Table of Contents

• A quick overview of the legal system
  
• What is the legal definition of family violence in Texas?
  
• What is a protective order?
  
• How can a protective order help me?
  
• Who is eligible for a protective order?
  
• Who may file for a protective order?
• Should I get a protective order?
  
• What does it cost to get a protective order?
  
• What types of protective orders are available?
• What do I have to prove to get a protective order?
  
• What is a Temporary Ex Parte Order? How long does it last?
  
• What is a Permanent (or Final) Protective Order? How long does it last?
  
• What are the steps for getting a protective order (Temporary Ex Parte or Permanent)?
  
• What should I do before the hearing to prepare my case?
  
• What should I do on the day of the hearing?
  
• What is the order of events in the courtroom?
  
• What should I do when I leave the courthouse?
  
• What can I do if the abuser violates the order?
  
• What happens if I move?
  
• How do I change or extend a protective order?
  
• How do I renew an expired protective order?
  

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A quick overview of the legal system

The Texas legal system is divided into two areas: civil law and criminal law. 

Civil Law
Under civil law, one person sues another for a private wrong.  In a civil domestic violence action, you are asking the court to resolve the conflict between you and your abuser.  You are not asking the court to punish your abuser for committing a crime.

Criminal Law
The criminal law system handles all cases that involve violations of criminal law such as harassment, assault, murder, and theft.  A criminal complaint involves charging your abuser with a crime.

In Texas there are also several different types of courts (state district, county, municipal, Justice of the Peace, and commissioners’ courts).  Some of these courts handle both civil and criminal law cases.  For example, state district and county courts handle both civil and criminal cases.  These differences are important because the process may be different depending on where you live and what court has jurisdiction (authority) over your case. 

For more help and information on the Texas legal system, please contact a local program in your area, which you can find at the TX Links & Resources page.

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What is the legal definition of family violence in Texas?

The Texas Family Code (Sec. 71.004) defines "family violence" as:

--any act by a member of a family or household against another member of the family or household

--that is intended to result in physical harm, bodily injury, assault or sexual assault or

--that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault....

Family violence also includes abuse by a member of a family or household toward a child of the family or household.

Actions taken to protect yourself or your children are not family violence if the court believes they are self-defense.

Under TX law, family violence also includes "dating violence." Dating violence is defined in the Texas Family Code (Section 71.0021) as:

-- any act by an individual that is against another individual with whom that person has or has had a dating relationship and

--that is intended to result in physical harm, bodily injury, assault or sexual assault

--or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault or sexual assault.

"Dating relationship” means:

--a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.

To determine if a dating relationship exists, the judge will consider:

1. the length of the relationship;
2. the nature of the relationship; and
3. the frequency and type of interaction between the persons involved in the relationship.

To read the full legal definitions of these terms, please go to our TX Legal Statutes page. 1

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What is a protective order?

A protective order is a civil court order that is designed to stop violent and harassing behavior and to protect you and your family members from an abuser. Abusers who violate certain parts of a protective order can be arrested.

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How can a protective order help me?

The purpose of a protective order is to prevent future assaults by your partner. The protective order will usually make it illegal for him to be near you, your children, your home, your workplace, and your children's school. Then you can call the police for help when he is where he is not supposed to be and the police can intervene before he assaults you or your children again.

A protective order may order your abuser to:

• Stop committing acts of family or dating violence.
• Stop communicating with you or a family member.
• Stop threatening you or a family member.
• Stay away from your home or place of employment.
• Stay away from a school or day center that a child protected under the order attends.
• Complete a battering intervention and prevention program.
• Attend mandatory counseling.
• Not remove your child from your possession or from the jurisdiction of the court or to allow you visitation with your child.
• Stop any transfer or disposal of property.
• Stop any other behavior designed to harass, annoy, abuse, or embarrass you.
• Pay child or spousal support for a period up to two years.
• Leave your home or other specified property (if certain conditions are met).
• Turn over any firearms in his/her possession to law enforcement (unless the person is a peace officer actively engaged in employment a sworn, full-time paid employee of a state agency).
• Perform any other acts that are necessary to prevent or reduce the likelihood of family or dating violence.

A judge can order the protective order to last for up to two years. Judges frequently order visitation in the protective order.

Whether a judge orders any or all of the above depends on the facts of your case. 2

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Who is eligible for a protective order ?

You can apply for a protective order if your abuser is one of the following:

• A current or former spouse
• A sibling (brother or sister)
• A blood relative such as a parent
• A relative by marriage (an in-law)
• A person with whom you have a child in common
• A current roommate
• A former roommate
• A foster parent
• A foster child
• A person who you are dating or have dated

A person who has a divorce pending is eligible for a protective order.  The protective order must be filed in the court in which the divorce is pending.

