What is the difference between an EPO and a regular protective order?
An EPO is a short-term protective order that is enforceable with criminal penalties under Article 17.292 of the Texas Code of Criminal Procedure. A regular protective order normally lasts two years rather than an EPO’s maximum of 91 days, and not all parts of a protective order are criminally enforceable. Sometimes you might hear people referring to a ‘restraining order’. Restraining orders are different and apply to civil rather than criminal matters. In most instances where people are talking about a ‘restraining order’ as it applies to a criminal case, they are really referring to a protective order or EPO.
Can an EPO be extended?
No. An Emergency Protective Order cannot be extended past the original length. However, the alleged victim or the accused can seek to have a long-term protective order put into place. This long-term protective order will normally last two years.
What information is needed for an EPO?
The magistrate can rely solely upon the information that is in the motion for the Emergency Protective Order. There are three main parts to an EPO motion:
- Alleged Victim Information: all people to be protected in the order must be listed along with their dates of birth, race, and gender information.
- Suspect Information: the name, date of birth, race and gender of the accused must be listed. Additionally, information such as height, weight and any other noticeable physical characteristics of the accused must be noted.
- Protected Address: each location that the alleged victim needs to be protected must be listed with a full address.
In some circumstances, the protected address is listed as confidential if the alleged victim is considering relocating and does not want the accused to know the new address. This can create a due process issue if the court is ordering the accused to stay away from an address, but will not tell them where that address is. Such a situation should be discussed with a skilled EPO lawyer.
After an arrest is made on a family violence case, the police officer submits paperwork to the magistrate triggering the issuance of an EPO. In addition to the EPO motion, an officer will submit the accused’s criminal history, a probable cause affidavit and a victim statement from the alleged victim. The magistrate will review that information in deciding to grant or deny an emergency protective order.
Can someone get an EPO if there was not an arrest?
If the accused is not present at the scene when officers arrive, a warrant for arrest can still be issued and EPO can still be obtained. If a warrant is issued for the accused’s arrest and an EPO is requested, the EPO will be reviewed and can be issued once the accused is placed under arrest. The EPO does not start and is not issued before the accused is arrested. If an order is to be issued, it must be done at the time the accused appears before the magistrate once arrested. In addition to granting the EPO, the magistrate may suspend the accused’s license to carry a handgun issued under section 411.117 of the Texas Government Code.
When will a judge issue an EPO?
It will depend on many factors whether an EPO is granted by the magistrate. The magistrate looks to see if the victim or law enforcement requested an EPO. If one was not requested, the magistrate will look at whether the accused has been charged with a crime alleging Family Violence like:
- An act or threat of violence by one member of the family or household against another member of the family or household.
- Abuse of a child of the family or household by another member of the family or household.
- An act of dating violence if the victim and defendant have a dating relationship.
If a magistrate is considering issuing an emergency protective order on his own motion, he will also consider these additional factors:
- History of violence between the parties
- Recent break-up
- Is the alleged victim pregnant?
- Access to weapons
- Drugs/alcohol involved
- Is the accused suicidal?
- Escalation of violence
- Access to the victim
An EPO will be granted by the magistrate when it is mandatory. Article 17.292 of the Code of Criminal Procedure requires the magistrate to issue an EPO when serious bodily injury or use or display of a deadly weapon is alleged. These allegations do not have to be proven rather just alleged to require a magistrate by law to grant an EPO.
What happens when the accused appears before a magistrate?
The magistrate must explain the contents and meaning of the emergency protective order to the accused. The order must contain the following statements:
A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4000 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR 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.
A copy of the order containing that language must be served upon the accused at magistrate.
Can the EPO affect bond or jail release?
Yes. There are four ways an accused can bond out of jail after an arrest: personal bond without an attorney (very rarely granted in Tarrant County), personal bond with an attorney, using a bondsman to post bond, or paying the full bond amount to the court. These options should be discussed with an experienced Fort Worth assault lawyer who can help you choose which is right for your situation.
Personal bonds (PR bonds) without an attorney are rarely granted in Tarrant County when there is an allegation of family violence. Texas Code of Criminal Procedure has a list of requirements that must be met before a PR bond without an attorney can be considered and courts can be hesitant to grant them when family violence is alleged.
If a PR bond is not granted, the accused has the option of using a bondsman to make a portion of the bail. This practice is governed by Texas Code of Criminal Procedure 17.15 which details factors a magistrate should consider when setting a bond. If a family violence allegation exists, the court is to consider the “future safety of the victim of the alleged offense and the community”.