The Emergency Protective Order After a Family Violence Arrest in Texas

Quick answer: After a family violence arrest in Texas, a magistrate can issue an order for emergency protection at your first appearance under Code of Criminal Procedure Article 17.292. It can bar you from going to or near the protected person’s home, restrict contact, ban firearm possession and suspend a license to carry. It generally lasts 61 to 91 days, or 91 to 121 days if it’s based on a deadly weapon. It takes effect on issuance, and the alleged victim doesn’t have to be present or ask for it.

For a lot of people arrested in McKinney or elsewhere in Collin County, this order is the first real problem in the case. It can arrive before you’ve talked to a lawyer, and it can change where you sleep that night. Here’s how it works, straight from the statute.

When can a magistrate issue the order?

Article 17.292 has two tracks.

The first is discretionary. At your appearance before a magistrate after arrest for an offense involving family violence, the magistrate may issue an order on the magistrate’s own motion, or at the request of the victim, the victim’s guardian, a peace officer or the attorney representing the State.

The second is mandatory. The magistrate shall issue an order if the arrest is for an offense that also involves serious bodily injury to the victim, or the use or exhibition of a deadly weapon during an assault.

“Family violence” here has the Family Code meaning, so the order can reach former spouses, parents of the same child, people in the household and people in a dating relationship.

What can the order prohibit?

Under Subsection (c), the magistrate may prohibit you from:

• Committing family violence or an assault on the protected person
• Communicating directly with a family or household member or the protected person in a threatening or harassing manner
• Communicating a threat through anyone else
• Communicating in any manner with the protected person or a family or household member, if the magistrate finds good cause, except through your attorney or a person appointed by the court
• Going to or near the residence, place of employment or business of a family or household member or the protected person, and the residence, child care facility or school where a protected child lives or attends
• Possessing a firearm, unless you’re a peace officer actively employed as a sworn, full-time paid employee of a state agency or political subdivision
• Tracking or monitoring property or a vehicle in the protected person’s possession without consent, including with an app or a tracking device, or by following the person

The magistrate may also impose conditions described in Article 17.49(b), including GPS monitoring. And under Subsection (l), the magistrate shall suspend a license to carry a handgun that you hold.

How long does it last?

Basis for the order	Statute	Length
Discretionary order, or mandatory because of serious bodily injury	17.292(a), (b)(1), (j)	Up to the 91st day, but not less than 61 days, after issuance
Mandatory because of the use or exhibition of a deadly weapon	17.292(b)(2), (j)	Up to the 121st day, but not less than 91 days, after issuance

The order is effective on issuance. You must be served a copy in person or electronically. Copies also go to the local police chief or sheriff, and to a child care facility or school if the order covers it. A law enforcement agency must enter the order into the statewide system by the third business day after it receives a copy, so responding officers can see it.

What if it conflicts with a custody order?

For the length of the order, it wins. Subsection (f) says that to the extent a condition conflicts with an existing court order granting possession of or access to a child, the emergency order’s condition prevails. If you have a possession schedule, don’t assume it still applies. Check the order first, then call your lawyer.

Later orders are a different question. A conflicting condition in a later Family Code order under Chapter 85, Title 1 or Title 5 prevails over the magistrate’s order. An order under Chapter 83 prevails only if that court is told about the emergency order and makes a finding that it is superseding it.

What if the other person says it’s okay?

This is one of the most common traps in these cases. Subsection (g) requires the order to state, in bold or capitals, that no person, including a person protected by the order, may give permission to anyone to ignore or violate any provision of it. Every provision stays in force unless a court changes the order.

A violation by an act the order prohibits may be punished by a fine of up to $4,000, up to a year in jail, or both. An act that’s also a separate offense can be prosecuted on top of that. Possessing a firearm while subject to the order, unless the peace officer exception applies, is a separate Class A misdemeanor under Penal Code Section 46.04(c). So an invitation home, a shared kid pickup or a text that seems harmless can create a new case.

Can the order be changed?

Yes, but only by a court. After notice to each affected party and a hearing, the issuing court may modify all or part of the order if it finds that the order as originally issued is unworkable, that the modification won’t place the victim at greater risk than the original order did, and that the modification won’t in any way endanger a person protected under the order. The court that takes jurisdiction over the underlying offense can also modify it on request, under the same standards.

That means the path to getting back into your home, or getting a workable plan for your kids and your job, is a motion and a hearing. A conversation won’t do it. Bring the court specifics: where you’ll live, how exchanges would work, what your job requires.

Could you also be held after you post bond?

Possibly. Article 17.291 says that if you’re arrested or held without a warrant in the prevention of family violence, and there is probable cause to believe the violence will continue if you’re immediately released, the agency must hold you for four hours after bond is posted. A magistrate can extend that up to 48 more hours in writing, on the findings the article requires.

What should you do first?

Read the order line by line, including locations and distances. Follow it exactly. Then get a lawyer involved early, because the order and the charge affect each other, and because it’s easy to make the felony version of this case worse by accident.

Chiles McGuire Criminal Law handles family violence defense and protective orders from our office in McKinney. Phones are answered 24/7. Call for a free consultation at 214-628-7292.