UPDATED 7/14/2021, 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.
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, in order to maintain certain conduct throughout proceedings.
Protective orders are primarily associated with 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 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.
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 as a result 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 in order to seek civil resolution. Normally, a court hearing will be required and a judge will rule on the merits of the facts.
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.
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.
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 first offense.
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.
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.