What are protective orders?
What is the difference between a protective order and a restraining order?
Is there any cost to obtain a protective order?
What happens when I apply for a protective order?
· Screening and Appointment
· Filing of Application; Signing of Temporary Protective Order
· Service of Citation Upon the Respondent
How long does a protective order last?
Are there any collateral consequences to the respondent when a protective order is rendered?
What other orders will be in the Protective Order? Can I get orders for visitation of children and orders regarding property?
· Custody and Visitation
· Child Support Orders
· Orders Regarding Property
What if I decide that I do not want a protective order?
What if I want to reconcile with the respondent before the protective order expires?
My protective order is about to expire and I am fearful that the respondent is going to commit more violence against me when that happens. What do I do?
The respondent was incarcerated on the date that the protective order expired. What do I do when the Respondent is released?
The Hale County Attorney’s Office works with the Crisis Center of the Plains to provide protection to victims of domestic violence. Here are answers to some common questions regarding protective orders:
Persons who think they may need a protective order should contact the Crisis Center at 293-9772, or go to the Crisis Center, 1403 W. 5th Street (in the shopping center just east of the Family Dollar store). There, they will be asked to fill out a screening form, which is faxed to the County Attorney and reviewed for qualification. If a potential applicant calls or comes to the County Attorney’s Office, he or she will be redirected to the Crisis Center.
The Crisis Center’s involvement in the process helps to link victims to the services offered by the Crisis Center, which include everything from help with basic needs to counseling. The Crisis Center also helps to weed out applicants who obviously do not qualify for a protective order.
Protective orders are a special remedy created by statute, and governed by Title 4 of the Texas Family Code. They are available to protect victims of “family violence” from future violence.
The applicant (victim of family violence) and the respondent (perpetrator of family violence) must be related either by consanguinity or affinity (blood or marriage). They may also be former spouses or parents of the same child, even if they are not married. Persons who reside in the same household, regardless of relation, and persons involved in an “intimate dating relationship” can be the subjects of a protective order. The existence of an intimate dating relationship is a question of fact that the court must determine based on the length and nature of the relationship and the frequency and type of interaction between the parties.
“Family violence” includes acts of physical violence or sexual assault as well as credible threats of violence which place the applicant in reasonable fear of imminent bodily injury, sexual assault, or death. “Family violence” also includes certain types of child abuse enumerated in the Family Code provisions dealing with Children’s Protective Services.
If the court finds that family violence has occurred and is likely to occur in the future, the court will render a protective order covering the applicant and any other members of the applicant’s family or household that are potential victims of future family violence. The protective order will order the respondent to remain at least 200 yards away from the applicant and other protected persons and to refrain from harassing or threatening the applicant and other protected persons.
Generally, the court will order the respondent to attend and to complete the Batterer Intervention Prevention Program (“BIPP”). BIPP is a 24-week course aimed at helping perpetrators of domestic violence change their thinking and behavior in order to control their propensity toward violence. The Crisis Center facilitates BIPP classes in Hale County. The Crisis Center makes regular reports to the County Attorney about the participation of individuals ordered to participate in BIPP.
o A restraining order and a protective order are not the same thing.
o A protective order, as noted above, is a specific legal remedy available to victims of family violence. There are certain statutory qualifications to get a protective order, and the protective order is the only relief sought in the proceeding.
o A restraining order, on the other hand, is an equitable remedy that is available in conjunction with another cause of action or lawsuit. For example, in a divorce proceeding, one spouse might obtain a restraining order against the other spouse to prevent the sale or use of certain property. A restraining order is just one portion of a larger lawsuit, used to protect the status quo.
o A violation of a protective order may be prosecuted as a criminal offense. The first two violations are Class A misdemeanors. The third violation may be prosecuted as a third degree felony. Criminal enforcement of the protective order would take place through an arrest of the respondent and prosecution of the case by a prosecutor’s office. Prosecution could occur even if the victim did not wish to prosecute.
o A restraining order is only be enforceable through contempt of court proceedings. Enforcement would require retaining a private attorney to file a motion for contempt, getting the respondent served with a show cause order, and conducting a show cause hearing.
There is no cost to the applicant to seek a protective order. If a protective order is rendered, the court will order the respondent to pay costs of court.
Once the Crisis Center submits your screening form to the County Attorney, he will review it and determine whether you qualify for a protective order. If you would qualify, the County Attorney’s Office will contact you to make an appointment.
At your appointment, the County Attorney will speak with you in-depth about the events that necessitate a protective order. You will have the chance to give additional details that do not appear on your screening form. You may also ask questions concerning the process.
At the end of your appointment, an Application for Protective Order will be presented to you to review and to sign. You must sign the Application under oath, stating that its contents are true, accurate, and correct.
The Application is filed in either the 64th or 242nd District Court of Hale County. It is presented to the judge of the court, and he is asked to sign a Temporary Ex Parte Protective Order. The Temporary Protective Order is effective for up to 20 days. However, a hearing must be held on the Application within 14 days of filing.
