Updated September 28, 2021; Original Post: October 4, 2017
Protective orders, different from restraining orders, are issued to protect victims of domestic violence, stalking, sexual violence, and human trafficking.
They may also be issued to protect against the transfer or destruction of property during divorce proceedings, and to put a stop to patent and trademark infringement.
Although protective orders are important to protect victims of violence and/or stalking, they can also be filed frivolously to gain leverage in family law proceedings. Moreover, if you are hit with a protective order, your freedom may be compromised. It is therefore important to know how to respond and avoid violations. Remember, the purpose of a protective order arising out of a criminal case is to protect the alleged victim and allow a cooling off period to take place so that no further instances of domestic violence will occur. An alleged victim that is sophisticated in manipulation could use the threat or allegation of filing a violation of protective order case against you to gain an advantage in their legal proceedings.
Grounds for a protective order
As mentioned above, there are several different acts that serve as grounds for someone getting a protective order in Texas:
- actual or threatened physical violence
- psychological abuse
- depletion of assets
- human trafficking
- patent and trademark infringement
However, most protective orders are filed to prevent continued domestic violence, or as a part of divorce proceedings or criminal proceedings. A protective order, filed by the petitioner, prevents the respondent from making any form of contact or communication with the petitioner – and in some cases his or her children as well.
Emergency, temporary, and permanent protective orders
There are three types of protective orders.
An emergency protective order is issued by the criminal court after the respondent has been arrested for domestic violence, sexual assault, sexual abuse, or stalking. In Texas, an emergency protective order lasts from 31-61 days, but can be extended to 91 days if the incident involved assault with a deadly weapon. An emergency protective order can be requested by the victim, a police officer, a prosecutor, or based upon the judge’s decision.
A temporary protective order is first granted by a judge. Importantly, the respondent does not need to be present for a temporary protective order to be issued. The temporary order stays in place for the period specified in the order, which is usually 20 days.
Extensions can be granted for temporary orders upon the request of the petitioner or by the judge if the respondent has not yet been served with the order at the end of the specified period. Also, if the protective order is filed as a part of other civil or criminal proceedings, the temporary protective order stays in place until the end of the trial or proceedings.
Once both parties have had a chance to present their case to a judge, the judge makes a ruling on whether a permanent protective order will be issued. If the protective order has been issued as a part of divorce proceedings or a criminal case, this ruling is generally made at the end of the proceedings or trial.
In our state, a permanent protective order stays in place for the amount of time specified in the order, which cannot exceed two years. However, the petitioner can request for the order to be extended, which is generally granted so long as the judge deems that the order does not cause unnecessary adversity to the respondent.
What happens when a protective order is filed?
If a judge deems that you pose a threat to the petitioner or the petitioner’s property, a temporary protective order is granted, and will stay in effect for 20 days. The type of protective order and its terms will depend upon your relationship with the petitioner and the nature of the alleged threats against them.
If you live with the petitioner, the terms of the order will dictate that you can no longer cohabitate. In some rare cases the petitioner will leave, but generally the respondent is ordered to vacate the premises as a part of the order. In other words, the protective order will require you to move out of the house and not maintain contact with the alleged victim.
You will most likely be required to avoid all contact with the petitioner and minor children, including physical proximity, letters, emails, phone calls, text messaging, and social media. You will also be prohibited from having a third party contact the petitioner on your behalf.
During the period of the temporary protective order, you will receive notification of the trial date to evaluate the necessity of a permanent protective order.
Can A Protective Order Be Removed?
Possibly. Does the alleged victim want to prosecute you? Does the alleged victim want the protective order to remain in place? One of the quickest and easiest ways to have a protective order removed is if the alleged victim is willing to provide an affidavit stating they do not fear you and are requesting the order to be removed.
If you are in this situation, your criminal defense attorney can file a motion to modify protective order. If the alleged victim can provide an affidavit outlining his/her desire that the protective order be removed, this can be attached to the motion to modify the protective order. Your criminal lawyer can then request a hearing for the motion to be heard by the judge.
In some instances, the judge will not require a hearing and grant your motion to modify the protective order because the affidavit outlines the intent of the alleged victim.
What if the alleged victim is not willing to provide an affidavit? In this case, your criminal defense lawyer can have a formal hearing where the alleged victim will be required to testify and articulate the basis for their fear and the judge can determine if the protective order allegations are reasonable and necessary. This will provide you an opportunity to modify the protective order regardless of the alleged victim’s desires.
