Statutory elements under Penal Code § 25.07
Penal Code § 25.07 enumerates the specific prohibited conduct that constitutes the offense. The State must plead and prove a specific subsection — going near a protected location, communicating with the protected person, communicating a threat through an intermediary, possessing a firearm, harming a pet, or tampering with a GPS device. Each subsection has discrete actus reus and mens rea requirements that defense counsel must isolate at the charging-instrument stage.
- Going to or near the protected person — § 25.07(a)(3)
- The statute prohibits going to or near the residence, place of business or employment, or place of school of a protected individual or member of the family or household. The exclusion zone is defined by the issuing court — typically 200 to 500 feet, sometimes specifically described street boundaries. The State must prove the defendant entered the proscribed geographic area; mere presence in the same neighborhood is insufficient unless the order's exclusion zone covers it. GPS-monitored defendants generate automated breach records; non-GPS cases turn on eyewitness identification, surveillance video, license-plate-reader hits, and cell-site location information.
- Direct communication in a threatening or harassing manner — § 25.07(a)(2)(A)
- Communication directed at the protected person — voice, text, social-media direct message, email, letter — that is threatening or harassing in nature. The "threatening or harassing" qualifier means content matters: a single benign text might not satisfy the element, while a course of repeated messages or a single threat-of-violence text does. Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996), addressed the harassment-statute mens rea analysis adopted into § 25.07 prosecutions. Where the underlying order prohibits "any communication" rather than only "threatening or harassing" communication, the content qualifier does not apply — any direct contact violates the order.
- Communication through an intermediary — § 25.07(a)(2)(B)
- Communicating a threat through any person to a protected individual. A defendant who tells a mutual friend, a child, a family member, or a third party to relay a message to the protected person commits the offense if the relayed content is a threat. The intermediary subsection captures the common factual pattern where a defendant tries to evade direct-communication prohibition by routing communication through children, family, or social-media intermediaries. The State must prove (1) the defendant communicated, (2) to a third party, (3) a threat, (4) intending or knowing it would reach the protected person.
- Any communication where prohibited — § 25.07(a)(2)(C)
- Where the protective order prohibits any communication with the protected individual — not just threatening or harassing communication — the offense is committed by any direct communication regardless of content. A "hello" text, a birthday message, an apology, a request to retrieve property — all constitute § 25.07 violations if the underlying order is the no-any-communication form. Family Code § 85.022(b)(2) permits the court to enjoin "communicating in any manner" with the protected person; CCP Art. 17.292(c)(2) permits the same EPO term. The distinction between "any communication" and "threatening or harassing communication" is critical and frequently overlooked by lay defendants.
- Possession of a firearm — § 25.07(a)(5)
- A defendant subject to a protective order or EPO that prohibits firearm possession commits the offense by possessing any firearm or ammunition during the order's pendency. The state-law prohibition parallels the federal 18 U.S.C. § 922(g)(8) prohibition but operates independently — a conviction under either statute is possible, and both may be charged in the same case. Family Code § 85.022(d) requires the court to prohibit firearm possession in any final PO involving an intimate-partner relationship. CCP Art. 17.292(c)(4) authorizes the magistrate to prohibit firearm possession as an EPO term. PC § 46.04(c) makes possession a Class A misdemeanor where a PO prohibits it — but § 25.07(a)(5) is the more frequently charged provision.
The State must plead and prove the specific subsection of § 25.07(a) that the defendant allegedly violated. A charging instrument that recites only "violation of protective order" without specifying the actus reus is vulnerable to a quashing motion under Texas Code of Criminal Procedure Article 21.04 — the indictment or information must give the defendant fair notice of the conduct alleged. Defense counsel reviews the charging instrument first and moves to quash where the specific subsection is omitted; the resulting amendment typically narrows the State's theory and exposes weaknesses in the evidentiary record.
