Texas Child Protection Law Bench Book

2024 version: As effective October 1, 2024

C. Protective Orders

DFPS is specifically authorized to file an application for a protective order of any person alleged to be the victim of family violence. Tex. Fam. Code § 82.002(d)(2).

Additionally, if not otherwise authorized to apply for a protective order under Tex. Fam. Code Chapter 82, DFPS may file an application for a protective order for the protection of a child in their temporary managing conservatorship in certain cases of abuse or neglect. Tex. Fam. Code § 261.501.

1. Temporary Ex Parte Protective Order

A temporary ex parte protective order may be granted for any member of the family or household if the court finds there is a clear and present danger of family violence. Tex. Fam. Code § 83.001(a).

A temporary ex parte protective order may also be granted if the court finds there is an immediate danger of abuse or neglect to the child. Tex. Fam. Code § 261.503.

A temporary ex parte protective order can be used to:

• Direct a respondent to do or refrain from doing certain acts. Tex. Fam. Code § 83.001(b).

• Exclude a perpetrator from a residence under certain situations. Tex. Fam. Code § 83.006.

The order is effective for up to 20 days. Tex. Fam. Code § 83.002(a). On an applicant's request or on the court's own order, the 20-day period may be extended for additional 20-day periods. Tex. Fam. Code § 83.002(b).

A temporary ex parte protective order may be issued without notice or hearing, but the court has the option to recess the hearing to contact the respondent by phone and provide the respondent with an opportunity to be present for the hearing. If the court chooses to recess to allow the respondent an opportunity to be present, the hearing must resume that same day without regard to the respondent's availability. Tex. Fam. Code § 83.006(c).

A temporary ex parte protective order can be enforced through a civil contempt proceeding, and certain provisions can be criminally enforced. Tex. Fam. Code § 85.021; Tex. Fam. Code § 85.022; Tex. Penal Code § 25.07(a).

During the time a temporary ex parte protective order is in existence, it supersedes any other order under Tex. Fam. Code Title 5 to the extent there is a conflict. Tex. Fam. Code § 83.005.

2. Protective Order

A protective order may be issued by a court upon a finding that family violence has occurred. Tex. Fam. Code § 85.001. The court does not need to find that family violence is likely to occur in the future in order to render a protective order, only that family violence has occurred. Tex. Fam. Code § 85.001(a)-(b). Additionally, if a respondent's parental rights have been terminated, a court does not have to find that the respondent is seeking or attempting to seek contact with the child in order to render a protective order. Tex. Fam. Code § 85.0015(1)(B)(2). An agreed protective order can be civilly and criminally enforceable regardless of whether the court makes the required findings.

Upon a finding that there are reasonable grounds to believe that an applicant is the victim of sexual assault or abuse, indecent assault, stalking, or trafficking, a court may issue a protective order that includes a statement of these findings. Tex. Crim. Proc. Code Art. 7B.003. A protective order issued under Tex. Crim. Proc. Code Art. 7B.003 may be effective for the duration of the lives of the offender and victim or for any shorter period stated in the order. If no period is stated in the order, the order is effective until the second anniversary of the date the order was issued. Tex. Crim. Proc. Code Art. 7B.007.

Protective orders for the protection of a child for certain abuse and neglect may be issued by a court if the court finds that there are reasonable grounds to believe that the child is a victim of abuse or neglect or has a history of being abused or neglected and there is a threat of:

• Immediate or continued abuse or neglect to the child;

• Someone illegally taking the child from the home in which the child is placed;

• Behavior that poses a threat to the caregiver with whom the child is placed; or

• Someone committing an act of violence against the child or the child's caregiver. Tex. Fam. Code § 261.504.

Except as otherwise provided, Tex. Fam. Code Title 4 applies to a protective order issued under Tex. Fam. Code Chapter 261, Subchapter F. Tex. Fam. Code § 261.505.

