VIOLATION OF PROTECTIVE ORDER

What Is A Protective Order?

A protective order is an order issued for the purpose of protecting a party from abuse. A court shall render a protective order if the court finds that family violence has occurred and is likely to occur in the future. §81.001 Tex. Fam. Code. In order to qualify for a protective the applicant must be a member of the family, household or member of the household as defined by the Family Code B. Types of Protective Orders 1. Emergency Protective Orders a. When Issued An emergency protective order (EPO) may be issued by a Magistrate if the Defendant has been arrested for an offense involving family violence or an offense under §42.072 of the Penal Code on the magistrate’s own motion or on the request of: (1) the victim of the offense; (2) the victim’s guardian; or (3) a peace officer; or (4) any attorney representing the State. Art. 17.292(a) Tex. CCP.

An EPO shall be issued, regardless of whether the victim of the assault is present or even desires one, if the arrest involving family violence also involved: (1) serious bodily injury to the victim; or (2) the use or exhibition of a deadly weapon during the commission of the assault. Art. 17.292(b) Tex. CCP.

What is Prohibited Conduct?

Under Art. 17.292 (c) Tex. Code Crim. Pro, the EPO may prohibit the defendant from: (1) Committing family violence or an assault on the person protected or an act in furtherance of an offense under §42.072 of the Penal Code (2) Communicating directly with a member of the family or household or the party protected in a threatening or harassing manner or threaten them through any other person (3) Going to or near the residence, place of employment, or business of a member of the family or household or the person; or (4) Possessing a firearm. An EPO shall specifically describe the prohibited locations and minimum distances the party, the person or persons to be protected and the duration of the Order.

What Is The Notice Requirement?

Since the EPO is entered at the Defendant’s appearance before the magistrate, he is supposed to be given notice at time of the entry of EPO and also provided with a copy of it. If the victim is not present, the clerk of court mails a copy of the EPO to the victim and the constable must make a good faith effort to notify victim within 24 hours. If there are children involved, a copy is also sent to the school or child care facility. Art. 17.292(h) & (i) Once entered, the magistrate sends a copy of the EPO to the chief of police or to the sheriff (if not a municipality). The police department must establish procedure to provide adequate information or access to information about persons who are under the protection of the order and of persons to whom the orders are directed. Art. 17.292(k) CCP. The existence of the EPO may be entered into the department’s warrant section as notice that an EPO has been issued.

How Long Does A Protective Order Last?

The duration of the EPO depends on whether there was a weapon involved. If there was no weapon, then the EPO stays in place for at least 31 days after its issuance, but no more than 61 days. However, if a weapon was used or exhibited, then the EPO remains effective for at least 91 days.

What If My Protective Order & My Child Custody Order Conflict?

If an EPO conflicts with any other court orders regarding possession and access to a child, the EPO controls for the duration of the EPO. Art. 17.292(f) CCP. However, if a protective order is subsequently issued under the Family Code, it supercedes the EPO. Art. 17.292(j)(f-1) CCP. If a subsequent Ex Parte Temporary Protective Order is filed which conflicts with the EPO, the EPO still controls unless the court issuing the ex parte order is informed of the existence of the EPO and it makes a finding that the ex parte order supercedes the EPO. Art. 17.292(j)(f-2).

How Do I Remove or Modify a Protective Order?

Once an EPO is issued, it is effective for up to 61 days but not less than 31 days. Art. 17.292(j) CCP. During this time, the EPO may be modified after notice to each party. An order will be modified only if the court finds the original order is no longer workable and that modification will not endanger the protected person or put them at greater risk. Art. 17.292(j) CCP. As of September 1, 2003, it is possible to transfer jurisdiction over the EPO to the court having jurisdiction over the criminal case that gave rise to the issuance of the EPO. If such a transfer occurs, the court receiving the EPO may modify it as it sees fit. Art. 17.292(n) CCP.