Protective Order Defense in Texas
A protective order under Texas Family Code Chapter 85 is a civil court order that restricts a person’s conduct, limits where they can go, and prohibits them from possessing firearms. It is issued in a family-violence context but carries criminal penalties for violation. A protective order is not a conviction, but its practical consequences can be as severe as one.
Emergency Protective Orders vs. Final Protective Orders
There are two kinds of protective orders in the family-violence context, and they work differently.
An emergency protective order (EPO or MOEP, for Magistrate’s Order of Emergency Protection) is issued by a judge at the time of a family-violence arrest under Code of Criminal Procedure Article 17.292. It takes effect immediately, without a hearing, and lasts 61 to 91 days. The defendant has no opportunity to contest it. It simply expires on its own terms. A MOEP typically prohibits the defendant from committing further family violence, communicating with the protected person, going near the protected person’s residence or workplace, and possessing firearms.
A final protective order is issued by a court after an application and a hearing under Family Code Chapter 85. The applicant (usually the alleged victim, but sometimes the State) must prove by a preponderance of the evidence that family violence has occurred and is likely to occur in the future. A final protective order can last up to the lifetime of the respondent, and can be renewed. Unlike an EPO, a final protective order can be contested at the hearing.
What a Protective Order Prohibits
A final protective order under Family Code § 85.022 can prohibit the respondent from:
- Committing family violence
- Communicating directly with the protected person, or indirectly through third parties
- Going within a specified distance of the protected person’s residence, workplace, school, or childcare facility
- Possessing a firearm (unless the respondent is a peace officer actively engaged in duties)
- Harassing, threatening, or stalking the protected person or any member of the protected person’s household
The court can also grant temporary custody of children, order the respondent to pay child support, and require the respondent to attend a battering intervention and prevention program.
Firearms Consequences
A final protective order triggers a federal firearms prohibition under 18 U.S.C. § 922(g)(8) for the duration of the order. This is separate from the permanent prohibition that follows a family-violence conviction under § 922(g)(9). The protective-order prohibition ends when the order expires or is vacated. But while it is in effect, possessing a firearm is a federal crime, and federal agents do enforce it.
Violation of a Protective Order
Violating a protective order is a criminal offense under Penal Code § 25.07. A first violation is a Class A misdemeanor (up to 1 year in jail). A second violation, or a violation involving stalking, a threat, or going near a protected location, is a third-degree felony (2 to 10 years). Protective orders are often written broadly, and what constitutes a “violation” is not always obvious. Even though an accidental violation is not a crime, a butt-dial, a social media post, or an accidental encounter at a public place can trigger an arrest.
Contesting a Protective Order
The respondent has the right to contest a final protective order at the hearing. The applicant must prove family violence occurred and is likely to occur again. The “likely to occur” element is where most contested hearings are won or lost. Past violence does not automatically prove future risk, and the respondent can present evidence of changed circumstances, the applicant’s motive for seeking the order, and the absence of any ongoing threat.
A protective order hearing is a civil proceeding, but the stakes are criminal. If a protective order is entered against you, violating it is a crime, possessing a firearm is a federal offense, and the order itself becomes evidence in any pending or future criminal case. It should be defended seriously.
If you are facing a protective order or have been charged with violating one, contact Bennett & Bennett at 713-224-1747.