Protective Orders
The provisions for a protective order in title 4 of the Texas Family Code provide broad relief for a variety of people in a wide variety of circumstances. Title 4 provides emergency assistance to abused spouses and other family members, as well as victims of “dating violence.” Although much of the relief provided by title 4 is available under title 5, title 4 provides some specialized relief that is not included in title 5, such as the twenty-day duration for an immediate ex parte order and extended protection and relief to members of a household, including a person who previously lived in a household and family members other than an abused or battered spouse, as well as the potential for stronger penalties because the violation can be a criminal offense.
Because a protective order under title 4 is generally effective only for a two-year period, many potential applicants for protective orders opt to file for a dissolution of the marriage instead. See Tex. Fam. Code § 85.025(a)(1). If an applicant who is a party to a pending suit for the dissolution of a marriage wishes to apply for a protective order, the application must be filed in accordance with section 85.062 of the Family Code. See Tex. Fam. Code § 85.062; see also Tex. Fam. Code § 6.504.
Title 4 offers broad possibilities in the area of postdivorce relief, and many practitioners are using protective orders in postdivorce situations in which “family violence” or threats of violence have occurred. If a party to a suit for dissolution of marriage or suit affecting the parent-child relationship seeks a protective order against another party to the suit after a final order has been rendered, the application must be filed in accordance with section 85.063 of the Family Code. See Tex. Fam. Code § 85.063.
Title 4 also seems to be useful in dealing with nonmarital situations, such as parent abuse, grandparent abuse, and other violent or threatening situations involving members or former members of the same household or extended family relationships. Protective orders are also available for people who have never been members of the same household but who have a “dating relationship.” See Tex. Fam. Code § 71.0021(b).
The term family, as defined by the Family Code, includes individuals related by consanguinity or affinity, individuals who are former spouses of each other, individuals who are the parents of the same child (without regard to marriage), and a foster child and foster parent, whether or not those individuals reside together. Tex. Fam. Code § 71.003.
The Family Code defines the term family violence as (1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault but does not include defensive measures to protect oneself; (2) abuse as that term is defined by Family Code section 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M) by a member of a family or household toward a child of the family or household; or (3) dating violence as that term is defined by section 71.0021. Tex. Fam. Code § 71.004.
The Family Code defines the term dating violence as an act, other than a defensive measure to protect oneself, by an actor that is committed against a victim or applicant for a protective order with whom the actor has or has had a dating relationship or because of the victim’s or applicant’s marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage and is (1) intended to result in physical harm, bodily injury, assault, or sexual assault or (2) a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault. Tex. Fam. Code § 71.0021(a).
The term dating relationship, as defined by the Family Code, means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of the length of the relationship, the nature of the relationship, and the frequency and type of interaction between the persons involved in the relationship. Tex. Fam. Code § 71.0021(b). A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship.” Tex. Fam. Code § 71.0021(c). A suit for protection from dating violence may be filed by a minor. See Tex. Fam. Code § 82.002(b)(1).
A proceeding for a protective order is initiated by filing “An Application for a Protective Order.” Tex. Fam. Code § 82.001.
If a protective order is applied for in conjunction with a divorce, the application may be contained in the original pleading or in a subsequent pleading.
COMMENT: The attorney should advise the client to consult the county or district attorney in the client’s jurisdiction to file an application for protective order before filing the divorce action because of the cost savings to the client.
§ 17.3Relationship between Protective Order and Other Suits
Application Filed before Other Suit: If an application for a protective order is pending, a court may not dismiss the application or delay a hearing on the application on the grounds that a suit for dissolution of marriage or a suit affecting the parent-child relationship is filed after the application was filed. Tex. Fam. Code § 85.061.
If a protective order is rendered before the suit for dissolution or suit affecting the parent-child relationship was filed or while the suit is pending, the court that rendered the order may, on its own motion or that of a party, transfer the protective order to the court having jurisdiction of the suit if the court finds that the transfer is in the interest of justice or is for the safety or convenience of a party or a witness. Tex. Fam. Code § 85.064(a), (c).
Application Filed during Pending Suit: On the motion of any party to a suit for divorce or annulment or to declare a marriage void, the court may issue a protective order. Tex. Fam. Code § 6.504.
A person who wishes to apply for a protective order with respect to the person’s spouse and who is a party to a pending dissolution suit or suit affecting the parent-child relationship must file the application for the order as required by Family Code chapter 85, subchapter D. Tex. Fam. Code § 82.005.
The person may apply for a protective order against another party to the suit by filing an application in the court in which the suit is pending or in a court in the county in which the applicant resides if the applicant resides outside the jurisdiction of the court in which the suit is pending. If the application is filed in a court other than where the dissolution is pending, then the applicant must inform the clerk of the court that renders the protective order that a dissolution suit or suit affecting the parent-child relationship is pending in another county. The clerk of the court rendering the protective order shall inform the clerk of the other court that a final protective order has been rendered and forward a copy of the protective order to the other court. See Tex. Fam. Code § 85.062(a)–(c).
The requirements for service of notice under chapter 82 do not apply if the application is filed as a motion in a suit for dissolution of a marriage. Notice is given in the same manner as in any other motion in that cause. Tex. Fam. Code § 82.043(e).
A protective order in a suit for dissolution of a marriage must be in a separate document entitled “PROTECTIVE ORDER.” Tex. Fam. Code § 85.004.
When a suit is pending, the court must inform a party of the right to apply for a protective order if the court believes that the party or a member of the party’s family or household may be a victim of family violence. Tex. Fam. Code §§ 6.404, 105.0011.
Application Filed after Final Order Is Rendered in Other Suit: Once a final decree has been rendered for dissolution or a suit affecting the parent-child relationship, an application for a protective order between the same parties, filed in the same county, must be filed in the court that rendered the final order. If the application is filed in another county, it may be filed in any court having jurisdiction to render the protective order. Tex. Fam. Code § 85.063(a).
If a protective order is rendered by a court in a county other than the county that rendered the final order, then it is subject to transfer. Tex. Fam. Code § 85.063(b). If a protective order that affects a party’s right to possession of or access to a child is rendered after the date a final order was rendered in a suit affecting the parent-child relationship, on the motion of a party or on the court’s own motion, the court may transfer the protective order to the court of continuing, exclusive jurisdiction if the court finds that the transfer is in the interest of justice or is for the safety or convenience of a party or a witness. Tex. Fam. Code § 85.064(b), (c).
Waiting Period for Divorce: The usual sixty-day waiting period can be waived in a divorce if the petitioner has an active protective order or an active magistrate’s order for emergency protection, based on a finding of family violence, against the respondent because of family violence committed during the marriage. The waiting period can be waived if the respondent has been finally convicted of, or received deferred adjudication for, an offense involving family violence against the petitioner or a member of the petitioner’s household. Tex. Fam. Code § 6.702(c).
Transfer: Transfer of a protective order shall be conducted according to the procedures provided by Family Code section 155.207. Except as provided by Family Code section 81.002, the fees and costs associated with the transfer are to be paid by the movant. Tex. Fam. Code § 85.064(d), (e).
The transferred order is subject to modification by the transferee court to the same extent modification is permitted under Family Code chapter 87 by the court that rendered the order. Tex. Fam. Code § 85.065(c).
A Texas court with jurisdiction of proceedings arising under title 4 may enforce a protective order rendered by another court in the same manner as the court that rendered the order could enforce the order, regardless of whether the order is transferred under chapter 85. A court may enforce the protective order by contempt. Tex. Fam. Code § 81.010(a), (b).
Validity: A protective order rendered under chapter 85 is valid and enforceable pending further action by the court that rendered the order until it is properly superseded by another court with jurisdiction over the order. Tex. Fam. Code § 85.009. If a magistrate’s order for emergency protection is issued under Texas Code of Criminal Procedure article 17.292 before an order issued under Family Code chapter 85 or an order under Family Code title 1 or title 5, the order issued under the Family Code prevails to the extent of any conflict. Tex. Code Crim. Proc. art. 17.292(f–1). If such an emergency protection order is issued before an order issued under Family Code chapter 83, the emergency protection order prevails to the extent of any conflict unless the court that issued the chapter 83 order is informed of the existence of the emergency protection order and makes a finding in the chapter 83 order that the court is superseding the emergency protection order. Tex. Code Crim. Proc. art. 17.292(f–2).
The application may be filed in the county in which the applicant resides or in the county in which the respondent resides or in any county in which the family violence is alleged to have occurred. Tex. Fam. Code § 82.003. Acts of family violence that occurred in another state could not be the basis of the issuance of a protective order in Texas where the record did not contain any evidence that any of the complained of acts were committed in Texas. Sabatino v. Goldstein, 649 S.W.3d 841 (Tex. App.—Houston [1st Dist.] 2022, pet. filed) (protective order entered under Texas Code of Criminal Procedure).
