When it comes to seeking legal protection from abuse, harassment, or threats in Texas, you may have heard the terms “protective order” and “restraining order” used interchangeably.
While these two types of orders serve similar purposes, there are key differences between a restraining order and a protective order that are important to understand.
In this post, we’ll break down the protective order vs. restraining order distinction and explain how each one works to keep you safe under Texas law.
Whether you are a victim of family violence, stalking, sexual assault, or harassment, understanding your legal options is the first step toward getting the protection you need and deserve.
What Is a Protective Order?
A protective order is a legal order issued by a Texas court to protect a victim from abuse, violence, stalking, or sexual assault.
The purpose of a protective order is to restrict the abuser from engaging in threatening or harmful behavior toward the victim. It is the most common type of legal protection for victims of domestic abuse and family violence in Texas.
Under the Texas Family Code § 71.004, “family violence” is defined as any act by one member of a family or household intended to result in physical harm, bodily injury, assault, or sexual assault against another member.
This includes acts between spouses, domestic partners, parents, children, and those who are currently or formerly living together. Harassment, stalking, and threats of violence can also fall under this definition.
To get a protective order in Texas, the victim must have a specific relationship with the abuser, such as:
- A family member or relative
- A current or former spouse
- A current or former intimate partner or someone they have dated
- Someone they live with or have lived with
- The other parent of their child
The victim must also be able to show clear evidence that family violence has occurred. This evidence may include testimony from the victim or other witnesses, photos of injuries, medical records, police reports, or threatening messages from the abuser.
If the judge finds the evidence convincing, they can issue a protective order that prohibits the abuser from:
- Committing further acts of family violence
- Communicating with the victim in a threatening or harassing manner
- Going near the victim’s home, workplace, school, or childcare facility
- Possessing a firearm (if the judge finds it is necessary for the victim’s safety)
In cases of immediate danger, Texas courts can (and are sometimes required to) issue an emergency protective order even if the abuser has not been arrested yet. This emergency order provides short-term protection for the victim until a full hearing can be held to consider issuing a permanent protective order (sometimes called a “final protective order”).
Permanent protective orders in Texas typically last up to two years. However, the order can be extended beyond two years if the judge finds that the threat to the victim’s safety still exists when the original order expires.
Violating the terms of a protective order is a criminal offense in Texas that can lead to immediate arrest and criminal prosecution.
What Is a Restraining Order?
While the terms “restraining order” and “protective order” are often used interchangeably in everyday speech, they actually have different legal meanings and purposes under Texas law.
A restraining order is any type of court order requiring a party to refrain from doing a specific act. While it can be used in cases involving harassment or abuse, it is more commonly seen in other types of civil disputes, such as:
- Divorce cases
- Child custody battles
- Property division matters
- Business lawsuits
- Contract disagreements
For example, in a contentious divorce, one spouse might ask the court for a restraining order to prevent the other spouse from taking certain actions that could harm their legal interests, such as hiding or wasting marital assets or taking their children out of state.
The key difference between restraining orders and protective orders in Texas is that restraining orders cover a wider variety of civil disputes beyond just family violence situations.
While protective orders are specifically designed to prevent violence and keep victims safe, restraining orders serve to maintain the status quo between two parties while a legal matter is pending resolution.
Another important distinction is the way in which these orders are enforced. Violating the terms of a protective order is a criminal offense in Texas, and the police can arrest the abuser immediately.
In contrast, restraining orders are typically enforced through a civil contempt of court process where the wronged party must prove the violation to a judge before any penalties are imposed.
How to Get a Protective Order in Texas
If you are a victim of family violence in Texas, you are not required to hire an attorney to get a protective order—you can file an application in your local county court and obtain the necessary forms from the court clerk or download them here.
In your protective order application, you will need to describe in detail the acts of violence or abuse committed against you and why you are in ongoing danger from the abuser. It is important to be as specific as possible and include any evidence you have, such as:
- Photos or videos of the abuse
- Medical records of injuries caused by the abuser
- Police reports that detail the abuse, even if the abuser was not ultimately arrested or charged with any crime
- Threatening messages (email, text messages, voice messages, written messages, etc.)
A judge will review your application and may decide to issue a temporary ex parte protective order if they believe you are in immediate danger. “Ex parte” means without the other party being present, therefore, this temporary order can be granted without the abuser being notified or present in court.
It will take effect as soon as the abuser is served with the order by a law enforcement officer.
Within 14 days of issuing the temporary order, the court will hold a full protective order hearing where both you and the abuser will have the chance to present evidence and testimony.
Based on the evidence presented, the judge will decide whether to grant a final protective order that can last up to two years.
As mentioned, this is a process you can complete yourself without an attorney, but there are many reasons why hiring an attorney is a good idea when filing a protective order.
Why Hiring an Attorney to Get a Protective Order Is a Good Idea
The most important reason why hiring an attorney is a good idea when trying to get a protective order is that they have experience dealing with the process and will walk through it with you, supporting and guiding you along the way.
Filing an order can take a lot of time if you do not know what you are doing, and time is something many victims of abuse do not have. The sooner you can get the process started, the better. Your attorney can expedite the process and file all the necessary paperwork for you.
Second, many victims of abuse are under surveillance by their abuser. An attorney is free to act on your behalf, reducing the chance that your abuser will catch you in the act, potentially resulting in a highly dangerous situation.
Third, your attorney can collect evidence on your behalf and will know exactly what evidence will be most effective and persuasive. Not all evidence is necessarily sufficient on its own to persuade a judge to act (or to show the judge that they must act).
It is hard to overstate how helpful it can be to have your attorney stand by your side through the entire process, coaching you through, appearing with you in court, and giving you the guidance and confidence you need to go through with the process.
Many victims of domestic abuse or family violence find the process intimidating and overwhelming. It is easy to get frightened and avoid going to court or completing the extensive paperwork.
When you work with us, we walk through this with you, every step of the way, to make sure you have someone on your side fighting for your rights and safety.
Get Help With Your Protective Order in Texas
If you are experiencing domestic violence and feel you need a protective order, reach out for support: call the National Domestic Violence Hotline or contact law enforcement if you feel safe doing so.
If you are trying to leave an abuser, let’s talk about how we can potentially help you get a protective order (we can also assist with divorce).
At Ilarraza Law, we have helped countless clients secure the protective orders they need to feel safe and begin rebuilding their lives.
We know how overwhelming and scary this process can be, and we are committed to providing compassionate, confidential legal guidance every step of the way.
Contact us today to set up your initial consultation or call us directly at (214) 646-3253.
