How to Drop an Emergency Protective Order In Texas
The procedure for dropping or removing a protective order vary from city to city or county to county. Frankly, your greatest chance of success is meeting with a criminal defense attorney handling the domestic violence or child injury case. The attorney usually will follow these general steps:
- Meet with the alleged victim in the case;
- Obtain an affidavit of non-prosecution;
- Obtain a verified request to lift the protective order;
- Draft a motion to remove or modify the current order;
- Contact the correct prosecutor (city or county prosecutor);
- Petition the court for a hearing date;
- Second meeting with the alleged victim to prepare for hearing;
- Prepare a proposed order to present to the court at the hearing;
- Appear at the hearing, question witnesses, object improper questions, and argue;
- If hearing is unsuccessful, consider possible appeal or transfer to different court.
Like mentioned above, procedures can be very different depending on where the protective order issued. Sometimes, a court will remove or modify the EPO without a hearing if the lawyer gets all of the appropriate affidavits and the prosecutor has an opportunity to speak with the alleged victim.
Aside from the value of actually getting the protective order dropped or removed, a second benefit of this process is collection of valuable information and evidence. As an example, your attorney can request the transcript (reporter’s record) from the hearing. This can perhaps be used later to convince the prosecutor to dismiss the assault or use at trial to impeach a witness. If your attorney does not want to fight to get the EPO removed, then you may consider getting a new attorney. Regardless of whether you are a success in getting the order dropped, this is an invaluable opportunity to strengthen the criminal defense of the assault charge.
Who Can Request a EPO in Domestic Violence Cases?
Emergency protective orders (EPO) are available to alleged victims in cases involving family violence, sexual assault, aggravated sexual assault, and stalking. An EPO can be requested in several different ways:
- By the alleged victim of an assault;
- By the guardian of an alleged victim of an assault;
- By an attorney for the state;
- By a peace officer on the alleged victim’s behalf;
- By the magistrate on the court’s own motion.
In general, an alleged victim, who is also the accuser in most cases, does not request the EPO in person before a judge, but rather it is done on their behalf by law enforcement. In fact, the alleged victim does not even need to be present in court for the EPO to be issued. If you or a loved one are in this situation, then it is crucial that you consult with a criminal defense lawyer as soon as possible.
How does it affect me?
An EPO is an order put in place by a court that can restrict the rights of a person accused of a crime. That’s right–this affects people simply accused of crimes but not yet convicted. These orders are put in place many times before a court ever hears your side of the story. An EPO is designed to prevent the accused of:
- Committing family violence, sexual assault, aggravated sexual assault, stalking.
- Communicating directly with the alleged victim or with a member of the alleged victim’s family or household in a threatening or harassing manner, and/or communicating a threat through another person to the alleged victim or member of the victim’s family or household.
- Going within a minimum distance of the alleged victim’s or member of the alleged victim’s family’s:
- Place of Employment
- Daycare or school
These orders can keep you away from your own home and your own children making it vitally important to seek immediate help.
When are they mandatory?
In certain situations, an EPO is mandatory, meaning that it must and will be granted. A mandatory EPO is put in place upon the arrest of the accused for any crime involving:
- Serious bodily injury, or
- The use or exhibition of a deadly weapon during an assault.
Under these circumstances, the EPO is mandatory but does not mean that it cannot be lifted with the help of an attorney. The procedure can be complex and overwhelming. An assault resulting in “Serious Bodily Injury” is likely to be charged as Aggravated Assault. James Luster and Cody Cofer are here to help.
How long does it last?
An EPO can last as few as 31 days and as many as 91 days. Depending on the circumstances of the case, the judge will determine how long the EPO should last. If a deadly weapon, such as a knife or a firearm, was used or even alleged by the victim to have been used, the order must be for no less than 61 days. The judge has discretion about the length of time.
What happens if I violate the EPO?
It is a Class A Misdemeanor to violate an emergency protective order with the possibility of up to a year in jail and up to a $4000 fine. If the accused allegedly violates the EPO and has been previously convicted twice for EPO violations, or has violated the protective order by committing another alleged assault or stalking, the violation is then a Third Degree Felony punishable by two to ten years in prison and up to a $10,000 fine.
DO NOT ALLOW A VIOLATION! Even if you feel completely safe and you think the order is silly, do not allow your loved one to violate it. It may be a hardship now to abide by the order, but it will be much more of a hardship if your loved one is found guilty of Assault Family Violence. Also, prosecutors, judges, and juries are not likely to listen to you later if they find out you have ignored the EPO and allowed the person accused to violate the order. It is no defense to a violation that the alleged victim consented or invited the accused.
Can it keep me away from my kids?
Yes. If an EPO is put in place it overrides any conflicting custody orders for the time period that the order is in effect. An example: an emergency protective order is issued and tells the accused (dad) that he cannot go within 200 yards of the alleged victim’s house (mom) and mom is the primary conservator for child custody purposes. The dad is supposed to have weekly visitation with his child according to the child custody order. The EPO does not prohibit dad from seeing his child, but it does forbid the accused from going to mom’s house to get the child. Our law firm can help ensure that you can see your child without being fearful that you will violate the EPO in place.
If you need help getting an EPO removed, please call Assault Family Violence Attorneys, James Luster and Cody Cofer.
How do I apply for an order in Tarrant County?
Sometimes protective orders are necessary. To get an order in Tarrant County, either the applicant or the abuser must live in Tarrant County. An applicant can contact the Protective Order office of the Tarrant County District Attorney at (817) 884-1623 between 7:45 a.m. and 5:30 p.m. (Monday through Friday).
The applicant must complete a questionnaire before the District Attorney will make a determination to file an application. After review, the applicant will be advised as to whether an application will be filed. A hard copy of the questionnaire may be obtained by calling the above number or emailing firstname.lastname@example.org.
What is the difference between an EPO and a regular protective order?
An EPO is a short-term protective order that is enforceable with criminal penalties under Article 17.292 of the Texas Code of Criminal Procedure. A regular protective order normally lasts two years rather than an EPO’s maximum of 91 days, and not all parts of a protective order are criminally enforceable. Sometimes you might hear people referring to a ‘restraining order’. Restraining orders are different and apply to civil rather than criminal matters. In most instances where people are talking about a ‘restraining order’ as it applies to a criminal case, they are really referring to a protective order or EPO.
Can it be extended?
No. In most circumstances, an Emergency Protective Order cannot be extended past the original length. However, the alleged victim or the accused can seek to have a long-term order put into place. This long-term order will normally last two years but can be for life. The question of extension is complex. You should not rely on this, or any, internet resource to answer this question. You need to speak with a lawyer. In the mean time, if there is an order that has been extended, continue to abide by the order. Failure to follow the restrictions can result in a new case, sometimes an even more serious case, being filed.