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Domestic Violence and Protective Orders

In 1979, the Texas Legislature enacted language in the Family Code to protect children and other family members from domestic violence. In the ensuing 3 decades, those provisions have evolved into what is now codified as Title 4 of the Texas Family Code. A person may now apply for a protective order as part of a divorce lawsuit or as a separate court action.

Section 71.004(1) of the Texas Family Code provides an expansive definition of “family violence” that includes: “An 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, but does not include protective measures to protect oneself.”

A victim of family violence can apply to a court for an order that includes provisions as far-reaching and encompassing as needed to ensure the safety of the victim, his or her family members, and other associated persons. The order can include provisions for possession and access to children, child support, spousal support, and transfer of community property. With respect to the person found to have committed family violence, the order can prohibit such conduct in the future, require attendance at counseling and therapy, restrict the individual from coming within certain distances from the persons protected by the order and the place they are usually found (i.e. home, school, business), can suspend the offender’s license to carry a firearm, and can order exclusion of the offender from his or her home.

If there is a substantial risk of violence once the offender discovers that a protective order is being sought, the application for the protective order can be made Ex Parte – i.e. without notifying the offender of the application. In these instances, the applicant for the protective order swears under oath in an affidavit to the facts alleged to be family violence and, if the judge finds that family violence has occurred and is likely to occur in the future, a protective order is issued and served on the alleged perpetrator. Ex parte orders are only valid for 20 days after issuance of the order, thus, a hearing on the order is schedule within that time in order to make the order final.

A person who violates a protective order can be ordered to pay certain fees and even be put in jail for contempt. Knowing or intentional violation of a protective order is a Class A misdemeanor UNLESS the offender has previously been convicted of violating a protective order or commits assault or stalking, in which case, the offense constitutes a 3rd degree felony.