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Protective Order

Jan 26
Love10
EPO Drop Protective Order Texas

Lifting an Emergency Protective Order Issued After a Domestic Violence Arrest

By Domestic Violence

How To Lift an Emergency Protective Order (EPO) Associated with a Texas Domestic Violence Case?

EPO Drop Protective Order Texas

If you were arrested for Assault (Family Violence), chances are that you also received an Emergency Protective Order prohibiting you from going within 500 yards (or similar distance) from the “victim’s” home or workplace, along with other conditions for a period of 31, 61, or 91 days depending on the nature of the alleged assault. Protective Orders can cause big problems, especially when the two parties live together in the same house and share childcare and other family responsibilities.

Can I Lift The Emergency Protective Order So That I Can Go Home?

Yes, you can (in most cases). We are asked this question on a daily basis. A spouse that was arrested for Domestic Violence has been forced to leave the family home because of the EPO. EPOs, however, do not relieve people of their daily responsibilities to take care of children, go to work, or provide for their families. An EPO can certainly throw a wrench into a family dynamic.

We help families modify protective orders to allow a defendant to return home. We do not typically request that the entire EPO be lifted completely, only amended.

Amending an EPO is Not the Same Thing as Lifting an EPO.

So what’s the big difference in lifting an EPO versus amending an EPO. Most judges will not agree to completely lift an EPO, because, as they see it, there was likely a good reason for the imposition of the EPO in the first place. Additionally, in almost every scenario, the District Attorney’s office will oppose lifting the EPO. However, many judges will agree to amend or modify an EPO and change some of the conditions. Usually, if the victim requests it, a judge will amend the protective order to allow the defendant to return home or resume contact with the complainant and the family. However, the remaining conditions, usually involving not committing family violence or threatening the victim, remain in place for the duration of the protective order.

Call BHW Today (817) 993-9249

What are the Steps to Amending a Protective Order in Fort Worth?

First, it is important to know that all jurisdictions handle protective orders differently. For instance, the Fort Worth Municipal Court handles protective orders differently from Tarrant County Criminal Court #5. Some courts prefer to hold a formal hearing and others do not. However, in all cases, we request the following:

  • An Affidavit from the Victim Requesting a Change of the Protective Order: This can be drafted and signed in our office, but the victim must be present and indicate that this is what he/she wants. In our experience, if the complaining witness does not want the EPO changed, then the judge is not going to change it.
  • A Motion to Modify the Protective Order: We draft and file the motion with the court having jurisdiction over the EPO. Texas law requires that we allege 3 things in our motion and that the judge find those 3 things to be true before he/she can modify the EPO:
    • (1) The current EPO is unworkable;
    • (2) Modification of the EPO will not place the victim in a greater risk of harm; and
    • (3) Modification of the EPO will not result in harm to any person protected under the order.
  • An Affidavit of Non-Prosecution: This is not a required document, but we allow victims to sign an ANP in our office if they request it. They may end up having to sign another ANP with the prosecutor, but we like to give them the opportunity.
  • Formal or Informal Hearing with the Presiding Judge: Some courts will require an actual hearing with witnesses before deciding whether to modify an EPO. Other courts simply prefer the verified documentation and an informal meeting with the state and the defense.
  • Filing the Amended Order with the Arresting Agency and Sheriff’s Office: If the judge agrees to amend the protective order, we send a copy of the signed order to the defendant, the complainant, the arresting police agency, and the local sheriff’s office. We also advise our clients to keep a copy of the order near the front door in case a nosy neighbor decides to call the police believing that the EPO is being violated.

I Have an Emergency Protective Order. How Do I Get Started in Amending the Order?

If you have an EPO that was issued against you in response to an allegation of Assault (Family Violence), give us a call today to see if we can assist you in getting the order amended so that you can return home to your family. Every case is different, so we want to speak with you and learn more about your situation. This article will not apply to every case, so call us today at (817) 993-9249. We offer Free Consultations in every case with no obligation.

Apr 25
Love7
Violation Protective Order Texas Wagner

What is “Threatening or Harassing” for a Protective Order Violation?

