Texas Protective Orders

Title 4 of the Texas Family Code creates protective orders. Chapter 71 defines the terms, chapter 82 covers the application, chapter 83 an emergency order issued without notice, chapter 84 the hearing deadline, chapter 85 the final order, and chapter 87 changes to an order later.

The definitions everything else depends on

Section 71.004 defines family violence as three things: an act by a member of a family or household against another member intended to result in physical harm, bodily injury, assault, or sexual assault, or a threat reasonably placing that member in fear of imminent harm of those kinds, defensive measures excluded; abuse of a child of the family or household, as abuse is defined by the subdivisions of section 261.001(1) that section 71.004(2) names; and dating violence under section 71.0021.

Family and household are separate terms. Family in section 71.003 covers those related by consanguinity or affinity, former spouses, the parents of the same child regardless of marriage, and a foster child and foster parent, whether or not they reside together. A household in section 71.005 is persons living together in one dwelling, related or not, plus, under section 71.006, anyone who previously lived there.

Dating violence in section 71.0021(a) has two prongs joined by an "and". The act must be committed against a victim or applicant the actor has or has had a dating relationship with, or against someone because of that person's marriage to or dating relationship with a person the actor dated or married. It must also be intended to cause harm of the kinds listed above, or be a threat reasonably placing that person in fear of such harm as imminent. A dating relationship is a continuing relationship of a romantic or intimate nature, judged by its length, its nature, and the frequency and type of interaction. Casual acquaintanceship and ordinary business or social fraternization are excluded.

Who may file, and in which county

A case begins with an application filed with the clerk of the court. Section 82.002(a) lets an adult member of the family or household file, for family violence under section 71.004(1) or (2), to protect the applicant or any other member of that family or household. Any adult may apply to protect a child under subsection (c). Under subsection (d) a prosecuting attorney or the Department of Family and Protective Services may file for any alleged victim, who is then the applicant.

Subsection (b), the dating violence provision, needs care. The chapter carries two differently worded versions of it, both enacted in 2011 and both still printed in the official text. One permits filing by an adult member of the dating relationship, or by an adult member of the marriage where the victim is or was married as section 71.0021(a)(1)(B) describes. The other permits filing by a member of the dating relationship regardless of whether that member is an adult or a child. This guide does not choose between them. The current text of section 82.002 at the link above is where that question begins.

Venue under section 82.003 is the county where the applicant resides, the county where the respondent resides, or any county in which the violence is alleged to have occurred. Section 82.004(a) requires the form published by the Office of Court Administration and lists what the application carries, among it the parties' names, the county of residence of each individual alleged to have committed family violence, and the relationships between them. The county of residence of an applicant is required unless that applicant requests confidentiality under section 82.011 or 85.007.

What the statute makes confidential

Section 82.011 directs the court, on an applicant's request, to render an order striking the applicant's mailing address and county of residence from the public records of the court, keeping a confidential record of them for the court's use, and prohibiting their release to the respondent. Section 85.007(a) directs the court, on the request of a person protected by an order or an adult member of that person's family or household, to exclude from the order that person's address, county of residence, and telephone number, and the address and telephone number of that person's workplace or of a protected child's school or child-care facility. Subsection (a-1) requires the court at the hearing to inform each such person present of that right and to specifically ask whether the person wishes the information excluded. Section 82.004(b) provides that an affidavit of confidentiality is only for the court's use and is not transmitted to the respondent.

The emergency order, issued without notice

Under section 83.001(a), if the court finds from the information contained in the application that there is a clear and present danger of family violence, it may enter a temporary ex parte order protecting the applicant or another member of the applicant's family or household, without further notice to the individual alleged to have committed family violence and without a hearing. Section 83.002 makes that order valid for the period specified in it, not to exceed 20 days, and allows extension for additional 20-day periods on the applicant's request or the court's own motion.

The hearing and its deadline

The deadline lives in chapter 84 and nowhere else in Title 4. Section 84.001(a) directs the court, on the filing of an application, to set the hearing unless the applicant asks for a later date, and provides that except as section 84.002 provides, the court may not set a date later than the 14th day after the application is filed. Section 84.002(a) is that exception: on the prosecuting attorney's request, in a county of more than 2.5 million people or in a county in a judicial district composed of more than one county, the district court shall set the hearing no later than 20 days after the application is filed or 20 days after the date a request is made to reschedule a hearing under section 84.003.

