What is a protective order?
A protective order is an order by a judge prohibiting a person from going to certain places or contacting certain people. It is commonly associated with family violence charges. A violation of protective order may be classified as either a Class A misdemeanor or — under certain circumstances — a third-degree felony.
What’s the difference between a protective order and a restraining order?
A protective order is very different from a restraining order. A restraining order is a civil order which is not criminally enforceable and may be issued for anyone or almost any action as part of a civil lawsuit. There is no criminal offense in the Texas Penal Code for violating a restraining order. A protective order, on the other hand, is a civil order which is criminally enforceable. A violation of a protective order requires a police response and imposes criminal penalties, including jail time, on someone who disobeys the judge’s order. The criminal offenses for violating a protective order can be found Chapter 25 in the Texas Penal Code.
How does someone violate a protective order?
A person can commit violation of a protective order in one of two ways: by violating their bond conditions or by violating the judge’s order.
Violating bond conditions: Conditions of bond are similar to protective orders in that they seek to protect a victim while a criminal case is waiting to go to trial. Let’s say a defendant is arrested following a criminal offense, such as family violence or stalking. The judge will outline conditions of the defendant’s release while awaiting trial if they post bail, which are called bond conditions. These will generally be the same or similar conditions that might be found in a protective order, such as not to go to the victim’s house, not to communicate with the victim, and not to commit another criminal offense against the victim. If the defendant does anything the judge tells him not to do, then he has not only violated the conditions of his bond, but he has committed another criminal offense.
Violating the protective order: In Texas, under section 25.07 of the Texas Penal Code, it is against the law to violate the terms of a protective order that was issued on the basis of family violence, child abuse or neglect, sexual assault or abuse, stalking or trafficking cases. The defendant violates the order, which the judge may have issued under the Code of Criminal Procedure or the Family Code, if he or she knowingly or intentionally commits family violence, communicates with the protected individual or their family members, goes to prohibited places, interferes with the alleged victim’s pets, or tampers with a GPS system, among other things.
It is common for the subject of the protective order to reconcile with the person who the order seeks to protect. However, it is important to point out that this reconciliation does not affect the validity of the protective order. While the order is in place, the defendant cannot violate the order by having contact or communications with the alleged victim. To invalidate the order, the parties must go back to court and request that the judge modify or terminate the order.
How long can a person go to jail for violation of a protective order?
Generally, a violation of a protective order is a Class A misdemeanor punishable by:
- A fine of up to $4,000;
- Confinement in jail for up to a year; or
- Both of the above.
However, the penalty for a Violation of Certain Court Orders or Conditions of Bond in a Family Violence, Sexual Assault or Abuse, Stalking, or Trafficking Case may be punished as a third degree felony under certain circumstances.
For the violation to be a felony, it must be shown on the trial of the offense that:
- The defendant has had at least two prior convictions for violations or repeated violation of a protective order; or
- The defendant has violated the order or a bond condition by committing an assault or the offense of stalking.
- A third degree felony is punishable by a prison sentence of anywhere between two and ten years and a fine of up to $10,000.
Penal Code Section 25.071.
VIOLATION OF PROTECTIVE ORDER PREVENTING OFFENSE CAUSED BY BIAS OR PREJUDICE.
(a) A person commits an offense if, in violation of an order issued under Article 6.08, Code of Criminal Procedure, the person knowingly or intentionally:
(1) commits an offense under Title 5 or Section 28.02, 28.03, or 28.08 and commits the offense because of bias or prejudice as described by Article 42.014, Code of Criminal Procedure;
(A) directly with a protected individual in a threatening or harassing manner;
(B) a threat through any person to a protected individual; or
(C) in any manner with the protected individual, if the order prohibits any communication with a protected individual; or
(3) goes to or near the residence or place of employment or business of a protected individual.
(b) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections.
(c) A peace officer investigating conduct that may constitute an offense under this section for a violation of an order may not arrest a person protected by that order for a violation of that order.
(d) An offense under this section is a Class A misdemeanor unless it is shown on the trial of the offense that the defendant has previously been convicted under this section two or more times or has violated the protective order by committing an assault, in which event the offense is a third degree felony.
Have you or a loved one been accused of violating a protective order? Contact us today for a complimentary strategy session. During this call we will:
- Discuss the facts of your case;
- Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
- Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.
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