By Domestic Violence

Violation Protective Order Texas WagnerFamily violence stories permeate the news, as domestic violence-related cases continue to fill both Texas criminal and family court dockets alike. The Texas Council On Family Violence reports that one in three Texans will experience domestic violence in their lifetimes. (Texas Council On Family Violence, accessed 23 April 2018.) In 2016, the National Domestic Violence Hotline received over 17,000 outcries for help. A societal scourge that is found across all racial, socio-economic, financial, educational and religious stratifications, domestic violence continues to wreck families and ruin the lives of victims. What protections exist in Texas for victims? What behaviors rise to the level to trigger a protective order issued by the courts? What happens when a protective order is violated? In Wagner v. State, the Texas Court of Criminal Appeals recently considered whether numerous texts and emails can rise to the level of harassing behavior and violate a protective order.

Read the case here: Wagner v State (Tex. Crim. App 2018)

Domestic Violence Leads to a Protective Order for Victim

One month after separating from her abusive husband, LW was granted an Order of Protection from a district court. Based on the testimony presented, the district court found that not only had family violence occurred, it was likely to occur again in the foreseeable future. In her affidavit to the court, LW described an array of abusive behaviors including yelling and screaming, breaking objects around the house, destroying a car with a hammer, locking LW out of her own house, among other “strange and violent behavior.”

The Protective Order restricted her ex-spouse, Paul-Henri Wagner, from a laundry-list of communications and activities ranging from direct communication by phone to physical presence within 500 feet of LW’s residence. Specifically, Paul-Henri was prohibited from communication made to LW in a “threatening or harassing manner.” One week after the protective order was issued, Paul-Henri and LW sent text messages and email to each other, regarding financial and logistical obligations to their children. Eventually, LW told Paul-Henri to communicate via email only, asking him to “respect her wishes” by not sending her text messages. Shortly thereafter, Paul-Henri began sending emails professing his longing for reconciliation. LW told him to stop. Paul-Henri started sending text messages again—a dozen in fact. Soon the communication became a mix of texts and emails professing his undying love for LW. After a few days of the messages, LW told Paul-Henri to stop sending texts. Paul-Henri barraged LW with emails begging for reconciliation. Paul-Henri even went so far as to drag church members to contact LW for reconciliation.

Based on his incessant communications with LW, Paul-Henri was charged with a Class A misdemeanor Violation of a Protective Order for violating Texas Penal Code Section 25.07(a)(2), which provides (in relevant part:

(a) A person commits an offense if, in violation of a condition of bond set in a family violence case related to the safety of the victim, the person knowingly or intentionally:
(2) communicates:
(A) directly with a protected individual or a member of the family or household in a threatening or harassing manner;

Ultimately, a jury convicted Paul-Henri for violating the protective order, finding that he communicated with LW “in a harassing manner.”

Wagner Appeals the Violation of Protective Order Conviction | Void for Vagueness Argument

On direct appeal, Paul-Henri challenged the constitutionality of the Texas Penal Code, stating that §25.07(a)(2)(A) is overbroad and vague. The court of appeals rejected Paul-Henri’s argument, stating:

(1) that the term “harass” can be defined using a standard dictionary,
(2) that harassment is not protected speech under the First Amendment, and
(3) that the statute is not vague because Paul-Henri either knew or should have known that his repeated communications with LW would eventually pester her.

Paul-Henri then appealed to the Texas Court of Criminal Appeals, which granted his petition for discretionary review to determine the constitutionality of §25.07(a)(2)(A).

When do Communications Become “Harassing” Under the Law? | The Court of Criminal Appeals Weighs In

So when do multiple emails and texts become “harassment” in violation of a protective order language or the Penal Code (or do we even know)? The CCA held that the Penal Code was not unconstitutionally vague on this point and explained that:

“a person communicates in a harassing manner if the…method by which he communicates…would persistently disturb, bother continually, or pester another person…[Such behavior] necessarily requires multiple events of harassing communication…[and would be] troubling [to] someone with frequent…requests or interruptions.”

Here, Paul-Henri repeatedly contacted LW, even after she demanded that he stop. The court reasoned that the average person, with average intelligence, would conclude that his behavior was bothersome, and that he should have stopped. However, Paul-Henri did not stop his efforts to contact his victim. Furthermore, added the CCA, “the First Amendment does not prohibit a court from imposing reasonable restrictions on an abuser’s speech for the protection of his victim.” For those who have protective orders restricting communication, yes, multiple texts and emails may rise to the level of “harassing” behavior in Texas. Those who have been served protective orders need to understand the restrictions placed upon them in their orders and abide accordingly.

Family and intimate partner violence follows escalating patterns of behavior that are predictable and preventable. Understanding the facts about domestic violence is the first step in supporting victims in their safety planning and in holding abusers accountable for their actions.