DIFFICULTY: Legal assistance is recommended
Initial Filing Fee: $0
A restraining order, or protective order as it is known in Texas, is a court issued legal order that states that one person must stop harming another person. These orders can place a variety of restrictions on the abusing party, such as requiring them to stay away from specific people or eliminating any contact between two or more people. In Texas, there are two types of restraining orders based upon different issues: family violence and stalking or sexual assault. Family violence, which includes dating violence as well, is issued when a person has threatened to or committed an act intended to harm or sexually assault a member of their family (including children) or someone that they were dating at the time. If you are in a dating relationship when this happens, a judge must determine if the relationship is considered intimate enough for this order to apply, based upon the length and nature of the relationship as well as the frequency with which the people in the relationship interacted. The second type of order, for sexual abuse or stalking, is designed to protect someone who has been sexually assaulted, stalked, or forced into prostitution. No relationship to the perpetrator is necessary for this type of order. Sexual assault is defined as follows:
• The victim was compelled to participate in sexual activity due to violence or threats of violence
• The victim was unconscious or physically unable to resist
• The victim was mentally incapable of consent or resisting
• The victim did not consent and the perpetrator was aware of that
• The victim was given a substance by the abuser without their consent to make them unable to resist or understand the situation
• The perpetrator was a public health official or clergyman and the victim was one of their patients or parishioners who was coerced into the act
A restraining or protective order in Texas should be filed in the county where either the victim or the perpetrator lives and is capable, in certain circumstances, of expelling the perpetrator from a shared home. You can also request that your protective order keep your address and personal information private to keep this information from the perpetrator by checking a box on the form and / or discussing the issue with a clerk when filing the form.
Step 1: Choose the Type of Order Your Require
There are three types of protective orders available in Texas: Temporary Ex Parte Protective Order (an immediate order lasting up to 20 days that does not require a court appearance), Permanent Protective Order (an order that lasts up to two years, although it can last longer under specific circumstances), and a Magistrate’s Order for Emergency Protection (lasts for one to two months and is issued when the perpetrator has been arrested for assault or sexual abuse). The first and last of these are good for immediate results, but the Permanent Protective Order is what you will want for long-term protection.
Step 2: Receive and Fill out the Forms
You need to fill out a form, after choosing which one is best for your situation, and bring it with you to your local courthouse in order to file it. You will need to fill out an Application for Protective Order form as well as the specific form for the type of protection you are seeking. These forms are available online (see below) as well as at your local courthouse.
Step 3: Go to the County Clerk
After you have filled out the relevant forms, you need to bring them (with 2 copies of the original) to your County Clerk. The clerk will then forward your application to a judge who will determine what steps to take next – from issuing a Temporary Ex Parte Protective Order to setting a court date to obtain a Permanent Protective Order.
Step 4: Service of Process
Once the clerk has received your paperwork they will serve the accused with a Notice of an Application for a Protective Order. You will not need to be involved in this process, as it will be handled for you. This notice informs the accused of the charges / orders leveled against them so that they can prepare a defense and hire a lawyer if they wish.
Step 5: Attend the Hearing for a Permanent Protective Order
It is very important that you attend the hearing, because if you do not then the case will be thrown out and a Permanent Protective Order will not be issued. At the hearing, the judge will determine if there is at least a 50% chance that the accused is related to, was intimately involved with, or otherwise threatened or harmed the filing party, committed violence against that party, and is likely to commit it again. If the accused does not show up, you can still receive a protective order, though the judge can choose to reschedule the hearing as well. You are allowed to bring any person you wish to support you at this hearing, including a friend, family member, or lawyer. Remember, a Permanent Protective Order has a time limit of around two years, so you will need to make sure you renew it when it is set to expire or you risk beginning the whole process anew.
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