Defending Against Protective Orders in Texas Domestic Violence Cases
Defending Against Protective Orders in Texas Domestic Violence Cases
If you get served in Texas with a protective order as part of a domestic violence case, I know how overwhelming and stressful that situation can be. Nevertheless, you do have your rights and all means for self-defense. Protective orders have a serious purpose, which is to safeguard a victim of violence within the home. But sometimes, they are filed unfairly or without sufficient evidence.
Protective orders in Texas are governed by Chapter 85 of the Texas Family Code. While designed to prevent further violence, sometimes they may be granted based on misleading information or even as a retaliatory measure. If you happen to feel that a protective order has been filed against you unfairly, then you do have the right to challenge it.
What Is A Protective Order?
A protective order is an order from the court designed to protect one person from another. This might be due to domestic violence, stalking, or harassment. Regarding domestic violence, a protective order can prevent you from contacting, approaching, or harassing the seeker of the order. Even your right to stay in your home, see your children or own firearms can be revoked by such an order.
Types Of Protective Orders In Texas
There are three major types of protective orders issued in Texas:
Temporary Ex Parte Protective Order – This is the one that is mostly granted without notification to the defendant. In such cases, the Petitioner will not be under any obligation to let you have notice before the granting of such an order. It stays valid for 20 days or a hearing date. These are usually orders for emergencies based on the Petitioner’s statements.
Order of Protection-Final – If the court feels that family violence has occurred and may again occur, the court may grant a final protective order after the respondent and Petitioner have had an opportunity to appear in court and introduce evidence. A final protective order may last up to two years and, in some instances, may last longer. The Petitioner has the burden of proof and must prove by a “preponderance of the evidence” that family violence has occurred and is likely again to occur.
Magistrate’s Order of Emergency Protection (MOEP) – If you get arrested on family violence, immediately upon arrest, the court may issue a MOEP. Generally speaking, these orders can be granted immediately following an arrest and may last anywhere from 31 to 91 days.
Defending Against A Protective Order
The steps to be taken in defending a protective order include understanding all the allegations one may face. If you have been served with a protective order, you need to attend court hearings and have a view on how you want to present your case.
1. Contest The Evidence
There is the burden of proof that has to be met by the Petitioner: family violence has occurred or is likely to occur. This could be police reports, medical treatment records, photographic proof of the injuries sustained, and/or witness statements. However, in situations that would present weak, conflicting, or a lack of evidence, their validity could certainly be called into question. In fact, in numerous cases, allegations of domestic violence are taken to an extreme level or even fabricated for many reasons, which may include leverage in divorce and/or child custody matters. You can put up a good defense by exposing inconsistencies in the Petitioner’s story or by showing that the incident never happened.
2. Provide Your Own Evidence
Your defense may include any information that refutes the Petitioner’s allegations. For example, an alibi or witnesses who can affirm that you were not at the scene where the act had allegedly occurred can have a significant ripple effect to weaken the Petitioner’s case. Text messages, e-mails, and even social media postings can serve as a defense to refute allegations if they contradict the claims of the Petitioner.
3. Prove Lack of Imminent Danger
Under the law, Texas courts must believe that family violence will again occur to issue a final protective order. Showing the court there is no immediate threat or danger to the Petitioner may lead the judge to be less apt to grant a long-term protective order. Being able to prove the situation is not as volatile as the Petitioner is stating it is often times considered a good defense.
4. Challenge the Protective Order on Lack of Notice Grounds
If you have been served with a temporary ex parte protective order, then some type of service or process may not have afforded you reasonable notice and an opportunity to prepare for the hearing. You can oppose that such was issued against you without merit or knowledge and ask that it be dismissed. You will want to still abide by the restrictions of the order until the matter can be resolved; however, you have the right to question the validity of such in court.
5. False Allegations-How to Address Them
Unfortunately, protective orders can sometimes be used as a means of retaliation or manipulation in heated divorce or custody battles. If you feel the allegations against you are false, it is helpful to work with an attorney to obtain evidence and be able to tell your side of the story in court. While the courts take protective orders very seriously, they also understand the potential harm issuing such orders on false or highly exaggerated claims may cause.
