February 11, 2014 by David Nachtigall
There are two basic types of protective orders issued in Texas. The first is a magistrate’s order of emergency protection, commonly referred to as a “MOEP”. This is an order that is issued by a criminal court upon a person’s arrest for a family violence or stalking offense. The order contains a number of conditions including not communicating with the complainant (the alleged victim) in a threatening or harassing manner, not going within certain distances of the complainant’s residence or place of employment, and not possessing firearms. A MOEP expires on the 61st day after its issuance unless there is an allegation that a deadly weapon was used in the commission of an offense, in which case the MOEP expires on the 91st day.
Before or any time after a MOEP expires, a complainant can make an application for a protective order in family civil court. In Harris County, the 280th District Court has exclusive jurisdiction over these types of protective orders, meaning that this is the only court in Harris County that hears these cases. Protective orders issued by this court may stay in effect for up to two years and contain provisions similar to those found in a MOEP. Under the Family Code, an applicant for a protective order must prove by a preponderance of the evidence (more likely than not) that (1) family violence has occurred and (2) is likely to occur in the future. The judge holds a hearing and hears testimony from witnesses in order to make this determination.
I recently represented an individual in the 280th District Court who is under indictment for a felony family violence assault. The judge heard testimony from the applicant’s witness. After cross examination, the applicant dismissed their application for protective order. It was a well-deserved victory for my client, and a demonstration of justice – simply because someone has been accused of a family violence crime, a protective order will not be issued as a matter of course.