You may also be able to get a protective order against someone who has sexually assaulted you even if they are not a family or household member (like a co-worker or neighbor). 3

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Who may file for a protective order?

1. An adult member of the family of household may file an application for a protective order for family violence committed against a member of the family or household.
2. An adult in a dating relationship may file an application for a protective order for dating violence.
3. Any adult may apply for a protective order to protect a child from family violence.

Note: Teenagers ARE eligible for protective orders. In some places in the state, someone might have to file on the teen's behalf. Check with your clerk of court.

The person who is the alleged victim of family violence is considered to be the “applicant.” The "respondent" is your abuser.

The victim should file for the order as soon after the incident has occurred as possible.  4

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Should I get a protective order?

It depends on your situation. It is important to understand the advantages and disadvantages of filing for a protective order. Call 800-799-SAFE to talk to someone about your options so you can decide whether a protective order will make you and your children safer.

A protective order is a tool that can help to increase safety for many survivors of abuse, but it might not be appropriate in all situations. For example, in order to get a protective order, you will have to be present at a hearing with your partner. If your partner does not know where you are and you do not want him to, a protective order may alert him to where you are living or at least where you will be at the date and time of the hearing. If you want to move in the near future, a protective order that orders visitation where you are currently living may prevent you from leaving the area. Finally, if your partner is extremely dangerous and is not afraid of getting in trouble with the court, then an order may anger him more and not make you any safer.

Also, after you have a protective order, it is very important that you plan how you are going to use it to keep yourself safe. You can call 800-799-SAFE to talk to someone about how to use your protective order to stay safe.

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What does it cost to get a protective order?

Nothing, a protective order is free. You cannot be charged a fee for filing, serving, or entering a protective order. 

The court may order that your abuser pay any attorney fees (if applicable), and all other fees, charges, or expenses incurred in connection with the protective order.

A domestic violence organization may be able to refer you to free legal services. Please go to the TX Links & Resources page for information about free or low cost legal services. 5

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What types of protective orders are available?

In Texas there are three types of Orders of Protection:

1. Temporary Ex Parte Order
2. Permanent Protective Order
3. Magistrate's Order of Emergency Protection (what most people call an Emergency Protective Order). These are called different things in different parts of the state. They are good for 31-61 days. If you partner has been arrested for a family violence assault, you must ask for this before he is released from jail. You can ask the arresting officer (or judge) to tell your partner what he is being charged with and to set the bond. 6

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What do I have to prove to get a protective order?

In order for the judge to grant a protective order, you will have to prove that it is more likely than not (more than 51%) that the following three things are true:

1. the person who is abusing you is or was a member of your family or household or someone you have or are dating;
2. family violence in the form of a physical assault or threat of physical assault has occurred; and
3. another act of family violence is likely to occur again in the future.

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What is a Temporary Ex Parte Order? How long does it last?

A Temporary Ex Parte Order is a court order designed to provide you and your family members with immediate protection from your abuser. In order to get a Permanent Protective Order, you need to have a full court hearing with your abuser present. A Temporary Ex Parte Order will protect you from the time you file for the Permanent Protective Order until your full court hearing. You may receive a Temporary Ex Parte Order without your abuser present.

The court can issue a Temporary Ex Parte Order if it decides that the information given in your application for a protective order presents a clear and present danger of family violence to either you or a family member. 

A Temporary Ex Parte Order lasts for the period of time specified in the order, usually until the date of your full court hearing.  In most places the court will schedule a date for a formal hearing no later than the 14th day after the date the application is filed. 7

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What is a Permanent (or Final) Protective Order? How long does it last?

A Permanent (or Final) Protective Order is a court order that is designed to stop violent and harassing behavior and to protect you and your family from the abuser.

A Permanent Protective Order is effective for the time period specified in the order up to a maximum of 2 years. If there is no time period specified in the order, then it expires on the second anniversary of the date the order was issued.

If the Respondent is still incarcerated on the date that the protective order is set to expire, then the expiration date is extended for one year from his date of release. 8

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What are the steps for getting a protective order (Temporary Ex Parte or Permanent)? 

Note: You should first go to your local domestic violence organization, law enforcement office or prosecutor's office, if possible, to find out how to get a protective order. Note that the steps listed below vary from county to county. These instructions are meant as a general guideline and do not reflect county-specific procedures.