Class A misdemeanor vs. third-degree felony under § 25.07(g)
A first-offense § 25.07 violation is a Class A misdemeanor under § 25.07(c) — up to one year in county jail and a $4,000 fine. Section 25.07(g) enhances the offense to a third-degree felony where the defendant has a prior § 25.07 conviction, the violation involved an assault, or the violation involved stalking. The third-degree felony range under PC § 12.34 is 2 to 10 years in TDCJ and a fine up to $10,000 — a four-to-tenfold jail exposure increase.
The base Class A misdemeanor exposure under § 25.07(c) carries up to 365 days in the county jail and a $4,000 fine. In DFW practice, first-offense § 25.07 cases without aggravators routinely resolve through deferred adjudication probation under Code of Criminal Procedure Article 42A.101 with a battering-intervention-and-prevention-program (BIPP) requirement under § 42A.5045, no-contact-with-the-protected-person condition, GPS monitoring during the probation period in higher-risk cases, and a 12-to-24-month supervision term. Successful completion produces dismissal but the family-violence affirmative finding under CCP Art. 42.013 attaches to the deferred adjudication itself for federal § 922(g)(9) purposes — meaning a deferred-adjudication disposition triggers the same lifetime federal firearm ban as a conviction.
Section 25.07(g) elevates the offense to a third-degree felony under three discrete enhancement theories. First, a prior § 25.07 conviction — even an old one — triggers third-degree felony status on the second offense. Second, where the underlying violation involved an assault — meaning the defendant committed an assault, aggravated assault, sexual assault, aggravated sexual assault, or any of the family-violence assault offenses during or in connection with the § 25.07 violation — the enhancement applies. Third, where the violation involved stalking under PC § 42.072, the enhancement applies. The third-degree felony range under PC § 12.34 is 2 to 10 years in TDCJ and a fine up to $10,000.
Defense strategy on the enhancement question turns on whether the State can prove the predicate. For the prior-conviction theory, the State must produce a certified judgment showing the prior § 25.07 conviction and prove identity through fingerprints under Beck v. State, 719 S.W.2d 205 (Tex. Crim. App. 1986). For the assault-during-violation theory, the State must prove the assault as a separate factual matter — and the assault must occur in connection with the § 25.07 violation, not at a separate time. For the stalking-during-violation theory, the State must prove the elements of PC § 42.072 — a pattern of conduct on more than one occasion directed at the protected person that would cause a reasonable person to fear bodily injury, death, or harassment.
Conviction consequences differ materially. A Class A misdemeanor § 25.07 conviction triggers the federal § 922(g)(9) lifetime firearm ban if the assault-during-violation finding is present and a state § 46.04(c) firearm disability if the underlying PO prohibits firearm possession. A third-degree felony § 25.07(g) conviction triggers the broader § 922(g)(1) felony firearm ban, makes the defendant ineligible to vote during the sentence, restricts professional licensing across multiple boards, and disqualifies the defendant from a license to carry under PC § 411.172(a)(8) for life. Immigration consequences are severe for non-citizens — a § 25.07 conviction qualifies as a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E) and triggers removal proceedings for any non-citizen including lawful permanent residents.
Continuous violation under § 25.072 — the two-in-twelve-months trap
Penal Code § 25.072 — continuous violation of certain court orders — captures a pattern of two or more § 25.07 violations within a twelve-month period as a single offense, third-degree felony in the original statute and second-degree felony after the 2023 legislative amendment in certain configurations. The pattern theory eliminates the need to charge each violation separately and produces aggregate-pattern exposure that often exceeds the sum of individual misdemeanor counts.
Section 25.072 was enacted to address the pattern reality of protective-order violations — defendants who violate the order repeatedly through a series of relatively minor contacts that, individually, are Class A misdemeanors but collectively reflect a sustained pattern of disregard. The statute provides that a person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under § 25.07. The offense is a third-degree felony in the base configuration; certain configurations involving prior felony convictions or specific aggravators elevate the offense further.
The pattern-theory mechanics produce significant strategic consequences. First, the State need not have separately charged or convicted the underlying § 25.07 violations — the State proves each violation as a factual matter at the § 25.072 trial, and the jury (or the court in a bench trial) makes the unanimity finding on at least two specific violations within the twelve-month period. Jacobsen v. State, 325 S.W.3d 733 (Tex. App.—Austin 2010), addressed the unanimity requirement for continuous-conduct offenses including the parallel § 21.02 (continuous sexual abuse) and § 25.11 (continuous family violence) statutes; the same unanimity framework applies to § 25.072.
