Weighing the Options: Protective Orders Versus Temporary Restraining Orders for Domestic Violence

Domestic violence is a horrific crime that can be difficult to navigate legally because no two situations are the same. In Texas, a court order can provide a solution tailored to your needs. 

In this article, we will explore when it’s appropriate to seek a protective order instead of a temporary restraining order and how hiring an attorney can help. While it may not feel like you have options right now, we at Robinson & Henry are here to assure you that you do.

In this Article:

• What are protective orders and temporary restraining orders in domestic violence cases?
• When is a protective order preferable to a temporary restraining order?
• What does the court need to grant a protective order? 
• What are some common issues clients run into when pursuing a protective order?

What are protective orders and temporary restraining orders in domestic violence cases? 

Domestic violence, is defined in the Texas Family Code and is an act by someone who is or has been in a familial or dating relationship or marriage that results in or creates the fear that it could result in:

• Physical harm
• Bodily injury
• Assault
• Sexual assault

“Dating violence” which is included in domestic violence, means violence between individuals who have or have had a continuing romantic or intimate relationship. Texas Family Law considers:

• The length of the relationship;
• The nature of the relationship; and
• The frequency and type of interaction between the persons involved in the relationship 

What is a protective order?

A protective order is a court order issued to prevent continuing acts of family violence, human trafficking, or stalking. To obtain a protective order under Section 81.001 of the Texas Family Code, Texas law requires evidence that physical or sexual violence against a member of the family or household, or the threat of such violence occurred. 

In 2023, the Texas Legislature eliminated the requirement that family violence be likely to occur in the future, which may increase an applicant’s chances of obtaining a protective order. 

There are three types of protective orders domestic or dating violence survivors can pursue:

• Emergency Protective Order
• Temporary Ex Parte Protective Order
• Permanent (Final) Protective Orders

Emergency Protective Order

An Emergency Protective Order, also called a Magistrate’s Order of Emergency Protection, is the most common type of protective order in Texas. It is authorized under Texas Code of Criminal Procedure Article 17.292. The district attorney’s office handles this type of protective order, which involves the arrest of an alleged offender.

Emergency Protective Orders can be obtained without a hearing and are effective for 31 to 61 days. If the offender is arrested for assault with a deadly weapon, a judge may extend an emergency protective order up to 91 days from the date of issuance. 

An Emergency Protective Order prevents the arrested person from: 

• Further assault, family violence, trafficking, and stalking;
• Communicating with a protected person in a threatening or harassing manner;
• Threatening any protected person;
• Going to or near the residence, place of employment, or business of a protected person or family member;
• Going to or near the residence, child care facility, or school of a protected child;
• Possessing firearms

A judge would be compelled to issue an Emergency Protective Order if: 

• A person is arrested for a family violence offense involving serious bodily injury
• A person is arrested for a family violence offense involving the use or exhibition of a deadly weapon

Temporary Ex Parte Protective Order

Temporary Ex Parte Protective Orders are granted to protect someone or members of their household or family where there is a clear and present danger of family violence. 

The court may issue a temporary ex parte protective order without notifying the alleged abuser. 

A temporary ex parte protective order can last up to 20 days, with the option to extend it for additional 20-day periods at the applicant’s request or on the Court’s own motion. These Temporary Ex Parte Protective Orders will either terminate after the time period that they are granted for expires or be turned into Final Protective Orders after the Respondent is given notice and a hearing is held before the Court. 

If there is a threat of immediate danger of abuse or neglect to a child, a judge may also find a basis for granting a Temporary Ex Parte Protective Order. 

Similar to the Emergency Protective Order, any violation of a temporary ex parte protective order is a criminal offense. Furthermore, a violation can result in contempt of court, which can lead to jail time and a fine. 

Final Protective Orders

Final Protective Orders afford domestic violence survivors the highest degree of sustained legal protection. The Final Protective Order, which is granted after notice and a hearing established in the Temporary Ex Parte Protective Order, expires two years after the date it was issued unless: 

• The abuser committed an act constituting a felony offense involving family violence against the application or member of their family or household, regardless whether they were charged or convicted;
• The abuser caused serious bodily injury to the applicant or their family or household; or
• The same applicant has had two or more protective orders issued against the same abuser in the past and, in both cases, the judge found the abuser committed family violence. 