A motion for enforcement of a protective order may be filed in any court with jurisdiction of proceedings under title 4 in the county in which the order was rendered, a county in which the movant or respondent resides, or a county in which an alleged violation occurs. Tex. Fam. Code § 81.010(c).
See section 17.3 above concerning situations in which a party in a suit for dissolution of marriage or a suit affecting the parent-child relationship that is pending or in which a final order has been rendered seeks a protective order against another party to the suit.
The application must state the name and county of residence of each applicant; the name and county of residence of each individual alleged to have committed family violence; the relationships between the applicants and the individual alleged to have committed family violence; a request for one or more protective orders; and whether an applicant is receiving services from the title IV-D agency in connection with a child support case and, if known, the agency case number for each open case. Tex. Fam. Code § 82.004. If a prior court order is required to be attached to the application but is unavailable to the applicant, the application must contain a statement that the order is unavailable to the applicant and that a copy of the order will be filed with the court before the hearing on the application.
If an applicant is a former spouse of the individual alleged to have committed family violence, the application must include a copy of the decree dissolving the marriage. Tex. Fam. Code § 82.006.
An application that requests a protective order for a child who is subject to the continuing, exclusive jurisdiction of a court under title 5 of the Family Code or alleges that such a child has committed family violence must include a copy of each court order affecting the conservatorship, support, and possession of or access to the child. Tex. Fam. Code § 82.007.
An application that requests the issuance of a temporary ex parte order under Family Code chapter 83 must contain a detailed description of the facts and circumstances concerning the alleged family violence and the need for immediate protective orders, and it must be signed by each applicant under oath stating that the facts and circumstances contained in the application are true to the best knowledge and belief of each applicant. A statement signed under oath by a child is valid if the statement otherwise complies with Code chapter 82. Tex. Fam. Code § 82.009.
An application for a protective order that is filed after a previously rendered protective order has expired must include—
1.a copy of the expired protective order attached to the application;
2.a description of either the violation of the expired protective order, if the application alleges that the respondent violated the expired protective order by committing an act prohibited by that order before it expired, or the threatened harm that reasonably places the applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault; and
3.if a violation of the expired order is alleged, a statement that the violation of the expired order has not been grounds for any other order protecting the applicant that has been issued or requested under subtitle B of title 4.
If an application for a protective order alleges that an unexpired protective order applicable to the respondent is due to expire not later than the thirtieth day after the date the application was filed, the application for the subsequent protective order must include—
1.a copy of the previously rendered protective order attached to the application; and
2.a description of the threatened harm that reasonably places the applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault.
§ 17.6Temporary Orders and Extraordinary Relief
Orders Issued under Family Code Title 4: An application for temporary ex parte orders must contain a detailed description of the facts and circumstances concerning the alleged family violence and the need for the immediate protective orders, and it must be signed by each applicant under oath stating that the facts and circumstances contained in the application are true to the best knowledge and belief of each applicant. Tex. Fam. Code § 82.009(a). Such a statement, signed under oath by a child, is valid if the statement otherwise complies with Code chapter 82. Tex. Fam. Code § 82.009(b).
A temporary ex parte order is valid for the period specified in the order, not to exceed twenty days, and these orders may be extended for additional twenty-day periods. Tex. Fam. Code § 83.002.
A temporary ex parte order prevails over any other court order made under title 5 of the Family Code to the extent of any conflict between the orders. Tex. Fam. Code § 83.005. A temporary order issued pursuant to Family Code chapter 83 will not prevail over a magistrate’s order for emergency protection issued pursuant to Texas Code of Criminal Procedure article 17.292 unless the court that issued the chapter 83 order was informed of the magistrate’s order and makes a finding that the court is superseding the magistrate’s order. See Tex. Code Crim. Proc. art. 17.292(f–2).
Chapter 83 of the Family Code regulates when a person may be excluded from the occupancy of the person’s residence by an ex parte order. The applicant must file a sworn affidavit detailing the facts and circumstances requiring exclusion from the residence, and the applicant must appear in person to testify at the ex parte hearing. For an ex parte order to exclude a person from the person’s residence, the court must find from the required affidavit and testimony that (1) the applicant requesting the exclusion order either resides on the premises or has resided there within thirty days before the date the application was filed, (2) the person to be excluded has within the thirty days before the date the application was filed committed family violence against a member of the household, and (3) there is a clear and present danger that the person to be excluded is likely to commit family violence against a member of the household. Tex. Fam. Code § 83.006(a), (b).
The court may recess the hearing on a temporary ex parte order for exclusion of a party from the residence to contact the respondent by telephone and provide the respondent the opportunity to be present when the court resumes the hearing. Without regard to whether the respondent is able to be present at the hearing, the court shall resume the hearing before the end of the working day. Tex. Fam. Code § 83.006(c).
On request by the applicant, the court granting a temporary ex parte order that excludes the respondent from the respondent’s residence shall render a written order to the sheriff, constable, or chief of police to provide a law enforcement officer to (1) accompany the applicant to the residence covered by the order; (2) inform the respondent that the court has ordered that the respondent be excluded from the residence; (3) protect the applicant while the applicant takes possession of the residence; and (4) protect the applicant, if the respondent refuses to vacate the residence, while the applicant takes possession of necessary personal property. Tex. Fam. Code § 86.003.
Orders Issued under Code of Criminal Procedure: A defendant who has been charged with family violence may be held by the magistrate for up to four hours after bond has been made and for an additional period of up to forty-eight hours if the magistrate determines that violence would continue if the defendant is released; probable cause for certain aggravating circumstances is required if the additional period exceeds twenty-four hours. Tex. Code Crim. Proc. art. 17.291(b).
A magistrate also has the authority to issue an order for emergency protection after the defendant has been arrested for a criminal offense involving family violence or an offense under Texas Penal Code section 22.011, 22.021, or 42.072. An order for emergency protection shall be issued if the arrest was for an offense involving family violence that also involved serious bodily injury to the victim or the use or exhibition of a deadly weapon during the commission of an assault. The order is issued when the defendant makes an appearance before the magistrate. The victim need not be present when the order is issued. Tex. Code Crim. Proc. art. 17.292(a), (b), (d).
The order for emergency protection may be requested by the victim of the offense, the guardian of the victim, a peace officer, or the attorney representing the state. The magistrate may also issue the order on its own motion. Tex. Code Crim. Proc. art. 17.292(a).
The order for emergency protection may prohibit the arrested person from—
1.committing family violence or an assault of the person protected under the order or an act in furtherance of an offense under Penal Code section 42.072;
2.communicating directly with a member of the family or household or with the person protected under the order in a threatening or harassing manner;
3.communicating a threat through any person to a member of the family or household or to the person protected under the order;
4.going to or near the residence, place of employment, or business of a member of the family or household or of the person protected under the order;
5.going to or near the residence, child care facility, or school where a child protected under the order resides or attends; and
6.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. Code Crim. Proc. art. 17.292(c).
In addition, the magistrate may impose a condition described in article 17.49 of the Code of Criminal Procedure, including ordering the defendant to participate in a global positioning monitoring system or allowing the alleged victim or other person protected by the order to participate in the system. Tex. Code Crim. Proc. art. 17.292(c–1); see Tex. Code Crim. Proc. art. 17.49.
The order must suspend the defendant’s license to carry a handgun issued under subchapter H of chapter 411 of the Texas Government Code. Tex. Code Crim. Proc. art. 17.292(l).
The order must contain prescribed statements in bold-faced type or capital letters. Tex. Code Crim. Proc. art. 17.292(g).
To the extent that an order for emergency protection conflicts with an existing court order granting possession of or access to a child, the emergency protection order prevails for its duration. Tex. Code Crim. Proc. art. 17.292(f). To the extent that an order for emergency protection conflicts with an order subsequently issued under Family Code chapter 85 or under Family Code title 1 or 5, the order issued under the Family Code prevails. Tex. Code Crim. Proc. art. 17.292(f–1). To the extent that an order for emergency protection conflicts with an order subsequently issued under Family Code chapter 83, the order for emergency protection prevails unless the court issuing the Family Code order is informed of the existence of the emergency protection order and makes a finding in the Family Code order that the court is superseding the emergency protection order. Tex. Code Crim. Proc. art. 17.292(f–2).
An order issued under article 17.292(a) or (b)(1) of the Code of Criminal Procedure is effective for not less than thirty-one days after the date of issuance and not more than sixty-one days after the date of issuance. An order issued under article 17.292(b)(2) of the Code of Criminal Procedure is effective for not less than sixty-one days after the date of issuance and not more than ninety-one days after the date of issuance. A copy of the order shall be served on the defendant by the magistrate or the magistrate’s designee in person or electronically. The magistrate must make a separate record of the service in written or electronic format. After notice to each affected party and a hearing, the issuing court may modify all or part of the order if the court finds that the order as originally issued is unworkable, the modification will not place the victim of the offense at greater risk than did the original order, and the modification will not in any way endanger a person protected under the order. Tex. Code Crim. Proc. art. 17.292(j).
