In addition to safety plans and shelters, the legal system provides several options for survivors of domestic abuse to protect themselves and their family members. For instance, the survivor may file for a protective order.
What is a Protective Order?
A protective order is a court order intended to stop an abuser from continuing acts of violence, threatening, harassing, or stalking. The person who requests the order is known as the “applicant” or “petitioner.” The person restricted by the order is known as the “respondent.” Additionally, a district attorney or the Department of Family and Protective Services may also file an application on behalf of any person alleged to be a survivor of family violence.
A person may apply for a protective order in the county where he or she lives, the county where the abuser lives, or any county where the family violence took place. If you are seeking a protective order and you have a pending divorce case or pending suit affecting the parent-child relationship (SAPCR), you will have to file the protective order in the same court in which your divorce or SAPCR suit is pending or the county in which the applicant resides.
In the state of Texas, there are three types of protective orders. The first two protective orders fall under the Texas Family Code statute and the third type uniquely falls under the Texas Code of Criminal Procedure. The types of protective orders are:
- Temporary ex parte protective order;
- Final (permanent) protective order; and
- Magistrate’s order of emergency protection (generally called an “emergency protective order”)
Temporary Ex Parte Protective Order
A temporary ex parte protective order is a protection for you and your family members with an immediate need for protection from your abuser. This is called an “ex parte” order because you can obtain this order without prior notice to your abuser and without the abuser being present in court. To obtain this type of order, the applicant must file an Application for Protective Order and set forth sworn facts (meaning you must submit a sworn affidavit setting forth the facts of your application) that demonstrate to the judge that there is a clear and present danger of family violence to you or a family member. The judge will make his or her decision based on the facts you set forth in the application and affidavit.
If the judge decides there is a clear and present danger of family violence, the judge will sign the emergency protective order. The court will then set a hearing date for a Final Protective Order, usually no more than 14 days after the application is submitted. The ex parte order will be valid for a certain period of time, which will be set forth in the order. It is generally valid for a period of up to 20 days. During this time period, you will need to have the abuser/respondent served with the order. The clerk in the county in which you obtain the order will prepare the necessary issuance and citation needed to be served on the abuser.
The order can be extended for additional 21-day periods upon your request or if the judge decides to extend it, but you will need to be prepared to go to a hearing on your final protective order in a fairly short time period. A common reason the judge may decide to extend the order is the inability to serve the abuser with the order during first 21-day period after issuing the order.
Final Protective Order
The court may issue a final protective order after a hearing on the facts of the case and evidence presented at that hearing. A final protective order is effective for the time period stated in the order, which generally may be up to a maximum of 2 years. If the order fails to state a time period, then the order generally expires on the second anniversary of the date the order was issued.
However, the judge may issue an order for longer than 2 years if:
- the abuser caused serious bodily injury to you or a member of your family or household; or
- the same petitioner (you or your child) had two or more protective orders issued against the abuser in the past and in each of those prior cases, the judge found that the abuser committed family violence and was likely to commit family violence in the future.
Texas statutes provide some exceptions to this 2-year time period. If the abuser is in jail or prison when the order is set to expire or if the abuser was released from jail or prison within the one year before the order’s expiration date, the order will automatically be extended.
- If the abuser was sentenced to more than 5 years of incarceration, the order will expire on the first anniversary of the date the abuser is released.
- If the abuser was sentenced to 5 years or less of incarceration, the order will expire on the second anniversary of the date the abuser is released from imprisonment.
A new protective order can also be requested after an earlier protective order has expired or while one is still in effect, as long as the earlier protective order is set to expire within 30 days of the date the new application for protective order is filed.
Magistrate’s Order for Emergency Protection/Emergency Protective Order
This order falls under the Texas Code of Criminal Procedure rather than the Texas Family Code. A magistrate’s order for emergency protection, or what is commonly referred to as an emergency protective order, is issued by a criminal court after the abuser is arrested for committing family violence, sexual assault, sexual abuse, or stalking.
This emergency protective order is generally valid for 31 to 61 days. However, if the abuser was arrested for assault with a deadly weapon, the order would be valid for 61 to 91 days. The criminal court may issue this order upon your request, or upon the request of your guardian, a police officer, the state attorney/prosecutor, or based on the judge’s own decision. If the crime involved serious physical injury or use of a deadly weapon, the judge will likely issue this order even if no one requests the order of protection.
