Typically when a person is seeking a Protective Order, they are doing so to protect either (or both) themselves as well as the child. If there has been violence demonstrated towards either party, a Protective Order can be issued ex parte (without allowing you to provide testimony). Other times, parties seek a Protective Order in the hopes that it will give them leverage in their family law case.
In order to obtain a Protective Order, the victim must make an Application for a Protective Order. This must lay out the basic allegations and requests for relief found in the Texas Family Code. Then the Court must issue an Order to Appear that requires the alleged perpetrator (the "Respondent") to show up to Court on a specific date to answer for the charges. Then the Application and Order must be served on the Respondent. Finally, the hearing will take place, and the Court must determine whether or not there is a preponderance of the evidence that: (a) the Respondent committed "Family Violence" against the Applicant; and, (b) that Family Violence is likely to occur again.
A Lawyer's Practical Observations
Protective Order law has remained largely the same for 20 years or so. What changes have been made have made the consequences of a Protective Order being granted more severe. On the other hand, Courts have become less likely to grant a Protective Order than in the past. It was my observation that in the past some litigants were using the Protective Order system to gain an advantage in litigation, rather than for protection. That was harmful to everyone, especially real victims whose cases are now viewed more skeptically.
While it has gotten more difficult to get a Protective Order for a borderline case, Courts certainly will grant them when they are needed. The consequences for the Respondent are severe if the Applicant and Respondent have minor children together, since the Respondent is usually not allowed to see his children (or at least not without professional supervision).
What are the Options for Victims ?
If you are the victim of domestic abuse, you do have a legal option for intervention. You can deter your abuser from threatening or committing further acts of violence by filing for a protective order. If issued, this order ensures that your abuser will face criminal charges if he continues the abuse.
To qualify for a protective order in the state of Texas, the offender must have already committed an act of violence, and the victim must be able to prove it (do note proof doesn’t necessarily mean physical proof; it can be a testimony or witness testimony). You also must show that family violence is likely to occur again in the future. It is helpful to file the order as soon as possible after the incidence of violence has occurred.
While technically you do not need a lawyer to apply for a protective order, it can be extremely helpful. A lawyer will walk you through the process, so you don’t have to worry about navigating the legal system on your own. He will help you draft the request for the protective order, make sure you have enough proof that you need the order, and cross-examine the person you are getting the order against.
To obtain a protective order, you must file the case in either the county in which you live, the county in which the offender lives, or the county where the violence took place. Or, if you have a divorce case or custody case pending you must file for the protective order in that county, or with the court in the county in which you reside. You can apply for the order through the district or county attorney, a private attorney, or through a legal aid service program.
What Does an Applicant Need to Provide in the Application?
When you apply, you will need to provide the name of each applicant (this can include children if you are applying for protection for them as well) and their county of residence. You will also need the name, address, and county of residence of the person who committed the offense. Lastly, you will need to note the relationship between the victim(s) and the offender.
If you are worried about your safety, you can keep your information (e.g. home, workplace, child daycare) confidential when filing the order. Do note that overall a protective order cannot guarantee that you are 100% safe. Unfortunately, a person could choose to ignore the protective order and become violent. But the threat of going to prison provided by the protective order is often enough to deter abusers and is well worth it for victims and their families.
The victim bears no fee – including attorney fees – for a protective order. The court may order the offender to pay the costs, but this is decided on a case-by-case basis.
What Happens if a Protective Order is Obtained?
The court will set a hearing no later than 14 days after you file for the protective order. If the court finds “clear and present danger” for the victim in the application, it may even issue an emergency, temporary protective order, which is valid for up to twenty days.
Once you are granted the final protective order, the order is good for two years unless otherwise specified (the duration of the order will be decided by the court).
The victim is also provided “restitution” after conviction, meaning she will get reimbursed for the costs associated with losses related to the case (e.g. hospital fees, psychologist session fees, attorney fees, etc.).
If the abuser violates the order, you should call the police immediately so he can be arrested. Law enforcement officials have a record of all protective orders in their area and are prepared to respond should someone break an order.