By Texas Criminal Defense Lawyer Jeremy Rosenthal
(972) 369-0577
An unpleasant surprise many men and women get when they are released from jail after an assault/ family violence arrest is an order forbidding them from returning home and/or even talking with their spouse or children.
These orders can cause daunting collateral consequences. They are financially punishing because it often requires one person stay in a hotel during the duration and they are emotionally taxing because one parent may need support in caring for children and assistance with the household. Sometimes protective orders have the opposite of their intended effect and inject more stress into a relationship instead of relieving it.
The court order can either be an Emergency Protective Order or it can be a term and condition of bond. In any event, violating them can and often does land the person back in jail. Violating a protective order is a criminal offense in itself and is usually harder to win in court than the underlying assault case.
Protective orders and emergency protective orders is an extensive topic in and of itself. Today in my continuing series of blogs on defending domestic violence cases I’ll be hitting the main highlights.
Emergency Protective Orders
Most emergency orders are sought and applied for by officers in an Ex Parte manner – that is it’s the officer alone asking the judge who is typically also setting bond. It could be because of department policy or the officer thought the situation merited the couple having a “cooling off” period. EPOs are mandatory for arrests with charges of serious bodily injury or deadly weapons.
On an administrative note – the EPO does not apply to the person’s attorney who can communicate with a complaint witness.
The governing statute for protective orders is Article 17.292 of the Texas Code of Criminal Procedure.
It is often the case the complaining witness doesn’t want the EPO either. In this regard the law can be somewhat patronizing. The complaining witness’ assent is not mandatory.
One of the most embarrassing and humiliating aspects of an EPO is the Court is required to give notice by law to a school of a child of the couple.
Modifying Protective Orders
The legislature requires a hearing for modification of an EPO under 17.292(j). All affected parties are required to have notice. Most hearings are somewhat informal.
My experience on modifying protective orders is unless both the accuser and the accused agree – the magistrate won’t modify the order. Most magistrates also drag their feet because they want a cooling down period between the couple… so even though a person might apply for a modification in the day or two following the arrest – you usually won’t get a hearing for 2 weeks.
Can Protective Orders become Permanent or be Extended?
Yes. An Ex Parte Emergency Protective Order can be issued for a maximum of 91 days.
In those instances where a prosecutor or complaining witness want to seek a more extended one – the prosecutor can file suit on behalf of the complaining witness and apply for a permanent or extended protective order.
These proceedings are legally more formal and the consequences can be more dire. If a court makes a finding of domestic violence it can follow the accused forever.
Conditions of Bond Keeping Defendant Away
I mentioned earlier another legal tool keeping someone a certain minimum distance from the complaining witness or preventing communication can be a term and condition of bond.
That means it’s one of the ground-rules laid out by the judge as a condition of release from jail. Violating a condition of bond means potential re-arrest. Domestic violence bond violations are the only misdemeanor charge where a judge can hold a person without bond.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is designated as a Texas Super Lawyer by Thomson Reuters.
