When someone is accused of domestic violence, they may also suddenly find themselves under a protective order. A protective order can prohibit you from talking to someone, going certain places, and even take away your firearms. Doing anything that violates the protective order is a separate offense and may be charged as a misdemeanor or felony.
Texas criminal defense lawyer Jason S. English was a criminal prosecutor for 15 years. Now he uses his experience to fight for people accused of committing domestic abuse and violating protective orders.
Violating a Protective Order in Texas
Under Texas Penal Code § 25.07, a person commits violation of a protection order by knowingly or intentionally:
- Committing family violence or an act in furtherance of an offense of trafficking, sexual assault, indecent assault, sexual abuse, or stalking;
- Communicating directly with a protected individual or a member of the family or household in a threatening or harassing manner;
- Communicating a threat through any person to a protected individual or a member of the family or household;
- Communicating in any manner with the protected individual or a member of the family or household as prohibited by the order;
- Going to or near any of the following places as specifically described in the order or condition of bond:
- Possessing possesses a firearm;
- Harming, threatening, or interfering with the care, custody, or control of a pet, companion animal, or assistance animal that is possessed by a person protected by the order; or
- Removing or tampering with the normal functioning of a global positioning monitoring system.
Types of Protective Orders in Texas
Protective orders are also known as restraining orders. Protective orders can be emergency, temporary, or permanent. A protective order is often issued as part of a domestic violence case or as a condition of bond in a family violence case. Protective orders may also be available in a case involving:
- Dating violence,
- Household violence,
- Sexual assault,
- Sexual abuse,
- Indecent assault,
- Stalking, or
Under Texas Family Code § 6.504, a spouse may also request a protective order as part of a divorce or suit for dissolution of marriage.
Temporary Ex Parte Order
A temporary ex parte protective order can be issued without the defendant being present. The temporary order is generally limited to 20 days but can be extended.
Magistrate's Protective Order
A protective order issued by the magistrate is sometimes also called an emergency protective order (EPO). An EPO can be requested by the victim of domestic abuse, a guardian of the victim, police officer, lawyer, or the court itself. EPOs may be mandatory if the offender is arrested for domestic violence involving serious bodily injury or the use or exhibition of a deadly weapon during an assault.
Also called a “stay away” order, EPOs are generally in place for 31 to 61 days. However, if the crime involved domestic violence with use or display of a deadly weapon, the EPO can be in place for 61 to 91 days.
Penalties for Violating a Protective Order in Texas
Violating a protective order is generally a Class A misdemeanor. A Class A misdemeanor conviction can result in up to a year in county jail and a fine of up to $4,000.
If the subject of the protective order was a victim of sexual abuse, indecency with a child, sexual assault, indecent assault, or stalking, violating a protective order may be a State Jail Felony. The penalties for a State Jail Felony in Texas include from 180 days to 2 years in jail and a fine of up to $10,000.
If the defendant has been convicted of violating a protective order 2 or more times, or violated the order by committing assault or stalking, the offense may be charged as a 3rd-degree felony. A conviction for a 3rd degree felony in Texas can include incarceration for 2 to 10 years and a fine of up to $10,000.
Defenses to Violating a Protective Order in Texas
Just because you were accused of violating a protective order does not mean that you have to be convicted of a crime. There are a number of possible defenses to violating a protective order, including not knowing about the protective order.
Most emergency protective orders are issued without the individual even knowing about the emergency proceeding. In some cases, temporary or permanent protective orders may be issued without the individual knowing about the order. An element of the offense is that the defendant knew of the protective order.
For example, if an individual recently moved, someone stole the mail, or the person was out of town for work or school, they may never have gotten notice of a protective order hearing. If the person never shows up to the hearing, the judge may issue a default protective order based only on what the other person says.
In a criminal case, the prosecutor can get a conviction only if the defendant pleads guilty or if the prosecutor proves every element of the crime beyond a reasonable doubt. If the prosecutor cannot prove that you knew of the protective order or received a copy of the order, you should not be found guilty.
Another element of the crime is that the defendant intentionally and knowingly engaged in one of the prohibited acts. For example, being in a location where the defendant did not know the subject of the order may be a defense. If the defendant went shopping at the mall to buy a present for a friend and suddenly the subject of the protective order walked out of the store, being in prohibited proximity may be an accident and not intentional.
Austin Domestic Violence Defense
Jason S. English was a criminal prosecutor for 15 years. He understands how prosecutors approach domestic violence and protection order cases and what they do to try and get the accused to plead guilty. Before pleading guilty to any crime, make sure you understand your rights and options to fight the criminal charges.
If you are accused of violating a protective order in Texas, it is important to speak to a criminal defense attorney right away. Contact Austin criminal defense lawyer Jason S. English online or call (512) 454-7548. With his many years of experience prosecuting criminal cases, Jason S. English is well-prepared to fight for your constitutional rights.