What a final order contains

The finding comes first. Section 85.001(a) requires the court, at the close of the hearing, to find whether family violence has occurred, and section 81.001 provides that a court shall then render an order under section 85.001(b). That means an order under section 85.022 against the person found to have committed family violence, and, where the court chooses, one under section 85.021 applying to both parties that is in the best interest of the person protected by the order or of a member of that person's family or household.

Section 85.021 carries the property and household provisions, five in all, condensed here and each subject to conditions the section states. A court may prohibit removing a child of the family or household from a named person's possession or the court's jurisdiction, disposing of property the parties mutually own or lease, and removing a pet, companion animal, or assistance animal; grant exclusive possession of a residence and direct parties to vacate; provide for possession of and access to a child where the person receiving it is a parent; require support payments; and award use of community or jointly owned property.

Section 85.022(b) carries the conduct provisions, eight in all, most of them written to cover a person protected by the order and that person's family or household members. Condensed: committing family violence; threatening or harassing communication, threats relayed through anyone, and, on a good cause finding, any communication except through the party's attorney or a court appointee; going to or near a protected person's residence, workplace, or business; going to or near a protected child's residence, school, or child-care facility; conduct directed at a protected person, following included, reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass; possessing a firearm, subject to the narrow peace officer exception the subdivision spells out; harming or interfering with the care of a pet, companion animal, or assistance animal; and tracking or monitoring a protected person's property or vehicle without effective consent.

Chapter 85 treats three firearm-related things differently. Subsection (b)(6) sits among the prohibitions a court may impose. Subsection (d) is a command: the court shall suspend a handgun license issued under Subchapter H, chapter 411 of the Government Code held by the person found to have committed family violence. Third, section 85.026(a) requires every order to display a warning that it is unlawful for a person subject to a protective order, other than a peace officer of the kind that section describes, to possess a firearm or ammunition. That third statement is a notice the order must carry.

How long the order runs

Section 85.025(a) makes an order effective for the period stated in it, not to exceed two years, or until the second anniversary of the date it issued if no period is stated. Subsection (a-1) permits longer where the court finds the subject committed an act constituting a felony offense involving family violence against the applicant or a member of the applicant's family or household, whether or not charged or convicted; caused serious bodily injury to such a person; or was the subject of two or more previous protective orders rendered to protect that person after findings of family violence. Section 85.001(d) requires an order running past two years to contain that finding. Three further timelines displace the default where they apply, running to the second anniversary of the final divorce decree, of a final order rendered in a suit affecting the parent-child relationship, or of the final disposition of the criminal case subsection (a-4) describes. Subsection (c) extends an order where its subject is confined or imprisoned on the date it would otherwise expire, and also where the order would expire not later than the first anniversary of the date that person is released.

The warnings the statute requires on the order

Section 85.026 is a printing requirement reaching every protective order issued under the subtitle, temporary ex parte orders included. Subsection (a) lists the statements that must appear in boldfaced type, capital letters, or underlining: the contempt warning; the statement that no person, a protected person included, may give anyone permission to ignore or violate a provision, and that every provision holds unless a court changes the order; the firearm and ammunition statement above; notice of the automatic extension that follows confinement; and the warning that a violation by a prohibited act may bring a fine or jail and may be prosecuted separately as a misdemeanor or felony.

Subsection (b) requires a further statement, displayed the same way: while the order is valid and subject to transfer, it prevails over any other order rendered in a suit for dissolution of a marriage or a suit affecting the parent-child relationship, to the extent of any conflict between them. Subsection (d) requires each order to specify when it expires and to give notice of extensions that may apply because of the subject's confinement or imprisonment.

Changing an order later

Section 87.001 allows the court, on the motion of any party and after notice and a hearing, to modify an order to exclude any item included in it or to include any item that could have been included. Section 87.002 forbids modification that extends validity beyond the second anniversary of the original order or beyond the date it expires under section 85.025(a-1) or (c), whichever occurs later.

Where the work sits, and where help is listed

Title 4 assigns the work to named institutions: the courts listed in section 71.002, the clerk who takes the application and sends copies of an order to local law enforcement under section 85.042, the prosecuting attorney defined by section 71.007, the Department of Family and Protective Services, the Office of Court Administration, which publishes the forms, and the Department of Public Safety, which holds the records.

Reading a statute is not the same as having someone alongside you while a case moves. The directory of free and low-cost legal help in Texas lists legal aid programs, law school clinics, and family violence organizations across the state, each linked to its own site. Where an order runs alongside a custody case or a divorce, those subjects have their own pages in the Texas family law guides, written to the sourcing rule behind this one and the rest of Texas Legal Answers.