FAMILY CODE
CHAPTER 85. ISSUANCE OF PROTECTIVE ORDER
SUBCHAPTER A. FINDINGS AND ORDERS
§ 85.001. REQUIRED FINDINGS AND ORDERS. (a) At the
close of a hearing on an application for a protective order, the
court shall find whether:
(1) family violence has occurred; and
(2) family violence is likely to occur in the future.
(b) If the court finds that family violence has occurred and
that family violence is likely to occur in the future, the court:
(1) shall render a protective order as provided by
Section 85.022 applying only to a person found to have committed
family violence; and
(2) may render a protective order as provided by
Section 85.021 applying to both parties that is in the best interest
of the person protected by the order or member of the family or
household of the person protected by the order.
(c) A protective order that requires the first applicant to
do or refrain from doing an act under Section 85.022 shall include a
finding that the first applicant has committed family violence and
is likely to commit family violence in the future.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
Amended by Acts 2001, 77th Leg., ch. 91, § 6, eff. Sept. 1, 2001.
§ 85.002. EXCEPTION FOR VIOLATION OF EXPIRED PROTECTIVE
ORDER. If the court finds that a respondent violated a protective
order by committing an act prohibited by the order as provided by
Section 85.022, that the order was in effect at the time of the
violation, and that the order has expired after the date that the
violation occurred, the court, without the necessity of making the
findings described by Section 85.001(a), shall render a protective
order as provided by Section 85.022 applying only to the respondent
and may render a protective order as provided by Section 85.021.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
Amended by Acts 1997, 75th Leg., ch. 1193, § 13, eff. Sept. 1,
1997.
§ 85.003. SEPARATE PROTECTIVE ORDERS REQUIRED. (a) A
court that renders separate protective orders that apply to both
parties and require both parties to do or refrain from doing acts
under Section 85.022 shall render two distinct and separate
protective orders in two separate documents that reflect the
appropriate conditions for each party.
(b) A court that renders protective orders that apply to
both parties and require both parties to do or refrain from doing
acts under Section 85.022 shall render the protective orders in two
separate documents. The court shall provide one of the documents to
the applicant and the other document to the respondent.
(c) A court may not render one protective order under
Section 85.022 that applies to both parties.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
§ 85.004. PROTECTIVE ORDER IN SUIT FOR DISSOLUTION OF
MARRIAGE. A protective order in a suit for dissolution of a
marriage must be in a separate document entitled "PROTECTIVE
ORDER."
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
§ 85.005. AGREED ORDER. (a) To facilitate settlement,
the parties to a proceeding may agree in writing to the terms of a
protective order as provided by Section 85.021. An agreement under
this subsection is subject to the approval of the court.
(b) To facilitate settlement, a respondent may agree in
writing to the terms of a protective order as provided by Section
85.022, subject to the approval of the court. The court may not
approve an agreement that requires the applicant to do or refrain
from doing an act under Section 85.022.
(c) If the court approves an agreement between the parties,
the court shall render an agreed protective order that is in the
best interest of the applicant, the family or household, or a member
of the family or household.
(d) An agreed protective order is not enforceable as a
contract.
(e) An agreed protective order expires on the date the court
order expires.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
§ 85.006. DEFAULT ORDER. (a) A court may render a
protective order that is binding on a respondent who does not attend
a hearing if the respondent received service of the application and
notice of the hearing.
(b) If the court reschedules the hearing under Chapter 84, a
protective order may be rendered if the respondent does not attend
the rescheduled hearing.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
§ 85.007. CONFIDENTIALITY OF CERTAIN
INFORMATION. (a) On request by a person protected by an order or
member of the family or household of a person protected by an order,
the court may exclude from a protective order the address and
telephone number of:
(1) a person protected by the order, in which case the
order shall state the county in which the person resides;
(2) the place of employment or business of a person
protected by the order; or
(3) the child-care facility or school a child
protected by the order attends or in which the child resides.