Texas Statutes Relating To Protective Orders
The most significant statute related to protective orders in Texas is the Texas Family Code, Chapter 85. According to Sec. 85.001, the court may issue a protective order if the court finds that family violence has occurred and is likely to occur in the future.
Further, Section 85.022 enumerates the particular things that may be prohibited in a protective order, to wit: further acts of family violence by the respondent against the Petitioner; communicating with the Petitioner in a threatening or harassing manner; and going near the Petitioner’s residence or place of employment.
Section 85.025 provides that except as provided by Section 85.026, a protective order issued under this chapter is effective until the second anniversary of the date the order was issued, unless the court determines there is a continuing threat.
Under Texas Penal Code 25.07, violation of a protective order will have serious implications, even to the point of criminal charges. The violation might include arrest, fines, and possible jail time; for this, one should take any protective order seriously and defend from the beginning.
Importance Of Legal Representation
If you are facing a protective order, then it is important that you seek legal representation as soon as possible. Protective orders can have far-reaching consequences, including family, home life, and the ability to work. You may also be losing some of your rights, which include possessing firearms. An attorney will help you understand the process in court, prepare your defense, and protect your rights.
Texas Protective Order Frequently Asked Questions
What If I Violate A Protective Order?
If you violate a protective order in Texas, you can be arrested and charged with a criminal offense under Texas Penal Code 25.07. Violation of a Protective Order is punishable by imprisonment, fines, and other further legal consequences. Even if you believe that it is an unfair protective order, you are still bound by its terms until such time as it can legally be contested.
Can I Appeal A Temporary Protective Order?
Yes, you can appeal a temporary protective order. Usually, the temporary ex parte orders are granted without hearing from the other party, but it will provide an avenue for you to be heard at a hearing. It is important that you attend such a hearing and argue your case against the allegations by presenting the relevant evidence.
How Long Does A Protective Order In Texas Take?
In Texas, a protective order may last for two years. The length can be extended in certain circumstances, provided that the court finds the respondent to be a continued threat to the Petitioner. A temporary ex parte order will remain in effect for no more than 20 days or until a hearing is held.
Can I Contact My Children If A Protective Order Has Been Filed Against Me?
If the court issues an order of protection, its terms may include restrictions or prohibitions on contacting your children. You may still be able to visit with your children, however, through a supervised visitation program if that is provided for in the terms of the order. Any violation of the order’s terms may trigger severe legal consequences.
Is It Legal For Me To Possess A Firearm If There Is A Protective Order Against Me?
If a protective order is issued against you under either federal or Texas law, you may be prohibited from owning or possessing a firearm for the duration of the protective order. If you violate such a prohibition, you could face criminal charges. You should understand every term of the protective order and comply with it to avoid further legal complications.
Do I Need An Attorney In Order To Contest A Protective Order?
Though you are not legally required to hire an attorney to oppose a protective order, it’s highly recommended. The consequences of protective orders can be serious and last for a long time, so an attorney can greatly help you develop a good defense, present evidence, and protect your rights.
Can A Protective Order Be Modified Or Dismissed?
Yes, a protective order can be modified or dismissed. But you would have to go back and file a motion with the court and prove that the circumstances have changed or that the order was issued based on some unfairness. This could involve the services of an attorney who would take you through the process and represent you in court.
Contact Our Galveston Protective Order Defense Attorney For A Free Consultation
If you are facing a protective order related to a domestic violence accusation, the bottom line is you must take protection for your rights immediately. At Mark Diaz & Associates, we have many years of experience in protecting clients against a protective order and getting their voices heard. A protective order can impact your life in just about every way imaginable, from seeing your kids to being able to stay in your home. It pays not to take any time.
Contact our Galveston protective order defense attorney at Mark Diaz & Associates by calling 409-515-6170 to receive your free consultation. We proudly serve Galveston and Houston, along with the surrounding areas. Let us help you protect your rights and fight back against false or exaggerated accusations.