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  • Brian Foley

Montgomery County Criminal Defense Attorney - Protective Orders

Brian Foley is criminal defense attorney in Montgomery County, Texas that represents people accused of Terroristic Threat and Assault Family Member in Conroe, Houston, and the Woodlands along with the surrounding counties. Brian is a former chief prosecutor and has handled thousands of Terroristic Threat and assault charges. Now he represents individuals who have been charged with a crime and need their rights protected.

What is a Criminal Protective Order?

In cases of Assault, Terroristic threat, sexual assault and some other crimes a judge in Texas may order an Emergency Protective Order or EPO. In Montgomery County these orders are called EPOs. In Harris County these orders are called Magistrate's Order of Emergency Protection or MOEPs. They are an order from the Court that prohibits a person accused of an offense involving family violence from having contact with or living with the person listed as the victim in the criminal charge. Most protective orders are discretionary to the Judge. A misdemeanor protective order will typically last 61 days from the date it was issued. A protective for an assault involving serious bodily injury or the use of a deadly weapon will be mandatory and last up to 91 days from the date it was issued. ​

What does family violence mean?

Texas Code of Criminal Procedure 17.292 governs this type of protective order. The code says that any offense involving "family violence" will be eligible for a protective order.

Sec. 71.004. FAMILY VIOLENCE. "Family violence" means: (1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;

What if the victim doesn't want a protective order?

The victim of a crime is not in control of the prosecution of a criminal case. While a prosecutor working for the State of Texas will likely consult with and inquire about the desires of the victim of family violence there is no legally binding authority that forces them to dismiss a case or lift a protective order because the victim wants it to be lifted. A victim can fill out a non-prosecution affidavit to help formalize their expression that they do not want to see the case prosecuted but it will be merely a single factor in a prosecutor's analysis of what to do with the case.

Who can request a protective order?

The code of criminal procedure allows for the following individuals to request the issuance of an emergency protective order: ​

The Victim

The Guardian of the Victim

A Peace Officer

The Attorney for the State

This means that even if you don't request a protective order then one may be requested on your behalf by the District Attorney or the Police.

What can a protective order do?

The Judge ​​who signs off on an emergency protective order may enter an order that prohibits the person arrested from:

committing family violence, stalking, human trafficking or an assault on the person protected under the order;  or

communicating directly with a member of the family or household or with the person protected under the order in a threatening or harassing manner;

making a threat through any person to a member of the family or household or to the person protected under the order;  OR

If there is "good cause" the judge can prohibit ANY CONTACT WHATSOEVER with a person protected under the order or a member of the family or household of a person protected under the order, except through the party's attorney.

Going to or near the residence of the protected person.

Going to or near the business of the protected person.

Going to or near the residence or business of a family member of the protected person.

Going to or near the school or daycare of a child of the protected person.

Possessing a firearm (unless you are employed as a peace officer)

Most protective orders do not limit the parties from communicating at all because many relationship involve children and required communication for their care. Almost all protective orders prohibit threatening or harassing contact and include what is called a "Kick out" provision which kicks the person arrested out of their own house.

How do you get a protective order removed?

The Code of Criminal Procedure says that a Judge may, with notice to each party amend or modify all or part of an order issued for Emergency Protection. However these are very difficult to have granted because in order to grant an amendment the Judge must find that:

The order as originally issued is unworkable;

The Modification will not place the victim of the offense at a greater risk than did the original order; and

The Modification will not in any way endanger a person protected under the order.

Typically Judges will not allow the protective order to be removed while the case is pending. Even if the protective order expires after 61 days the judge may impose a condition of bond that mirrors the protective order and this does not expire until the case is resolved with a plea, dismissal, or trial.



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