(b) On granting a request for confidentiality under this
section, the court shall order the clerk to:
(1) strike the information described by Subsection (a)
from the public records of the court; and
(2) maintain a confidential record of the information
for use only by the court.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
Amended by Acts 2001, 77th Leg., ch. 91, § 7, eff. Sept. 1, 2001.
§ 85.009. ORDER VALID UNTIL SUPERSEDED. A protective
order rendered under this chapter is valid and enforceable pending
further action by the court that rendered the order until the order
is properly superseded by another court with jurisdiction over the
order.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
SUBCHAPTER B. CONTENTS OF PROTECTIVE ORDER
§ 85.021. REQUIREMENTS OF ORDER APPLYING TO ANY
PARTY. In a protective order, the court may:
(1) prohibit a party from:
(A) removing a child who is a member of the family
or household from:
(i) the possession of a person named in the
order; or
(ii) the jurisdiction of the court; or
(B) transferring, encumbering, or otherwise
disposing of property, other than in the ordinary course of
business, that is mutually owned or leased by the parties;
(2) grant exclusive possession of a residence to a
party and, if appropriate, direct one or more parties to vacate the
residence if the residence:
(A) is jointly owned or leased by the party
receiving exclusive possession and a party being denied possession;
(B) is owned or leased by the party retaining
possession; or
(C) is owned or leased by the party being denied
possession and that party has an obligation to support the party or
a child of the party granted possession of the residence;
(3) provide for the possession of and access to a child
of a party if the person receiving possession of or access to the
child is a parent of the child;
(4) require the payment of support for a party or for a
child of a party if the person required to make the payment has an
obligation to support the other party or the child; or
(5) award to a party the use and possession of
specified property that is community property or jointly owned or
leased property.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
§ 85.022. REQUIREMENTS OF ORDER APPLYING TO PERSON WHO
COMMITTED FAMILY VIOLENCE. (a) In a protective order, the court
may order the person found to have committed family violence to:
(1) complete a battering intervention and prevention
program as provided by Article 42.141, Code of Criminal Procedure,
and that meets the guidelines adopted by the community justice
assistance division of the Texas Department of Criminal Justice if
a program is available;
(2) counsel with a social worker, family service
agency, physician, psychologist, licensed therapist, or licensed
professional counselor if a program under Subdivision (1) is not
available; or
(3) perform acts specified by the court that the court
determines are necessary or appropriate to prevent or reduce the
likelihood of family violence.
(b) In a protective order, the court may prohibit the person
found to have committed family violence from:
(1) committing family violence;
(2) communicating:
(A) directly with a person protected by an order
or a member of the family or household of a person protected by an
order, in a threatening or harassing manner;
(B) a threat through any person to a person
protected by an order or a member of the family or household of a
person protected by an order; and
(C) if the court finds good cause, in any manner
with a person protected by an order or a member of the family or
household of a person protected by an order, except through the
party's attorney or a person appointed by the court;
(3) going to or near the residence or place of
employment or business of a person protected by an order or a member
of the family or household of a person protected by an order;
(4) going to or near the residence, child-care
facility, or school a child protected under the order normally
attends or in which the child normally resides; and
(5) engaging in conduct directed specifically toward a
person who is a person protected by an order or a member of the
family or household of a person protected by an order, including
following the person, that is reasonably likely to harass, annoy,
alarm, abuse, torment, or embarrass the person.
(6) possessing a firearm, unless the person is 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.
(c) In an order under Subsection (b)(3) or (4), the court
shall specifically describe each prohibited location and the
minimum distances from the location, if any, that the party must
maintain. This subsection does not apply to an order in which
Section 85.007 applies.
(d) In a protective order, the court may suspend a license
to carry a concealed handgun issued under Section 411.177,
Government Code, that is held by a person found to have committed
family violence.
(e) In this section, "firearm" has the meaning assigned by
Section 46.01, Penal Code.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
Amended by Acts 1997, 75th Leg., ch. 1193, § 14, eff. Sept. 1,
1997; Acts 1999, 76th Leg., ch. 1412, § 3, eff. Sept. 1, 1999;
Acts 2001, 77th Leg., ch. 91, § 8, eff. Sept. 1, 2001; Acts 2001,
77th Leg., ch. 23, § 3, eff. Sept. 1, 2001.
