What is a Magistrate’s Emergency Protective Order – And How Do I End It?

May 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

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Short Answer:

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.


When Police File a Case “At Large”

April 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m writing this blog in the middle of the COVID-19 shutdown.  We’re seeing lots of cases handled “at large” these days.

What “At Large” Means in a Criminal Case

The Court has to have some way to make sure people come and face charges, win, lose or draw.  If criminal cases were voluntary, no one would come to court.  That way of securing attendance is the threat of jail.

An arrest is normally the very first legal action taken against a person.  A bond is set and if the bond is paid the person is released.  Formal charges come some time later – but prior to the running of the statute of limitations (2 years on a misdemeanor, 3 years on most felonies).

When a case is filed “at large” the arrest is skipped temporarily.  Once the formal charges are filed either in a misdemeanor or a felony an arrest warrant is triggered.

Why We’re Seeing So Many “At Large” Cases

Police and the Sheriff’s office want to keep the jail as unpopulated as possible during the COVID crisis.  It is law enforcement’s way of deferring an arrest and a jailing until later.

What Happens Next?

If someone has been told a case would be filed “at large,” then there is a good chance the police have or will forward a police report to the District Attorney’s Office.  The District Attorney’s office will review the report — and assuming they view the report as complete — they will typically file formal charges.  In a misdemeanor case it is called an “information” and in a felony the Grand Jury Meets and if they agree — the file what is called an indictment.  Both will trigger the arrest warrant.

If There is an Arrest Warrant Coming, What Do I Do?

It is always the better practice to be in control of the process by monitoring the active warrant filings and ultimately surrender yourself.  Prepare to post bond.  It’s also time to talk with a lawyer about your long term legal defense and how to best address the charges.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization.  He was recognized by Thomson Reuters as a Texas Super Lawyer in 2019.


What Constitutes a Win?

February 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rbcriminallaw.com

(972) 369-0577

Winning

From time to time I’m asked what my win-loss record is.  It’s a fair question, I suppose, from someone whose not around defense lawyers all-day every-day.

The question assumes all cases are equal in complexity, difficulty – and all people facing the dilemma of a criminal cases have the same tolerances for risk or life pressures which affect their decisions.  So I like to joke “last year, I made the playoffs.”  It normally gets a chuckle – but the person typically gets the point.

A sexual assault allegation where consent is blurred by alcohol consumption is much different than a bank robbery caught on tape.  Also the pressures facing a pilot arrested for a DWI and the loss of a lucrative livelihood aren’t the same as a college student studying for an MBA who got arrested for marijuana.  My goal is to clear everyone’s record who comes into my office – but not all cases are equal.

It’s unethical for any lawyer to guarantee results.  This makes sense because we are in the profession of quantifying unpredictable variables.  I know what the law says should happen — but unless I’m actually both your lawyer and the judge in a case, I can’t guarantee it will happen.  I know how the prosecutor will likely approach your case — but until I’m both the prosecutor and your lawyer in a case, I can’t guarantee what will happen either.  And then there are juries.  Don’t even get me started with them.

So what constitutes a win is often relative.  Make no mistake — I hate losing and I’ll always do my best to completely clear my client’s record in every case.  Sometimes it can be a really tall mountain.  If it is a bad felony charge we can often get it reduced if winning is too unrealistic.  If we can’t win a case which might result in losing a job or even a career – then we can often get the charges reduced to something my client can live with.  I’m in a tough business.  There are cases which come in my door where a great outcome is simply less time in prison.

The one thing a lawyer can always guarantee is how they treat you and their effort.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal Law by the Texas Board of Legal Specialization.


What is a Magistrate’s Order for Emergency Protection?

November 18, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rbcriminallaw.com

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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.

 


Why Does My Lawyer Keep Continuing My Case?

November 12, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

It could be taking extra time to prepare.  It could be strategy.  It could be a red flag.

Taking Extra Time to Prepare

Your Lawyer should always obey “the carpenter’s rule.”  Measure twice, cut once.

Some cases are just harder and more complex than others.

A sexual assault at a party with 8 witnesses (each with different accounts) takes some time to prepare.  The prosecutor may be extremely dug in and there could be some complex legal issues as well.

A white-collar securities scheme with 3,400 documents to pour through can be tough too.  Federal drug conspiracies where the lawyer gets a few hundred hours of wire-tap phone calls obviously take a while too.

These are all really valid reasons for delay.

Delay for Strategy

I’ve delayed cases for strategical reasons.  It could be because my client has other pending legal matters which I’d like to get resolved first.  It might be because I’m trying to expunge records in one county and I have to do so before my client’s case goes to trial in another county.  A lawyer could even have a case delayed so their client can stay in the local jail with air conditioning during the summer knowing when the case was over they still had to go back to their prison unit without AC (I’m not saying I’ve done this and I’m not saying I haven’t, either!)

Sometimes it’s the Prosecution’s Fault

Sometimes the State isn’t ready.  They need to do more investigation and/or preparation for their case to go to trial as well and the Judge allows them leeway the same way they allow us leeway.  Lab testing blood in DWI cases and drugs can take months and months.  It’s the speed of government.

When are Repeated Continuances a Red Flag?

Every case is it’s own snowflake.  That said, if you have a relatively common  case such as a DWI, assault, or drug charge and your lawyer is delaying, delaying, and delaying and the reasons don’t make sense — it could be something to become concerned about.

DWI, assault, drug and theft charges are extremely common and we handle lots of them.  We know what we’re looking for to defend the cases and we’re quick to find and ferret-out the important issues.  There are very few legal issues in Driving While Intoxicated cases, for instance, we haven’t seen before or know exactly where to look for the answer.

Many lawyers are simply over-worked.  They use time poorly and “borrow from peter to pay paul” with their time.  They are used to putting out the hottest fire every day — and when that case isn’t your case — you get to wait.  Also many lawyers can get “paralysis by analysis.”  That is they just can’t make a decision and they use delay because they can’t figure things out.

Bottom Line

I should add many clients are okay with a slow pace in which case we accommodate this.  It makes me think of when I was waiting for my bar results.  I had a great time not knowing one way or another for 3 months.  I just don’t like going to court and not accomplishing anything.  I do see lawyers who just pass, and pass, and pass their cases over and over and I don’t get it.  The courts do push lawyers to get cases through… but rarely should it get to that point.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was designated as a Super Lawyer in 2019 by Thomson Reuters.