Please see the Women's Advocacy Pro Se Packet: http://www.women-law.org/whatwedo/pro_se_packet.php because that will work in every county in Texas if you are not represented or have been turned down by the county or district attorney.

Step 1:  Go to the courthouse and obtain the Application
You can apply for a protective order through the district or county attorney, a private attorney, or through a legal aid service program.  You must file your application in the county where you or the abuser lives.  To find the courthouse in your area, go to TX Courthouse Locations & Info.

At the courthouse, g o to the clerk of court and ask for "An Application for a Protective Order.” The clerk will give you the forms. You will also find forms online from our Download Court Forms page.

When you apply for a protective order, you must supply the following information:

1. The name of each petitioner (victim) and the county where each petitioner (victim) resides;
2. The name, address, and county of residence of each individual who has committed family violence;
3. The relationship between the victim(s) and the abuser;
4. A request for one or more protective orders.

If you are in immediate danger and want to apply for a Temporary Ex Parte Order, you must include a detailed description of the facts and circumstances concerning the family violence and the need for the immediate protective order.  Also, you must sign the application under oath that the facts and circumstances contained in the application are true to the best of your knowledge.

Read the application carefully and ask questions if you don’t understand something.  Describe in detail how the abuser (respondent) injured or threatened you.   Explain when and where the abuse or threats occurred.  Write briefly about the most recent incident of violence, using descriptive language (slapping, hitting, grabbing, choking, threatening, etc.) that fits your situation.  Be specific.  Include details and dates, if possible. 

Do not sign the application until you have shown it to a clerk.  The form must be signed in front of a notary public or a judge.  There are notaries and judges at the courthouse. 

The forms are provided to you at no charge. There are no filing fees or costs assessed for service.

If your abuser is a former spouse, then your application for a protective order must include one of two documents:

1. a copy of the decree dissolving the marriage, or
2. a statement that the decree is currently unavailable but that you will file a copy of the decree with the court before the hearing date on the application.

Step 3:  A judge will review your petition.
After you finish filling out your petition, bring it to the court clerk.  The clerk will forward it to a judge.  The judge may wish to ask you questions as he or she reviews your petition. 

If you are applying for a temporary order, a judge will decide whether there is an immediate danger based on the facts included in your application. In order to get a permanent order, you need to have a full court hearing with your abuser present.

Please note that service of notice is not required for a Temporary Ex Parte order.

Step 5:  The Hearing
It is very important that you attend the court hearing. If you find out you absolutely cannot attend, contact the court clerk immediately and ask how you can get a "continuance" for a later court date. If you do not show up, the judge may dismiss your case.

If the abuser does not show up for the hearing the judge may still grant you a protective order, or the judge may order a new hearing date.  At the end of the hearing the court will answer 2 questions:

1. Has your abuser committed family violence?
2. Is your abuser likely to commit family violence in the future?  

If the court answers “yes” to both of these questions, then the court may issue a Permanent Protective Order that will last up to two years. 9

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What should I do before the hearing to prepare my case?

Contact witnesses who saw the abuse or your injuries.
Anyone can be a witness – a friend, family member, children, emergency room nurse, doctor, a stranger who saw or heard the abuse take place, a law enforcement officer, etc. 

Some witnesses may not come to court unless they are given a subpoena that commands them to appear and testify.  Ask the court clerk about the subpoena process.  Let the judge know if the people you subpoenaed do not come to the hearing.

• Your statements or a witness’s statements about the incident(s)
• Medical reports
• Police reports
• Dated pictures of your injuries
• Household objects torn or broken by your abuser
• Pictures of your household in disarray after an episode of domestic violence
• Weapons used
• Tapes of calls you may have made to 911
• Certified copies of the abuser’s criminal record
• Anything else to help you convince the judge you have suffered acts of domestic violence and need certain relief and protection 

The more evidence you have, the greater your chances of being granted a protection order.  However, the judge will listen to your story even if you have no evidence or witnesses.

Tell your story in your own words, but leave out details that have nothing to do with the physical violence or threats of violence.  Also, rather than saying “He (or she) hit me,” tell the judge how you were hit, where on your body you were hit, and how many times.  Be specific.

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What should I do on the day of the hearing?