§ 85.023. EFFECT ON PROPERTY RIGHTS. A protective order
or an agreement approved by the court under this subtitle does not
affect the title to real property.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
§ 85.024. ENFORCEMENT OF COUNSELING
REQUIREMENT. (a) A person found to have engaged in family
violence who is ordered to attend a program or counseling under
Section 85.022(a)(1) or (2) shall file with the court an affidavit
before the 60th day after the date the order was rendered stating
either that the person has begun the program or counseling or that a
program or counseling is not available within a reasonable distance
from the person's residence. A person who files an affidavit that
the person has begun the program or counseling shall file with the
court before the date the protective order expires a statement that
the person completed the program or counseling not later than the
30th day before the expiration date of the protective order. An
affidavit under this subsection must be accompanied by a letter,
notice, or certificate from the program or counselor that verifies
the person's completion of the program or counseling. A person who
fails to comply with this subsection may be punished for contempt of
court under Section 21.002, Government Code.
(b) A protective order under Section 85.022 must
specifically advise the person subject to the order of the
requirement of this section and the possible punishment if the
person fails to comply with the requirement.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
Amended by Acts 1997, 75th Leg., ch. 1193, § 15, eff. Sept. 1,
1997.
§ 85.025. DURATION OF PROTECTIVE ORDER. (a) Except as
provided by Subsection (b) or (c), an order under this subtitle is
effective:
(1) for the period stated in the order, not to exceed
two years; or
(2) if a period is not stated in the order, until the
second anniversary of the date the order was issued.
(b) A person who is the subject of a protective order may
file a motion not earlier than the first anniversary of the date on
which the order was rendered requesting that the court review the
protective order and determine whether there is a continuing need
for the order. After a hearing on the motion, if the court finds
there is a continuing need for the protective order, the protective
order remains in effect until the date the order expires under this
section. If the court finds there is no continuing need for the
protective order, the court shall order that the protective order
expires on a date set by the court.
(c) If a person who is the subject of a protective order is
confined or imprisoned on the date the protective order would
expire under Subsection (a), the period for which the order is
effective is extended, and the order expires on the first
anniversary of the date the person is released from confinement or
imprisonment.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
Amended by Acts 1999, 76th Leg., ch. 1160, § 3, eff. Sept. 1,
1999.
§ 85.026. WARNING ON PROTECTIVE ORDER. (a) Each
protective order issued under this subtitle, including a temporary
ex parte order, must contain the following prominently displayed
statements in boldfaced type, capital letters, or underlined:
"A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR
CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500 OR BY CONFINEMENT IN
JAIL FOR AS LONG AS SIX MONTHS, OR BOTH."
"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."
"IT IS UNLAWFUL FOR ANY 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 A PROTECTIVE ORDER TO POSSESS A
FIREARM OR AMMUNITION."
(b) Each protective order issued under this subtitle,
except for a temporary ex parte order, must contain the following
prominently displayed statement in boldfaced type, capital
letters, or underlined:
"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH. AN ACT THAT
RESULTS IN FAMILY VIOLENCE 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."
(c) Each protective order issued under this subtitle,
including a temporary ex parte order, must contain the following
prominently displayed statement in boldfaced type, capital
letters, or underlined:
"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."
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
Amended by Acts 1999, 76th Leg., ch. 178, § 3, eff. Aug. 30,
1999; Acts 1999, 76th Leg., ch. 1160, § 4, eff. Sept. 1, 1999;
Acts 2001, 77th Leg., ch. 23, § 5, eff. Sept. 1, 2001.
SUBCHAPTER C. DELIVERY OF PROTECTIVE ORDER
§ 85.041. DELIVERY TO RESPONDENT. (a) A protective
order rendered under this subtitle shall be:
(1) delivered to the respondent as provided by Rule
21a, Texas Rules of Civil Procedure;
(2) served in the same manner as a writ of injunction;
or
(3) served in open court at the close of the hearing as
provided by this section.