After the first year, a person subject to a Permanent Protective Order can petition the court to have the order discontinued, which would result in a hearing to determine whether there is a continuing need for the order. Mere compliance with the Protective Order is not sufficient to show that there is not a continuing need for the Protective Order.  

What is a temporary restraining order?

A temporary restraining order is an order from a civil court or family court that either prevents certain actions or immediate and irreparable harm. Temporary restraining orders tend to be broader in scope and may include restrictions on accessing money or assets. 

In Texas, there are two types of temporary restraining orders:

• Temporary Restraining Order (Civil)
• Temporary Restraining Order (Family)

Temporary Restraining Order (Civil)

A civil temporary restraining order can be obtained when a court finds cause for an immediate and irreparable injury, loss, or damage is probable. It’s often used in civil litigation involving businesses, neighbors, or any parties that are not related to protect individuals or businesses from financial loss, or irreparable harm. A bond is required to be paid for these orders to be issued. 

A temporary restraining order is not to exceed 14 days unless good cause is shown, or the person the order is against agrees to a longer period. 

Usually, a civil temporary restraining order cannot be granted unless the other party is provided sufficient notice. However, if a court is provided sufficient good cause for immediate and irreparable injury, loss, or damage, a temporary restraining order can be enacted before serving notice. The temporary restraining order may result in a permanent injunction, after notice and a hearing before the Court. 

Temporary Restraining Order (Family)

Family temporary restraining orders are filed to protect a spouse or child or preserve property in a divorce or custody case. These can be granted “ex parte,” meaning they can be filed without giving notice to the offender. They can also be issued without showing that immediate and irreparable injury, loss, or damage will occur before notice can be served and a hearing can be held. Ex parte temporary restraining orders are good for 14 days unless they’re extended or withdrawn. If extraordinary relief is requested, such as limiting a parent from possession of or access to their child, the application must be filed with an affidavit supporting the request for a temporary restraining order. 

There are many courts that have enacted “Standing Orders” for all divorces and suits affecting the parent-child relationship that have eliminated the need for a temporary restraining order, as all parties are ordered to refrain from actions that would cause injury, loss or damage to the parties and the children involved, in all of these cases regardless whether a party requests it. 

When is a protective order preferable to a temporary restraining order?

It used to be that under the Texas Family Code, someone seeking a protective order needed to prove the likelihood that not only did violence occur, but that it was likely to occur again in the future. However, in 2023, the Texas Legislature passed HB 1432, which removed this stipulation. Now someone seeking a protective order only needs to prove that violence occurred or presumably occurred in the past. 

A protective order is preferable to a temporary restraining order when someone is looking for relief from a domestic violence situation because a protective order is designed specifically to provide relief to survivors of domestic violence. An ex parte protective order is also required if a party wants a spouse or member of their household to be removed from the residence that they share without notice or a hearing. 

Unlike a temporary restraining order, violating a protective order is punishable by arrest. This is because a protective order carries certain provisions that are criminally enforceable by the court. For instance, if the offender is found to have violated the protective order, a judge can issue a warrant for their arrest. 

If the offender is found guilty of violating a term of the order, they could be: 

• Charged with a Class A misdemeanor
• Sentenced to jail for up to a year
• Ordered to pay a fine of up to $4,000 

A person who is convicted two or more times of violating a protective order could also be:

• Charged with a third-degree felony
• Sentenced to prison for up to 10 years
• Asked to pay a fine of up to $10,000

What does the court need to grant a protective order? 

To obtain a protective order, the applicant must apply with the court clerk who has jurisdictional authority over the parties and the subject matter. This could be a court in the county where the applicant lives or where an individual is alleged to have committed domestic violence against the applicant.

You must first file an application that includes the following information: 

• Your name and county of residence
• Other family/household members’ names and county of residence
• The alleged abuser(s)’s name(s) and county of residence
• The relationship between you and the alleged abuser(s)
• Facts to support that family violence has occurred
• A request for one or more protective orders
• Whether you are receiving services from the Title IV-D agency in connection with a child support case and, if known, the agency case number for each open case

If you are divorced from the person alleged to have committed family violence, the application must also contain either: 

• A copy of the decree dissolving the marriage 
• A statement that the divorce decree is unavailable and that you will provide the court a copy of it before the application hearing

If the application requests a protective order to protect a child, or alleges that family violence has been committed by a child who is subject to the jurisdiction of any continuing Suit Affecting the Parent-Child Relationship, also known as a SAPCR, of any court. A SAPCR is a legal request for a judge in family court to make orders about the custody, visitation, financial, and medical support of a child. The applicant must either: 

• Include a copy of the court orders affecting the child
• State in the application that the orders affecting the child are unavailable to the applicant and that a copy of the orders will be filed with the court before the hearing on the application

What type of proof do I need to get a protective order? 

