violence, resulting in over 2,300 arrests. While the victims of domestic violence tend to be women and children, men also can be victims. Domestic violence occurs across all ethnic, religious and socioeconomic groups and affects same-sex couples as well as heterosexual ones.

For more information about how to protect yourself and your children from family violence, contact an experienced attorney today. An attorney can help you file for a protective order and/or restraining order and discuss other options that may be available to you.