In Texas, victims of family violence can go to civil court and ask for a family violence protective 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 assault, sexual assault, or 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 hitting, kicking, choking, or 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). If the application doesn't contain sufficient information, such as identifying specific acts of family violence or the required relationship, the court can dismiss the application. 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.
Where is the application filed? An application can be filed in the county where the applicant or respondent lives or any county where the family violence allegedly occurred.
How much does it cost? Texas law does not require applicants of family violence protective orders to pay court costs or filing fees. If it's determined that the respondent committed family violence, the judge can require the respondent to pay court costs and filing fees, as well as the applicant's attorney's fees.
Ex parte or temporary order. 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 full hearing. In the full hearing, the respondent has an opportunity to tell their side of the story.
Service on the respondent. Once the respondent receives and knows of the ex parte order, a violation can mean criminal charges. Typically, a law enforcement officer or process server will deliver the papers to the respondent. The full hearing must be held within 20 days (unless the court extends this time frame).
Hearing. The court will hold a hearing on the application unless the applicant requests to dismiss the case. Although the respondent isn't required to respond to the petition, a respondent's failure to appear likely will result in the judge granting the permanent protective order. 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.
The type of order—temporary or permanent—will determine the terms or conditions available and the duration of the order.
Temporary order. 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 full hearing. While this order is temporary, respondents should not take it lightly. A violation can result in arrest and jail time.
Permanent order. The permanent order for protection 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.
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 two to ten 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.