The respondent will be served with a citation and copies of the Application and Temporary Protective Order. He will be notified of the hearing date. Service of citation is necessary in order to confer jurisdiction upon the trial court to enter any other orders in the case. Therefore, it is imperative that you have a good address for the respondent, where he or she may be easily found.
A protective order can be in effect only up to two years. It is the policy of the Hale County Attorney’s office to request the entry of a two-year protective order in every case.
Federal law prevents the purchase or possession of firearms by persons against whom a protective order has been rendered. The protective order would order the respondent to turn over all firearms to the Sheriff for the duration of the order.
Depending upon the respondent’s occupation, there might be consequences regarding continued licensure. Those consequences would only occur on a case-by-case basis.
A protective order is no substitute for a custody or divorce proceeding. Unless there is direct physical harm or threat of serious harm to a child, custody will not be affected by a protective order proceeding. The parent with possession of a child at the time the protective order proceeding is initiated will likely retain possession of that child.
We do, however, always ask the court to enter some sort of order for possession of and access to the children who may be involved in a Protective Order proceeding. This helps to prevent future conflict and violence between the parties.
Unless there is direct physical harm to the children, you will be given the opportunity to decide what sort of order to request at the hearing. Some things you may consider are:
(1) The courts will nearly never prohibit contact between a parent and a child unless there has been direct physical or extreme psychological or emotional harm to a child.
(2) Any orders involving the drop-off or pick-up of children will have to occur through a third party or in a public place. Sometimes relatives or close friends are willing to allow the parties to exchange children at their homes. Other times, the court will order that the parties make the exchange at McDonald’s or some other public location.
(3) If you wish to ask for supervised visitation, you need to have a supervisor in mind when you get to court. In other words, if you ask that the court order visitation to be supervised by your friend Mary Jones, make sure Mary Jones is actually willing and able to perform that service. Also, make sure that the supervisor is someone with whom both parties can maintain good relations.
Please remember that a protective order lasts for two years at the longest. Therefore, you will need to consult with a private attorney about how to obtain permanent orders regarding custody of your children. Again, a protective order is no substitute for a divorce or custody proceeding.
We do not seek orders for child support in protective order hearings. As noted above, a protective order is no substitute for a divorce or custody proceeding. Please consult with a private attorney regarding how to establish child support for your children.
The courts are generally willing to render limited orders for you to retrieve necessities, such as clothing and personal articles for yourself and your children, from the residence of the respondent. A protective order hearing, however, is not a divorce, and is not a substitute for a divorce. The courts will not divide marital property in a protective order hearing. You will need to consult with a private attorney regarding any major property issues.
The Application for Protective Order, as stated above, must be signed under oath by the applicant. This means that you have sworn in a court proceeding that family violence has occurred and is likely to occur again, and that you need a protective order for your protection. Once the Application is filed, you may not change your mind.
If, after the Application is filed, you decide that you do not wish to have a protective order, you will still need to appear for the hearing. You will have to tell the judge your decision and why you are making that decision. Even if you change your mind, the court can still render a protective order for you.
Therefore, it is very important to be committed to the process. If you have any doubt about your commitment, you will be given the opportunity to think about filing the Application and to contact the County Attorney’s Office about your decision.
This is a personal decision that only you can make. Please be advised, however, that violating a protective order is a criminal offense for the respondent. This means that, if you have reconciled with the respondent and are stopped for a traffic offense while riding together that the police could arrest the Respondent for a Class A misdemeanor. The respondent would be taken to jail and would have to be bonded out.
If you wish to reconcile before the protective order expires, you or the respondent will need to consult with a private attorney and to take the steps necessary to vacate the protective order. UNDER NO CIRCUMSTANCES SHOULD YOU EXPECT THE HALE COUNTY ATTORNEY’S OFFICE TO TAKE ANY ACTION TO VACATE A PROTECTIVE ORDER PRIOR TO ITS NATURAL EXPIRATION.
If you have a reason to believe that the respondent intends to harm you once the protective order expires, you should go back to the Crisis Center at least 45 days prior to the expiration. At 30 days before the expiration, you may file another Application for Protective Order based on the fact that you already have one and have reason to believe that future harm is imminent once it expires. If the court granted the new Application, you would receive another protective order that would be effective for up to two more years.
In this situation, the Texas Family Code provides that the protective order is automatically extended for one year following the release of the respondent from incarceration. Even though this extension is automatic, we have filed motions to enter an order recognizing the extension. This procedure helps to encourage peace officers to enforce a protective order that would otherwise appear to be void on its face because of the expiration date.
The information provided on this web page is intended for informational purposes only. Nothing herein should be taken as legal advice. No warranty is made as to the accuracy or correctness of any information contained on this web page. Every legal problem has a unique set of facts and circumstances behind it. Persons seeking legal advice should contact their own attorney for that advice and should not rely on anything presented herein.