In the field of family law, there are many situations that warrant one of the parties to be protected against domestic violence for the other party. In many cases, when Barbosa Family Law files a divorce proceeding against a spouse of one of our clients, the need to explain to the client that an application for a protective order may be the way to go is critical to the safety and welfare of the person.
Under the Texas Family Code, each respondent to an application for a protective order is entitled to service of notice of an application for a protective order. Notice of an application for a protective order must be served in the same manner as a citation under th4e Texas Rules of Civil Procedure, except that service by publication is not authorized if a protective order is being sought of the party. The notice for an application for a protective order is given in the same manner as any other motion if it is part of a suit for divorce.
In some cases, a party requires immediate protection from the other spouse. In such cases, a temporary ex parte protective order may be necessary. A party must file an affidavit with the Court with information that the court must find sufficient in an application for an ex parte protective order that there is a clear and present danger of family violence, so that the court , without further notice to the individual alleged to have committed the family violence and without a hearing, may enter a temporary ex parte order for the protection of the applicant or any other member of the family or household of the applicant. In a temporary ex parte order, the court will direct a respondent to do or refrain from doing specific acts either violent acts or acts that may place the applicant in fear of their safety.
Clients are advised that a temporary ex parte order is valid for a period specified by the court; however, it can not exceed 20 days from the date the ex parte order is sign by the court. The Court can, on the request of an applicant or on the court’s own motion, extend the ex parte protective order for an additional 20-day period.
Does the respondent have to post a bond? Under section 83.003 of the Texas Family Code, the respondent on the court’s discretion may dispense with the necessity of a bond for the temporary ex parte order.
What if the allegations in the application are fabricated? In many cases, a party will come into the offices of Barbosa Family Law, P. C. and strongly deny the allegations in the ex parte protective order and will have relevant evidence and documentation to disprove the allegations. The court may “vacate” a protective order filed against an individual. The party affected by the protective order may file a motion to vacate the protective order at any time. On the filing for a motion to vacate a protective order, the court shall set a date for a hearing on the motion as soon as possible.
What is a person has another temporary order in effect? During the time the protective order is valid, a temporary ex parte protective order prevails over any other court order made under title 5 of the Texas Family Code to the extent of any conflict between the orders.
Can a person be excluded from his residence by a temporary ex parte protective order? The answer is “Yes”. Under section 83.996 of the Texas Family Code, a court can exclude a party form the person’s residence by a temporary ex parte order if the applicant files a sworn affidavit that provides a detailed description of the facts and circumstances requiring the exclusion of the person from the residence and appears in person to testify at the temporary ex parte hearing to justify the issuance of the order without notice. There may be other evidence that the court will want to hear before excluding a person from his residence. Always contact an attorney if you are either the person applying for a protective order or you are the person against whom the protective order is being sought against.