How to Obtain a Protective Order

How To Obtain A Protective Order

How To Obtain A Protective OrderTo obtain a 2-Year Family Code Protective Order, the victim must apply for a protective order. In this application, the survivor lays out the basic allegations and requests for relief (as found in the Texas Family Code). The court then issues 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 both are served on the respondent.

At the hearing, the court must determine if there is a preponderance of evidence that the respondent committed family violence against the applicant, and that family violence will likely reoccur. If the court fails to find either of these things to be true, it must deny the protective order.

A Lawyer’s Practical Observations

Protective Order law has remained largely the same for approximately 20 years. The changes have made obtaining a protective order more difficult, and courts are now less likely to grant a protective order than in the past.

In our observations, we’ve seen that some litigants used the protective order system to gain an advantage in litigation, rather than for protection. This tactic was harmful to everyone—especially real victims whose cases are now viewed more skeptically. Although it is now 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, as the respondent is usually not allowed to see their children (at least not without professional supervision).

Options for Family Violence Victims

If you are the victim of domestic abuse, you 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 they continue the abuse. To qualify for a protective order in Texas, the offender must commit an act of violence, and the victim must prove it. The evidence doesn’t necessarily need to be physical proof and can even be a witness testimony. The survivor must also show that family violence is likely to occur again in the future. Although you don’t technically need a lawyer to apply for a protective order, legal counsel can be extremely helpful. Lawyers can walk you through every step of the process, so you don’t have to worry about navigating the legal system on your own. They can help you draft the request for the protective order, ensure you have the proof that you need, and cross-examine the person against whom you are getting the order. 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. If you have a pending case relating to divorce or parent-child relationships, you must file for the protective order in the same county in which that case was filed, or in the county in which you reside. You can apply for the order through the district or county attorney, a private attorney, or a legal aid service program.

What Must an Applicant Provide in Their Application?

When you apply, you will need to provide the name of each applicant (including children) and their county of residence. You will also need the name, address, and county of residence of the person who committed the offense and their relationship to those requesting protection. If you are worried about your safety, you can keep your information (e.g., home, workplace, child daycare information) confidential when filing the order. The victim bears no fees —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. 

Unfortunately, a protective order cannot guarantee that you are 100% safe. A person may ignore the protective order and become violent. Still, 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.

What Happens When You Obtain a Protective Order?

The court will set a hearing no later than 14 days after you file for the protective order. If the court finds the victim is in clear and present danger, it may even issue a temporary, emergency protective order, which is valid for up to twenty days.

Once you obtain the final protective order, the order is effective for two years unless otherwise specified. The victim is also provided “restitution” after conviction, meaning they will be reimbursed for the costs and associated losses related to the case (e.g., hospital fees, psychologist session fees, attorney fees, etc.).

If your abuser violates the order, call the police immediately. Law enforcement officials have a record of all protective orders in their area and are prepared to respond and make an arrest should someone break an order.

Learn more today about Family Law in Texas on our blog.