Family Violence and Legal Relief: Texas Protective Orders Explained

Safety comes before strategy. If there has been family violence, Texas law provides a protective order that carries criminal penalties for violation — relief that goes well beyond what an ordinary divorce restraining order can do.

What You Have to Prove Now

For years a Texas court could grant a family violence protective order only on two findings: that family violence had occurred and that it was likely to occur again in the future. The second finding was the hard one — a survivor who had already gotten to safety could find the order denied precisely because she had gotten away.

Under Section 85.001(a) at the close of the hearing the court shall find whether family violence has occurred. Under § 85.001(b), if the court so finds, it shall render an order under § 85.022 against the person who committed the violence, and it may render an order under § 85.021 applying to both parties. Section 81.001 states the entitlement in the same terms.

Section 81.0015 supplies a presumption that family violence has occurred in defined circumstances involving a conviction or deferred adjudication for certain offenses against a child and termination of the respondent’s parental rights.

Protective Order vs. Divorce TRO

A divorce TRO restrains conduct involving property and communication, and it is enforced by contempt. A protective order rests on the judicial finding above, and the consequences are different in kind. Violating one is a criminal offense under Penal Code § 25.071. The order must carry the warnings prescribed by § 85.026, which state that a violation may be punished as contempt by up to $500 and six months in jail, that committing a prohibited act may bring a fine of up to $4,000 or a year in jail, and that conduct amounting to family violence may be prosecuted separately as a misdemeanor or felony. Under § 85.042, the clerk must send the order to local law enforcement by the next business day, with the information needed to enter it into the statewide law enforcement information system maintained by DPS.

Who Can Apply, and Where

An application may be filed by an adult member of the family or household, by a prosecuting attorney, or by the Department of Family and Protective Services, under § 82.002. “Family violence” is defined at § 71.004, and § 71.0021 extends the protections to dating relationships. Under § 81.002 the applicant may not be assessed a fee, cost, or charge for filing, serving, or entering a protective order.

If a divorce is already pending, § 85.062 lets you file either in the court where the divorce is pending or in a court in the county where you live, if you live outside that court’s jurisdiction. If the divorce is already final, § 85.063 governs, and § 85.064 allows transfer of an order in the interest of justice or for the safety or convenience of a party or witness. Critically, § 85.061 provides that a court may not dismiss a pending application or delay the hearing because a divorce or custody suit was filed after the application — filing for divorce cannot be used to stall your protective order.

Emergency Relief Before a Hearing

Under § 83.001, if the court finds from the application that there is a clear and present danger of family violence, it may enter a temporary ex parte order without further notice to the other party and without a hearing, directing the respondent to do or refrain from doing specified acts. Section 83.002 makes that order valid for the period stated, not to exceed 20 days, extendable for additional 20-day periods on request or the court’s own motion. No bond is required under § 83.003, and the respondent may move to vacate under § 83.004.

Excluding someone from the residence on an ex parte basis takes more. Section 83.006 requires findings from affidavit and testimony that the applicant lives there or lived there within the 30 days before filing, that the person to be excluded committed family violence against a household member within that same 30 days, and that there is a clear and present danger that person is likely to commit family violence against a household member.

On the criminal side, following an arrest a magistrate may issue an order for emergency protection under Article 17.292, Code of Criminal Procedure. Either order can bridge the gap until the hearing, which the court sets under Chapter 84.

What the Court Can Order

Title 4 splits the relief in two. Section 85.021 covers what may be ordered as to any party: prohibiting removal of a child from a named person’s possession or the court’s jurisdiction; prohibiting transfer or encumbrance of mutually owned or leased property outside the ordinary course of business; prohibiting removal of a pet, companion animal, or assistance animal; granting exclusive possession of a residence and directing the other party to vacate; providing for possession of and access to a child; requiring support payments; and awarding use and possession of specified community or jointly owned property.

Section 85.022 applies only to the person found to have committed family violence. Subsection (a) allows the court to order completion of a battering intervention and prevention program accredited under Article 42.141 of the Code of Criminal Procedure, or approved counseling where such a program is unavailable. Subsection (b) allows the court to prohibit that person from:

  • committing family violence;
  • communicating with a protected person in a threatening or harassing manner, conveying a threat through anyone else, or — on a finding of good cause — communicating in any manner except through counsel;
  • going to or near the protected person’s residence or workplace, or a protected child’s residence, school, or child-care facility;
  • conduct reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass, including following the person;
  • possessing a firearm, unless the person is a peace officer as defined by the statute;
  • harming, threatening, or interfering with the care, custody, or control of a pet, companion animal, or assistance animal; and
  • tracking or monitoring the protected person’s personal property or vehicle without consent — by tracking app or device, or by following them or having someone else do it. This was added in 2023 and is the provision that reaches modern stalking.

