Author: Shelby Benavidez

Contributing Attorney: Gabrielle Becker

What is a Protective Order? 

A protective order, sometimes called an order of protection, is a legal injunction issued by a court to protect individuals from harm or threats of harm.These are typically issued in either domestic situations involving family members or romantic partners, or cases where an individual has been threatened or harmed by another person. In the United States, protective orders are enforceable under civil and criminal law. 

Gabrielle Becker, attorney at Daniel Stark, says, “Protective orders are designed to protect individuals from threats, harassment, or violence, often in cases involving family violence, stalking, sexual assault, or human trafficking. These protective orders carry criminal penalties, if violated.” 

A protective order can prevent the person that had the order issued against them from being allowed to contact the person who filed the order of protection, enter their home or place of employment, or even possess a firearm, depending on the severity and type of order. If these orders are violated, the accused can be arrested and sentenced to jail. 

What are the Different Types of Protective Orders? 

Protective orders can vary in scope and duration, depending on the jurisdiction and the specific circumstances of the case. In Texas, there are four main types of protective orders that are commonly used. 

Temporary Ex Parte Protective Orders can be issued without the respondent being present, this order offers immediate but short-term protection. It is usually granted if the court believes there is a clear and present danger of family violence and can last up to 20 days, unless granted an extension. 

Final Protective Orders are issued after a full court hearing where both parties have the opportunity to present evidence, and the accused is found guilty. These orders can last up to two years, though they can be extended under certain conditions. A judge may grant an extended protective order if the abuser committed a felony involving family violence or if there is a history of repeated abuse.  

Magistrate’s Order for Emergency Protection (MOEP) is often issued automatically when an offender is arrested for family violence, sexual assault, or stalking. These emergency protective orders can last anywhere between 31 and 91 days, depending on the severity of the incident.  

Protective Orders for Victims of Sexual Assault or Stalking are civil orders issued to protect victims of sexual abuse, stalking, or trafficking, even if there is no relationship between the victim and the accused.  

The requirements and procedures for obtaining each of these vary, but all are intended to provide safety and peace of mind for the petitioner. Becker explains, “While protective orders in Texas are not generally permanent, a court may issue a protective order indefinitely, if the abuser committed, sexual assault, stalking, human trafficking, or other severe crimes.” 

What Breaks a Protective Order? 

Violating a protective order is a serious legal offense. A breach can occur in several ways, such as contacting the protected person directly or indirectly through phone calls, texts, emails, or through a third party. Coming within a specified distance of the protected person’s home, workplace, or school, possessing firearms, or engaging in further acts of violence, harassment, or stalking can also be a violation against a standing protective order. 

In Texas, violating a protective order can result in criminal charges, including misdemeanor or felony charges depending on the nature and history of the violations. Repeated violations may result in enhanced penalties, including jail time and hefty fines. 

“Protective orders are generally effective tools in reducing future violence and providing safety for victims. However, effectiveness can vary based on several factors, such as the seriousness of the abuser’s criminal history and the enforcement of the order,” Becker says. “In short, they are most effective when combined with strong enforcement, community support, and a comprehensive safety plan.” 

How Do Protective Orders Differ from Restraining Orders? 

While many people use protective and restraining orders interchangeably, they actually serve different legal purposes. A protective order is designed specifically to prevent violence, harassment, or abuse, and carries criminal penalties for violations. A restraining order, on the other hand, is typically issued in civil cases such as divorce or property disputes and is used to preserve the status quo between parties.  

For example, a restraining order may prevent an ex-husband from selling marital assets or a parent from moving their child out of their current jurisdiction. While violations can lead to contempt of court and civil penalties, they don’t typically carry the immediate criminal consequences that protective orders do.  

To put it simply:  

Protective Order = Protection from harm; criminal penalties  

Restraining Order = Control of behavior in civil matters; civil penalties 

Additionally, protective orders are more likely to be entered into law enforcement databases, making them enforceable across jurisdictions, including interstate under the federal Violence Against Women Act (VAWA). 

