Many people have heard the term protective order, but what is a protective order? A protective order is a court order that can protect the life, limb, and emotional well-being of you or a family member (the “Protected Person”), from someone who has committed an act of family violence (the “Restricted Person”). Typically, a protective order prohibits the Restricted Person from contacting, going near, harassing, or threatening the Protected Person. For example, a protective order may prohibit the Restricted Person from “going to or near, or within 300 yards of, any location where any Protected Person is known to be,” and/or it may prohibit an individual from “communicating directly with any Protected Person in a threatening or harassing manner.” Any violations of a protective order can subject the Restricted Person to contempt of court, or even arrest.
Keep in mind that there are three types of protective orders: temporary ex parte, final, and a magistrate’s order for emergency protection.
A temporary ex parte protective order should be sought and obtained if you are in immediate need of protection from an individual. If you are able to present evidence of a clear and present danger, a court will issue a temporary ex parte order that typically lasts up to 20 days or until there is a hearing on the matter.
A final protective order is usually granted after both parties have a hearing in front of the judge on the issue. If a court finds that (1) there is evidence that family violence has occurred; (2) that family violence is likely to occur in the future; or (3) that there has been a violation of a previously rendered protective order, the court will grant a final protective order. According to section 85.025(a) of the Texas Family Code, a final protective order is generally valid for up to two years. However, under limited circumstances, which can be found in section 85.025(a-1), a judge may issue a final protective order that is effective for more than two years.
A magistrate’s order for emergency protection is issued after a person has been arrested for family violence, sexual assault, aggravated sexual assault, or stalking. In addition, a magistrate’s order for emergency protection can be issued without notice or a hearing, and lasts between 31 and 91 days depending on the reason for the arrest.
Is a Protective Order the Same as a Restraining Order? No. It is a common misconception that a protective order is the same thing as a restraining order. Even lawyers tend to use both terms interchangeably, however they are not the same. As mentioned above, the purpose of a protective order is to protect the life, limb, and emotional well-being of people who have been victims of family violence. A restraining order, on the other hand, is an order that the court imposes on one or both parties in a divorce or suit affecting the parent child relationship. Further, restraining orders often contain boilerplate language consisting of a long list of prohibitions against the Restricted Person, including, but not limited to, threatening or harassing the Protected Person, damaging the Protected Person’s property, causing bodily injury to the Protected Person or her children, incurring new debt, confiscating mail, emptying a bank account, etc. In addition, restraining orders are not enforceable by the police or Sheriff’s Department, instead, violations of a restraining order must be brought to the attention of the court. Although the court has the power to place the Restricted Person in jail, on the first violation, the court will likely just tell the Restricted Person to behave better going forward.
For more information regarding how Desireé Bedasa, PLLC can help you obtain a protective order, please call or contact us online to request an initial consultation.