Updated on March 28, 2024
Many people confuse restraining orders and protective orders or believe they are one and the same. While both are used to deny contact or to require people to keep their distance, that is where the similarities end.
If you are facing a protective order or a criminal charge in Texas, the most important step you can take to protect your rights is to seek the legal guidance of an experienced Killeen criminal defense attorney.
Restraining Order
Restraining orders are legal documents that are typically written and filed by civil or family courts in conjunction with other legal matters (such as divorce papers) in order to help ensure that certain conduct is maintained throughout the legal proceeding. (What happens when you have been served divorce papers?)
Restraining orders lay out several dos and don’ts for the involved parties. They typically include general language that limits contact, addresses visitation of shared children, prevents the use of certain joint resources, and addresses child support or alimony payments.
Texas employs two primary types of restraining orders.
Temporary Restraining Orders Issued by a Civil Court
A temporary restraining order that is issued by a civil court applies when the person seeking it will suffer an immediate and irreparable injury, loss, or damage if the relief is not granted. In some instances, TROs can be granted ex parte, which means that the person subject to the TRO needn’t be given notice nor be present in court.
TROs can’t exceed 14 days unless there is good cause for doing so or the person who is subject to the order agrees to a longer duration. Before the 14 days have passed, a temporary injunction can be issued at a second court date if there is enough evidence to support it.
Temporary Restraining Orders Issued by a Family Court
When family courts issue temporary restraining orders, they do so in relation to divorce or child custody cases to protect either spouse, any children, or any property involved in the case.
A TRO in a family law case can bar either party from engaging in the following kinds of conduct:
Unenrolling a shared child from school
Withdrawing funds from a shared account
Disposing of marital property
The difference between a TRO that is issued by a family court and a TRO that is issued by a civil court is that the family court TRO does not require evidence that immediate and irreparable loss, injury, or damage will occur before the notice can be served and a hearing held.
Ex Parte TROs
Temporary restraining orders that are issued by a family court can also be granted ex parte, which means without notice and without the other party being present in court. However, TROs can only be granted ex parte when irreparable injury, loss, or damage will result before notice can be served.
Duration
TROs issued by family courts remain in effect for 14 days unless they are either withdrawn or extended. The family court can extend the TRO for an additional 14 days, but they can’t do so more than once unless the extension is uncontested.
Protective Orders
Protective orders are generally connected with matters involving family violence. As such, they are intended to protect a specific family member (or party to a relationship) from being abused by the named party. Protective orders can also be used to halt ongoing acts of felony stalking or human trafficking.
These orders of protection require that the named accuser stop engaging in all of the following practices (as applicable):
Engaging in any further assault, sexual assault, family violence, stalking, or human trafficking
Communicating with the victim in a threatening or harassing manner (Harassment: Is It Criminal or Is It Civil?)
Threatening anyone under the order’s protection
Going to or near the home, workplace, or business of the protected person or a family member of the protected person
Going to or near the daycare facility or school of a child protected by the order
Possessing a firearm
Protective orders specifically pertain to the needs of the person or people who need protection, and they address the following concerns:
How long the order of protection will remain valid and legally enforceable
How any criminal offenses will be addressed
Any unique protections included in the specific case in question
There are three basic categories of protective orders.
Emergency Protective Orders
Emergency protective orders are associated with arrest, and they can only be issued after an arrest has been made for one of the following offenses:
An act of family violence, including dating violence
An act of sexual assault, indecent assault, or aggravated sexual assault
An incident of trafficking or continuous trafficking
An emergency protective order can be issued even if the victim of the alleged crime is not the party who seeks it. An emergency protective order can be requested by any of the following people:
The victim
The judge handling the case
The guardian of the victim
The prosecutor
An involved police officer
Emergency Protective Orders Can Be Discretionary or Mandatory
Whether or not an emergency protective order (EPO) is issued is up to the judge’s discretion except in the following two situations:
The accused is arrested for a family violence offense that involves serious bodily injury.
The accused is arrested for a family violence offense in which a deadly weapon was either used or displayed.
EPOs issued under these circumstances are mandatory EPOs.
