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Domestic Violence

Domestic Violence and Protective Orders in Texas

If you are seeking a protective order due to family violence, please call us. If you are the accused in a protective order, we can help you on the civil or family law side, but you may also need a criminal law attorney to defend against any criminal charges you may be facing.

1. What is Family Violence?

Domestic violence is family violence under the Texas Family Code.  Domestic violence victims have remedies available to them under the Texas Penal Code and the Texas Family Code.  Often an offender of domestic violence will be subject to criminal court charges as well as civil sanctions from family courts.  

There is no requirement under Texas law for actual physical violence to have occurred for the Court to issue a protective order due to family violence. Angry outbursts are sufficient to support a protective order even though there is no evidence of physical violence.  Family violence can also be based on a threat that reasonably places the person receiving the threat in fear of imminent physical harm, bodily injury, assault, or sexual assault. Even in circumstances where no express threats are conveyed, the factfinder may nonetheless conclude that an individual was reasonably placed in fear.  In determining whether a person is placed in fear of imminent physical harm, the intent of the respondent in his/her actions is not relevant; the sole question is whether the applicant’s fear is reasonable. 

2. Protective Orders – What are they?  

Protective orders have very specific prerequisites under the Texas Family Code. Additionally, during the most recent legislative session in Texas, there were important changes that you should understand.   

Protective orders under the family code are granted based on family violence which is defined 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 family or household member in fear of imminent physical harm, bodily injury, assault, or sexual assault. 

2. Abuse by a member of the family or household against a child of the family or household; or 

3. Dating violence against a member of a dating relationship or a third party. 

For the purposes of the definition in the Texas Family Code: 

Family includes individuals related by consanguinity or affinity, former spouses, parents of the same child, a foster child and foster parent. 

Household means persons living together in the same dwelling even if not related and includes a person who previously lived in a household.  

Dating relationship means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature based on the length of the relationship; the nature of the relationship; and the frequency and type of interaction between the persons involved in the relationship. 

3. What is a Temporary Ex Parte Protective Order? 

Temporary Ex Parte Protective Orders Temporary ex parte protective orders are used to protect members of a family or dating relationship when there is a clear and present danger of family violence.  Ex Parte means they are issued without notice to the other side. Usually, a hearing on the issuance of a final protective order will be heard within two weeks.  

4. Who can Apply for a Protective Order?

The following people can apply for a protective order or temporary ex parte protective order:   

(1) an adult member of a family or household;  

(2) a member of a dating relationship;  

(3) a third party who is harmed or threatened because the third party is dating or married to a person whom the offending party is dating or married to or used to date or be married to;  

(4) any adult for the protection of a child;  

5) a prosecuting attorney, or  

(6) the Texas Department of Family and Protective Services.

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5. When do I have to apply for a Protective Order? 

There is no limitations period for when a party must request a temporary ex parte protective order under the Family Code.  The only requirement is that family violence happened in the past and that family violence is likely to occur in the future.  An example of this might be where the offender has been incarcerated but recently moved back making family violence likely to occur in the future. 

6. What is Included in an Application for a Protective Order or Ex Parte Temporary Protective Order? 

The application for a protective order has specific requirements: it 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 applicant(s) and individuals 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.  

 When seeking an ex parte temporary protective order, the application must (1) contain a detailed description of the facts and circumstances concerning the alleged family violence and the need for the immediate protective order, and (2) be signed by each applicant under oath that the facts and circumstances contained in the application are true to the best knowledge and belief of each applicant.  A child victim may write a supporting affidavit for a protective order. An affidavit should be attached to the application that contains specific facts supporting a finding of clear and present danger of family violence. Specific past acts or threats of violence, dates of occurrence, and some basis to believe future violence is likely to occur must be set forth in the affidavit. If the Court finds based on the affidavit that there is a clear and present danger of family violence, then and without further notice to the alleged respondent and without hearing, the court may enter a temporary ex parte order for the protection of the applicant and any other members of the family or household of the applicant. 

7. Do I Have to Disclose My Address? 

An applicant may request that the court protect their mailing address from the abuser. To do so, the court requires the court clerk to strike the applicant’s mailing address from the public records of the court and maintain a confidential record of the applicant’s mailing address only for use of the court and prohibiting the release of information to the Respondent. 

8. How Long Does a Temporary Ex Parte Protective Order last?  

Upon the filing of a temporary ex parte protective order, the Texas Family Code requires that the Court set a date and time for a hearing on a final protective order. Generally, the court may not set a date later than the 14th day after the date the application is filed.  However, if the request is made by the prosecuting attorney in a county with a population of more than two million or in a county in a judicial district that is composed of more than one county, then the hearing may be set on a date and time not later than 20 days after the date the application is filed or a request is made to reschedule a hearing due to lack of service. The temporary ex parte protective order is valid for the period specified in the order, but not to exceed 20 days.  The applicant may request, the Court to extend the temporary ex parte protective order for an additional 20-day period.  

