Family Violence Emergency Protective Orders
If you have been arrested for an office involving family violence you will most likely have an emergency protective order issued against you when you make bail. It’s important to know what these rules are, and what they mean because violating an emergency protective order (EPO) will result in another arrest and a new criminal case being filed against you.What is family violence in Texas?
The most common cases involve a couple that is married or dating, but the statute is much broader and allows for a family violence charge for an assault case against a member of the family or household. This includes children and siblings. I have seen cases where two brothers got in a fight, and one was charged with family violence. Or cases where a parent is disciplining their child and find themselves charged with family violence and facing an EPO that prevents them from living with or even talking to their entire family. These defendants are usually shocked that they can effectively banished by an EPO from their entire family without so much as a hearing.What is a family violence emergency protective order?
Article 17.292 of the Texas Code of Criminal Procedure allows a magistrate to issue an EPO after a person has been arrested for family violence. The magistrate is the judge who arraigns a defendant after an arrest. At an arraignment, a defendant has explained the charges, and informed of their rights. This magistrate can also issue a protective order without any notice to the defendant or even having a hearing. So you have no chance to defend yourself at this point. The magistrate doesn’t have much information to go on at this point, usually just the probable cause affidavit. And the magistrate won’t know anything about the defendant’s family or background. If you are innocent it doesn’t matter, the magistrate can and will issue a protective order without any investigation and without any defense being presented.What are the conditions a magistrate can impose on a family violence EPO?
Typical conditions include-
- Do not commit an assault or sexual assault against the complaining witness (“victim”)
- Don’t commit any human trafficking offenses (don’t kidnap anyone)
- Don’t threaten or harass the victim
- Don’t communicate at all with the victim
- Don’t possess a firearm
- Don’t go to the victim’s residence
- Don’t harass or communicate with the victim’s family
- Take a mental health evaluation
One issue we have in family violence EPOs is that the defendant can’t communicate with the victim’s family, which is also the defendant’s family. So imagine if you were all of a sudden banned from talking to your children, parents, spouse and even distant cousins for months. How could you comply with that?How long does an EPO last?
It depends on if a deadly weapon was involved. If the arrest is for family violence and a deadly weapon was used or even just displayed, then the EPO must last at least 61 days, and no more than 91 days. If there is no allegation of a deadly weapon then the EPO must be at least 21 days, but not more than 61 days.Can you challenge or modify an EPO?
Yes, but in order to modify an EPO a judge must find that
- The original order not workable, and
- The modification will not increase the risk to the victim, and
- The modification will not in any way endanger the person protected by the EPO.
Deciding to have a hearing on the EPO is something you should discuss with your defense lawyer. It is not without risk and if you can comply with the conditions you may decide to just wait it out.
If you are facing a family violence charge or emergency protective order call Guest and Gray today. We have a team of award-winning criminal defense lawyers ready to assist you.