What types of protective orders are available?
In Texas, there are three types of orders of protection based on family violence:
- Temporary ex parte protective order;
- Final (permanent) protective order; and
- Magistrate’s order of emergency protection (what most people call an emergency protective order).
The first two orders are issued by the civil court upon your application. The abuser does not have to be arrested for you to get one of these orders. The third order is issued by the criminal court after the abuser is arrested. Each order is explained in more detail in the following questions.
What is a temporary ex parte order? How long does it last?
A temporary ex parte order is a court order designed to provide you and your family members with immediate protection from the abuser. You can get a temporary ex parte order without the abuser present in court. To get a temporary ex parte order, the judge has to believe that the abuser presents a clear and present danger of family violence to you or a family member. The judge will make this decision based upon the information you include in your application for a protective order.1
A temporary ex parte order lasts for the period of time stated in the order, usually up to 20 days. The temporary ex parte order can be extended for additional 20-day periods if you request it or if the judge decides to extend it, usually due to the fact that the respondent was not yet served.2
1 Tex. Fam. Code § 83.001
2 Tex. Fam. Code § 83.002
How long does a permanent (final) protective order last?
A permanent protective order is effective for the time period stated in the order, which generally may be up to a maximum of two years. If there is no time period written on the order, then it expires on the second anniversary of the date the order was issued.1 However, the judge may issue an order for longer than two years if:
- the abuser committed an act that would be considered a felony offense involving family violence against you or a member of your family or household even if the abuser was never charged with or convicted of the offense;
- the abuser caused serious bodily injury to you or a member of your family or household; or
- the same petitioner (you or your child) had two or more protective orders issued against the abuser in the past and in each of those prior cases, the judge found that the abuser committed family violence and was likely to commit family violence in the future.2
Regardless of how long your order lasts, after the order has been in effect for one year, the abuser can file a motion to ask that the order be discontinued. (If the order lasts more than two years, the abuser can file a second motion, one year after s/he files the first motion.) The judge will then hold a hearing to determine whether there is a “continuing need for the order.” If the judge believes there is no need to continue the order, the judge can end the order earlier than the original date set. However, the fact that the abuser did not violate the order does not by itself support a decision that the order is not needed anymore.3
Note: The order can actually expire after the original expiration date if the abuser is in jail or prison when the order is set to expire or if s/he was released from jail/prison within the one year before the order’s expiration date. In either case, the order will automatically be extended as follows:
- If the abuser was sentenced to more than five years of incarceration, the order will expire on the first anniversary of the date s/he is released from imprisonment.
- If the abuser was sentenced to five years or less of incarceration, the order will expire on the second anniversary of the date s/he is released from imprisonment.4
In either case, you can request a new order from the court showing the extended expiration date to make it easier to for the police to enforce the order in case the order is violated after the expiration date written on the original order.
1 Tex. Fam. Code § 85.025(a)
2 Tex. Fam. Code § 85.025(a-1)
3 Tex. Fam. Code § 85.025(b), (b-1), (b-2)
4 Tex. Fam. Code § 85.025(c)
What is a magistrate's order for emergency protection? How long does it last?
A magistrate’s order for emergency protection (what most people call an “emergency protective order”) is issued by the criminal court after the abuser is arrested for committing family violence, sexual assault, sexual abuse, indecent assault, stalking, or trafficking.1
You do not need to be present in the courtroom for this type of order to be issued.2 The magistrate can decide to issue this order upon your request (if you are present in court), or upon the request of your guardian, a police officer, the state attorney/prosecutor, or based on the magistrate’s own decision. However, if the crime involved family violence that resulted in serious physical injury or if the abuser used (or displayed) a deadly weapon while committing a family violence assault, the magistrate must issue this order even if no one specifically requests it.3
A magistrate’s order for emergency protection is usually good for between 31-61 days. However, if the abuser was arrested for a crime that involves family violence where the abuser used (or displayed) a deadly weapon when committing the assault, the order would be good for between 61 - 91 days.4
Note: The rest of the information in this Family Violence Protective Orders section refers to temporary and permanent protective orders that are issued when a victim goes to civil court to request one - not this magistrate’s order.
1 Texas C.C.P Art. 17.292(a)
2 Texas C.C.P Art. 17.292(d)
3 Texas C.C.P Art. 17.292(a), (b)
4 Texas C.C.P Art. 17.292(j)