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9. Where Do I File an Application for a Protective Order?

The proper place to file an application for a protective order depends on when the application is filed. An application may be filed in: (1) the county in which the applicant resides; (2) the county in which the respondent resides; or (3) any county in which the family violence is alleged to have occurred.  If the application is filed before a suit for divorce or Suit Affecting the Parent-Child Relationship between the parties, then the application for a protective order can be filed either in the county where the applicant resides, the county where the respondent resides, or any county in which the family violence is alleged to have occurred.  

If the application for a protective order is filed while a suit for dissolution of marriage or Suit Affecting the Parent-Child Relationship is pending, then it can be filed in the court where the suit is pending, or in the court where the applicant resides if the applicant resides outside the jurisdiction of the Court where the suit is pending. If the application is filed after a final order in a suit for dissolution of marriage or a Suit Affecting the Parent-Child Relationship has been rendered, then it can be filed in either the court that rendered the final order if the application is filed in the same county as the prior order or another court that has jurisdiction. 

10. What is an Ex Parte “Kick-Out Order? 

“Kick-out orders” may only be granted under limited circumstances. Under the Texas Family Code, a person may be excluded from their residence by a temporary ex parte protective order only if the applicant: (1) files a sworn affidavit that provides a detailed description of the facts and circumstances requiring the exclusion of the person from the residence, and (2) appears in person to testify at a temporary ex parte protective order hearing to justify the issuance of the order without notice. Further, before the court may render a temporary ex parte order excluding a person from their residence, the court must find from the required affidavit and testimony that: (1) the applicant requesting the kick-out order either resides at the home or has resided there within the 30 days before the date the application was filed; (2) the person to be kicked out has within the 30 days before the date of 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. 

During the time that a temporary ex parte protective order is in effect, a temporary ex parte protective order prevails over any other court order made under Title 5 (Suits Affecting the Parent-Child Relationship) to the extent of any conflict between the orders.  

11. How Do I Get a Final Protective Order and How Long Will It Last? 

A court shall render a final protective order if it finds at the close of a hearing that (1) family violence has occurred, and (2) family violence is likely to occur in the future. The court may also issue a final protective order without making the two-pronged finding above if the respondent violated a previous protective order that was in effect at the time the violation occurred. However, entry of a family violence protective order cannot be based upon the respondent’s violation of a temporary ex parte protective order. 

Whenever a court enters a final protective order that requires a respondent to do an act or refrain from an act identified in the Texas family code, then the order must include a finding that the applicant has committed family violence and is likely to commit family violence in the future. In a protective order, the court may prohibit the person found to have committed family violence from such acts as committing further family violence, communicating or threatening a protected person, going near the residence or place of employment of a protected person, going near the childcare facility or school of a child protected, engaging in conduct that will alarm or harass a protected person or family member of a protected person, possessing a firearm and harming or threatening to harm a pet or companion animal of a protected person.   

A Protective Order under the Texas Family Code shall last for the period stated in the order, no longer than two years. If a period is not stated in the order, then the Protective Order will last until the second anniversary of the date the order was issued.  

A protective order can last for more than two years if the court makes certain findings such as that the respondent committed a felony offense involving family violence against the applicant, caused serious bodily injury to the applicant or member of the applicant’s family or was the subject of two or more prior protective orders to protect the current applicant.  

The duration of a protective order may also be extended if the person who is the subject of a protective order is confined or imprisoned on the date the protective order would expire, or if the protective order would expire not later than the first anniversary of the date the person is released from confinement or imprisonment.  

12. What Changed this Legislative Session?  

The most recent legislative section added to the Texas Family Code, providing that an applicant, who is the primary user of a wireless telephone number associated with the abuser’s wireless account may submit to the court a request that allows for the separation of the applicant’s telephone number from the abuser’s account and also the separation of a child’s account if that child is in the applicant’s care of custody. If shown by a preponderance of the evidence, the court shall render an order for the service provider to transfer the billing responsibility and rights on the numbers to the applicant. (This section only applies to protective orders filed on or after September 1, 2021) 

Modern Family Law

Modern Family Law’s team of experienced family law attorneys takes a compassionate approach to the practice of family law. Using innovative technology to create an effective and efficient process for our clientele, our attorneys approach each case as a collective effort to find the best long-term solutions for each family. Our attorneys currently practice in Colorado, California, and Texas. Click the following link to view all of our family law locations. For more information please give us a call or fill out a short form online to sign up for a free consultation today! Let us make a positive difference in your life.

By Marie McGrath, Esq.

Posted December 20, 2021


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