Second, the venue and statute-of-limitations consequences favor the State. Each individual § 25.07 violation has its own venue and limitations period; § 25.072 venue lies in any county where any one of the underlying violations occurred under CCP Article 13.075, and the limitations period runs from the last violation in the pattern. A defendant who has committed a series of § 25.07 violations over a 12-month period across multiple counties — common in family-violence cases involving custody-exchange travel — faces aggregate prosecution in any one of the counties even where individual violations are time-barred.
Third, the punishment exposure is significantly higher than the cumulative individual misdemeanors. A defendant with three Class A misdemeanor § 25.07 violations over six months faces up to 3 years aggregate county-jail time if prosecuted separately (with concurrent sentences typical) but faces 2-to-10-year TDCJ exposure if prosecuted as a single continuous offense under § 25.072. The State frequently elects § 25.072 prosecution as a leverage device to extract plea agreements on the underlying conduct, particularly where the protected person is reluctant to testify and the State wants a single trial rather than multiple.
Mens rea — knowingly or intentionally violating the order
PC § 25.07 requires the defendant to act "knowingly or intentionally" — meaning the State must prove the defendant knew the protective order existed, knew its terms, and knowingly engaged in conduct that violated those terms. Defense counsel attacks mens rea on three fronts: knowledge of the order, knowledge of the specific term violated, and the voluntariness of the conduct itself.
Knowledge of the order's existence is the threshold mens rea element. The State proves knowledge through (1) personal service of the order on the defendant by the constable or sheriff under Family Code § 85.041 and Texas Rules of Civil Procedure Rule 106; (2) the defendant's presence at the contested hearing where the final PO was issued; (3) the defendant's acknowledgment at magistration where an EPO was issued under CCP Art. 17.292(g) — the magistrate is required to inform the defendant of the order's existence and terms on the record; or (4) circumstantial evidence including prior compliance with the order, prior communications referencing the order, or law-enforcement contact informing the defendant of the order. Harris v. State, 364 S.W.3d 328 (Tex. App.—Houston [1st Dist.] 2012), addressed the knowledge-of-order analysis in a § 25.07 prosecution and held that lack of personal service does not automatically defeat the State's case where alternative knowledge evidence exists.
Knowledge of the specific term violated is a separate mens rea question. A defendant who knows the order exists but mistakenly understands it as a no-violent-contact order rather than a no-any-communication order may have a defense to the specific subsection charged. The defense theory: under Penal Code § 6.03(b), "knowingly" requires the defendant to be aware that his conduct is reasonably certain to cause the proscribed result. Where the defendant believed the contact was permitted, the mens rea is absent. The mistake-of-fact defense under PC § 8.02 is available — a defendant who acted under a mistaken belief about the order's terms, where the mistake negates the knowingly mens rea, has a complete defense.
Voluntariness of conduct under PC § 6.01(a) is the third mens rea front. A defendant who entered the exclusion zone by accident, who responded to an unexpected contact initiated by the protected person, or who was placed in the proscribed location by circumstances beyond his control may have a voluntariness defense. Rogers v. State, 105 S.W.3d 630 (Tex. Crim. App. 2003), addressed the voluntariness analysis in the parallel context of § 22.07 terroristic threat. The defense develops the voluntariness theory through the defendant's testimony (or third-party witnesses) about the specific circumstances of the alleged contact — particularly important in geofence-breach cases where the defendant may have crossed an exclusion-zone boundary because of a traffic detour, a work obligation, or an emergency.
The State frequently relies on the EPO admonishment record at magistration as the sole proof of knowledge. Where the EPO is the underlying order and the defendant disputes knowledge, defense counsel obtains the audio or video recording of the magistration hearing and analyzes whether the magistrate actually informed the defendant of each term the indictment alleges he violated. A magistration record that recites generic protective-order language without specifying the geographic zone, the no-communication terms, or the firearm-possession prohibition can support a knowledge-defense theory on the specific subsection — even where the defendant clearly knew an order of some kind had been issued.
