By Criminal Defense Lawyer Jeremy Rosenthal
What is an Emergency Protective Order?
An emergency protective order (“EPO” for short) is an order issued by a magistrate judge after someone is arrested for Assault – typically during a family or domestic situation. They can be broad, sweeping, and they can often worsen a family situation.
The order can prevent someone from going back to their home, having contact with their loved ones, and even going to the their children’s school to pick them up. It can order the Defendant not have access to or possession of firearms.
How Can They Do This?
Texas law allows a magistrate judge to issue these orders upon application which may be done by a police officer or may even be done on the Judges own discretion. It can be done “Ex Parte” which means the accused does not have the right to be there. Understand, then, that the information the magistrate judge is given can be very slanted. Also remember the laws in the State of Texas were written by politicians who — by and large– were elected on promises to be tough on these types of cases regardless of the facts.
How Long is the Order In Effect?
An EPO can be in effect for up to two years unless there are aggravating circumstances such as serious bodily injury allegations or Defendant has a previous history of domestic violence. Most protective orders state their duration. If the Order has no duration on it then the duration is 2 years as a matter of law under Tex.Fam.C. Chapter 85.025(2).
Most Emergency Protective Orders in Collin County are about 60 days.
Can an EPO be Modified?
Yes. This is typically done through the same judge who signed the EPO.
How Do We Get the Judge to Modify an Emergency Protective Order?
You or your attorney can petition the judge for an amendment to the EPO. Normally there is a hearing where the judge determines whether to lift or modify the protective order.
I’m the Alleged Victim… Can’t I Just Go Tell the Judge to Undo This?
It’s probably not that simple. Most judges prefer to have a formal hearing because they don’t know the parties involved and they are worried about additional violence if they immediately undo an order.
A case to them resembles many other cases they’ve handled. Also there is a prevailing mentality amongst law enforcement, prosecutors and often some judges which presumes several things about family violence arrests.
Their mentality is the assailant is guilty, and that the victim is asking for this leniency because they feel guilty or intimidated by the abuser because that is part of the circle of domestic violence. It is flawed logic because it’s circular – though I’m sure it can be true in some cases. (Defendant one is guilty therefore we don’t believe the victim when they say it didn’t really happen therefore Defendant is more guilty than before). In cases where it isn’t true — the logic particularly confounding.
Most judges I’ve worked with have broad policies about these types of things. They are not un-sympathetic to real world problems protective orders create such as financial strain of paying for multiple housing, child care, and impact on the family.
Should I Hire a Lawyer to Deal With a Protective Order?
It goes without saying that if you have been arrested for Assault/ Family Violence then you need a lawyer immediately upon your arrest. There are pitfalls to modifying protective orders which require skill too.
What Happens if I Violate the EPO?
It can cause additional criminal charges and bond to be revoked. In many cases the violation can be as bad or worse than the original allegation.
Can the Person Come Over to Get Necessary Things?
Always read the specific language of the EPO and if you have any questions talk with a lawyer to make sure it’s clear. Most protective order’s I’ve seen have a provision which allows for a way to get necessities from a home such as clothes, computers or whatever is needed. Sometimes the language provides a friend or neutral person can assist.
Understand if the police are called and the protective order is shown to an officer who wasn’t at the hearing or who doesn’t understand an EPO very well — the person can go back to jail even though the officer might be wrong. Make sure it is crystal clear what you can do before you take any action.
*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 on any situation you should contact an attorney directly.