A protective order requires “good cause,” or proof that the respondent has committed family violence. 

There are various ways to demonstrate domestic violence has occurred: 

• Testimony of the victim(s)
• The respondent’s testimony
• Affidavits or testimony of witnesses to the incidents
• Police reports
• Medical records
• Photographs of injuries
• Text messages or emails 

What are some common issues clients run into when pursuing a protective order?

The Second Amendment

A protective order in Texas can prohibit the alleged offender from possessing a firearm. This restriction has been challenged in various cases on the grounds of the Second Amendment, which protects the right of people to bear arms. 

For instance, in Kloecker v. Lingard, an ex-boyfriend fought a 25-year protective order with a firearm restriction issued by a trial court. The Texas Supreme Court affirmed the trial court’s judgment. It stated that not only had domestic violence occurred, but Kloecker, the ex-boyfriend, was unstable. The high court agreed that Kloecker’s actions toward the victim in this case would have resulted in felony charges. 

“…there  was reason  to  believe  Kloecker  engaged  in  stalking; and stalking  was  likely  to  occur  again  in  the  future.  Kloecker,  therefore,  cannot  be regarded  as  a  law-abiding,  responsible  citizen.”

As a result, the state’s supreme court found Kloecker’s loss of firearm privileges was not unconstitutional. 

Your safety is our top priority. If your abuser tries to fight a gun restriction, we will push back even harder to convince the court one is necessary.  

Pending Divorce and SAPCR Suits

The Texas Family Code does not currently contain a provision that resolves conflicts involving a protective order entered by the divorce court or a Suit Affecting the Parent-Child Relationship (SAPCR). This has led to the ever-expanding problem of parties being subject to conflicting orders issued by the protective order court and the court in which the divorce or SAPCR is pending. 

“This result provides for the possibility that conflicting orders will allow the parties, who often do not get along, to attempt to use the courts as a weapon to escalate the animosity, length of litigation, cost to the parties, and above all compound the detrimental effects of the proceedings to the children,” Justice Poissant of the Houston Fourteenth Court of Appeals stated in a concurring opinion in Phillips v. Phillips. 

Because the two suits may affect possession and access in different courts in different counties, when a protective order is in place and a Suit Affecting the Parent-Child Relationship, also called SAPCR, with conservatorship issues is pending in another court, questions may arise as to how the family violence finding in the protective order will affect the determination of the conservatorship issues. 

Retrieving Personal Property 

Another issue clients encounter when obtaining a protective order may involve retrieving personal property from a residence. This is especially applicable if the current occupant is denying entry. If this is the case, the person may apply to the justice court for an order authorizing the person to enter the residence accompanied by a peace officer to retrieve specific personal property items, including: 

• Medical records
• Medicine and medical supplies
• Clothing
• Child-care items
• Legal or financial documents
• Checks, bank, or credit cards in the applicant’s name
• Employment records
• Personal identification documents

Application for Confidentiality

In most counties, an application for a protective order is not confidential, unless you request the court to keep the discovery results sealed or otherwise protected. After all, many people seeking a protective order fear their abusers and their cronies. Fear of retaliation is one reason someone may request certain personal information, such as addresses and phone numbers, be kept private. 

This extra step is unnecessary in Harris County where a protective order request may not be released to a person other than the respondent until after the application has been served or a hearing date has been set – whichever comes first. 

In the Western District of Texas, a protective order can be issued to protect confidential, sensitive, or private information from public disclosure. Similarly, in the Southern District of Texas, a protective order can be applied to any document, information, or other tangible or intangible thing if it is designated as “Confidential Information” or “Highly Confidential Information.” 

While a protective order can be filed confidentially, the applicant should remain vigilant not to disclose private information inadvertently. 

We Can Help You Get a Protective Order 

We’re here to help you secure a protective order and reclaim your life. Call our office at 214-844-3775 to schedule a consultation today.