UPDATED 8/20/2021, Original Post: November 26, 2018
Most people tend to use the terms “restraining order” and “protective order” to mean the same thing. Which makes sense. After all, both can be used to order one party not to contact or go near another party, or near their family, home, work, or children’s school(s).
However, this is where their similarities end.
If you have been charged with violation of a protective order in Texas, it is critical to your future to hire an experienced and aggressive criminal defense attorney that has a track record of success in defending protective order violation cases in Texas.
In this post, we are going to examine the difference between restraining orders and protective orders in terms of what they are designed to do, the language and provisions they typically contain, how they are legally enforced, and the consequences of violating either order.
Note that every situation is unique, and based on your needs, either your experienced divorce attorney or Fort Worth criminal defense lawyer will be able to provide professional advice specific to your circumstances.
What Texas Restraining and Protective Orders are Designed to Do
A restraining order is usually a legal document dictating that certain individuals cannot make contact with one another, and typically outlines dos and don’ts for parties on either side of a court case. Most often they are written and filed in conjunction with other court documents, such as divorce papers, to maintain certain conduct throughout proceedings. Restraining orders are not associated with criminal cases and are always linked to a civil case proceeding.
Protective orders are primarily associated with criminal family violence allegations, and as such, are created with the intent to protect individuals from abuse or continued contact that could lead to abuse. Orders of protection demand that an alleged abuser stop harassing, stalking, threatening, or physically assaulting a victim, and can encompass a victim’s family or others living in the victim’s household. Generally, there is a requirement that the alleged abuser stay at least 500 feet away from the residence of the alleged victim or any other location deemed reasonable by the judge to be placed in the protective order.
What Does Each Type of Order Contain in Texas?
Texas Family Code defines restraining orders as either a Temporary Restraining Order (TRO) or an Injunction. They contain general language, and can be lengthy, with provisions ranging from limited contact and visitation orders to preventing use of certain joint resources and ordering child or spousal support payments. In either case, the documents must describe, in detail, what act or acts need to be restrained so the court can legally issue one.
Within protective orders, there is much more variance in how these documents are drawn up. If a protective order is created because of a domestic violence arrest, the typical time frame for enforcement of the protective order is a minimum of 30 – 90 days. In other words, a protective order can be created by operation of law if a domestic violence allegation leads to an arrest.
Protective Order details can vary depending upon the judge’s discretion. Examples include a) length of time order remains valid and enforceable, b) how criminal offenses will be addressed, c) and alterations fitting exactly the type of protection being sought reflecting specific cases, for instance. In many cases, the victim is not required to be present, and in some, a judge does not even need a request for the order to be drawn up.
Can A Protective Order Be Modified?
You can fight a protective order! If you have hired an aggressive and experienced criminal defense attorney, they can file a motion to modify the protective order and get your case in front of a judge to determine if the current conditions are reasonable under the law.
Filing a Motion to Modify Protective Order is particularly effective if the alleged victim does not want to prosecute. In this situation, the alleged victim can prepare an affidavit of non-prosecution outlining the fact they are not afraid of the arrestee and demand that the protective order be dropped or modified to allow contact between the parties. Many times, the judge will at least modify the protective order to allow contact between the parties that is not harmful or injurious.
Reach out to a knowledgeable Texas defense attorney for advice on understanding the exact parameters of your restraining or protective order.
How Does Texas Enforce These Types of Orders?
Restraining order violations cannot be enforced criminally – police do not have the authority to act. Instead, the affected party must return to court to seek civil resolution. Normally, a court hearing will be required, and a judge will rule on the merits of the facts. If a party violated the terms and conditions of the restraining order, the judge could issue monetary damages and additional restrictions further limiting any contact or access to the petitioner.
However, an officer of the law can enforce any type of protective order. In fact, for an Emergency Protective Order, there are judges available to those police officers responding to domestic disturbances 24 hours a day. Generally, if a police officer finds the alleged abuser at a location prohibited by the protective order, this can create probable cause for the police officer to immediately arrest them and charge them with a violation of a protective order.
