Remaining safe despite the ongoing threat of family violence can be a challenge. However, there is a process in Texas that centers around applying for a protective order that can help assist you in keeping yourself and your family safe. Having the basic knowledge of how to file for a protective order is both practical and good for peace of mind. Let’s walk you through how to obtain a protective order.
The steps required to obtain a protective order
First, you will file an application or petition with the district clerk for your county. This will likely be done online but in some jurisdictions, you may be able to go to the courthouse to complete the filing of these forms. This is usually done in the county where your abuser lives or in the county where the abuse took place. It may be that your abuser is from the county where the abuse took place so this would limit the options on where you will need to file your case.
Keep in mind that if you have already filed a divorce then you should file the protective order application in that county and then notify the divorce court of your having filed the petition for a protective order. The protective order petition would likely be heard by the same judge who is hearing your issues on the divorce.
It will be helpful to have an attorney assist you in filing for a protective order. The district or county attorney's office may assist you in filing for a protective order, especially if there is a criminal case pending against the abuser, but this is not guaranteed. Having someone who understands the law and can guide you in legal matters is critical to this stage of your case. Getting a temporary ex parte protective order or an emergency protective order can be the difference between safe and unsafe outcomes for you and your household.
What forms will you need to complete to file for a protective order in Texas?
If you will be filing for a protective order without the assistance of an attorney, then there is an application that you can find online which shows you the basic steps involved with filing for a protective order. The application will require that you list the name of each victim as well as the county where each victim resides. You will also need to identify the person who abused you or your household member including their name, address, and county of residence. Your relationship with that person will also need to be listed and provided to the court. Last, you must specify that you are requesting a protective order and then indicate whether you are receiving any kind of child support currently.
In the application, you will be given an affidavit to complete. An affidavit is a sworn statement under oath so you will need to be completely honest. The affidavit will require that you disclose the most recent incidents involving significant violence that occurred at the hands of your abuse. Be as descriptive as you can be. The more detail you can provide the more likely a judge will have a clear understanding of the issues in your case. This will increase the likelihood of your application for a protective order being approved.
The judge will look at your petition
Once you have completed the petition and filed it with the appropriate court, the next step will be for the judge to examine the filing. The judge may have questions about the application and would bring you in for a hearing to clarify and answer those questions. If you are requesting a temporary ex-parte protective order then you will decide whether there is a threat of immediate harm that the abuser presents which would require the granting of your application for a protective order.
A temporary order will usually last for up to twenty days. This typically covers the period that will allow you to serve your abuser with notice of your petition and give him or her a chance to respond and find out about the next hearing in your case. The order can be extended an additional twenty days if you request that update or the court believes that it is necessary based on the circumstances of your case. Before a temporary protective order becomes permanent, however, your abuser will need to have an opportunity to attend a hearing and express their arguments in opposition to your petition. Evidence and testimony will be exchanged to present both sides of the argument.
Serving notice upon your abuser
Once the judge reviews your petition the next step will be to have the petition prepared with a citation to be served upon your abuser. The application for protective order will be prepared along with the petition with any temporary ex-parte orders that were also issued. A temporary ex-parte protective order is an order received because of an ex-parte hearing where your abuser did not need to be notified of that hearing. The notice will let your abuser know that he or she has been accused of committing various acts of family violence and that a temporary protective order has been issued against him or her. This will allow the abuser to hire an attorney and prepare their case for a contested hearing.
Attending the hearing for a permanent protective order
A hearing for a permanent protective order You will need to be able to attend the court hearing where a final protective order is sought. You should contact the county or district clerk to notify them if you are not going to be available to attend the hearing. The court may grant you a continuance to delay the hearing for another date in order so that you can attend and present arguments as to why the protective order should be granted. If you do not show up for a previously scheduled hearing the judge may decide to dismiss your application and the case. This means that your temporary protective order would be lifted and there would not be an opportunity for a final protective order to be granted.
You don't need to have an attorney at this hearing, however, as with most things in the world of Texas family law having an attorney by your side can certainly have its advantages, as well. The general rule of thumb is that if your abuser has an attorney then it would be advantageous for you to have one, as well. The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week where we can walk you through whatever situation you are facing and discuss how our office could assist you in achieving your goals.
A judge must believe that there is a great than 50% chance that the abuser committed family violence against you and will likely commit another act of family violence in the future to grant a permanent protective order on your behalf. If you served the abuser properly and filed a proof of service with the court before the hearing, then a judge can issue a protective order even if the abuser does not show up to court.
