A Domestic Violence Protective Order can occur when a citizen is arrested for a domestic violence assault. In Texas when a person is arrested for a domestic violence assault they are taken before a magistrate who has the power to issue an Emergency Protective Order which prohibits the defendant from committing any further family violence, stalking, and direct or indirect communication that is threatening. The domestic violence protective order can also prohibit a defendant from going near a victims residence or work place and possession of a firearm by the defendant.
An emergency protective order issued in family violence cases is also called a Magistrates Emergency Protective Order or MOEP. The magistrate can enter the order on her own or at the request of the victim, police, or prosecutor. The amount of time the emergency protective order is in effect is generally between 30 to 90 days. The defendant must be served with a copy of the Emergency Protective order by the magistrate. If the defendant isn’t served with a copy of the Emergency Protective order then he or she can not be prosecuted for violating the emergency protective order.
Most police officers are trained to talk to encourage a victim to request an emergency protective order but if the victim refuses the majority of police officers will request the magistrate to serve the defendant with an Emergency Protective Order. All police agencies in Dallas and Collin County routinely request magistrates to issue Emergency Protective Orders.
The wife or girlfriend of a defendant charged with a family violence offense will often contact the District Attorney’s office about removing the Emergency Protective. The prosecutor doesn’t have the power to remove the order and they often oppose the removal. An Emergency Protective Order can only be modified in a hearing in front of the magistrate. To make that happen the criminal defense attorney will file a motion to modify the emergency protective order. At the hearing the magistrate must find that the original order is unworkable, the modification will not place the victim in greater risk, and the modification will not endanger a person protected under the order.
If a person is arrested for a domestic violence charge they should immediately hire a criminal attorney who is experienced in defending domestic violence charges. The criminal attorney will carefully go over the conditions of the emergency protective order to avoid a violation of the Order. A violation of an Emergency Protective Order can result on a defendant’s bond being raised and new charges being filed. The criminal charge of Violating a Protective Order is a Class A misdemeanor.