A copy of the order shall be sent by the magistrate to the chief of police of the municipality or the sheriff of the county where the member of the family or household or individual protected by the order resides. If the victim was not in the court, a peace officer shall make a good-faith effort to notify the victim, within twenty-four hours, that the order was issued by calling the victim’s residence and place of employment. The clerk of the court shall send a copy of the order to the victim. Tex. Code Crim. Proc. art. 17.292(h). A copy of the order shall be sent to any school or child care facility affected by the order. Tex. Code Crim. Proc. art. 17.292(i). If the order suspends the defendant’s license to carry a handgun, the clerk shall immediately send a copy of the order to the Department of Public Safety, and the department shall demand surrender of the license from the holder, record the suspension, and report the suspension to the appropriate local law enforcement agencies. Tex. Code Crim. Proc. art. 17.293.
An application for a protective order may be filed in the district court, court of domestic relations, juvenile court having the jurisdiction of a district court, statutory county court, constitutional county court, or other court expressly given jurisdiction under title 4. See Tex. Fam. Code § 71.002. The parties to a protective order are not entitled to a trial before a jury. See Williams v. Williams, 19 S.W.3d 544 (Tex. App.—Fort Worth 2000, pet. denied).
An application for a protective order to protect the applicant or any other member of the applicant’s family or household from family violence (but not dating violence) may be filed by an adult member of the family or household or by any adult for the protection of a child. Tex. Fam. Code § 82.002(a), (c). An application for a protective order for dating violence may be filed by (1) a member of the dating relationship, regardless of whether the member is an adult or a child; (2) an adult member of the marriage, if the victim is or was married as described by Code section 71.0021(a)(1)(B); or (3) any adult on behalf of a child. Tex. Fam. Code § 82.002(b), (c). An application for a protective order arising out of dating violence may not be filed by another member of the family or household. An application may be filed for the protection of any person alleged to be a victim of family or dating violence by a prosecuting attorney or by the Texas Department of Family and Protective Services. Tex. Fam. Code § 82.002(d). “Prosecuting attorney” means the attorney who represents the state in a district or statutory county court in the county of proper venue and who has responsibility for filing applications under title 4. See Tex. Fam. Code §§ 71.007, 81.007. If an application is filed by a prosecuting attorney or the department, or by an adult for the protection of a child, the alleged victim is considered to be the applicant. Tex. Fam. Code § 82.002(e).
COMMENT: The practitioner should inform the client that the prosecuting attorney or the Texas Department of Family and Protective Services can file an application on the client’s behalf.
An applicant or an attorney representing an applicant may not be assessed a fee, cost, charge, or expense by a district or county clerk of the court or by a sheriff, constable, or other public official or employee in connection with the filing, serving, or entering of a protective order or for any other services described in Family Code section 81.002, including a fee to dismiss, modify, transfer, or withdraw a protective order. Tex. Fam. Code § 81.002(a).
Except on a showing of good cause or indigence of a party found to have committed family violence, the party against whom the order is rendered shall be ordered to pay the $16 protective order fee, the standard fees charged by the clerk of the court in a general civil proceeding for serving the order, the costs of court, and all other fees, charges, or expenses incurred in connection with the protective order. The court may order such fees paid by a party against whom an agreed protective order is rendered. Tex. Fam. Code § 81.003.
A party who is ordered to pay fees and costs may be punished for contempt of court as provided by section 21.002 of the Texas Government Code for failure to pay before the date specified by the order. If the order does not specify a date, payment of costs is required before the sixtieth day after the date the order was rendered. Tex. Fam. Code § 81.004.
The court may assess reasonable attorney’s fees against the party who is found to have committed family violence or a party against whom an agreed protective order is rendered. A protective order can be modified to provide for the recovery of attorney’s fees after an unsuccessful appeal of the order. In re S.S., 217 S.W.3d 685, 686 (Tex. App.—Eastland 2007, no pet.). In setting the amount of attorney’s fees, the court shall consider the income and ability to pay of the person against whom the fee is assessed. Tex. Fam. Code § 81.005. Attorney’s fees that are awarded in protective orders are enforceable by contempt. In re Skero, 253 S.W.3d 884, 887 (Tex. App.—Beaumont 2008, no pet.) (per curiam).
§ 17.10Notice, Hearing, and Evidence
Notice of the application must be served on each respondent. Tex. Fam. Code § 82.043(a). Notice is to be served in the same manner as citation under the Texas Rules of Civil Procedure, except that service by publication is not authorized. Tex. Fam. Code § 82.043(c). A temporary ex parte protective order under Family Code chapter 83 may be issued without notice to the individual alleged to have committed family violence. Tex. Fam. Code §§ 82.043(d), 83.001(a). The applicant must provide the clerk with sufficient copies of the application for service on each respondent. Tex. Fam. Code § 82.043(b). The statute prescribes the contents of the notice. See Tex. Fam. Code § 82.041. If the application is filed as a motion in a suit for dissolution of marriage, these requirements of service of notice do not apply; instead, notice is given in the same manner as any other motion in such a suit. Tex. Fam. Code § 82.043(e).
Generally, a hearing must be set for a date no later than the fourteenth day after the date the application is filed. Tex. Fam. Code § 84.001(a). It is an abuse of discretion for a court to fail to timely conduct a hearing on an application for a protective order. In re Nanua, No. 13-22-00103-CV, 2022 WL 2024869, at *7 (Tex. App.—Corpus Christi–Edinburg June 6, 2022, orig. proceeding) (mem. op.).
If the respondent requests additional time because the respondent received service of the application within forty-eight hours before the hearing, the hearing must be rescheduled for no later than fourteen days after the date set for the hearing, with no requirement of additional service. Tex. Fam. Code § 84.004. If a hearing is not held because the respondent failed to receive service, the hearing must be rescheduled for no later than fourteen days after a request from the applicant. Tex. Fam. Code § 84.003. A legislative continuance sought in a proceeding that includes an application for protective order is discretionary with the court. Tex. Fam. Code § 84.005.
On request of a prosecutor in a county with a population of more than two million or in a county in a judicial district composed of more than one county, the district court shall set the hearing for no later than twenty days after the date the application was filed or, if rescheduled, no later than twenty days after the date a request to reschedule was made. Tex. Fam. Code § 84.002(a).
Any individual affected by a temporary ex parte order may file a motion to vacate at any time, and the court must set a date for hearing the motion as soon as possible. Tex. Fam. Code § 83.004. Before vacating the order, the court must hold a hearing. In re Goddard, No. 12-18-00355-CV, 2019 WL 456866, at *3 (Tex. App.—Tyler Feb. 6, 2019, orig. proceeding) (mem. op.).
The court may permit the parties to conduct accelerated discovery before the hearing on a protective order, but the hearing date cannot be delayed to accommodate discovery. See Martinez v. Martinez, 52 S.W.3d 429, 432–33 (Tex. App.—Fort Worth 2001, pet. denied).
A statement made by a child twelve years of age or younger that describes alleged family violence against the child is admissible if the court finds that the time, content, and circumstances of the statement provide sufficient indications of the statement’s reliability and (1) the child testifies or is available to testify or (2) the court determines that the use of the statement in lieu of the child’s testimony is necessary to protect the child’s welfare. Tex. Fam. Code §§ 84.006, 104.006.
Notwithstanding rule 107 of the Texas Rules of Civil Procedure, the court may render a protective order that is binding on a respondent who does not attend a hearing if the respondent received service of the application and notice of the hearing and proof of service was filed with the court before the hearing. If the court reschedules the hearing under chapter 84, a protective order may be rendered if the respondent does not attend the rescheduled hearing. Tex. Fam. Code § 85.006. In the absence of an answer or appearance, the court may grant a protective order by default after determining that all due process requirements for service are met, a record is made, and sufficient evidence is admitted. However, unlike in normal default situations, due to the policy statement and statutory scheme of title 4 of the Family Code, the ten-day period that the return of service must be on file does not apply to cases under title 4. Johnson v. Simmons, 597 S.W.3d 538, 545 (Tex. App.—Fort Worth 2020, pet. denied). But see Lancaster v. Lancaster, No. 01-14-00845-CV, 2015 WL 9480098, at *4 (Tex. App.—Houston [1st Dist.] Dec. 29, 2015, no pet.) (mem. op.).
The parties are not entitled to a jury trial on the issue of whether the protective order should be granted. Roper v. Jolliffe, 493 S.W.3d 624, 634–35 (Tex. App.—Dallas 2015, pet. denied); Aguilar v. Aguilar, No. 02-11-00370-CV, 2012 WL 6632526, at *4 (Tex. App.—Fort Worth Dec. 21, 2012, no pet.) (per curiam) (mem. op.).