What to keep in mind after a hearing
As soon as the judge has issued a protective order then you and your attorney should consider whether the abuser has access to a firearm and whether there are any laws in place that would limit that person’s ability to utilize a firearm in the future against you or a family member. There are both federal and state gun laws that you need to be aware of.
Once the protective order is granted by the judge you need to review its language so that you are knowledgeable about what it says and the protections it affords to you and your family members. Any mistakes in the order should be brought to the attention of your attorney or the clerk of the court. It is easier to get those mistakes corrected at that point rather than waiting for days or weeks to address that with the court.
It is wise to have a few copies of the protective order in case you misplace one or need to provide a copy to your child's school, or a family member or even to keep one in your vehicle. The clerk of the court can usually provide you with copies at no cost. If you carry around a bag or a purse, then having a copy of the order on your person always is not a bad idea.
How to hold your abuser accountable if he or she violates the protective order?
There will be numerous restrictions on the behavior of your abuser as outlined in the protective order. The most basic of those restrictions involves not coming near you, your phone, your place of business, or the school of your children. This is an obvious violation if your abuser is found to be near any of these places.
It is also likely that the protective order restricts your abuser from contacting you directly or through another person, possessing a firearm, harming your pet, or attempting to remove a GPS or any other technology that can disclose the location of your abuser. In an immediate sense, law enforcement should be notified of a violation of a protective order by calling 911. If the law enforcement officer personally witnesses a violation of a protective order, then he or she must arrest the abuser. On the other hand, if the officer does not personally witness the violation but heard about it through you or another person then he or she may arrest the abuser.
If your abuser violates a protective order, then this can count as either a felony or a misdemeanor depending upon the circumstances of your case. The protective order will be very clear about the warnings that are included in the document. Violation of a protective order can be contempt of court. This carries with it a punishment of up to $500 per violation, a jail sentence of up to six months, or both. A separate act of family violence means that he or she can be prosecuted independently for that crime in addition to the crime(s) that form the basis for the protective order. A state felony that is committed by the abuser means that he or she can be sentenced to prison for two years or more.
Keep track of the officers who respond to your call(s) when the abuser violates your protective order. You can ask for things like their name, badge number, and the police report number if anything is filed because of the investigation into the violation of the protective order. Remember that you may need to have the protective order extended or changed in the future. The more diligent you can be now the better your chances of accomplishing either of those goals.
Can you move while a protective order is in place?
Once you have a protective order in any U.S. State, that order will be enforceable wherever you travel in the country. Depending upon what state you move to there may be different rules for enforcing a Texas protective order. A good resource to have will be a domestic violence shelter or organization in your new state. This is a group that almost certainly can tell you about how the courts of that state will enforce your protective order from Texas. You can also keep the Texas court informed of your move by providing them with your new address only after you ask them to keep that address private and confidential so that your abuser cannot learn where you are.
Changing a protective order
if in the future, you need to change the protective order to add something or remove a provision then you would need to file a modification petition with the court. Keep in mind that your abuser can also file to modify the order based on a change in circumstances. A hearing will be set up by the court for you and the abuser to present evidence as to why a modification should or should not be granted. You would need to go back to the court that originally granted your order to request to have your protective order modified in some way.
If your abuser is in jail or prison when the order is set to expire or if he or she was released from jail or prison within one year before the order's expiration date, then the order will automatically be extended. Bear in mind that if the abuser was sentenced to more than five years in prison the order will expire on the 1st anniversary of the date that he or she is released from their term of imprisonment. If their term of imprisonment was less than five years then the order will expire on the 2nd anniversary of the date he or she is released from prison. You can request a new court order from the court showing that the extended expiration date is valid to make things clearer for anyone who needs to rely upon that order like law enforcement.
How to renew a current or expired protective order
If the abuser violates the order while the order is valid then this violation can be a reason to renew the order. You can file a petition with the court for a renewed protective order within the final 30 days of the order being valid. With your application or petition, you would need to include a copy of the current protective order as well as a description of the actions of an abuser to cause you to reasonably fear for your safety. If the current order has expired you can file for a new protective order if he or she has violated the order before expiration, and you did not already have a new family violence protective order based on the subsequent violation. Finally, if the abuser has done something new to cause you to reasonably believe that you will be physically harmed immediately then you can also file for a new protective order based on this circumstance.
Overall, there is a lot to keep in mind when it comes to applying for a protective order or requesting that a protective order be extended or renewed. It is helpful to have the assistance of an experienced family law attorney to help make sure that you protect yourself and can move forward with your application as efficiently as possible.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week In person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.