The Consequences for Violating Restraining and Protective Orders in Texas
Although courts are authorized to send an offender to jail when a restraining order is violated, it typically doesn’t happen that way. As mentioned above, the civil courts normally assess monetary damages and additional restrictions against the offender.
Violating a protective order, on the other hand, can result in immediate action and lead to serious criminal charges. Fines can reach $4,000, and jail sentences can be up to a year in county jail for violating a protective order for a first offense. If there has been a prior conviction for violation of a protective order, you could be facing a 3rd degree felony charge, punishable by up to 10 years in prison and up to a $10,000 fine.
What if you are already on bond for a domestic violence assault and you are arrested for a violation of protective order? This situation is particularly difficult because being arrested for the violation of a protective order will trigger a bond violation on the domestic violence assault. This will mean that even if you have bonded out of jail for the new crime, you will have a new warrant that will require the assistance of a criminal defense attorney to set a new bond. Failure to have an attorney assist you will likely result in a bond hold that will prevent you from being able to get out of jail. This situation will also result in additional bond conditions.
For example: a GPS monitor to be worn to ensure no proximity to the alleged victim, a no contact order, a requirement to report to bond caseload to provide drug testing and monthly check-ins.
When a violation results in additional family violence, the defendant could face new misdemeanor or felony charges, which equal additional fines and time.
Defenses To Violation Of Protective Order Charges
For the State of Texas to prove the charge of Violation of a Protective Order beyond a reasonable doubt, the prosecutor must show that you had specific intent to contact the alleged victim or specific intent to be in a location prohibited by the protective order.
For example, what if the protective order alleges a general contact provision and you are in a public place where there would be no reasonable expectation that you would have known the alleged victim would be located? In this situation, if you were in proximity to the alleged victim but you had no knowledge of intent as to the whereabouts of the alleged victim, there may a valid defense to the charges of violation of a protective order.
What if the protective order was not specific as to a particular location? What if the order was vague? Remember, the State of Texas must prove the case beyond a reasonable doubt and any doubt or ambiguity works in your favor to negotiate a dismissal.
Another example of the State of Texas being unable to prove criminal intent was a client we represented that was prohibited from going back to his own apartment, per the protective order. At the jail, the client specifically asked the judge how he could obtain his property from his home and the judge stated that he must have a police escort. Our client promptly called the police and requested a police escort so that he could obtain his property. The police arrived at the scene and walked with him to the property and upon reaching the front door, the officer told him to put his hands behind his back and that he was being arrested for violation of a protective order. Obviously, our client had no intent to violate the protective order and took extraordinary measures to do things the right way to get access to his property. We were able to provide proof to the prosecutor that our client had no criminal intent, and his case was able to be dismissed for lack of evidence.
Alleged Victim Initiated The Contact
What if the alleged victim comes to your location or sends you messages and calls? Generally, you must never respond to these messages and do everything in your power to avoid contact with the alleged victim. What if you were arrested for a violation of a protective order only because the alleged victim tracked you down and attempted to place you within their range for an arrest.
This defense is like the defense of no criminal intent. If your proximity to the alleged victim was due solely to the actions of the alleged victim, there is a strong argument that there was no overt criminal act committed on your part that would constitute a crime. As a result, your violation of a protective order case may be able to be dismissed.
Alleged Violation Does Not Meet The Terms Of The Protective Order
Finally, the police may have been sloppy in their investigation and may not be able to provide evidence showing you were within 500 feet of the location listed in the protective order. For example, we have seen instances where someone was staying at a location near the location of the alleged victim, so the police arrested our client. However, upon closer examination the police never determined if the location was within 500 feet of the alleged victim’s location. The government has the burden of proof to show that the specific violation matches up with the terms of the protective order. If the police are not precise in their reports regarding the location and proximity to the prohibited location in the protective order, you may be able to use this as leverage to get your violation of protective order case dismissed.
If you are facing a violation of protective order case in Texas, it is critical that these issues be examined and that you find an experienced and aggressive criminal defense lawyer to defend your freedom and your future. The Fulgham Law Firm provides free case evaluations and consultations, and one of our 5 Former Prosecutors will be happy to answer all your questions and help you chart a defense to get your life back.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.