Issuance of Emergency Protective Orders Requires Good Cause
A judge can exercise all the powers of an EPO without conducting a hearing. However, before a judge can stop all communication between the accused and the protected person, he or she needs good cause.
The Protected Person
It’s important to note that an emergency EPO places no restrictions on the person protected by it. While there is nothing stopping the person who is protected by the EPO from contacting the accused or even inviting the accused back into the home, if the accused engages in communication or returns to the home, it can lead to further criminal charges against the accused.
If There Is an EPO against You
If there is an EPO against you, it’s important to carefully read the terms of the order to understand what you’re prohibited from doing.
For example, if all communication between you and your accuser is prohibited, you should not engage in communication – even if your accuser initiates it. If only communication that is threatening or harassing is forbidden, you’ll need to proceed with caution but needn’t avoid all communication with your accuser.
The matter of where you’re prohibited from going is another serious concern. The list of places you’re prohibited from being at or near can be expansive, and having the skilled legal guidance of a dedicated Killeen criminal defense lawyer in your corner can play an important role in the protection of your legal rights while you navigate the legal maze created by protective orders.
The Duration of an Emergency Protective Order
EPOs generally stay in effect for from 31 to 61 days. However, if the accused was arrested for assault with a deadly weapon, the EPO can be extended to 91 days.
Temporary Ex Parte Protective Orders
Temporary ex parte protective orders are issued when a member of a family or household needs protection from a clear and present danger of family violence, and they can be issued without the presence of the accused in court.
Temporary ex parte protective orders can put restrictions or requirements on the accused. A prime example is excluding the accused from returning to the shared residence. These orders typically stay in effect for up to 20 days and, upon request, can be extended for another 20.
Violating a temporary ex parte protective order in the State of Texas can put the accused in contempt of court, which is a civil matter rather than a criminal one. Violating an EPO, on the other hand, is a criminal offense.
Permanent Protective Orders
Permanent protective orders – or final protective orders – typically last up to two years, but the judge can extend this time limit if any of the following factors apply:
The accused caused the applicant or a member of his or her family or household to be seriously injured.
The accused caused the applicant’s household to be seriously damaged.
In the past, the applicant had two or more protective orders issued against the same person, and, in both cases, the judge determined that he or she had committed family violence and was likely to do so again.
When there is no end date on the final protective order, it expires two years from the date of issuance.
After a year has passed, an individual who is subject to a final protective order can petition the court to discontinue the order. If the order lasts more than two years, the person subject to the order will have a second chance to petition the court after another year has passed.
A petition triggers a hearing to determine if there’s an ongoing need to keep the order in effect. The judge has the option of continuing the order or discontinuing it, but not being in violation of the order is not an adequate reason for discontinuing it. Further, the order will automatically be extended if the person subject to the final protective order is in jail or prison.
Enforcing Restraining Orders
Violations of restraining orders cannot be enforced criminally, which means that the police do not have the authority to take action. If a party to the order is in violation of it, the affected party can take the matter up with the court by seeking a civil resolution.
Violations of restraining orders are punishable by civil sanctions. Civil sanctions can include being in contempt of court and being slapped with fines. Failure to comply with a TRO that’s issued by a family court cannot lead to a forcible arrest or to the police kicking a spouse or parent out of the home, but it can hurt the offender’s family law case.
Enforcing Protective Orders
Violations of protective orders can be addressed by the police. In fact, in situations in which issuance or enforcement of emergency protective orders is needed (usually for violent domestic disturbances), there are judges who are available 24 hours a day to deal with protective order cases.
When someone violates a protective order, the police can take immediate action that can lead to hefty criminal charges. The charge of violating a protective order is a Class A misdemeanor that can lead to fines of up to $4,000 and a jail sentence of up to two years.
If the violation in question involves additional charges related to family violence, the accused can face additional misdemeanor or felony charges with additional penalties and fines.
Look to an Experienced Killeen Defense Attorney for the Legal Guidance You Need
Brett Pritchard at the Law Office of Brett H. Pritchard in Killeen, Texas, is a formidable criminal defense attorney who has the experience, savvy, and resources to skillfully fight for your legal rights in pursuit of your case’s most favorable resolution. To learn more, please do not wait to contact us online or call us at (254) 781-4222 today.