A written answer to an application for a protective order is permitted but is not required and may be filed at any time before the hearing. Tex. Fam. Code § 82.021. A written answer should be filed in response to a motion for enforcement of a protective order to raise affirmative defenses or to request a jury if the movant requests incarceration for more than six months.
If, after the hearing, the court finds that family violence has occurred and is likely to occur in the future, the court shall render a protective order applying only to a person found to have committed family violence. Tex. Fam. Code § 85.001(b). There can be a finding of “family violence” even if there is no actual physical harm. Bedinghaus v. Adams, No. 2-08-096-CV, 2009 WL 279388 (Tex. App.—Fort Worth Feb. 5, 2009, no pet.) (mem. op.). A threat without an actual act of violence or physical harm is sufficient. Wilkerson v. Wilkerson, 321 S.W.3d 110, 117 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d); Clements v. Haskovec, 251 S.W.3d 79, 85 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.). Even if no express threats are conveyed, the fact finder may conclude that a person was reasonably placed in fear. Burt v. Francis, 528 S.W.3d 549, 553–54 (Tex. App.—Eastland 2016, no pet.). While a trial court is required to find, at the close of the hearing on the application for a protective order, whether family violence has occurred and is likely to occur in the future, those findings are not required to be express. In re M.I.W., No. 04-17-00207-CV, 2018 WL 1831678, at *2 (Tex. App.—San Antonio Apr. 18, 2018, no pet.) (mem. op.). Evidence of family violence in the past can be competent evidence that family violence is likely to occur in the future. Clements, 251 S.W.3d at 87; Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 819, 824–25 (Tex. App.—Fort Worth 2007, no pet.); In re Epperson, 213 S.W.3d 541, 544 (Tex. App.—Texarkana 2007, no pet.). A court may but is not required to find that violent behavior will continue in the future just because it happened in the past. Hassan v. Hassan, No. 14-17-00179-CV, 2018 WL 3061320, at *2 (Tex. App.—Houston [14th Dist.] June 21, 2018, no pet.) (mem. op.).
There is a presumption that family violence has occurred and is likely to occur in the future if (1) the respondent has been convicted of or placed on deferred adjudication community supervision for certain offenses under Penal Code title 5 or 6 against the child for whom the petition is filed, (2) the respondent’s parental rights with respect to the child have been terminated, and (3) the respondent is trying to have contact with the child. Tex. Fam. Code § 81.0015.
A protective order may also include orders affecting property and children that apply to both parties as set forth in Family Code section 85.021, if such orders are in the best interests of the person protected by the order or a member of the family or household of the person protected by the order. See Tex. Fam. Code §§ 81.001, 85.001(b), 85.021. Unless the evidence shows that family violence occurred against the children of the applicant, a child may not be included as a protected person, but the court may make orders regarding a member of the family or household of a person protected by an order when contact with another member of the family might escalate and involve the protected person. Tex. Fam. Code § 85.022; see Martin v. Martin, 545 S.W.3d 162, 168 (Tex. App.—El Paso 2017, no pet.).
If the court finds that (1) the respondent violated a protective order by committing an act prohibited by the order under Family Code section 85.022, (2) the order was in effect at the time of the violation, and (3) the order has expired after the date the violation occurred, the court shall, without the necessity of finding whether family violence has occurred or is likely to occur again in the future, render a protective order applying only to the respondent and may render a protective order under Family Code section 85.021. Tex. Fam. Code § 85.002; see Tex. Fam. Code §§ 85.021, 85.022; see Maldonado v. Bearden, No. 01-17-00371-CV, 2018 WL 4087411, at *4 (Tex. App.—Houston [1st Dist.] Aug. 28, 2018, no pet.) (mem. op.). A protective order may not be issued based solely on a violation of a temporary ex parte protective order in the same case. See Taylor v. Taylor, 608 S.W.3d 265, 272 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (respondent possessed firearm during term of ex parte order).
If the court approves an agreement between the parties as authorized under section 85.005 (agreed orders), the court shall render a protective order that is in the best interests of the applicant, the family or household, or a member thereof. The court may not approve an agreement that requires the applicant to refrain from doing an act listed in section 85.022. An agreed protective order is enforceable civilly or criminally, regardless of whether the court makes the findings required by Family Code section 85.001. An agreed protective order is not enforceable as a contract. Tex. Fam. Code § 85.005(a)–(d).
On a finding that family violence has occurred and is likely to occur in the future, the court may issue an order prohibiting a party from (1) removing a child from the possession of a named person or the jurisdiction of the court, (2) transferring or encumbering property, or (3) removing a pet, companion animal, or assistance animal from the possession or actual or constructive care of a person named in the order. Tex. Fam. Code § 85.021(1).
The court may also (1) grant exclusive use of residence to one party in certain circumstances, (2) provide for possession of and access to a child, (3) require the payment of support for a party or a child, or (4) award use and possession of certain property. Tex. Fam. Code § 85.021(2)–(5).
The court may order the person found to have committed family violence to perform acts specified by the court that are deemed necessary or appropriate to prevent or reduce the likelihood of family violence and may order the person to complete an accredited battering intervention and prevention program. If an accredited program is not available, the court may order that the person counsel with a professional who has completed specified family violence intervention training. Tex. Fam. Code § 85.022(a)(1)–(3).
The court may also order that the person who has committed family violence is prohibited from (1) committing family violence in the future; (2) communicating 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, communicating 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, or, on good cause, communicating 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; (3) going near the residence, school, child care facility, 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; (4) engaging in conduct directed specifically toward a person protected by an order or a member of the family or household of a person protected by an order that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass that person, including following that person; (5) possessing a firearm, unless the person is a peace officer actively engaged in full-time employment as an officer; and (6) harming, threatening, or interfering with the care, custody, or control of a pet, companion animal, or assistance animal that is possessed by or is in the actual or constructive care of a person protected by an order or by a member of the family or household of a person protected by an order. Tex. Fam. Code § 85.022(b). Further, the court may enter any other order that it deems appropriate to prevent future violence as those items enumerated in section 85.022(b) of the Texas Family Code are not an exhaustive list. Rodriguez v. Doe, 614 S.W.3d 380, 386 (Tex. App.—Houston [14th Dist.] 2020, no pet.).
Further, the court shall suspend a license to carry a handgun issued under subchapter H of chapter 411 of the Texas Government Code that is held by a person found to have committed family violence. Tex. Fam. Code § 85.022(d). In Webb v. Schlagal, 530 S.W.3d 793 (Tex. App.—Eastland 2017, pet. denied), the court found that a protective order prohibiting appellant’s possession of a firearm did not infringe on his Second Amendment rights and that the statutory provisions under which it was issued, as applied to the appellant, were not unconstitutional under section 23, article 1, of the Texas Constitution. The order was issued under Tex. Code Crim. Proc. art. 7A.05(a)(2)(D), which has identical language to Tex. Fam. Code § 85.022(b)(6).
The court may render a protective order that is effective for more than two years if the court finds that the subject of the order (1) committed an act constituting a felony offense involving family violence against the applicant or a member of the applicant’s family or household, regardless of whether the person has been charged with or convicted of the offense; (2) caused serious bodily injury to the applicant or a member of the applicant’s family or household; or (3) was the subject of two or more previous protective orders rendered to protect the person on whose behalf the current order is sought and after a finding by the court that the subject of the order has committed family violence and is likely to commit family violence in the future. Tex. Fam. Code § 85.025(a–1). If the court renders such a protective order, it must include one of these findings in the order. Tex. Fam. Code § 85.001.
A party who has been found to have committed family violence or a party against whom an agreed protective order is rendered may be ordered to pay reasonable attorney’s fees. The income and ability to pay of the party who is assessed the attorney’s fees shall be considered by the court. Tex. Fam. Code § 81.005; Laufer v. Gordon, No. 14-18-00744-CV, 2019 WL 6210200, at *3 (Tex. App.—Houston [14th Dist.] Nov. 21, 2019, no pet.) (mem. op.). The court shall, if a protective order is rendered, and may, if an agreed protective order is rendered, order the party against whom the order is rendered to pay the required fees. Tex. Fam. Code § 81.003.
§ 17.13Confidentiality of Certain Information
On request by an applicant for a protective order, the court may protect the applicant’s mailing address by (1) ordering the applicant to disclose the information to the court, designate a person to receive notices and filed documents on the applicant’s behalf, and disclose that designee’s mailing address to the court; (2) requiring the court clerk to strike the applicant’s mailing address from the public records of the court, if applicable, and maintain a confidential record of the applicant’s mailing address for use only by the court; and (3) prohibiting the release of the information to the respondent. Tex. Fam. Code § 82.011.