(b) The court shall serve an order in open court to a
respondent who is present at the hearing by giving to the respondent
a copy of the order, reduced to writing and signed by the judge or
master. A certified copy of the signed order shall be given to the
applicant at the time the order is given to the respondent. If the
applicant is not in court at the conclusion of the hearing, the
clerk of the court shall mail a certified copy of the order to the
applicant not later than the third business day after the date the
hearing is concluded.
(c) If the order has not been reduced to writing, the court
shall give notice orally to a respondent who is present at the
hearing of the part of the order that contains prohibitions under
Section 85.022 or any other part of the order that contains
provisions necessary to prevent further family violence. The clerk
of the court shall mail a copy of the order to the respondent and a
certified copy of the order to the applicant not later than the
third business day after the date the hearing is concluded.
(d) If the respondent is not present at the hearing and the
order has been reduced to writing at the conclusion of the hearing,
the clerk of the court shall immediately provide a certified copy of
the order to the applicant and mail a copy of the order to the
respondent not later than the third business day after the date the
hearing is concluded.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
§ 85.042. DELIVERY OF ORDER TO OTHER PERSONS. (a) The
clerk of the court issuing an original or modified protective order
under this subtitle shall send a copy of the order, along with the
information provided by the applicant or the applicant's attorney
that is required under Section 411.042(b)(6), Government Code, to
the chief of police of the municipality in which the person
protected by the order resides, if the person resides in a
municipality, or to the appropriate constable and the sheriff of
the county in which the person resides, if the person does not
reside in a municipality.
(b) If a protective order made under this chapter prohibits
a respondent from going to or near a child-care facility or school,
the clerk of the court shall send a copy of the order to the
child-care facility or school.
(c) The clerk of a court that vacates an original or
modified protective order under this subtitle shall notify the
chief of police or constable and sheriff who received a copy of the
original or modified order that the order is vacated.
(d) The applicant or the applicant's attorney shall provide
to the clerk of the court:
(1) the name and address of each law enforcement
agency, child-care facility, and school to which the clerk is
required to mail a copy of the order under this section; and
(2) any other information required under Section
411.042(b)(6), Government Code.
(e) The clerk of the court issuing an original or modified
protective order under Section 85.022 that suspends a license to
carry a concealed handgun shall send a copy of the order to the
appropriate division of the Department of Public Safety at its
Austin headquarters. On receipt of the order suspending the
license, the department shall:
(1) record the suspension of the license in the
records of the department;
(2) report the suspension to local law enforcement
agencies, as appropriate; and
(3) demand surrender of the suspended license from the
license holder.
Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997.
Amended by Acts 1997, 75th Leg., ch. 614, § 3, eff. Sept. 1,
1997; Acts 1999, 76th Leg., ch. 1412, § 4, eff. Sept. 1, 1999;
Acts 2001, 77th Leg., ch. 91, § 9, eff. Sept. 1, 2001; Acts 2001,
77th Leg., ch. 35, § 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg.,
ch. 91, § 9, eff. Sept. 1, 2001.
SUBCHAPTER D. RELATIONSHIP BETWEEN PROTECTIVE ORDER AND SUIT FOR
DISSOLUTION OF MARRIAGE AND SUIT AFFECTING PARENT-CHILD
RELATIONSHIP
§ 85.061. DISMISSAL OF APPLICATION PROHIBITED;
SUBSEQUENTLY FILED SUIT FOR DISSOLUTION OF MARRIAGE OR SUIT
AFFECTING PARENT-CHILD RELATIONSHIP. If an application for a
protective order is pending, a court may not dismiss the
application or delay a hearing on the application on the grounds
that a suit for dissolution of marriage or suit affecting the
parent-child relationship is filed after the date the application
was filed.
Added by Acts 1997, 75th Leg., ch. 1193, § 16, eff. Sept. 1,
1997.