Consent and the protected person's role in the violation
A common factual pattern: the protected person initiates contact, invites the defendant to a meeting, or revokes the protective order informally — and the defendant then violates the formal order in reliance on the protected person's conduct. Texas law treats the protected person's consent or invitation as legally irrelevant in most § 25.07 prosecutions — the order is a court order, and only the issuing court can modify or revoke it.
The protected person cannot revoke a protective order unilaterally. Family Code § 85.025(b) authorizes the court to modify or terminate a final PO on motion by either party — but the modification requires a court order, not informal communication between the parties. A protected person who tells the defendant "I want to drop the order" or "you can come over" does not change the order's legal effect. The defendant who relies on the protected person's verbal invitation commits the offense if the formal order remains in effect — the protected person's consent is not a defense to the criminal violation.
The same rule applies to the EPO. CCP Art. 17.292(j) authorizes modification or termination of the EPO only on motion and after hearing before the issuing court. A protected person's informal request to lift the EPO — including a request to the District Attorney's office to drop the order — does not modify its legal effect. Until the court signs an order modifying or terminating the EPO, all of its terms remain enforceable through § 25.07 prosecution.
Where the protected person's conduct is the proximate cause of the violation — for example, the protected person comes to the defendant's residence in violation of the order's mutual-stay-away terms — the defense theory is more nuanced. Smith v. State, 158 S.W.3d 463 (Tex. Crim. App. 2005), addressed the voluntariness-of-conduct analysis in cases where the alleged victim's actions created the proscribed contact. The defense argues the defendant did not voluntarily engage in the conduct under PC § 6.01(a) because the protected person initiated the contact — the defendant's passive presence does not constitute "going to" the protected person.
Strategically, the defense develops protected-person-initiated-contact evidence aggressively because it (1) supports the voluntariness defense, (2) frames the defendant favorably in jury perception, (3) creates leverage for misdemeanor-level resolution where felony enhancement is threatened, and (4) supports a motion to modify the order on the grounds that both parties have moved past the conditions justifying its issuance. Evidence sources include text messages from the protected person to the defendant (proving the protected person initiated the contact), social-media communications, witness testimony from third parties who observed the protected person seeking out the defendant, and the protected person's own deposition testimony if available in the underlying civil PO case.
Communication violation analysis — text, social media, intermediary, kids
Communication violations are the most common § 25.07 charging theory. The defense disaggregates the alleged communications by channel (text, voice, social media, mail, third-party relay), by content (threatening, harassing, benign), by direction (defendant-to-protected-person, protected-person-to-defendant, mutual), and by the underlying order's scope (no any communication vs. no threatening communication).
Text messages are the most frequent evidentiary substrate. The State obtains the protected person's phone records and screenshots, identifies messages from a number associated with the defendant, and presents them as evidence of communication. Defense counsel responds with three lines of analysis. First, authentication — the State must prove the defendant actually sent the messages, not someone else with access to the defendant's phone or a spoofed number. Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012), set the authentication standard for digital evidence. Second, content analysis — where the underlying order prohibits only "threatening or harassing" communication, benign content (a logistics text about child custody, a request to retrieve property) may not satisfy the element. Third, mutual-communication context — where the protected person initiated the conversation and the defendant's messages are responsive, the voluntariness analysis under PC § 6.01(a) may apply.
Social-media communications present similar issues. Direct messages on Instagram, Facebook, Snapchat, X, and other platforms are typically subpoenaed by the State through Stored Communications Act process under 18 U.S.C. § 2703. The platform produces records identifying the account-holder and the message content. The authentication question is more fraught for social media than for text — accounts can be hacked, used by family members, or impersonated. The defense develops authentication challenges through forensic-expert testimony about the specific platform's account-security model and the possibility of unauthorized access.