Subsection (c) requires the order to describe each prohibited location and the minimum distance to be maintained, and subsection (d) is mandatory: the court shall suspend a license to carry a handgun held by a person found to have committed family violence.

Two Provisions People Miss

Section 85.0225 lets a petitioner who is the primary user of a wireless number on the respondent’s account ask the court to order the carrier to separate that number — and the numbers used by children in the petitioner’s care — transferring billing responsibility and the right to use them to the petitioner, without disclosing the petitioner’s contact information to the respondent. Getting off a shared phone plan is often the single most practical safety step available.

Section 85.023 sets a limit worth understanding: a protective order does not affect title to real property. It can give you exclusive possession of the house; ownership is still decided in the divorce. Separately, § 85.0221 now requires courts to use the standardized protective order form created by the Office of Court Administration, though failure to use it does not invalidate the order.

How Long It Lasts

Section 85.025(a) makes an order effective for the period stated, not to exceed two years, or until the second anniversary of issuance if no period is stated. Subsection (a-1) permits a longer order where the court finds the respondent committed an act constituting a felony offense involving family violence (whether or not charged or convicted), caused serious bodily injury, or was the subject of two or more previous protective orders entered after findings of family violence. If the court orders more than two years, § 85.001(d) requires it to include that finding in the order.

Subsection (c) automatically extends an order where the respondent is confined or imprisoned when it would otherwise expire — to one year after release for a sentence over five years, or two years after release for five years or less — and subsection (d) requires DPS to update the statewide system accordingly. Under subsection (b) the respondent may move for review no earlier than the first anniversary of the order, and subsection (b-2) provides that compliance with the order does not by itself show there is no continuing need for it.

Family Violence Inside the Divorce

Section 6.405 requires the divorce petition to state whether a protective order or emergency protection order is in effect or pending as to a party or child, and to attach a copy. Section 6.504 lets the divorce court itself render a protective order on a party’s motion, and § 6.404 directs the court to inform a party of the right to apply for one whenever it believes that party may be a victim. If one is rendered in the divorce, § 85.004 requires it to be a separate document titled “PROTECTIVE ORDER.” Family violence also changes the divorce itself in three ways:

  • The waiting period. Under § 6.702(c), the 60-day wait does not apply where the respondent has been finally convicted of or received deferred adjudication for a family violence offense against the petitioner or a member of the petitioner’s household, or where the petitioner has an active protective order or an Article 17.292 emergency protection order against the respondent based on a family violence finding.
  • Maintenance eligibility. Under § 8.051(1), a conviction or deferred adjudication for a family violence offense committed during the marriage against the other spouse or that spouse’s child, within two years before the suit was filed or while it is pending, opens the door to spousal maintenance regardless of the length of the marriage.
  • Mediation. Under § 6.602(d), a party may object to a mediation referral on the basis of family violence, and if the case is still referred the court must order protective measures, including no face-to-face contact and separate rooms.

Agreed and Default Orders

Section 85.005 lets the parties agree in writing to a protective order under §§ 85.021 and 85.022, subject to court approval — though the court may not approve an agreement requiring the applicant to do or refrain from doing an act under § 85.022. An agreed order is enforceable civilly or criminally regardless of whether the court makes the findings required by § 85.001, but it is not enforceable as a contract. Under § 85.006, and notwithstanding Rule 107 of the Texas Rules of Civil Procedure, the court may render an order binding on a respondent who does not appear, provided the respondent was served with the application and notice and proof of service was filed with the court before the hearing.

Under § 85.002, if a respondent violated a protective order that has since expired, the court shall render a new order without the necessity of making the § 85.001(a) finding at all.

Keeping Your Address Out of the Order

You do not have to publish where you live. On request, § 85.007 lets the court exclude from the protective order your address, county of residence, and telephone number, and the address and telephone number of your workplace or of the school or child-care facility a protected child attends. The court then directs the clerk to strike that information from the public records and keep a confidential record for use only by the court and law enforcement. The Texas Attorney General separately administers an Address Confidentiality Program that provides survivors with a substitute address. Raise this before the first filing, not after.

Frequently Asked Questions

Do I have to prove my spouse will hurt me again?

No. House Bill 1432, effective September 1, 2023, removed that requirement. Section 85.001 now asks only whether family violence has occurred.

Do I have to file for divorce to get a protective order?

No. It can be filed as its own case, or applied for in a pending divorce under Section 85.062. Section 85.061 bars a court from dismissing or delaying a pending application because a divorce was filed afterward.

How long does a Texas protective order last?

Up to two years under Section 85.025(a), and longer where the court finds a felony family violence offense, serious bodily injury, or two or more prior protective orders. A temporary ex parte order lasts up to 20 days and can be extended.

Texas Statutes Referenced

Related Pages

Talk With a Texas Divorce Attorney

If you are in danger, call 911 first. When you are safe, we can move immediately on a protective order. Call 713-955-6182 or contact The De Leon Law Firm.