By Collin County Criminal Defense Lawyer Jeremy Rosenthal
These are known as Emergency Protective Orders or EPOs. They can be extremely disruptive, costly, and exacerbate emotional distress of the entire family on top of the havoc a domestic violence arrest already inflicts.
Texas law allows a police officer making an arrest to ask a magistrate judge for an EPO. The officer does not need the consent of anyone else including the complaining witness to seek the Order.
Violation of the Order can be a serious misdemeanor as well. Each Emergency Protective Order is different from the next. Don’t assume an EPO prohibits or doesn’t prohibit certain activities.
Most of these orders require the accused to stay a certain distance away from the alleged victim and other family members. They also often prohibit either direct or indirect communication.
Direct communication is typically construed as phone calls, text messages or communications on social media. Indirect communication is typically where the Defendant has a friend — often a mutual friend – make contact with the complaining witness. Both are normally violations.
The length of the EPO can vary but for most assault cases in Collin County they may last either 91 or 61 days.
An EPO Can Be Destructive
Following an Emergency Protective Orders can require a person live in a hotel or other temporary accommodations because they are prohibited from going to their residence. Two months in a hotel means two months of paying double for housing. Further, where a couple has children, one parent — usually the complaining witness — is saddled with 100% of the childcare for that time as well. While the goal is to allow a couple time away to that emotions and physical conflict cool it can have the effect of throwing a family further in chaos.
How do I Get My Stuff?
EPOs create immediate logistical headaches. If you can’t call your spouse or can’t communicate with them through a friend — then how are you supposed to get your clothes, work laptop, or medications?
Most Protective Orders provide for some type of safe harbor within the first 24 hours to get these things arranged. Read the fine print carefully. You may be allowed to have a friend or representative get whatever you need quickly.
What to Be Careful about with Emergency Protective Orders
Always make sure you read the details carefully — and if you have any questions at all about the specific provisions of your EPO be sure to ask a lawyer.
Communicating with the protected person while under an EPO can lead to lots of problems. Frequently it is the victim reaching out to the Defendant — but no matter — the Defendant still commits an offense by engaging in that communication.
What Can A Lawyer Do?
A Lawyer Can Communicate Directly with the Alleged Victim
I’ve yet to see a protective order without language exempting the lawyer from the communication prohibition. This is because lawyers have legal and ethical duties to investigate their case. Don’t expect your lawyer to be an on-going courier or go-between, however, your lawyer can assist in coordinating necessary issues in addition to planning towards long-term goals of your case.
A Lawyer Can Help Get the Order Modified
Most judges will modify a protective order so long as everyone is in agreement — usually both spouses or both persons involved in the altercation. The magistrate may drag their feet or do it slowly so as to allow the parties a colling down period but most magistrates don’t wish to impose the additional hardship an EPO can cause.
*Jeremy Rosenthal is Board Certified in Criminal Law and is licensed to practice in the State of Texas.