After a judge issues this emergency order, a survivor may also want to pursue a final protective order under the Texas Family Code.
Who may file for a protective order?
A survivor of domestic violence may apply for a protective order for herself/himself as well as for your child if you meet the following criteria:
- The abuser is “a family or household member;”
- The abuser is someone with whom you have/had a “dating relationship;” or
- The abuser is or was married to or is or was dating someone you are or were married to or are or were in a dating relationship with (e.g., the abuser is your current girlfriend’s ex-spouse).
For more information on the definition of “family or household member” and “dating relationship,” see Definitions.
In Texas, a minor is an individual under the age of 18. An adult member in the household may file for a protective order to protect a minor from family violence. If the minor is a survivor of dating violence, the minor may file for the protective order on his or her own.
What does it cost to obtain an application for protective order?
A protective order is free to the applicant. By statute, the court cannot charge the applicant for filing fees, serving the order, entering a protective order, or for obtaining additional certified copies of the order. If you elect to hire an attorney, you will have to pay the legal fees to that attorney based on your engagement agreement with the attorney. The court may also order the abuser to pay any attorney’s fees and all other fees, charges or expenses you have incurred in connection with the protective order.
Although you may file an application for a protective order without having an attorney, you may still want to obtain legal advice. There are also numerous domestic violence organizations throughout the state that may be able to provide you information regarding free or reduced-cost legal services.
What does a protective order do?
Although a piece of paper cannot protect you from all instances of violence, a protective order is a great deterrent for most abusers. A protective order might include one or more of the following provisions, ordering the abuser to:
- stay away from your home or place of employment or those of your family or household member;
- stay away from a school or daycare center that a child protected under the order attends;
- complete a battering intervention and prevention program or attend counseling with someone who specializes in family violence;
- follow any custody/visitation terms in the order;
- not remove your child from your possession or from the jurisdiction of the court;
- stop any transfer or disposal of property that you own or lease with the abuser;
- not remove a pet, companion animal, or assistance animal from your possession;
- pay child support or spousal support for the time you have the protective order;
- leave your home or other specified property (if certain conditions are met) and allow you to remain there;
- not possess any firearms (unless the person is a peace officer actively engaged in employment as a sworn, full-time paid employee of a state agency). Upon a finding of family violence, the judge will likely suspend the abuser’s license to carry a handgun;
- not harm, threaten, or interfere with the care, custody, or control of your pet, companion animal, or assistance animal, or that of your family or household member;
- perform any other acts that are necessary to prevent or reduce the likelihood of family or dating violence.
Some violations, but not all, can result in the police taking the abuser to jail if he or she violates the order. Local law enforcement agencies are notified of Protective Orders in their area. If an offender violates an order, law enforcement personnel will seek to arrest the offender and have criminal charges filed against him or her. The offender may also be punished by the judge who issued the order by being fined, jailed, or both. If a violation occurs in an officer’s presence, the violator will be arrested if he or she can be readily located. Other violations might require an officer to obtain a warrant prior to making an arrest.
Can I keep my contact and personal information confidential?
On the request of a protected person, the court may exclude from a protective order, the address and telephone number of a person protected by the order, that person’s place of business or employment, and the name of the childcare facility or school the child attends.
Can the judge require my abuser to move out of the residence?
It is possible in some circumstances to remove the abuser from the home. “Kick-out” orders can be achieved provided the right circumstances exist. A judge may grant exclusive use of a residence to the applicant and direct the abuser to vacate the residence if:
- The residence is jointly owned or leased by the applicant and the abuser;
- The residence is solely owned by the applicant; or
- The residence is owned or leased by the abuser AND the abuser has an obligation to support the applicant or a child of the applicant obtaining exclusive use of the residence.
If you are seeking to obtain a “kick-out” order on a temporary ex parte protection order, the judge must find from the affidavit and testimony of the applicant that:
- The applicant currently lives in the residence or has lived there within the 30 days before filing the application;
- The abuser (person being excluded) has committed family violence against the applicant or a member of the household within the 30 days before filing the application; and
- There is a clear and present danger that the abuser is likely to commit family violence against you or a member of the household again.
In situations like this, it is possible for the judge to recess or pause the hearing on the ex parte order to contact the respondent by telephone and provide the respondent the opportunity to be present when the court resumes the hearing. However, regardless of whether the respondent elects to attend the hearing, the judge must resume the hearing before the end of the working day.