On request by a person protected by an order or a member of the family or household of a person protected by an order, the court may exclude from a protective order the address and telephone number of a person protected by the order (specifying only the county of residence), the place of employment or business of a person protected by the order, or the child care facility or school a child protected by the order attends or in which the child resides. In that case the court shall order the clerk to strike the information from the public records and maintain a confidential record of the information solely for the court’s use or that of a law enforcement agency for entry of required information into the statewide law enforcement information system. Tex. Fam. Code § 85.007.
In a protective order under Family Code section 85.022(b)(3) or (4), the court shall specifically describe each prohibited location and the minimum distances from the residence, school, child care facility, or place of employment or business that the party must maintain, unless the location information is excluded because of the need for confidentiality. Tex. Fam. Code § 85.022(c).
The parties may agree in writing to a protective order under Family Code sections 85.021 and 85.022, subject to the court’s approval. The court may not approve an agreement that requires the applicant to do or refrain from doing an act under section 85.022. Tex. Fam. Code § 85.005(a).
An agreed protective order is enforceable civilly or criminally, regardless of whether the court makes the findings required by Family Code section 85.001. Tex. Fam. Code § 85.005(b).
An agreed protective order must contain the finding that family violence has occurred and is likely to occur again in the future. In re I.E.W., No. 13-09-00216-CV, 2010 WL 3418276 (Tex. App.—Corpus Christi–Edinburg 2010, no pet.) (mem. op.).
If the court approves an agreement, the court shall render an agreed protective order that is in the best interest of the applicant, the family or household, or a member of the family or household. Tex. Fam. Code § 85.005(c).
An agreed protective order is not enforceable as a contract, and it expires on the date the court order expires. Tex. Fam. Code § 85.005(d), (e).
On the motion of any party, the court, after notice and hearing, may modify an existing order to exclude any item included in the order or include any item that could have been included. Tex. Fam. Code § 87.001. A change of circumstances is not required to modify a protective order. In re S.S., 217 S.W.3d 685 (Tex. App.—Eastland 2007, no pet.). A protective order may not be modified to extend the period of the order’s validity beyond the second anniversary of the date the original order was rendered or the date the order expires under Family Code section 85.025(a–1) or (c), whichever date occurs later. Tex. Fam. Code § 87.002. Section 85.025(c) provides that, if the subject of the protective order is confined or imprisoned on the date the protective order would expire under Family Code section 85.025(a) or (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. In this situation, the order expires on the first anniversary of the date the person is released from confinement or imprisonment if the person was sentenced for more than five years or on the second anniversary of the date the person is released if the person was sentenced for five years or less. Tex. Fam. Code § 85.025(c). Notice of a motion to modify is sufficient if delivery of the motion is attempted on the respondent at the respondent’s last known address by registered or certified mail as provided by rule 21a of the Texas Rules of Civil Procedure. Tex. Fam. Code § 87.003.
If a protective order includes an address or telephone number of a person protected by the order, of that person’s place of employment or business, or of the school or child care facility of a child protected by the order and the information is not confidential under Family Code section 85.007, the person protected by the order may file a notification of change of address or telephone number with the court that rendered the order to modify the information contained in the order. The clerk shall attach the notification to the order and shall deliver a copy of the notification to the respondent by registered or certified mail under rule 21a of the Texas Rules of Civil Procedure. The filing of the notification and its attachment to the order do not affect the validity of the order. Tex. Fam. Code § 87.004.
A trial court abused its discretion by failing to allow the father to submit evidence in support of his motion to vacate a prior protective order based on the fact that he had visited with the children on a regular basis over the course of the protective order and had been in the mother’s presence without any issues of physical violence. In re Gillespie, No. 14-22-00174-CV, 2022 WL 2350041 (Tex. App.—Houston [14th Dist.] June 30, 2022, orig. proceeding) (per curiam) (mem. op.).
§ 17.16Appeal of Protective Orders
Generally, protective orders issued under subtitle B of title 4 of the Family Code may be appealed. However, a protective order rendered against a party in a suit for dissolution of marriage may not be appealed until the decree of dissolution becomes a final, appealable order. Likewise, a protective order rendered against a party in a suit affecting the parent-child relationship may not be appealed until the underlying order becomes a final, appealable order. Tex. Fam. Code § 81.009. Unless one of these two exceptions exists, the protective order is immediately appealable. Watts v. Adviento, No. 02-17-00424-CV, 2019 WL 1388534, at *2 (Tex. App.—Fort Worth Mar. 28, 2019, no pet.) (mem. op.). A protective order based on a finding of family violence may be appealed even if the order has expired before the hearing, because of the long-term collateral consequences. Clements v. Haskovec, 251 S.W.3d 79 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.); State for Protection of Cockerham v. Cockerham, 218 S.W.3d 298 (Tex. App.—Texarkana 2007, no pet.); Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815 (Tex. App.—Fort Worth 2007, no pet.).
§ 17.17Remedies for Violations of Protective Orders or Conditions of Bond
There are a variety of remedies available for violations of protective orders. A violation of a protective order can be punishable as contempt of court by a fine, incarceration, or both. Each protective order must contain warnings about the possible punishments for violation of the order. The warnings must be prominently displayed in bold-faced type or capital letters or underlined, and the wording is prescribed by statute. See Tex. Fam. Code § 85.026. The respondent must be served with a temporary ex parte order before he may be arrested for violating it. See Tex. Const. art. I, § 11c.
If the protective order is violated by the commission of a prohibited act, the punishment could be up to a $4,000 fine, confinement in jail for as long as one year, or both. See Tex. Penal Code §§ 12.21, 25.07. Commission of prohibited acts can also be prosecuted criminally as misdemeanor or felony offenses.
If the provisions of the protective order concerning the payment of fees and costs under Family Code sections 81.003–.006 are not complied with, then pursuant to the Texas Government Code the violations of the provisions could be punished by a fine up to $500, confinement in jail for as long as six months, or both. See Tex. Fam. Code § 81.004; Tex. Gov’t Code § 21.002. The same remedies are also available for enforcement of the counseling provisions pursuant to Family Code section 85.024. See Tex. Fam. Code § 85.024; Tex. Gov’t Code § 21.002.
Generally, an award of attorney’s fees is not enforceable by contempt. However, one court has found that the obligation to pay fees awarded in a family violence protective order is a legal duty like the duty to pay fees awarded in the enforcement of a child support obligation. See In re Skero, 253 S.W.3d 884, 887 (Tex. App.—Beaumont 2008, no pet.) (per curiam). The Skero court held that a family violence protective order, including the assessment of attorney’s fees, enforces a legal duty, not a private agreement or contract between the parties, and that the attorney’s fee in such a proceeding is a part of the procedural remedy for enforcing substantial rights and the fee allowed, like other costs in the protective order proceeding, is “incidental to and a part of” the order necessary to protect the spouse and the minors from family violence.
A person who violates the provisions of a condition of bond set in a family violence case that are related to the safety of the victim or the community may be subject to felony sanctions. An offense under Texas Penal Code section 25.07 for violation of an order or condition of bond is a class A misdemeanor, unless it is shown at trial that the defendant has been convicted previously under that section two or more times or has violated the protective order or condition of bond by committing assault or stalking; in that case the offense is increased to a third-degree felony. Tex. Penal Code § 25.07(g)(2). Conviction in another state of a substantially similar offense is considered a conviction for purposes of section 25.07(g). See Tex. Penal Code § 25.07(h). A person who commits an offense under Penal Code section 25.07 may be taken into custody and denied release on bail if, at a hearing, a judge or magistrate makes certain findings concerning the commission of the offense based on a preponderance of the evidence. See Tex. Code Crim. Proc. art. 17.152. In determining whether to deny release on bail, the judge or magistrate may consider facts or circumstances relevant to a determination of whether the accused poses an imminent threat of future family violence. Tex. Code Crim. Proc. art. 17.152(e).
Prescribed warnings concerning penalties for the violation of an emergency protection order issued by a magistrate must appear in each such order in bold-faced type or capital letters. See Tex. Code Crim. Proc. art. 17.292(g). A person arrested or held without a warrant in the prevention of family violence may be detained if there is probable cause to believe the violence will continue if the person is immediately released. The person may be held after bond has been posted for a period of not more than four hours; in some cases the period may be extended, but the extension cannot exceed forty-eight hours. Tex. Code Crim. Proc. art. 17.291.
If the relief requested includes six months or more in jail, the respondent is entitled to a jury trial, which should be specifically requested in the respondent’s answer. The respondent may also be able to object to discovery if it violates a right against self-incrimination. When appropriate, the answer should specifically assert that the protective order has expired, if the enforcement is seeking to punish the respondent for violating one of the prohibitions contained in the order.
A protective order may contain a requirement that the person found to have committed family violence complete a battering intervention and prevention program accredited under article 42.141 of the Texas Code of Criminal Procedure. If such a program is not available, the person may be ordered to counsel with a social worker, family service agency, physician, psychologist, licensed therapist, or licensed professional counselor who has completed specified family violence intervention training. Tex. Fam. Code § 85.022(a), (a–1).