Filing a Protective Order vs. Restraining Order 

The process for filing either type of order varies depending on the purpose and the jurisdiction. In Texas, for example, filing a protective order can be initiated by the victim or on behalf of a victim by a parent, guardian, or prosecutor. This process generally requires submitting a sworn affidavit outlining the abuse or threats and may require a temporary ex parte hearing followed by a full hearing with both parties present.  

“You do not need an attorney to file a protective order in Texas. You can file for a protective order on your own by going to your local district attorney’s office, county attorney’s office, or legal aid organization. You can also file directly with the court by completing the necessary forms that are often available online or at the courthouse,” Becker says. “However, it’s important to note that although the court can provide guidance on the process, they cannot give legal advice. Therefore, having an attorney can be very beneficial.” 

Filing a restraining order is slightly different because these orders can be filed as part of an ongoing civil lawsuit (e.g., divorce, child custody). They can be requested through a motion in the appropriate court and are generally resolved within the framework of that ongoing case, rather than being independently filed.  

The most notable difference is that protective orders can stand alone as urgent legal tools, whereas restraining orders are procedural tools in larger civil disputes. 

Can a Restraining Order Stop Someone from Talking to You Online? 

Restraining orders can contain language that prohibits a party from contacting another individual by any means, including electronic communication. However, restraining orders are often not enforced with the same immediacy or severity as protective orders. If someone violates a restraining order by contacting you through social media, email, or other digital platforms, the burden is usually on the affected party to bring this to the court’s attention.  

In contrast, a protective order often includes explicit terms forbidding all forms of communication, and violations are more likely to be met with immediate law enforcement action. For digital abuse, such as cyberstalking or online harassment, a protective order offers stronger and more immediate recourse.  

Both types of orders can be customized to include specific no-contact provisions. In cases where online harassment poses a credible threat, courts are increasingly willing to issue protective orders that encompass digital behavior. 

Your Rights and the Law in Texas 

In Texas, both protective and restraining orders are governed by a mix of family law, civil procedure, and criminal law statutes. If you believe you are at risk or are seeking protection, understanding your rights is critical. 

Key Texas Laws and Provisions 

Texas Family Code, Chapter 85 governs the issuance of protective orders. It lays out the legal standard, including that “clear and present danger” needs to be proven for ex parte orders and that there’s a “likelihood of family violence” for final protective orders. 

Texas Penal Code §25.07 criminalizes the violation of protective orders. It establishes that knowingly violating the terms can result in arrest, jail time, usually up to 1 year for a first offense, and fines.  

Federal Law Enforcement protects victims of abuse under the Full Faith and Credit Clause and federal statutes such as 18 U.S.C. § 2265, stating protective orders issued in Texas are enforceable nationwide. 

If you are considering applying for a protective order, local legal aid offices, domestic violence advocacy organizations, and family law attorneys are valuable resources.  

Becker says, “if you can’t afford an attorney, there are resources available such as domestic violence shelters and lone star legal aid.” Organizations such as the Texas Advocacy Project and the Texas Council on Family Violence can also provide guidance, legal forms, and connections to shelter and legal aid. 

Courts in Texas often provide expedited hearings for protective orders, especially when abuse or stalking is involved. Law enforcement officers are also trained to assist with filing and can sometimes provide emergency protection directly after an arrest is made. 

Rights of the Accused 

It’s important to recognize that individuals subject to protective or restraining orders also have rights. In Texas, the person accused is entitled to receive notice of the hearing and have the opportunity to present a defense. Protective orders that are issued without due process (e.g., ex parte) are temporary and require a prompt hearing for the order to become final.  

If you believe you have been falsely accused, it’s important to respond to the notice in a timely manner, attend court hearings, and present your defensive evidence. Violating a protective order, even if you feel it’s unjust, can lead to criminal charges and should never be ignored.  

Understanding the distinction between protective and restraining orders is vital for safeguarding your rights and personal safety. Protective orders are powerful legal tools intended to prevent immediate harm, while restraining orders function within broader civil legal conflicts. Each has unique legal procedures and implications, especially in states like Texas, where the law offers both flexibility and robust enforcement mechanisms to ensure the protection of vulnerable individuals. Whether seeking safety or defending your rights, legal counsel can provide guidance tailored to your situation.