§ 85.062. APPLICATION FILED WHILE SUIT FOR DISSOLUTION
OF MARRIAGE OR SUIT AFFECTING PARENT-CHILD RELATIONSHIP
PENDING. (a) If a suit for dissolution of a marriage or suit
affecting the parent-child relationship is pending, a party to the
suit may apply for a protective order against another party to the
suit by filing an application:
(1) in the court in which the suit is pending; or
(2) in a court in the county in which the applicant
resides if the applicant resides outside the jurisdiction of the
court in which the suit is pending.
(b) An applicant subject to this section shall inform the
clerk of the court that renders a protective order that a suit for
dissolution of a marriage or a suit affecting the parent-child
relationship is pending in which the applicant is party.
(c) If a final protective order is rendered by a court other
than the court in which a suit for dissolution of a marriage or a
suit affecting the parent-child relationship is pending, the clerk
of the court that rendered the protective order shall:
(1) inform the clerk of the court in which the suit is
pending that a final protective order has been rendered; and
(2) forward a copy of the final protective order to the
court in which the suit is pending.
(d) A protective order rendered by a court in which an
application is filed under Subsection (a)(2) is subject to transfer
under Section 85.064.
Added by Acts 1997, 75th Leg., ch. 1193, § 16, eff. Sept. 1,
1997.
§ 85.063. APPLICATION FILED AFTER FINAL ORDER RENDERED
IN SUIT FOR DISSOLUTION OF MARRIAGE OR SUIT AFFECTING PARENT-CHILD
RELATIONSHIP. (a) If a final order has been rendered in a suit
for dissolution of marriage or suit affecting the parent-child
relationship, an application for a protective order by a party to
the suit against another party to the suit filed after the date the
final order was rendered, and that is:
(1) filed in the county in which the final order was
rendered, shall be filed in the court that rendered the final order;
and
(2) filed in another county, shall be filed in a court
having jurisdiction to render a protective order under this
subtitle.
(b) A protective order rendered by a court in which an
application is filed under Subsection (a)(2) is subject to transfer
under Section 85.064.
Added by Acts 1997, 75th Leg., ch. 1193, § 16, eff. Sept. 1,
1997.
§ 85.064. TRANSFER OF PROTECTIVE ORDER. (a) If a
protective order was rendered before the filing of a suit for
dissolution of marriage or suit affecting the parent-child
relationship or while the suit is pending as provided by Section
85.062, the court that rendered the order may, on the motion of a
party or on the court's own motion, transfer the protective order to
the court having jurisdiction of the suit if the court makes the
finding prescribed by Subsection (c).
(b) If a protective order that affects a party's right to
possession of or access to a child is rendered after the date a
final order was rendered in a suit affecting the parent-child
relationship, on the motion of a party or on the court's own motion,
the court may transfer the protective order to the court of
continuing, exclusive jurisdiction if the court makes the finding
prescribed by Subsection (c).
(c) A court may transfer a protective order under this
section if the court finds that the transfer is:
(1) in the interest of justice; or
(2) for the safety or convenience of a party or a
witness.
(d) The transfer of a protective order under this section
shall be conducted according to the procedures provided by Section
155.207.
(e) Except as provided by Section 81.002, the fees or costs
associated with the transfer of a protective order shall be paid by
the movant.
Added by Acts 1997, 75th Leg., ch. 1193, § 16, eff. Sept. 1,
1997.
§ 85.065. EFFECT OF TRANSFER. (a) A protective order
transferred under Section 85.064 has the same effect as if the order
remained in the court that rendered the order. The protective order
may be enforced by the court that receives the order in the same
manner as if the court originally rendered the order.
(b) A protective order that is transferred is enforceable by
contempt or by any other means by which the court that rendered the
order could enforce the order. The court that receives the
protective order may punish a violation of the order regardless of
whether the violation occurred before or after the date of the
transfer.
(c) A protective order that is transferred is subject to
modification by the court that receives the order to the same extent
modification is permitted under Chapter 87 by a court that rendered
the order.
Added by Acts 1997, 75th Leg., ch. 1193, § 16, eff. Sept. 1,
1997.
