Have you, a friend or a loved one been arrested and charged with violating a protective order in the Fort Worth or DFW area?
A protective order is an order issued by the court mandating that you refrain from participating in certain activities or from contact related to the person who filed for the protective order. If you have been arrested for a domestic violence charge, you will likely be served with a protective order. In fact, many domestic violence arrests require a protective order lasting from 30 – 90 days be issued to provide a cooling off period.
What type of crimes usually involve protective orders being issued? Dating violence, family violence, stalking, trafficking, sexual assault and indecent assault are all examples of crimes that result in protective orders arising.
If a judge authorizes a protective order, you will be required to refrain from contacting, communicating, threatening, hurting or in any way harassing the named person or persons in the protective order. Even answering the door or phone call from the person who filed a protective order against you can violate a protective order. Additionally, most protective orders also require you not to have access to firearms during the term of the order.
Failure to strictly comply with the specific requirements of the protective order usually results in a warrant being issued for your arrest for violation of a protective order.
What Is A Violation Of A Protective Order?
In addition to hiring the best criminal defense attorney to defend you from your criminal charges, you must also understand what Texas law defines as a violation of a protective order. When analyzing protective order, is it is important to know that you can have emergency protective orders, temporary protective orders and permanent protective orders. Most protective orders that arise out of domestic violence allegations are normally filed as emergency protective orders that last up to 90 days.
Under Texas Penal Code, Section 25.07, a person commits a violation of a protective order by intentionally or knowingly:
- Committing family violence or an act in furtherance of an offense of trafficking, sexual assault, indecent assault, sexual abuse, or stalking;
- Communicating directly with a protected individual or a member of the family or household in a threatening or harassing manner;
- Communicating a threat through any person to a protective individual or a member of the family or household;
- Communicating in any manner with the protected individual or a member of the family or household as prohibited by the order;
- Going to or near any of the places as described in the order or condition of bond;
- Possessing a firearm;
- Harming, threatening, or interfering with the care, custody or control of a pet, companion animal, or assistance animal that is possessed by a person protected by the order; or
- Removing or tampering with the normal functioning of a global position monitoring system.
Criminal courts in Tarrant County, Texas are very strict in their interpretation as to whether a protective order has been violated. As a result, it is critical to avoid any appearance that a provision of the order has been violated. This can quickly result in a warrant being issued for your arrest for a new criminal offense of violation of a protective order.
Can A Protective Order Be Modified?
Possibly. This is a common question we receive from many people charged with a domestic violence crime that have received a protective order. In this situation, many of our clients are removed from being able to go home to their spouse, who is the alleged victim. Let us examine a few instances that will improve your odds of modifying your protective order:
Alleged Victim Does Not Want To Prosecute
If you have a protective order in place prohibiting you from contacting the alleged victim or from going back to a location, you need a plan of action to have the protective order modified or removed. One of the quickest and most effective ways to have the order modified is if the alleged victim is willing to provide an affidavit.
If the alleged victim is willing to provide an affidavit that establishes the following information, your criminal attorney can be equipped to file a motion to modify the protective order: they are not afraid of the accused, specifically requesting the order be cancelled and provide clarity regarding the facts that were the basis for the protective order.
Once your criminal defense attorney has an affidavit from the alleged victim spelling out this information, your lawyer can attach the affidavit as an addendum to their motion to modify the protective order. This strategy will put the prosecutor on their heels because they no longer have a witness to support their claim that there is a reasonable basis to believe that the accused is dangerous or poses a threat to the alleged victim. In fact, when a proper affidavit is provided, it greatly increase the probability of a modification order being approved without an in-person hearing.
Protective Order Hearing
What if the information given by the alleged victim that provided the basis for the protective order is blatantly false or exaggerated? In this situation, your criminal defense attorney can request a formal hearing on the protective order to contest its validity.
At the protective order hearing, the judge will have the opportunity to hear from the alleged victim. This will provide your criminal defense lawyer an opportunity to cross examine this alleged victim with evidence establishing that their claims are blatantly false or exaggerated. In these situations, we have seen judges make a finding that there was no evidence to support the protective order, which would also assist in negotiating any accompanying domestic violence crimes that may exist.
As you can see, there are a number of scenarios that could result in a modification of protective order. However, each of these scenarios requires an experienced and aggressive criminal attorney to plan out and execute a strategy that will put you in the best positing for success.