Consequences of violating a protective order
We cannot stress enough that you should absolutely comply with all terms of a protective order, even if you feel that it is not necessary, reasonable, or fair.
Under Texas law, violating a protective order can result in being charged with a Class Misdemeanor crime of Violation of a Protective Order. The crime of violation of a protective order carries a possible sentence of up to one year in jail time, and a fine of up to $4000.
If you commit an act of family violence when violating the order, you can be charged with a misdemeanor or felony with up to two years’ jail time, in addition to any other crimes committed.
If the alleged victim claims you violated the protective order a minimum of two times in a twelve-month period, you could be charged with the crime of a Felony Violation of a Protective Order. This crime carries a possible prison sentence of two to twenty years and a fine of up to $10,000.
Further, failure to comply with the terms of a temporary protective order greatly increases your chances of a permanent order being granted.
How to avoid violations
In general, avoiding all forms of contact with the petitioner should prevent violations of a protective order. However, there are a few common mistakes made by respondents that can result in an inadvertent violation:
- Avoid contacting the petitioner through another individual. It is also advisable not to contact family members (e.g., siblings or parents of the petitioner).
- Do not tag or mention the petitioner in social media. This may not seem like “contact”, but many courts have held that this passive form of content was sufficient to constitute a violation of the protective order.
- If the petitioner attempts to contact you, DO NOT RESPOND, but keep records of these attempts. This is known as enticement, and it may be important to have records of this in legal proceedings. This situation is one of the most common scenarios we find when an alleged victim wants to manipulate someone and use it as leverage in a family or child custody proceeding. For example: a husband has a protective order issued against him by his soon to be ex-wife. He does not contact her in any way. However, the wife calls him hundreds of times and emails him and makes him believe his son is sick and may need to be taken to the hospital. The emails and voicemails sound so urgent that the husband calls his wife to check on the status of his son. The moment he calls, his wife calls the police to allege a violation of the protective order so that her husband will be arrested. This is clear manipulation, and she was using the threat of criminal prosecution as a tool to take advantage of her husband.
- Do not contact the petitioner regarding any legal proceedings (e.g., to clarify a court date). Direct any questions or concerns through your respective attorneys.
If you have been charged with a Violation of Protective Order case, you need to meet with an experienced and aggressive criminal defense attorney that can analyze your specific facts and research possible defenses to improve your chances of getting your violation of protective order dismissed.
For example: What if you have a protective order against you but the alleged victim drove to your house, knocked on your door and waited for you to answer the door? Little did you know, she called the police on you before she got there. As you are standing there talking to her, the police arrive and arrest you. Do you have a defense? Yes! The State of Texas must still prove you intentionally or knowingly violated the protective order. In this situation, you were located where you were supposed to be – your house! You did not search out the alleged victim and you were not in a prohibited location listed in the protective order. Remember, the State of Texas must prove every element of the crime beyond a reasonable doubt. If your criminal attorney can create doubt regarding the element of criminal intent, you may be able to have your violation of protective order case dismissed and eligible to have the arrest and charge expunged from your criminal record
Another example: What if you have been charged with felony violation of protective order for allegedly contacting the alleged victim two or more times in twelve months? Is there a criminal defense? Possibly. If you supposedly violated the protective order some time in the past, why didn’t the alleged victim report it at that time? If your criminal defense attorney can establish doubt regarding one of the incidents of conduct, your felony violation of protective order case could be dropped to a lesser misdemeanor charge of violation of protective order. Additionally, if all the instances of violations are weak, your criminal lawyer may be able to get your felony violation of protective order completely dismissed by making an evidence presentation to the grand jury. The grand jury could review the allegations and determine they are baseless and render a no bill decisions, the equivalent of completely exonerating you.
Whether you are facing a felony or misdemeanor violation of protective order case, you need the experience and knowledge of a criminal defense team that will fight aggressively to protect your freedom and your clean criminal record. The Hampton Law Firm is a team of 5 Former Prosecutors with over 80 years of criminal law experience and over 300 jury trials. If your case is in the North Texas area, we would be happy to provide you a free consultation and case analysis. Call now!
About the Author:
After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a defense attorney, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. His skill has earned him recognition from the National Trial Lawyers (Top 100 Trial Lawyers) and Avvo (Top Attorney in Criminal Defense, Top Attorney in DUI & DWI, 10/10 Superb Rating), and he is Lead Counsel rated.