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Texas Protective Order or Restraining Order? Myths & Differences of Protective & Restraining Orders
- Texas Attorney Ryan Putz
- Nov 28, 2022
- 4 min read
Updated: Dec 13, 2022
MYTH: Restraining Orders and Protective Orders are basically the same. FALSE.
RESTRAINING ORDERS ARE CIVIL, NOT CRIMINAL. LAW ENFORCEMENT WILL NOT ENFORCE RESTRAINING ORDERS.
Restraining orders are commonly sought during a civil lawsuit and are generally “temporary” in nature. Restraining orders are used to protect the parties, children, and property of the parties by prohibiting a party from acting or behaving in a certain manner. Restraining Orders are commonly seen in family law courts, and many family law courts in Texas issue “standing temporary restraining orders” that automatically go into effect at the onset of the case.
For example, in divorce cases, the restraining orders would prohibit the parties from hiding assets, withdrawing unnecessary funds from the bank, selling property, cancelling utility services at a residence, removing a party from insurance coverage. In child custody cases, the restraining orders would prohibit the parties from doing things like hiding the children from each other, talking about the case to the children, making disparaging remarks about the other party in front of the children, or removing the children from the school where they are enrolled. Click Here to learn more about Divorce and Child Custody cases in Texas.
If a party violates one of these restraining orders, they are not enforced criminally, rather the non-violating party can seek relief with the court through a motion to enforce or contempt action.
TEXAS PROTECTIVE ORDERS ARE CRIMINAL IN NATURE, POLICE AND LAW ENFORCEMENT CAN ENFORCE PROTECTIVE ORDERS.
Protective Orders, unlike Restraining Orders, provide more immediate relief to a protected party by way of the criminal offense Violation of Protective Order, which in some cases, may be enhanced to a felony. Tex. Penal Code §25.07, §25.07(g)
DOMESTIC VIOLENCE PROTECTIVE ORDERS
In Texas, domestic violence cases would fall under a Protective Order. The rules for issuance of a protective order when there is domestic violence can be found under the Texas Family Code, and the link is as follows: (Title 4, Subtitle B, Chapter 85, Subchapter A).
Under Section 85.001 of the Texas Family Code, there are two (2) factors a court will consider when deciding whether to issue a protective order, and they are as follows:
(1) Whether Family Violence Occurred, and
(2) Whether Family Violence is Likely to Occur in the Future.
The evidential proof required by the person applying for the protective order must meet the “preponderance of evidence” burden, which is a lower burden of proof than a criminal trial, which requires evidentiary proof that is “beyond a reasonable doubt.”
MYTH: Victims of domestic violence need “hard” evidence (police reports, photos, witnesses, hospital records, or documented proof to obtain a protective order. FALSE.
Often, victims seeking relief under a protective order for family violence, stalking, or sexual assault are hiding their abuse and not afforded the opportunity to collect this sort of evidence. The testimony of the applicant alleging family violence, stalking, or sexual assault is sufficient evidence under the Family Code or Code of Criminal Procedure to meet the “preponderance of evidence” burden of proof to support issuance of the order. There is no requirement that an applicant provide corroborating evidence. See Amir-Sharif v. Hawkins, 246 S.W.3d 267, 272 (Tex. App.—Dallas 2007, pet. dism’d w.o.j.) for case law discussing evidentiary standards on this topic.
What can a Protective Order do?
Among the remedies available for someone applying for a protective order include prohibiting the respondent committing family violence, communicating with or threatening the applicant or family member, going near the applicant’s residence or workplace, possessing a firearm, or harming a pet. Protective orders can extend to the victim’s children, roommates, or current romantic partners. A judge can also order the respondent to submit to drug testing, to attend a substance abuse treatment program, and to pay medical support and child support.
How Long will a Protective Order last?
This depends on the protective order being sought, the different types are as follows:
TEMPORARY EX PARTE PROTECTIVE ORDER
This temporary order can be issued by a judge without notice and hearing to the other party. A victim of domestic violence can show the judge or magistrate there is a clear and present danger of family violence, and that judge or magistrate can issue this temporary order for immediate protection. This type of protective order generally is effective for 20 days, and they can be renewed.
FINAL PROTECTIVE ORDER
Final Protective Orders are generally effective for two (2) years but can last longer depending on the circumstances.
EMERGENCY PROTECTIVE ORDER
Unlike the previous two orders that can be issued by a civil court, an Emergency Protective Order is issued by a judge or magistrate of a criminal after the abuser has been arrested for family violence, sexual assault, sexual abuse, indecent assault, human trafficking or stalking. This is commonly known as a “stay away” order and generally is effective for 31 to 91 days depending on the circumstances.
PHONE: (281) 206-2696
EMAIL: ryanputzlaw@gmail.com
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