A person found to have engaged in family violence and ordered to complete an accredited battering intervention and prevention program or counseling under section 85.022 of the Family Code shall file an affidavit with the court before the sixtieth day after the order was rendered stating that the person has begun the program or counseling or that a program or counseling is not available within a reasonable distance from the person’s residence. Once the program or counseling is completed, the person must file an affidavit verifying completion by the earlier of the thirtieth day before the order expires or the thirtieth day before the first anniversary of the date the order was issued. The affidavit must be accompanied with a letter, notice, or certificate from the program or counselor verifying the person’s completion of the program or counseling. A person who does not comply with these requirements may be fined up to $500 and held in contempt of court under section 21.002 of the Texas Government Code. The protective order must specifically advise the person of this reporting requirement and the possible punishments if the person fails to comply. Tex. Fam. Code § 85.024.
§ 17.19Request by Respondent for Protective Order
A protective order that requires the first applicant to do or refrain from doing an act under Family Code section 85.022 shall include a finding that the first applicant has committed family violence and is likely to commit family violence in the future. Tex. Fam. Code § 85.001(c).
To apply for a protective order, a respondent to an application for a protective order must file a separate application. Tex. Fam. Code § 82.022; State for Protection of Cockerham v. Cockerham, 218 S.W.3d 298 (Tex. App.—Texarkana 2007, no pet.).
A court may not delay a hearing on an application for a protective order in an attempt to consolidate it with a hearing on a subsequently filed application for protective order. Tex. Fam. Code § 84.001(b).
A court may not render one protective order under section 85.022 that applies to both parties. If the respondent files an application for a protective order and there is a separate finding of family violence and that it is likely to occur again in the future, then two separate orders shall be issued that reflect the appropriate conditions for each party. See Tex. Fam. Code § 85.003.
A protective order made under subtitle B of title 4 of the Family Code shall be delivered to the respondent as provided by rule 21a of the Texas Rules of Civil Procedure, served in the same manner as a writ of injunction, or served in open court at the close of the hearing. The court shall serve an order in open court to a respondent who is present at the hearing by giving the respondent a copy of the order. A certified copy of the signed order shall be given to the applicant at the same time. If the applicant is not in court at the conclusion of the hearing, the clerk of the court shall mail a certified copy of the order to the applicant no later than the third business day after the date the hearing is concluded. Tex. Fam. Code § 85.041(a), (b).
If the order has not been reduced to writing, the court shall give notice orally to a respondent who is present at the hearing of the part of the order that contains prohibitions under Family Code section 85.022 or any other part of the order that contains provisions necessary to prevent further family violence. The clerk of the court shall mail a copy of the order to the respondent and a certified copy to the applicant no later than the third business day after the date the hearing is concluded. Tex. Fam. Code § 85.041(c).
If the respondent is not present at the hearing and the order has been reduced to writing at the conclusion of the hearing, the clerk of the court shall immediately provide a certified copy of the order to the applicant and mail a copy to the respondent no later than the third business day after the date the hearing is concluded. Tex. Fam. Code § 85.041(d).
The court clerk shall send a copy of the protective order, whether the order is original or modified, along with the information provided by the applicant or the applicant’s attorney that is required under section 411.042(b)(6) of the Texas Government Code, to the following not later than the next business day after the court issues the order: the chief of police of the municipality where the protected person resides, if the person resides in a municipality; the appropriate constable and the sheriff of the county where the person resides, if the person does not reside in a municipality; and the title IV-D agency, if the application for the protective order indicates that the applicant is receiving services from the agency. Tex. Fam. Code § 85.042(a). The clerk may delay sending the order only if the clerk lacks information necessary to ensure service and enforcement. Tex. Fam. Code § 85.042(g).
If the respondent is a member of the state military forces or is on active-duty status in the U.S. Armed Forces and the applicant or the applicant’s attorney provides to the court clerk the mailing address of the staff judge advocate or provost marshal, the clerk must also provide a copy of the order and information to the staff judge advocate at Joint Force Headquarters or the provost marshal of the military installation to which the respondent is assigned with the intent that the commanding officer will be notified, as applicable. Tex. Fam. Code § 85.042(a–1). If an original or modified protective order is vacated, the clerk shall so notify each individual or entity who received a copy of the original or modified order from the clerk. Tex. Fam. Code § 85.042(c).
The clerk may transmit the order and any related information electronically or in another manner that can be accessed by the recipient. Tex. Fam. Code § 85.042(f).
If the order prohibits a respondent from going to or near a child care facility or school, the clerk of the court shall send a copy of it to the facility or school. Tex. Fam. Code § 85.042(b).
Since the order must suspend a license to carry a handgun, the clerk of the court shall send a copy of the order to the appropriate division of the Department of Public Safety. On receipt of the order, the department shall record the license suspension in the department records, report the suspension to the local law enforcement agencies, and demand surrender of the suspended license from the license holder. Tex. Fam. Code § 85.042(e).
The applicant or the applicant’s attorney shall provide the clerk of the court with the name and address of each law enforcement agency, child care facility, school, and other individual or entity to which the clerk is required to send a copy of the order, along with any other information required under section 411.042(b)(6) of the Texas Government Code. Tex. Fam. Code § 85.042(d).
§ 17.21Duration of Protective Orders
In general, a protective order is effective for the period stated in the order, not to exceed two years, or, if no period is stated, until the second anniversary of the date the order was issued. Tex. Fam. Code § 85.025(a). However, the court may render a protective order that is effective for more than two years if the court finds that the subject of the order (1) committed an act constituting a felony offense involving family violence against the applicant or a member of the applicant’s family or household, regardless of whether the person has been charged with or convicted of the offense; (2) caused serious bodily injury to the applicant or a member of the applicant’s family or household; or (3) was the subject of two or more previous protective orders rendered to protect the person on whose behalf the current order is sought and after a finding by the court that the subject of the order has committed family violence and is likely to commit family violence in the future. Tex. Fam. Code § 85.025(a–1); Maples v. Maples, 601 S.W.3d 23, 30–31 (Tex. App.—Tyler 2020, no pet.) (respondent brandished firearm during assault, which constituted felony); Onkst v. Morgan, No. 03-18-00367-CV, 2019 WL 4281913, at *9 (Tex. App.—Austin Sept. 11, 2019, pet. denied) (mem. op.) (third protective order granted against respondent). If the court issues an order for a period of more than two years, the court must include in the order a finding described by section 85.025(a–1) of the Texas Family Code. Tex. Fam. Code § 85.001(d); Lewis v. Yancy, No. 01-19-00348-CV, 2020 WL 7251448, at *7 (Tex. App.—Houston [1st Dist.] Dec. 10, 2020, no pet.) (mem. op.).
If the subject of a protective order is confined or imprisoned on the date the order would expire or if the order would expire not later than the first anniversary of the date the person is released, the effective period 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 for more than five years or on the second anniversary of the date the person is released if the person was sentenced for five years or less. Tex. Fam. Code § 85.025(c).
A person who is the subject of a protective order may file a motion not earlier than the first anniversary of the date on which the order was rendered requesting the court to review the protective order and determine whether there is a continuing need for it. Tex. Fam. Code § 85.025(b). (This provision does not apply to a protective order issued under subchapter A, chapter 7B, of the Texas Code of Criminal Procedure. Tex. Fam. Code § 85.025(b–3).) Following the filing of such a motion, a person who is the subject of an order issued under section 85.025(a–1) that is effective for longer than two years may file not more than one subsequent motion for review; that motion may be filed no earlier than the first anniversary of the date on which the court rendered an order on the previous motion. Tex. Fam. Code § 85.025(b–1). After a hearing on a motion under section 85.025(b) or (b–1), if the court does not make a finding that there is no continuing need for the order, the order stays in effect until it expires under section 85.025. Evidence of the movant’s compliance with the order does not by itself support a finding that there is no continuing need for the order. If the court finds that there is no continuing need for the order, the court shall order that it expires on a date set by the court. Tex. Fam. Code § 85.025(b).
A person subject to a protective order does not have standing to file a motion to rescind a protective order issued on family violence grounds under chapter 85 of the Family Code and sexual assault grounds under article 7A of the Code of Criminal Procedure. Molinar v. S.M., No. 08-15-00083-CV, 2017 WL 511888 (Tex. App.—El Paso Feb. 8, 2017, pet. denied).
§ 17.22Duties of Law Enforcement Officers
Exclusions from Residence: On request by an applicant obtaining a final order that excludes the respondent from the respondent’s residence, the court granting the final order shall render a written order to the sheriff, constable, or chief of police to provide a law enforcement officer from the department of the sheriff, constable, or chief of police to (1) accompany the applicant to the residence covered by the order; (2) inform the respondent that the court has ordered that the respondent be excluded from the residence; (3) protect the applicant while the applicant takes possession of the residence and the respondent takes possession of the respondent’s necessary personal property; and (4) if the respondent refuses to vacate the residence, to remove the respondent from the residence and arrest the respondent for violating the court order. Tex. Fam. Code § 86.004. See section 17.6 above for temporary orders.
