By Criminal Defense Lawyer Jeremy Rosenthal
An Emergency Protective Order (“EPO”) is an ex parte “keep away” order by a magistrate judge normally issued upon an arrest for family violence. They vary in length and scope. You are able to modify them but most judges want a “cooling off” period even if both parties want the order to be gone.
Let’s decode some of that legalese — “Ex Parte” means one party or one side is present in court and not the other;
A “Magistrate” is typically not a full-blown judge for the purposes of your case and often have the limited responsibility of setting a bond, signing a warrant, or in these cases — signing emergency protective orders.
In More Depth
An EPO is governed by Article 17.292 of the Texas Code of Criminal Procedure. The statute is long but fairly concise. Typically the most daunting condition is the one requiring the accused to stay a certain distance from the accuser and often other immediate family members such as children. A protective order doesn’t always prohibit communication or contact. You have to read the fine-print carefully. If you have any questions it is always best to ask a lawyer.
Violating a Protective Order
It is a criminal offense to violate a protective order. The Order is legally required to have language explicitly stating this. Ironically, winning an assault case is often easier than winning an accompanying violation of a protective order charge which might accompany it.
Unintended Hardships and Consequences – For Everyone
While it’s understandable strangers to a couple’s marriage or relationship would want to keep “warring” parties separate for a cooling off period, unintended consequences frequently do more to harm the relationship than good. Having one person stay in a hotel can be financially draining and often it turns an otherwise efficient household into a single-parent situation with the “victim” bearing excessive challenges and responsibilities without their partner.
Further, not allowing communication also doesn’t allow for easy reconciliation either.
Amending an EPO
An Emergency Protective Order can be amended. Understandably most magistrates are reluctant to undo or amend a protective order if both parties are not agreed. The magistrate doesn’t know the parties and only typically knows if things go south and someone is physically hurt after the EPO is modified — they get blamed. It’s not uncommon for a magistrate to either table or sit on a motion to modify — even if it’s agreed — to allow one or both parties to cool off.
Magistrate Emergency Protective Order FAQs
You can read more about EPOs here.
*Jeremy Rosenthal is Board Certified in Criminal Law and has been designated as a Texas Super Lawyer by Thomson Reuters in 2019.