Steps for Obtaining a Protective Order
Protective Orders are available in every county in Texas. Although the steps may vary from county to county, the following steps are a general guide through the process.
Step One: Complete your Application for Protective Order
The first step in applying for a Protective Order is to complete an application. You may obtain the application through the office of the county or district attorney, a private attorney, or a legal aid program. In some communities, domestic violence advocacy groups also provide assistance in obtaining protective orders.
Your application must include the following:
- the name and county of residence of each applicant;
- the name and county of residence of each individual alleged to have committed family violence;
- the relationships between the applicants and the individual alleged to have committed family violence;
- a request for one or more protective orders; and
- whether an applicant is receiving services from the Title IV-D agency in connection with a child support case and, if known, the agency case number for each open case.
Step Two: File your Application for Protective Order
The application for a protective order must be filed in either the county where you live or the county where the offender lives. Your address can be kept confidential. There are no minimum time limits to establish residency, so even if you have not lived in the same county for very long, you may still file an application for a Protective Order in that county. If you have a pending divorce case or a SAPCR with the offender, you have to file the protective order in the same court in which the survivor’s divorce or SAPCR suit is pending or the county in which the survivor resides.
Step Three: Have a Judge Review your Application
If you are not applying for a temporary ex parte protective order, you can proceed to Step Four below.
If you are trying to obtain a temporary ex parte protective order, the judge will determine whether there is an immediate danger that the abuser will commit family violence based upon the facts in your sworn affidavit. The judge may have questions for you as he or she reviews your application. Be honest with your answers.
Upon finding there is an immediate danger the abuser will commit family violence, the judge will enter a temporary protective order that will generally last about 20 days. The judge will set a date for the hearing on your application. You will then need to proceed to the clerk of the court to obtain the documents needed to serve the abuser/respondent.
Step Four: Obtain the Documents to Serve on the Respondent/Service of Process
The clerk of the court will issue a Notice of an Application for a Protective Order and if applicable, the Notice of the Temporary Ex Parte Protective Order. The clerk will generally arrange for service of these documents. The Notice will state that the respondent has been accused of committing family violence. The hearing date for the permanent protective order will also be included in the documents.
Step Five: Prepare for the Hearing
If you are representing yourself, fill out a Protective Order that provides the relief (the protection) that you are seeking. This will give you a roadmap for knowing what evidence and information you need to support the relief. Gather your evidence, which may consist of photographs, medical records, videos, etc. If you have witnesses to the family violence, such as neighbors or friends, be sure to let them know when the hearing is to occur. The judge may want to hear their testimony at the hearing. If you receive proof of the abuser being served (Proof of Service), bring a copy with you to the hearing. Practice your testimony. This will help you clearly convey the facts of your case and allow you to tell the judge what you are seeking and why.
Step Six: The Hearing
Although it may seem scary, it is imperative that you attend the hearing. If you cannot attend, you can contact the clerk and ask how you can seek a continuance for a later court date. Failure to show up for the hearing could result in a dismissal of your case and you will lose your protective order. Although you do not have to have an attorney at the hearing, having an attorney is extremely helpful. If the prosecutor in the county files the protective order on your behalf, the prosecutor will normally represent you in court.
At the hearing, you will be able to give testimony and present evidence. It is possible that the respondent will have witnesses and evidence. If you are representing yourself, you will have the opportunity to question the respondent’s witnesses as well. The judge may also have questions for you at the hearing. Be sure to answer all questions honestly as you will be under oath. Be complete with your answers. If you do not understand a question, you can say “I don’t understand your question” and he or she can rephrase the question.
You may also want to speak with someone at your local domestic violence program because they can often give you more information about what to expect at the hearing. Some organizations may send an advocate with you for support or give you an attorney referral.
At the conclusion of the hearing, the judge will determine whether it is more likely than not that the respondent committed family violence against you and will likely commit family violence in the future. If the judge finds that both of these criteria are satisfied, the judge will grant and sign the final/permanent protective order.
If the respondent fails to appear at the hearing after having received proper notice of the hearing, the judge can still grant your protective order. It is possible that the judge may give you a new hearing date.
Step Seven: Post-Hearing
If the judge grants your protective order, take your signed copy to the clerk of the court. Ask for several copies of the order. You will want to have one with you at all times and give a copy to your children’s daycare or school, if applicable. If the respondent violates the order, call the police and show them your order.