Texas Child Protection Law Bench Book

August 2015 edition

G. Protective Orders

DFPS is specifically authorized to file an application for a protective order. Tex. Fam. Code § 82.002(d)(2).

1. Temporary Ex Parte Protective Order

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; and 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

Protective orders may be issued by a court if the court finds that family violence has occurred and is likely to occur in the future. Tex. Fam. Code § 85.001.

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.

In a protective order, the court may, among other things:

• 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, 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. Tex. Fam. Code § 85.022(b).

There is a presumption that family violence has occurred and is likely to occur in the future 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.

• The respondent’s parental rights with respect to the child have been terminated; and

• The respondent is seeking or attempting to seek contact with the child. 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 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 Tex. Fam. Code § 85.025(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 issued under Tex. Fam. Code § 85.026(a), including a temporary ex parte order, must contain the following:

"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."

"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 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 suit affecting the parent-child relationship 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 suit affecting the parent-child relationship 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.

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.

4. Texas Family Violence Bench Book

The Texas Office of Court Administration produced a reference manual in 2011 devoted entirely to the law on family violence in Texas. The Texas Family Violence Bench Book is available at: http://www.txcourts.gov/media/478288/domesticviolencebenchbook.pdf

2013 chapter updates to the Texas Family Violence Bench Book are available at: http://www.txcourts.gov/publications-training/judicial-ethics-bench-books/judicial-bench-books.aspx