A prosecuting attorney may not be precluded from representing a party in a proceeding under Tex. Fam. Code Title 4, Subtitle B and DFPS in another action involving the party, regardless of whether the proceeding under Tex. Fam. Code Title 4, Subtitle B occurs before, concurrently with, or after the other action involving the party. Tex. Fam. Code § 81.0075.

An application for a protective order may be filed in:

• The county in which the applicant resides;

• The county in which the respondent resides; or

• Any county in which the family violence is alleged to have occurred. Tex. Fam. Code § 82.003.

Among other considerations, the court may include the following in a protective order:

• Prohibit a party from removing a child who is a member of the family or household from the possession of a person named in the order, or the jurisdiction of the court, Tex. Fam. Code § 85.021(1)(A)(i)-(ii);

• Order the person found to have committed family violence to perform acts specified by the court that the court determines are necessary or appropriate to prevent or reduce the likelihood of family violence, including completion of a Battering Intervention and Prevention Program (BIPP), Tex. Fam. Code § 85.022(a);

• Prohibit the person found to have committed family violence from:

◦ committing family violence;

◦ communicating:

▪ directly with a person protected by an order or a member of the family or household of a person protected by an order, in a threatening or harassing manner;

▪ a threat through any person to a person protected by an order or a member of the family or household of a person protected by an order; and

▪ if the court finds good cause, in any manner with a person protected by an order or a member of the family or household of a person protected by an order, except through the party's attorney or a person appointed by the court;

◦ going to or near the residence or place of employment or business of a person protected by an order or a member of the family or household of a person protected by an order;

◦ going to or near the residence, child-care facility, or school a child protected under the order normally attends or in which the child normally resides;

◦ engaging in conduct directed specifically toward a person who is a person protected by an order or a member of the family or household of a person protected by an order, including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person; and

◦ possessing a firearm, unless the person is a peace officer, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision;

◦ tracking or monitoring personal property or a motor vehicle in possession of an applicant or the applicant's family or household without the applicant's effective consent, including by using a tracking device, physically following, or causing another to physically follow the applicant or family member. Tex. Fam. Code § 85.022(b).

There is a presumption that family violence has occurred if:

• The respondent has been convicted of or placed on deferred adjudication community supervision for any of the following offenses against the child for whom the petition is filed:

◦ an offense under Tex. Penal Code Title 5, for which the court has made an affirmative finding that the offense involved family violence under Tex. Crim. Proc. Code Art. 42.013; or

◦ an offense under Tex. Penal Code Title 6; and

• The respondent's parental rights with respect to the child have been terminated. Tex. Fam. Code § 81.0015.

A protective order issued pursuant Tex. Fam. Code, Title 4, Subtitle B is effective for a period stated in the order, not to exceed two years; or if a period is not stated in the order, until the second anniversary of the date the order was issued. Tex. Fam. Code § 85.025(a). A court may render a protective order sufficient to protect the applicant and members of the applicant's family or household that is effective for a period that exceeds two years if the court makes specific findings pursuant to Tex. Fam. Code § 85.025(a-1).

If a person who is the subject of a protective order is confined or imprisoned on the date the protective order would expire under Tex. Fam. Code § 85.025(a) or (a-1), or if the protective order would expire not later than the first anniversary of the date the person is released from confinement or imprisonment, the period for which the order is effective is extended, and the order expires on:

• The first anniversary of the date the person is released from confinement or imprisonment, if the person was sentenced to confinement or imprisonment for more than five years; or

• The second anniversary of the date the person is released from confinement or imprisonment, if the person was sentenced to confinement or imprisonment for five years or less. Tex. Fam. Code § 85.025(c).

Each protective order must specify when the order expires and must provide notice of any extensions that may apply as a result of the person's confinement or imprisonment. Tex. Fam. Code § 85.026(d).

Beginning June 1, 2024 a court must use the standardized protective order form developed by the Office of Court Administration (OCA) to issue a temporary ex parte order under Tex. Fam. Code Chapter 85. Failure to use the form does not affect the validity or enforceability of the order. Tex. Fam. Code § 85.0221.

