LEGAL GUIDE
Written by attorney Yexenia Gilmet | Oct 25, 2011

Restraining/Protective Order in Texas

EX PARTE RESTRAINING ORDER

In Texas, a victim of domestic violence may seek immediate relief by obtaining a temporary ex parte restraining order. An ex parte restraining order is an order granted without providing any notice to the accused which lasts up to twenty days and limits contact of the accused with the petitioning individual(s). At the expiration of the twenty-day period a victim of domestic violence may seek a protective order hearing.

PROTECTIVE ORDER HEARING

At a orotective order hearing, the petitioner must demonstrate:

1) that family violence has occurred in the past; and

2) is likely to occur in the future.

If, after the hearing, the court makes a finding that family violence occurred in the past and/or is likely to occur in the future a protective order will be issued for a two-year period. The protective order may prohibit or limit contact with the petitioner, prohibit the accused of removing a child and/or transferring or encumbering property. Additionally, a protective order may require the person found to have committed family violence to perform acts such as attending anger management courses and/or battering intervention and prevention programs.

DEFENDING AGAINST A PROECTIVE ORDER

While undoubtedly, victims of domestic violence are entitled to the maximum protection permitted by law restraining orders and protective orders are often used to strategically gain advantage in court proceedings. It is for this reason that restraining orders and protective orders are often referred to as one as one of the most vicious and abused programs in our judicial system. During an ex parte hearing, the burden of proof required from litigants is lessened and the mere accusation of fearfulness is sometimes sufficient to enact a restraining order.

The low evidentiary legal standard applied during these proceedings can lead to absurd findings. For instance, consider the ruling involving David Letterman. In 2005, a woman claimed that Mr. Letterman wanted to marry her, wished to employ her as a co-host, forced her to file bankruptcy and communicated with her in “code". Despite that lack of evidence, the unlikelihood of the allegations and Mr. Letterman’s high profile a temporary restraining order was issued.

Unfortunately, not all situations can be taken as lightly as the Letterman example. False or exaggerated allegations resulting in a restraining orders and/or protective orders against innocent individuals result in them being issued stay-away orders from their children, denied access to their home, as well as burden them with financial and emotional stress. Moreover, the accused gains a disadvantage regarding child custody court proceedings. Subsequent to a protective order, the alleged victim has a rebuttable presumption that they should have legal custody of the children and the accused is suddenly faced with having to conduct and fund supervised visits.

Not only are protective orders and restraining orders easily obtainable the consequences of violating a protective order are high. Violations of protective orders and restraining orders may subject the accused to felony sanctions and class A misdemeanors.

It is for this reason that it is imperative that individuals served with a protective order hearing contact an attorney. It is a grave mistake to attend one of these hearings without representation. All protective orders must be heard on the scheduled day and the Judge is precluded from allowing the accused sufficient time to obtain an attorney. Hence, you will be forced to either reach an agreement as it pertains to the issuance of a protective order or represent yourself. The consequences a protective order will have on any future proceedings and your life are too important to be ignored.

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