Defense against Protective Orders and Protective Order Violations in the Metroplex
A protective order is a court order that prohibits or deters some kind of conduct. To get a court to issue a protective order against somebody, there must be family violence. Protective orders prevent the people against whom the orders are entered from making physical or verbal contact with the people who are protected by the orders. Although protective orders are civil court orders, they are criminally enforceable, meaning that you can be arrested and charged with a crime for violating a protective order. David Owens both defends against the issuance of protective orders as well as against alleged violations of a protective order.
In Texas, at a defendant’s appearance before a judge following the defendant’s arrest for an offense involving family violence or sexual assault, aggravated sexual assault or stalking, the judge may issue a Magistrate’s Order for Emergency Protection (E.P.O.). The victim of the offense need not be present in court when the E.P.O. is issued. An E.P.O. may prohibit the defendant from communicating directly with the person protected under the order or with a member of the family or household, going to or near the person’s residence, place of employment or business, or even possessing a firearm. This emergency order is effective upon issuance and remains in effect for at least 31 days but not more than 61 days, unless the defendant was arrested for the use or exhibition of a deadly weapon during the commission of an assault, in which case the E.P.O. can last up to 91 days.
In a protective order, the court may:
- Prohibit someone from removing a child who is a member of the family or household from the possession of a person named in the order or the jurisdiction of the court;
- Prohibit someone from transferring, encumbering or otherwise disposing of property, other than in the ordinary course of business, that is mutually owned or leased by the parties;
- Prohibit someone from removing a pet, companion animal or assistance animal from the possession of a person named in the order;
- Grant exclusive possession of a residence to a party and, when appropriate, direct one or more parties to vacate the residence under certain circumstances;
- Provide for the possession of and access to a child of a party (if the person receiving possession of or access to the child is a parent of the child);
- Require the payment of support for a party or for a child of a party (if the person required to make the payment has an obligation to support the other party or the child); and/or
- Award to someone the use and possession of specified property that is community property or jointly owned or leased property.
A protective order remains in effect for two years, unless the judge issuing the order specifies a shorter time period. A person against whom a protective order is sought is entitled to notice and a hearing before any protective order is issued. Unlike a temporary ex parte order, protective orders are criminally enforceable. (See below) However, no criminal offense need be filed before a court will enter a protective order.
A court may enter a temporary ex parte order if the court finds that there is a “clear and present danger of family violence.” Temporary ex parte orders can be issued without a hearing and without notice to the individual alleged to have committed family violence. However, a court can only enter a temporary ex parte order upon a proper application, and the court can only base its finding as to whether there is a clear and present danger of family violence on the information contained in the application. In a temporary ex parte order, the court may direct someone to do or refrain from doing specified acts. A temporary ex parte order is valid for the period specified in the order, not to exceed 20 days. On the request of an applicant or on the court’s own motion, a temporary ex parte order may be extended for additional 20–day periods.
Has a protective order been issued against you?
On the filing of an application for a protective order, the court must set a date and time for a hearing unless a later date is requested by the applicant. Except in Dallas County, the court may not set a date later than the 14th day after the date the application is filed. In Dallas County, the court is allowed to set the hearing on a date and time not later than 20 days after the date the application is filed or 20 days after the date a request is made to reschedule a hearing on the request of the prosecutor.
At the close of a hearing on an application for a protective order, the court will find whether family violence has occurred and whether family violence is likely to occur in the future. If the court finds that family violence has occurred and that family violence is likely to occur in the future, then the court:
- Shall render a protective order applying only to a person found to have committed family violence; and
- May render a protective order applying to both parties.
In a protective order, the court may prohibit the person found to have committed family violence from:
- Committing family violence;
- Communicating directly with a person protected by an order or a member of the family or household of a person protected by an order, in a threatening or harassing manner;
- Threatening a person protected by an order or a member of the family or household of a person protected by an order;
- Communicating in any manner with a person protected by an order or a member of the family or household of a person protected by an order, except through the party’s attorney or a person appointed by the court;
- Going to or near the residence or place of employment or business of a person protected by an order or a member of the family or household of a person protected by an order;
- Going to or near the residence, child–care facility or school a child protected under the order normally attends or in which the child normally resides;
- Engaging in conduct directed specifically toward a person who is a person protected by an order or a member of the family or household of a person protected by an order, including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment or embarrass the person;
- Possessing a firearm, unless the person is a peace officer actively engaged in employment as a sworn, full–time paid employee of a state agency or political subdivision; and
- 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 an order or by a member of the family or household of a person protected by an order.
In a protective order, the court may also order a person found to have committed family violence “to perform acts specified by the court that the court determines are necessary or appropriate to prevent or reduce the likelihood of family violence”. This may include the completion of a battering intervention and prevention program or counseling with a social worker, family service agency, physician, psychologist, licensed therapist or licensed professional counselor. If the court renders a protective order for a period of more than two years, then the court must include in the order a finding that the person who is the subject of the protective order:
- Caused serious bodily injury to the applicant or a member of the applicant’s family or household; or
- Was the subject of two or more previous protective orders rendered to protect the person on whose behalf the current protective order is sought, after a finding by the court that the subject of the protective order has committed family violence; and is likely to commit family violence in the future.
There are certain other requirements that must be met for a protective order to be valid and enforceable, and courts don’t have the authority to grant relief that is not requested in the application for a protective order. We know the law and can advise you of your legal rights and make sure that these requirements are complied with.
Our firm is dedicated to protecting our clients’ rights and defending them against domestic violence charges and the attendant consequences of protective orders. If you have had a protective order issued against you and you feel it is unjust or unwarranted, then contact Fort Worth/Dallas domestic violence attorney David Owens as soon as possible.
What Happens if you Violate a Protective Order?
As previously mentioned, if you violate the terms of a protective order, then you may be arrested and charged with a separate criminal offense. Violating a protective order is a Class A misdemeanor. However, if the violator has two or more previous convictions, then it becomes a third-degree felony.
Defense Against Protective Order Violations
Violating a protective order is a serious charge because it means you have been accused of disobeying a direct order from a judge. If you have been falsely accused of a protective order violation, then we can investigate and try to uncover the truth. People who file for protective orders are often paranoid and may misinterpret innocent behavior as threatening or dangerous. We understand that serious allegations of criminal activity may just be the result of a misunderstanding. Also, remember that, the offense of violating a protective order requires criminal intent. Even if you did violate the terms of the protective order, we may be able to present evidence showing that the violation was unintentional. Please contact our law firm to discuss your protective order or domestic violence case.
We Understand the Challenges You Face
An individual who is charged with a criminal offense involving family violence may face a cluster of restrictions, including an E.P.O. and a Protective Order. If you have had a protective order issued against you and you feel it is unreasonable or unnecessary, then you should contact our law office as soon as possible. In addition to the problems of where to live and how to regain your possessions, people burdened by protective orders face problems with bail and the potential for re-arrest. If you violate a protective order, even accidentally, and the complainant takes it to court, then you may find yourself under arrest again and facing the inability to make bail.
Fighting Protective Orders and Violation Charges
The Owens Law Firm can help keep false accusations and unfair motions for protective orders from landing you in jail. When the stakes are high, put our defense on your side. Call us at (817) 860-8888 or e-mail us.