• Be on time.
• Have your witnesses there and ready.  If you have subpoenaed witnesses and they are not present you should inform the judge.
• Dress neatly and conservatively.
• Speak directly to the judge; he or she will understand if you feel nervous. 
• Always address the judge as “Your Honor.” 
• Be prepared to spend all day in court. (There may be many hearings scheduled at the same time as yours.)
• If your abuser comes to court with a lawyer and you are not represented, ask the judge for a “continuance” so you can look for a lawyer.
• Once your case is called, enter the courtroom and find a seat.  It is your right to take another seat if the abuser sits next to you, and to receive help from court staff in keeping the abuser away from you. If you don't feel safe while you are at the courthouse, tell the bailiff.
• Stand when the judge enters and sit when the judge or bailiff asks you to.
• Relax and remain calm.  Take deep breaths if you feel yourself getting tense.  Never lose your temper in the courtroom.
• Always tell the truth.
• If you don’t understand a question, just say so.
• If you don’t know the answer to a question, just say so.  Never make up an answer.

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What is the order of events in the courtroom?

• At the hearing, everyone who testifies will swear to tell the truth.
• You will tell your side of the story first.
• The judge and your abuser may ask you questions.  If you are afraid to answer any of them, tell the judge.
• When you are done, your witnesses will take the stand.  You may ask them questions, and then the judge and the abuser will have a turn to ask them questions.
• The abuser will tell his side of the story.  It may be very different from yours.  The judge will ask him questions, and you may also ask him questions.
• The judge will make a decision after hearing both sides and considering the evidence.

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What should I do when I leave the courthouse?

• Review the order before you leave the courthouse.  If something is wrong or missing, ask the clerk to correct the order before you leave.
• Make several copies of the protective order as soon as possible.
• Keep a copy of the order with you at all times.
• Leave copies of the order at your work place, at your home, at the children’s school or daycare, in your car, with a sympathetic neighbor, and so on.
• Give a copy to the security guard or person at the front desk where you live and/or work.
• Give a copy of the order to anyone who is named in and protected by the order.
• Give a photo and/or description of your partner and his vehicle to anyone you gave a copy of the order.
• If the court has not given you an extra copy for your local law enforcement agency, take one of your extra copies and deliver it to them.
• You may wish to consider changing your locks and your phone number.
• Call 800-799-SAFE for other ideas to plan for your safety and your children's safety.

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What can I do if the abuser violates the order?

If you believe that your abuser has violated the Order of Protection, you should immediately call 911.  Some parts of the protective order are enforceable by arrest -- if the police arrive and believe the abuser has violated the order, they might arrest him and put him in jail. Any protective order contains the following warning:

“If a person violates the protective order in the presence of law enforcement, the abuser must be arrested immediately.  In cases involving the violation of a protective order, including an Temporary Ex Parte Order, the abuser may be punished for contempt of court by a fine of as much as $500 or up to six months in jail or both.  In cases of violation, excluding Temporary Ex Parte Orders, the abuser may be punished by a fine of as much as $4,000 or jail for up to one year or both.”

When the police arrive, it is a good idea to write down the name of the responding officer(s) and their badge number in case you want to follow up on your case.  Make sure a police report is filled out, even if no arrest is made.  If you have legal documentation of all violations of the order it will help you have the order extended or modified. 10

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What happens if I move?

Federal law provides what is called "full faith and credit," which means that once you have an order of protection, it is enforceable, or it can protect you, wherever you go in the United States, including U.S. territories and tribal lands.  

Different states have different rules for enforcing out-of-state orders.  You may have to register your order with the court clerk in your new county.  You can find out about your new state’s policies by contacting a domestic violence program, the clerk of courts, or the prosecutor in your new area.

Call the court where you originally received the order to tell them your new address so that they can contact you if necessary.

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How do I change or extend a protective order?

After notice and hearing, the court may change an existing protective order to exclude any item from the existing order or include any item that could have been included in the order.  You will have to go back to the court where you originally filed your application and tell the clerk you want to change your order. You will find links to online forms that you may need at our Download Court Forms page.

Also, you can update any information listed on the order such as your address or telephone number, your place of employment, or the child-care facility or school of a child protected by the order.  11

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How do I renew an expired protective order?

If your order has expired, you must file an application for a new one. There must be a violation of the order to ask for a renewal. This violation can be physical violence or a threat of physical violence. If your partner violated the protective order in one of these ways and the expiration date is approaching, you can contact the attorney who assisted you in getting the order to find out about a renewal. If you must file an application on your own, you must provide the following evidence:

1. a copy of the expired protective order. If a copy is not available, include a statement that the order is unavailable and that a copy of the order will be filed with the court before the hearing on the application;
2. a description of how your abuser violated the expired protective order, if you are claiming he violated the protective order, or a description of the threat your abuser has made against you; and
3. if you claim that your abuser violated the expired order, you must include a statement that the violation of the expired order has not been grounds for any other order protecting you. 12

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