Violating a Protective Order of Children’s other Parent
If you have children with the person who filed the protective order things can quickly become very complicated. The judge will want you to maintain a relationship with your children, and will usually try to work out a scenario that may involve contact with the other parent to coordinate pickups, visitation, parenting coordination, and other activities. The judge will set very strict guidelines in cases like this that must be adhered to or a violation of the order may be filed.
Usually a judge will require that you attend family counseling, parenting, and anger management classes. In addition, they will usually require that any communication between parents of children that have a history of violence in their relationship to only communicate using easily monitored channels like email and text, but not always. A lawyer for protective order violations can help negotiate a reasonable setup with the judge if possible.
What is the Punishment for Violating a Protective Order?
In most minor cases, the crime of Violation of a Protective Order will result in being charged with a Class A misdemeanor punishable by a Tarrant County jail sentence of up to 1 year in Tarrant County jail and up to $4,000 in fines.
However, if it can be proven at trial that you have been convicted two or more times of violating a protective order, you could be facing a third degree felony, punishable by a prison sentence of up to 10 years and up to $10,000 in fines.
Additionally, the manner in which you violated a protective order can also have a large bearing on the type of punishment you might receive if convicted. This is especially true if you are charged with assault with serious bodily harm, accused of assaulting with physical contact, or any other malicious accusation of violence against the person the order is supposed to protect.
That is why it is so important that you contact a violation of protective order attorney who has experience defending charges like this.
Legal Defenses To Violating A Protective Order In Texas?
If you, a friend or a loved one is facing a violation of protective order case in Fort Worth or a surrounding city in Tarrant County, Texas, your number one priority should be to hire the best criminal attorney in Fort Worth that has a proven track record of obtaining favorable results on violation of protective order cases. Your second priority should be to educate yourself on Texas criminal law and the possible defenses you may have to prevail on your violation of protective order case.
The State of Texas, through the district attorney’s office, always has the burden of proof to prove each and every element of the crime beyond a reasonable doubt. The job of a great criminal defense attorney is to break down the evidence from the prosecutor and analyze the strengths and weaknesses of the case and formulate a strategy.
The more doubt regarding an element of the crime, the more leverage your criminal defense lawyer will have in negotiating a favorable result. The best criminal lawyers know that establishing reasonable doubt is a critical part of a winning defense strategy.
Lack Of Knowledge Of A Protective Order
What if a protective order was issued and you had no idea about its existence? Texas law requires the State of Texas prove beyond a reasonable doubt that you knew about the protective order. What if you no longer resided at the address the protective order was sent? What if someone else had your mail and you never received it? What if you had been out of town for an extended period?
If you failed to receive notice of a protective order, you could not have been in compliance with an order you did not know existed. In this situation, there was likely a hearing that took place in family court that resulted in the judge ruling against you and placing a lengthy protective order with numerous conditions against you. This protective order was issued based only upon the prosecutor and alleged victim’s word. If you never received a copy of the protective order or had no notice of it’s existence, the prosecutor will not be able to meet their burden of proof in trial.
Lack Of Criminal Intent To Violate The Protective Order
As we discussed earlier, Texas Penal Code, Section 25.07, requires that any action that was taken to violate the protective order must be done intentionally or knowingly. If a violation of the order occurred as a result of mistake or accident, no crime has been committed.
For example: a client we represented had a protective order in place prohibiting contact with the alleged victim. Our client went out to dinner with a friend at a restaurant in Fort Worth, Texas. Our client had no idea that the alleged victim had reservations at the same restaurant that evening. This resulted in the alleged victim seeing our client and jumping to conclusions and calling the police. The police showed up, arrested our client and charged him violation of a protective order. Is this fair? Absolutely not! We were able to show in court that our client had a reservation made with a friend and had no knowledge or criminal intent to violate the order by being in the same restaurant as the alleged victim. This conduct was clearly accidental and unintentional. Fortunately, our client was able to have his violation of protective order case dismissed.
If you have been accused of violating the terms of a protective order, you need to contact The Hampton Criminal Defense Attorneys, PLLC immediately. Because protective/restraining orders are commonly associated with family violence and stalking cases, it is common that false accusations and conflicting emotions are involved with these types of cases.
Contact a Defense Attorney for Protective Order Violation
You need a protective order violation lawyer on your side in Court. Jeff Hampton and his team of former prosecutors have over 85 years of criminal law experience and have tried over 550 criminal trials in the courts of Tarrant County and Dallas County, Texas. The Hampton Criminal Defense Attorneys, PLLC is an aggressive and experienced team of criminal defense attorneys who will carefully investigate and analyze your case to fight the charges against you. Call 817-435-2909 now to schedule a free consultation with our firm!