Awareness of Protective Orders: A law enforcement agency may enter a protective order in the agency’s computer records of outstanding warrants as notice that the order has been issued and is currently in effect. On receipt of notification by a clerk of court that the court has vacated or dismissed an order, the law enforcement agency shall remove the order from those records. Tex. Fam. Code § 86.001(b).
To ensure that law enforcement officers responding to calls are aware of the existence and terms of protective orders from their jurisdiction as well as others, each law enforcement agency shall establish procedures to provide adequate information or access to information for officers about the name of each person protected by an order rendered in any Texas jurisdiction and of each person against whom the order is directed. Tex. Fam. Code §§ 86.001(a), 86.005.
Statewide Law Enforcement Information System: On receipt of a protective order from the clerk of the issuing court, or on receipt of information pertaining to the date of confinement or imprisonment or date of release of a person subject to the protective order, a law enforcement agency shall immediately, but not later than the third business day after the date the order or information is received, enter the information required by Government Code section 411.042(b)(6) into the statewide law enforcement information system maintained by the Texas Department of Public Safety. Tex. Fam. Code § 86.0011.
Firearms Transfer Information: On receipt of a request for a law enforcement information system record check of a prospective transferee by a licensed firearms dealer under the Brady Handgun Violence Prevention Act, title 18, section 922, of the United States Code, the chief law enforcement officer shall determine whether the Department of Public Safety has in its law enforcement information system a record indicating the existence of an active protective order directed to the prospective transferee. If so, the chief law enforcement officer shall immediately advise the dealer that the transfer is prohibited. Tex. Fam. Code § 86.002.
§ 17.23Protective Order Registry
Subchapter F of chapter 72 of the Texas Government Code provides for the establishment by the Office of Court Administration (“the office”) of a centralized Internet-based registry for protective order applications filed under chapter 82, and protective orders issued under chapters 83 and 85, of the Texas Family Code. The provisions also apply to such applications and orders under subchapter A of chapter 7B of the Texas Code of Criminal Procedure and those under article 17.292 of the Texas Code of Criminal Procedure with respect to a person arrested for an offense involving family violence. Tex. Gov’t Code §§ 72.152, 72.153.
The registry is to allow the public, free of charge, to electronically search and to receive publicly accessible information about each protective order issued in Texas (other than vacated orders or orders issued under chapter 83 of the Family Code or article 7B.002 of the Code of Criminal Procedure (temporary ex parte orders) or article 17.292 of the Code of Criminal Procedure (magistrate’s order for emergency protection)). The registry is to be searchable by the county of issuance, by the name of the subject of the order, and by the subject’s birth year. The publicly accessible information is (1) the issuing court; (2) the case number; (3) the full name, county of residence, birth year, and race or ethnicity of the subject of the order; (4) the dates the order was issued and served; and (5) the date the order expired or will expire. Tex. Gov’t Code § 72.154.
Public access to the information, however, is to be available only if a protected person requests the office to grant the public the ability to access the information for the order protecting the person and the office approves the request. The protected person may thereafter request the office to remove the public’s ability to access the information, and the office is to do so no later than the third business day after the request is received. Tex. Gov’t Code § 72.158.
While the registry must contain a copy of each application filed and each protective order issued in Texas, only certain authorized users may have access to the non–publicly available information. See Tex. Gov’t Code § 72.155.
Clerks are generally required to enter copies of applications within twenty-four hours after the time they are filed and to ensure that the information isn’t accessible to the public. Tex. Gov’t Code § 72.156.
Within twenty-four hours after a court issues an original or modified order or extends the duration of an order, the clerk is to enter a copy of the order (and, if applicable, a notation regarding any modification or extension) and the publicly accessible information. If an order is vacated or expired, the clerk is to modify the record of the order in the registry accordingly and ensure that the record of a vacated order is not accessible to the public. For a protective order that is vacated as the result of an appeal or bill of review from a district or county court, the clerk is to notify the office by the end of the next business day, and the record is to be removed from the registry no later than the third business day after the notice is received. Tex. Gov’t Code § 72.157.
§ 17.24Right to Terminate Lease Early
A tenant with an order protecting the tenant or an occupant from family violence may terminate a lease, vacate the premises, and avoid liability for future rents and other sums due for terminating before the end of the lease period. Tex. Prop. Code § 92.016(b).
The tenant must provide the landlord or agent a copy of one or more of the following: a temporary injunction issued under subchapter F, chapter 6, of the Family Code; a temporary ex parte order issued under chapter 83; a protective order issued under chapter 85; or an order of emergency protection issued under article 17.292 of the Code of Criminal Procedure. Alternatively, the tenant may provide a copy of documentation of the family violence from a licensed health-care services provider who examined the victim, a licensed mental health services provider who examined or evaluated the victim, or an advocate who assisted the victim. Tex. Prop. Code § 92.016(b–1).
The tenant must also furnish the landlord with written notice of termination of the lease on or before the thirtieth day before the lease terminates. Liability then ends on the date after (1) thirty days have passed since the notice of termination was provided to the landlord and (2) the tenant has vacated the property. Tex. Prop. Code § 92.016(c).
If the person who committed the family violence is a cotenant or an occupant of the leased property, unless the protective order is based on a temporary ex parte order issued under chapter 83 of the Texas Family Code, the tenant is not required to provide written notice to the landlord before terminating the lease. See Tex. Prop. Code § 92.016(c–1). An occupant is a person who has the landlord’s consent to occupy a dwelling but has no obligation to pay the rent. Tex. Prop. Code § 92.016(a).
In general, the tenant’s liability for delinquent, unpaid rent or other sums owed before termination is not affected, but the tenant is released from liability for delinquent, unpaid rent if the lease does not contain prescribed language notifying tenants of the right to terminate early in certain circumstances. The tenant may not waive this right. Tex. Prop. Code § 92.016(d), (f), (g).
A landlord who violates these provisions is liable to the tenant for actual damages, a civil penalty equal to a month’s rent plus $500, and attorney’s fees. Tex. Prop. Code § 92.016(e).
§ 17.25Right to Separate Wireless Telephone Service Account
Under certain circumstances an applicant may have his wireless telephone number separated from the respondent’s account.
An applicant who is the primary user of a wireless telephone number associated with the wireless telephone service account of the respondent may request the court that renders a protective order for the applicant under chapter 85 of the Texas Family Code to order the separation of the applicant’s number from the respondent’s account. Separation of each wireless telephone number primarily used by a child in the applicant’s care or custody may also be sought. Tex. Fam. Code § 85.0225(a).
The request must include each number for which the applicant requests separation. If the applicant shows by a preponderance of the evidence that, for each such number, the applicant or a child in the applicant’s care or custody is the primary user, the court shall render a separate order directing the wireless telephone service provider to transfer the billing responsibilities and rights to each listed number to the applicant. Tex. Fam. Code § 85.0225(b), (c).
The order must include the name and billing wireless telephone number of the wireless telephone service account holder; each number to be transferred; and a statement requiring the service provider to transfer to the applicant the right to use each transferred number and all financial responsibility for each such number (including the monthly service costs associated with any mobile device associated with the number). Tex. Fam. Code § 85.0225(d), (e).
The court must serve a copy of the order on the service provider’s registered agent and ensure that the applicant’s contact information is not provided to the respondent as the account holder. Tex. Fam. Code § 85.0225(f), (g).
Responsibilities of the wireless telephone service provider are contained in the Texas Business and Commerce Code. When the provider receives the court order, it must transfer to the applicant the use of each number listed in the order. The provider is not required to complete the transfer if, within five days of receiving the order, the provider notifies the applicant of technological or operational issues that would prevent or impair the use of the number if the transfer occurs. Tex. Bus. & Com. Code § 608.001(a), (b).
The transfer of service essentially involves the applicant’s establishment of a separate account. The provider may impose routine and customary fees and requirements for establishing a wireless telephone service account, including the applicant’s providing proof of identification, financial information, and customer references. In imposing and collecting fees, the provider may not impose a penalty for early termination of a contract; hold the applicant responsible for, or require payment of, any outstanding balance on the respondent’s account; or charge a fee for transferring the number in addition to the usual and customary fees for establishing an account. Tex. Bus. & Com. Code § 608.001(c), (d).
If the applicant must take any further steps to complete the transfer process, the provider must make available a written description of the necessary procedures. Tex. Bus. & Com. Code § 608.001(e).
Several other provisions of Texas law, described below, relate to the prevention of family violence.
