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Many Texans mostly remained in their homes through much of March and all of April because of the coronavirus pandemic. They began to emerge again in May, as some of our elected officials began gradually lifting stay-at-home orders, restrictions on businesses, and measures intended to promote social distancing. The purpose behind all of these measures was to slow the spread of the virus, and to prevent hospitals from becoming overwhelmed with patients showing symptoms of COVID-19. Staying at home, public health experts tell us, is one of the best ways to avoid transmitting or contracting the virus. It is not safe for everyone though, including some people going through a divorce or experiencing other family conflict.
People with “essential” jobs have not been able to stay at home, and they have often faced the greatest risk of exposure. The flip side of that is the danger posed to some Texans by remaining in their homes. Domestic violence was a serious problem before the pandemic started, and stay-at-home orders only made it worse for some people. What options do those people have now that Texas courts have started to reopen?
Under Texas law, a protective order is an order from a court prohibiting one or more people from taking certain actions, and sometimes restricting a person’s movements. It is also known as a restraining order.
A court must find that family violence has occurred, and that it is likely to occur again, in order to grant a protective order. State law defines “family violence” as any act by a person towards a family member or a member of their household that:
If the court makes the required findings regarding past and likely future family violence, it must enter an order restraining the person found to have committed family violence. This order can prohibit the person, known as the “respondent,” from:
The court has discretion to order both parties to refrain from a wide range of activities, including:
Prior to conducting a hearing, a court can issue a temporary ex parte order if it finds “clear and present danger of family violence.” “Ex parte” means that the court can issue the order to the applicant without giving notice to the respondent. This order can restrain a respondent from various acts, such as prohibiting them from coming near the applicant’s home or place of work. A temporary ex parte order is valid for twenty days, although the applicant can move the court to extend it. Eventually, the court will have to hold a hearing, with the respondent present, to rule on the protective order.
An applicant for a protective order that excludes a respondent from the applicant’s residence, or their shared residence, can request that the court order local law enforcement to go with them to the residence for their protection. This is available for both temporary and permanent orders. A “permanent” protective order typically lasts about two years, but courts can order that they remain in effect for life.
Some protective order violations are considered criminal offenses under Texas law. A first or second offense is a Class A misdemeanor, which is punishable by a fine of up to $4,000 and a jail sentence of up to one year. A third or subsequent offense is a felony of the third degree, which carries a penalty of two to ten years’ imprisonment and a maximum fine of $10,000. If a respondent violates the same protective order twice in a twelve-month period, they may be prosecuted for a third-degree felony.
While an applicant can seek a protective order through a county or district attorney’s office, a private attorney is often able to file the application and follow through with the court’s on a timeline that best helps the applicant. Any adult member of the respondent’s family or household can seek a protective order by filing an application with the district clerk. They can request an order for their own protection, or to protect another household or family member.
The application must identify each applicant and respondent, and provide their county of residence. It must also describe the relationship(s) between the respondent and the applicant(s), and must state the protection being sought. An application for a protective order can be filed on its own for no fee, or it can be filed as part of a petition for divorce.
The applicant can request a temporary ex parte order when they file their application. As mentioned earlier, this order remains in effect for no more than twenty days unless extended by the court. In order to issue a permanent protective order, the court must hold a hearing with all parties present.
The Texas Supreme Court issued several emergency orders related to the coronavirus, starting in March 2020. It postponed all jury trials and directed courts to shut down many functions. The Seventeenth Emergency Order Regarding the COVID-19 State of Disaster, issued on May 26, renews some parts of earlier orders, and allows courts to extend deadlines in many cases as far as September 30. It directs courts to follow guidelines established by the Office of Court Administration regarding court proceedings that take place on order after June 1. Whenever possible, courts should conduct hearings remotely.
The family courts in Harris County issued amended policies and procedures on May 5, which expired on June 1. Since March, Harris County family courts have continued to hold in-person hearings for “essential matters,” subject to social distancing guidelines and other restrictions. The list of matters deemed “essential” has included protective orders involving family violence since the pandemic began. The courts have also adopted a standing ex parte temporary restraining order that applies in all divorces and suits affecting the parent-child relationship, and which covers much of what is found in typical ex parte temporary orders.
At this point, there is no reason that a court in Harris County would not be able to consider a motion for a protective order. The courts are still in the process of reopening, so some aspects of the process might be slower than normal. Protective orders have always received a high priority, though. Even if another spike in COVID-19 infections occurs and the state shuts down again, the courts will be able to hear emergency matters like this.
Stacey Valdez is a board-certified family attorney who practices throughout the greater Houston, Texas area. She represents people who are going through difficult ordeals like divorces and child custody disputes. At Stacey Valdez & Associates, you and your family are and always will be our top priority. We help our clients with compassion, support, and tireless advocacy. Your first meeting with us is free in most situations. Please contact us online, or give us a call today at (713) 294-7072 to set up a confidential consultation to discuss your case.