Each protective order issued under Tex. Fam. Code § 85.026(a), including a temporary ex parte order, must contain the following in boldfaced type, capital letters, or underlined:

"A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500 OR BY CONFINEMENT IN JAIL FOR AS LONG AS SIX MONTHS, OR BOTH."

"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER."

"IT IS UNLAWFUL FOR ANY PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY TEX. PENAL CODE § 1.07, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO A PROTECTIVE ORDER, TO POSSESS A FIREARM OR AMMUNITION."

"IF A PERSON SUBJECT TO A PROTECTIVE ORDER IS RELEASED FROM CONFINEMENT OR IMPRISONMENT FOLLOWING THE DATE THE ORDER WOULD HAVE EXPIRED, OR IF THE ORDER WOULD HAVE EXPIRED NOT LATER THAN THE FIRST ANNIVERSARY OF THE DATE THE PERSON IS RELEASED FROM CONFINEMENT OR IMPRISONMENT, THE ORDER IS AUTOMATICALLY EXTENDED TO EXPIRE ON:

"(1) THE FIRST ANNIVERSARY OF THE DATE THE PERSON IS RELEASED, IF THE PERSON WAS SENTENCED TO CONFINEMENT OR IMPRISONMENT FOR A TERM OF MORE THAN FIVE YEARS; OR

"(2) THE SECOND ANNIVERSARY OF THE DATE THE PERSON IS RELEASED, IF THE PERSON WAS SENTENCED TO CONFINEMENT OR IMPRISONMENT FOR A TERM OF FIVE YEARS OR LESS."

"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH. AN ACT THAT RESULTS IN FAMILY VIOLENCE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS."

Each protective order issued under Tex. Fam. Code § 85.026(c), including a temporary ex parte order must contain the following:

Each protective order must be:

• Served on the respondent. Tex. Fam. Code § 85.041; and

• Delivered to law enforcement and the child's child-care facility or school, as applicable. Tex. Fam. Code § 85.042.

If a final protective order is rendered by a court other than the court in which a SAPCR is pending, the clerk of the court that rendered the final protective order shall:

• Inform the clerk of the court that a final order has been rendered; and

• Forward a copy of the final protective order to the court in which the suit is pending. Tex. Fam. Code § 85.062(c).

A protective order rendered by a court may be transferred to the court having jurisdiction over the suit affecting the parent-child relationship or of continuing, exclusive jurisdiction. Tex. Fam. Code § 85.064.

If a SAPCR is pending, a party to the suit may apply for a protective order against another party to the suit by filing an application in the court within which the suit is pending, or in the court within the county in which the applicant resides if the applicant resides outside the jurisdiction of the court in which the suit is pending. Tex. Fam. Code § 85.062(a).

An applicant for a protective order or an attorney representing an applicant may not be assessed any type of fee by a district or county clerk of the court or a sheriff, constable, or other public official or employee for the filing, serving, or entering of a protective order or for any other service. Tex. Fam. Code § 81.002.

DFPS is also required to include in its petition for removal a statement as to whether there is a protective order in effect or an application pending under Tex. Fam. Code Title 4, Tex. Crim. Proc. Code Chapter 7B, or an order for emergency protection under Tex. Crim. Proc. Code Art.17.292. The Department must also attach a copy of each order in effect if a party to the suit or a child of a party was the applicant or victim and the other party was the respondent. If a copy of an order in effect is not available at the time of filing of the petition, the petition must state that a copy of the order will be filed with the court before any hearing. Tex. Fam. Code § 102.008.

3. Temporary Restraining Order

A temporary restraining order is not criminally enforceable like temporary ex parte protective orders and protective orders, both of which are designed to protect people and provide a greater level of protection than temporary restraining orders.

For more information on the impacts of domestic violence in child welfare cases, see the Domestic Violence chapter of this Bench Book.