The penalty for assault under Penal Code section 22.01(a) (intentionally, knowingly, or recklessly causing bodily injury to another) may be enhanced if the victim is a person whose relationship or association with the defendant is described by Family Code section 71.0021(b) (dating), 71.003 (family), or 71.005 (household). See Tex. Penal Code § 22.01(b)(2), (b–3), (f).
A person commits a third-degree felony (continuous violence against the family) if, during a period of twelve months or less, the person two or more times intentionally, knowingly, or recklessly causes bodily injury to a person or persons whose relationship to or association with the defendant is described by Family Code section 71.0021(b), 71.003, or 71.005. Tex. Penal Code § 25.11; see Tex. Penal Code § 22.01(a).
A person commits an offense if he sells, rents, leases, loans, or gives a handgun to any person, knowing that an active protective order is directed to the person to whom the handgun is to be delivered. Further, a person against whom an active protective order is directed commits an offense if he knowingly purchases, rents, leases, or receives as a loan or gift a handgun. Tex. Penal Code § 46.06(a)(5), (a)(6).
The Department of Public Safety shall collect information about the number and nature of protective orders and all other pertinent information about all persons on active protective orders. Tex. Gov’t Code § 411.042(b)(6).
The spousal privilege not to be called as a witness for the state does not apply if the offense charged is a crime committed against the accused person’s spouse, a minor child, or a member of the household of either spouse. Tex. Code Crim. Proc. art. 38.10.
The agency releasing a person arrested or held without warrant for prevention of family violence shall make a reasonable attempt to notify the victim of the imminent release. Tex. Code Crim. Proc. art. 17.29(b). When a magistrate issues an order imposing a condition of bond on a defendant for an offense involving family violence, the clerk must send the victim of the alleged offense a copy of the order and the sheriff must make a good-faith effort to notify the victim by telephone as soon as practicable. See Tex. Code Crim. Proc. art. 17.50.
Texas Government Code section 411.180 (concerning notification of denial, revocation, or suspension of a license to carry a handgun and review of the same) does not apply to the suspension of a license under Family Code section 85.022 or Texas Code of Criminal Procedure article 17.292. Tex. Gov’t Code § 411.180(i).
Eligibility for a handgun license extends to a person who is at least eighteen but not yet twenty-one years of age who is protected under an active protective order and meets the eligibility requirements other than the minimum age required under federal law. Tex. Gov’t Code § 411.172. The license must bear a protective order designation and expires when the protective order expires or is rescinded or on the twenty-second birthday of the license holder, whichever is earlier. See Tex. Gov’t Code § 411.1735(a), (c).
A person at increased risk of becoming a victim of violence is eligible to obtain a handgun license on an expedited basis and qualify for an at-risk designation on the license. This eligibility is provided if the person or a member of the person’s household or family is protected under a temporary restraining order or temporary injunction issued under subchapter F, chapter 6, of the Family Code; a temporary ex parte order issued under chapter 83 of the Family Code; a protective order issued under chapter 85 of the Family Code or chapter 7B of the Code of Criminal Procedure; or a magistrate’s order for emergency protection issued under subchapter B, chapter 58, of the Code of Criminal Procedure. Tex. Gov’t Code § 411.184(a), (b)(1).
The Department of Public Safety shall suspend a license to carry a handgun if the license holder commits an act of family violence and is the subject of an active protective order rendered under Family Code title 4 or is arrested for an offense involving family violence and is the subject of an order for emergency protection issued under Texas Code of Criminal Procedure article 17.292; such a suspension is for the duration of, or the period specified by, the protective order or the order for emergency protection. See Tex. Gov’t Code § 411.187(a), (c).
The Department of Public Safety shall issue a new driver’s license number or personal identification certificate number to a person who shows a court order stating that the person has been the victim of domestic violence. With few exceptions, the department may not disclose the changed license or certificate number or the person’s name or any former name. Tex. Transp. Code § 521.275.
A person who is determined to have committed family violence in the physical presence of, or in the same habitation or vehicle occupied by, a person younger than fifteen years of age, knowing that the young person was present or in the same habitation or vehicle, must be ordered to pay restitution for the cost of necessary rehabilitation of the young person, including medical, psychiatric, and psychological care and treatment. Tex. Code Crim. Proc. art. 42.0373.
The federal Violence Against Women Act provides federal criminal penalties for a person who travels in interstate or foreign commerce with the intent to kill, injure, harass, or intimidate a spouse, intimate partner, or dating partner and in the course of the travel commits or attempts to commit a crime of violence against that person. The federal law also covers people who commit the act of stalking or placing a person under surveillance with the intent to kill, injure, harass, or intimidate the person and, as a result, places the person in reasonable fear of death or injury or causes substantial emotional distress. If a person commits the crime of stalking in violation of a protective order, the punishment is imprisonment for not less than one year. See 18 U.S.C. §§ 2261, 2261A.
§ 17.27Protective Orders from Other Jurisdictions
Judicial Enforcement: Texas has enacted the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act. See Tex. Fam. Code ch. 88. Under the Act, a Texas court shall enforce a protective order issued in another state, even if it includes terms that a Texas court could not have included in the order. The presentation of a protective order that is valid on its face establishes a prima facie case for the validity of the order. Texas enforcement remedies will apply to the enforcement of foreign protective orders. Tex. Fam. Code § 88.003(a), (e).
A foreign protective order is valid if it (1) names the protected individual and the respondent, (2) is currently in effect, (3) was rendered by a tribunal that had jurisdiction over the parties and the subject matter under the law of the issuing state, and (4) was rendered after the respondent was given reasonable notice and an opportunity to be heard consistent with the right to due process either before the order was issued or, in the case of an ex parte order, within a reasonable time after the order was rendered. It is an affirmative defense to an enforcement action that the order does not meet these requirements. Tex. Fam. Code § 88.003(d), (f).
Provisions of a mutual protective order will be enforced against the applicant only if the respondent filed a written pleading seeking a protective order in the issuing state and the tribunal made specific findings in favor of the respondent. Tex. Fam. Code § 88.003(g).
Nonjudicial Enforcement: A Texas law enforcement officer shall enforce a foreign protective order if he has probable cause to believe that a valid foreign order exists and that it has been violated. The officer has probable cause to believe the existence of a protective order if the protected individual presents a foreign protective order that identifies the protected individual and the respondent and, on its face, is currently in effect. A certified copy is not required. The order may be inscribed in a tangible medium or be stored in an electronic form that can be retrieved in a perceivable form. If a protected individual does not present the foreign protective order, the law enforcement officer may determine that a valid foreign protective order exists by relying on any relevant information. Tex. Fam. Code § 88.004(a)–(c).
If the law enforcement officer determines that the order cannot be enforced because the respondent was never served or notified of the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order on the respondent, and then allow the respondent a reasonable opportunity to comply with the order. Tex. Fam. Code § 88.004(d).
Registration of Foreign Orders: An individual may register a foreign protective order by presenting a certified copy of the order to the Texas Department of Public Safety (DPS), requesting that the order be registered in the statewide law enforcement system maintained by the DPS, or to the sheriff, constable, or chief of police responsible for the registration of orders in the local computer records and in the statewide law enforcement system maintained by the DPS. The individual registering the foreign protective order shall file an affidavit made by the protected individual that to the best of the protected individual’s knowledge the order is in effect. A fee may not be charged for registration of the order. Tex. Fam. Code § 88.005(a), (d), (f). Registration is not required for the enforcement of a valid foreign protective order. Tex. Fam. Code § 88.004(e).
Immunity: Civil and criminal immunity is granted to state and local governmental agencies, law enforcement officers, prosecuting attorneys, court clerks, and any state or local governmental officials acting in an official capacity for acts or omissions arising from the registration or enforcement of a foreign protective order or for the detention or arrest of a person alleged to have violated a foreign protective order if the act or omission was done in good faith. Tex. Fam. Code § 88.006.
§ 17.28Self-Help Protective Order Kit
A self-help protective order kit for victims of domestic violence is available at www.TexasLawHelp.org. The kit was developed by a task force of experienced family law practitioners, judges, and prosecutors from across Texas appointed by the Supreme Court of Texas. The kit includes detailed instructions for filling out the necessary forms, having a temporary order signed by a judge, and requesting a hearing date for grant of the protective order. The kit contains the court forms, which are approved for use by the supreme court in a special order, and helpful information for victims on how to prepare for the hearing. The kit is available in English, Spanish, and Vietnamese.
Although the kit was designed to facilitate pro se action by victims of domestic violence, attorneys also find the forms and instructions useful.
The following websites contain information relating to the topic of this chapter:
Office of the Attorney General—general information about protective orders
www.texasattorneygeneral.gov/cvs/protective-orders
Office of the Attorney General—form for victim compensation
www.texasattorneygeneral.gov/cvs/crime-victim-forms-applications
Self-help protective order kit (§ 17.28)
www.TexasLawHelp.org