En Español
National Domestic Violence Hotline: 1-800-799-SAFE (7233) or (TTY) 1-800-787-3224

Legal Statutes: Texas

UPDATED July 20, 2016

Back to Texas overview

Chapter 17. Bail

back to topArt. 17.292. Magistrate's Order for Emergency Protection

(a) At a defendant's appearance before a magistrate after arrest for an offense involving family violence or an offense under Section 22.011, 22.021, or 42.072, Penal Code, the magistrate may issue an order for emergency protection on the magistrate's own motion or on the request of:
(1) the victim of the offense;
(2) the guardian of the victim;
(3) a peace officer; or
(4) the attorney representing the state.
(b) At a defendant's appearance before a magistrate after arrest for an offense involving family violence, the magistrate shall issue an order for emergency protection if the arrest is for an offense that also involves:
(1) serious bodily injury to the victim; or
(2) the use or exhibition of a deadly weapon during the commission of an assault.
(c) The magistrate in the order for emergency protection may prohibit the arrested party from:
(1) committing:
(A) family violence or an assault on the person protected under the order; or
(B) an act in furtherance of an offense under Section 42.072, Penal Code;
(2) communicating:
(A) directly with a member of the family or household or with the person protected under the order in a threatening or harassing manner; or
(B) a threat through any person to a member of the family or household or to the person protected under the order;
(3) going to or near:
(A) the residence, place of employment, or business of a member of the family or household or of the person protected under the order; or
(B) the residence, child care facility, or school where a child protected under the order resides or attends; or
(4) possessing a firearm, unless the person is a peace officer, as defined by Section 1.07, Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision.
(c-1) In addition to the conditions described by Subsection (c), the magistrate in the order for emergency protection may impose a condition described by Article 17.49(b) in the manner provided by that article, including ordering a defendant's participation in a global positioning monitoring system or allowing participation in the system by an alleged victim or other person protected under the order.
(d) The victim of the offense need not be present in court when the order for emergency protection is issued.
(e) In the order for emergency protection the magistrate shall specifically describe the prohibited locations and the minimum distances, if any, that the party must maintain, unless the magistrate determines for the safety of the person or persons protected by the order that specific descriptions of the locations should be omitted.
(f) To the extent that a condition imposed by an order for emergency protection issued under this article conflicts with an existing court order granting possession of or access to a child, the condition imposed under this article prevails for the duration of the order for emergency protection.
(f-1) To the extent that a condition imposed by an order issued under this article conflicts with a condition imposed by an order subsequently issued under Chapter 85, Subtitle B, Title 4, Family Code,1 or under Title 12 or Title 5,3 Family Code, the condition imposed by the order issued under the Family Code prevails.
(f-2) To the extent that a condition imposed by an order issued under this article conflicts with a condition imposed by an order subsequently issued under Chapter 83, Subtitle B, Title 4, Family Code,4 the condition imposed by the order issued under this article prevails unless the court issuing the order under Chapter 83, Family Code:
(1) is informed of the existence of the order issued under this article; and
(2) makes a finding in the order issued under Chapter 83, Family Code, that the court is superseding the order issued under this article.
(g) An order for emergency protection issued under this article must contain the following statements printed in bold-face type or in capital letters:
“A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT RESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS. THE POSSESSION OF A FIREARM BY A PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO THIS ORDER MAY BE PROSECUTED AS A SEPARATE OFFENSE PUNISHABLE BY CONFINEMENT OR IMPRISONMENT.
“NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER.”
(h) The magistrate issuing an order for emergency protection under this article shall send a copy of the order to the chief of police in the municipality where the member of the family or household or individual protected by the order resides, if the person resides in a municipality, or to the sheriff of the county where the person resides, if the person does not reside in a municipality. If the victim of the offense is not present when the order is issued, the magistrate issuing the order shall order an appropriate peace officer to make a good faith effort to notify, within 24 hours, the victim that the order has been issued by calling the victim's residence and place of employment. The clerk of the court shall send a copy of the order to the victim.
(i) If an order for emergency protection issued under this article prohibits a person from going to or near a child care facility or school, the magistrate shall send a copy of the order to the child care facility or school.
(j) An order for emergency protection issued under this article is effective on issuance, and the defendant shall be served a copy of the order in open court. An order for emergency protection issued under Subsection (a) or (b)(1) of this article remains in effect up to the 61st day but not less than 31 days after the date of issuance. An order for emergency protection issued under Subsection (b)(2) of this article remains in effect up to the 91st day but not less than 61 days after the date of issuance. After notice to each affected party and a hearing, the issuing court may modify all or part of an order issued under this article if the court finds that:
(1) the order as originally issued is unworkable;
(2) the modification will not place the victim of the offense at greater risk than did the original order; and
(3) the modification will not in any way endanger a person protected under the order.
(k) To ensure that an officer responding to a call is aware of the existence and terms of an order for emergency protection issued under this article, each municipal police department and sheriff shall establish a procedure within the department or office to provide adequate information or access to information for peace officers of the names of persons protected by an order for emergency protection issued under this article and of persons to whom the order is directed. The police department or sheriff may enter an order for emergency protection issued under this article in the department's or office's record of outstanding warrants as notice that the order has been issued and is in effect.
(l) In the order for emergency protection, the magistrate shall suspend a license to carry a concealed handgun issued under Subchapter H, Chapter 4115, Government Code, that is held by the defendant.
(m) In this article:
(1) “Family,” “family violence,” and “household” have the meanings assigned by Chapter 71, Family Code.6
(2) “Firearm” has the meaning assigned by Chapter 46, Penal Code.7
(n) On motion, notice, and hearing, or on agreement of the parties, an order for emergency protection issued under this article may be transferred to the court assuming jurisdiction over the criminal act giving rise to the issuance of the emergency order for protection. On transfer, the criminal court may modify all or part of an order issued under this subsection in the same manner and under the same standards as the issuing court under Subsection (j).

Added by Acts 1995, 74th Leg., ch. 658, § 1, eff. June 14, 1995. Amended by Acts 1997, 75th Leg., ch. 1, § 4, eff. Jan. 28, 1997; Acts 1997, 75th Leg., ch. 610, § 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 514, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1412, § 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 23, § 4, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 424, § 1, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 361, § 1, eff. June 17, 2005; Acts 2007, 80th Leg., ch. 66, § 1, eff. May 11, 2007; Acts 2009, 81st Leg., ch. 1146, § 11.20, eff. Sept. 1, 2009; Acts 2009, 81st Leg., ch. 1276, § 1, eff. Sept. 1, 2009.