In Texas, victims of family violence can go to civil court and ask for a family violence protective order—also known as a restraining order. A protective order directs the alleged abuser not to harm or have any contact with the victim. Even though it's a civil order, violating the order can result in criminal penalties.
A victim of family violence or an adult on behalf of a child victim may ask for a family violence protective order.
Family violence includes more than physical harm. In addition to assault, family violence includes sexual assault and any act intended to result in physical harm or injury that's committed or threatened by a family or household member. Examples of family violence include threatening, hitting, kicking, or choking someone, as well as brushing up against a person in a sexually suggestive manner.
Domestic relationship. To be classified as family violence, the unlawful acts must happen between individuals who share one of the following relationships:
A victim (called the applicant) must fill out paperwork outlining incidents of violence committed by a family or household member (referred to as the respondent). The applicant can file these documents (for no cost) in the county where the applicant or respondent lives or any county where the family violence allegedly occurred. The application must be served on (delivered to) the respondent, who can then file a response, attend the hearing set on the matter, or do neither or both. A victim doesn't need an attorney to get a protective order but can have one.
Victims who believe they're in immediate danger can request a temporary ex parte protective order. (Ex parte—pronounced ex par-tee—means the court is only hearing the victim's side of the story at this point.) Based on the application, the judge can order temporary relief if a clear and present danger of family violence exists for the victim prior to holding a court hearing. In the court hearing, the respondent has an opportunity to tell their side of the story. (More on this hearing below.)
In the ex parte order, the judge can impose conditions meant to prevent or protect the victim from future acts of harm. Oftentimes, temporary orders prohibit the respondent from harming or contacting the applicant and list the places the respondent must avoid. The order might also give the applicant sole possession of the residence (but this requires additional proof) or temporary custody of the kids. The order remains in effect until the court dismisses the case or holds a hearing.
Typically, a law enforcement officer or process server will deliver the order and papers to the respondent. The court hearing must be held within 20 days (unless the court extends this time frame).
The court will hold a hearing on the application unless the applicant requests to dismiss the case. At the hearing, the applicant must prove the allegations by a preponderance of the evidence (a standard of more likely than not). The respondent also will have a chance to give evidence and testimony as to why the judge should deny the application for a family violence protective order.
After a court hearing where both parties have the opportunity to appear, the judge can order a longer-lasting order. This final protective order generally remains in effect for up to two years. But, the judge can make the order effective for a longer period under certain circumstances, including if the respondent commits a felony family violence offense. The terms available for a final order can include:
Federal law also prohibits the respondent in a family violence protective order case from possessing a firearm if the order meets certain requirements.
If you receive notice of an ex parte order, take it seriously. While this order is temporary, a violation can result in arrest and jail time.
Read through the application and the ex parte order (if there is one). Make sure to understand the allegations and any terms of the order. If an order specifies no contact or communication, this prohibition typically restricts all communications, whether by text, social media, messaging, or even third parties.
Although respondents aren't required to respond to the application or attend the hearing, the judge can, and likely will, grant the final protective order when they don't. Take note of the date and time for the hearing. At the hearing, you or your attorney can present evidence and testimony to dispute the allegations.
Even though a family violence protective order is a civil court order, violating the order can result in an arrest and both civil and criminal penalties.
Arrest. Law enforcement officers may arrest an offender, without a warrant, if they have probable cause to believe the offender assaulted or threatened a victim or entered prohibited spaces.
Misdemeanor. Violating a family violence protective order, such as by harming or contacting the victim, constitutes a class A misdemeanor, punishable by up to one year in jail and a $4,000 fine.
Felony. A defendant faces a third-degree felony charge if the violation involves assault or stalking or the defendant has two or more prior convictions for protective order violations. Repeated violations of an order within a 12-month period, even without a conviction, also constitute a third-degree felony. This felony level carries 2 to 10 years in prison and a $10,000 fine.
Contempt. The court may hold an offender in contempt for violating the protective order, which can mean jail time and fines. Contempt applies to violations of the order that don't involve the victim's safety, such as child support orders or counseling requirements.
Other crimes. Other acts of further violence, such as stalking or terroristic threats, can result in additional criminal charges.
If you received notice of a family violence protective order issued against you, contact an attorney who works in family law or criminal defense. For criminal charges stemming from a violation, talk to a local criminal defense attorney as soon as possible. An experienced attorney can review the unique circumstances of your case and discuss your options.
If you're a victim seeking assistance in filing for a family violence protective order, contact a lawyer who specializes in family law or a victim's advocate. You can also check out Nolo's Resources for Victims of Crime.
TexasLawHelp.org provides free forms and instructions online (approved by the Texas Supreme Court) for family violence protective orders.