By Texas Criminal Lawyer Jeremy Rosenthal
They Handed Me an Emergency Protective Order After an Arrest for Assault/ Family Violence between me and my loved one… What Does This Mean?
An Emergency Protective Order (“EPO”) is a broad and sweeping Order issued by a magistrate judge (often a city judge or justice of the peace) which restricts someone arrested for assault/ family violence from going various places and/or from communicating with various people.
An EPO can keep people out of their own house, keep them away from their family, and prevent them from communicating with family too. Other provisions can include keeping the arrestee away from their kid’s schools and can order them not to possess firearms.
They can obviously be extremely disruptive and cause financial stress exacerbating existing problems and frustrating reconciliation. They can be done “Ex Parte” which means with only the police or prosecutors present. To be enforceable, though, the Defendant must be given notice.
I Don’t Understand What I can or Can’t Do Now?
Emergency Protective Orders are not “one size fits all.” Several statutes cover them and most courts have cobbled together their own standard order incorporating some of the Statutory language.
If you have questions about them, it is best to run those questions by a lawyer so as to be sure not to violate the order.
How Do We Change This Order or Have the Judge Undo it?
The law provides the ability to modify or rescind the Order. This is a very nuanced area of legal practice. Once someone is arrested for domestic violence either for a misdemeanor or a felony they are a target for the police or prosecutors who have already made up their mind the Defendant is guilty. By trying to “dig out of a hole” or “set the record straight” or even just to plead with the Judge to lift the order – a person can give law enforcement even more statements to twist or bend to fit their own narrative.
You should have an attorney file a motion to modify the EPO and get it set for a hearing as soon as you can. At the hearing the attorney can help make sure the judge learns not only the facts of the case that aren’t in the police report but also help the judge understand how the Order is hurting everyone involved instead of helping.
What Happens if I Violate the Order?
Violation of a Protective Order is a Class A Misdemeanor so you obviously don’t want to do that. Often the prosecution’s case for assault crumbles because the facts simply aren’t on their side — but they can often prosecute for a technical violation of a protective order and get their pound of flesh that way.
The Bottom Line
You need an attorney if you’ve been issued an EPO whether or not it is Ex Parte. There will almost certainly be an ensuing criminal prosecution where your lawyer can formulate a plan to help put the entire situation behind you.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation you should contact an attorney directly.