Communications through children — text messages to the protected person's phone containing a child's message, voicemails, video calls involving the child — present the most strategically complex communication-violation issues. The State frequently charges these as § 25.07(a)(2)(B) intermediary communications: defendant communicates a threat to the protected person through the child as intermediary. The defense argues (1) the communication was about the child, not to the protected person; (2) the content was non-threatening (logistics, scheduling); (3) the order's terms permitted child-related communication explicitly or by implication under Family Code § 85.022(b)(4) (court may exempt communications necessary for custody and possession). The custody-exchange-communication exception is the most powerful defense vector in mixed-divorce-and-family-violence cases.
Mail, email, and voicemail communications follow the same framework. The State produces the communications; the defense analyzes authentication, content, and direction. Voicemail content recorded by the protected person and produced as evidence raises additional issues — chain of custody, possible editing, and the protected person's own statements interspersed with the defendant's. The defense develops a Rule 901 authentication challenge for any digital recording produced without metadata showing the original timestamp and source device.
Geofence and GPS-monitoring evidence — how the State proves location
Many DFW protective orders include GPS-monitoring conditions on the defendant — court-required ankle bracelet or smartphone-tracking app that geo-fences the protected person's residence and workplace. Crossing the geofence boundary produces an automated alert; the GPS data forms the spine of the prosecution. Defense counsel attacks GPS evidence through authentication, calibration, accuracy, and signal-loss analysis.
GPS-monitoring is authorized under CCP Article 17.49 as a bond condition, Article 17.292(j-1) as an EPO condition, and Family Code § 85.022(b)(7) as a final-PO condition. The defendant typically wears an ankle bracelet (the Securus, BI Incorporated, or Sentinel-brand devices are most common in DFW), with the protected person's residence and workplace established as exclusion zones in the monitoring software. When the defendant crosses a zone boundary, the monitoring provider receives an automated alert and notifies the supervising agency (typically pretrial services or the issuing court) and law enforcement.
The State proves the GPS-based violation through the monitoring-provider's business records under Texas Rule of Evidence 803(6). The records custodian — typically a monitoring-provider employee — testifies to the records' authenticity, the device's calibration protocols, and the specific alert that triggered the prosecution. The records themselves include time-stamped location coordinates, the geofence-zone definition, and the alert log. State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014), addressed the Fourth Amendment privacy interest in cell-phone location data; the GPS-monitoring-device data is treated as business-record evidence rather than Fourth Amendment search material because the defendant consented to the monitoring as a bond or PO condition.
Defense attacks on GPS evidence focus on accuracy and reliability. First, signal accuracy — GPS coordinates have a typical accuracy of 3-10 meters in open areas but can drift to 30-50 meters in urban canyons, indoors, or where signal multi-path interference is present. A geofence-zone boundary set 100 feet from the protected person's residence has an effective accuracy zone of roughly 30-150 feet — the defense argues a single brief boundary-crossing alert may reflect signal drift rather than actual presence. Second, calibration — the device must be calibrated periodically; an out-of-calibration device produces unreliable data. The defense subpoenas calibration records and challenges any alert occurring outside the calibration window. Third, signal-loss events — the device logs periods when it cannot acquire satellite signal; alerts adjacent to signal-loss events may reflect signal-reacquisition error rather than actual movement.
The defense also develops alternative-explanation theories for boundary crossings. A defendant who works near the protected person's residence may cross the geofence boundary as part of a normal commuting route; the defense produces work-schedule documentation and route mapping to show the boundary crossing was incidental and unconnected to any contact with the protected person. A defendant who lives in an apartment complex that abuts the protected person's street may produce boundary crossings on every entry and exit from his own home; the defense moves to modify the order to redefine the exclusion zone where the geofence is mis-calibrated. The defense's GPS-evidence challenge is technical but frequently effective — many GPS-based § 25.07 prosecutions fold or plea down when faced with rigorous accuracy challenges.
Sentencing exposure — jail, bond conditions, firearm and immigration consequences
A § 25.07 conviction produces sentencing exposure on multiple axes: county-jail time (Class A) or TDCJ time (third-degree felony under § 25.07(g) or second-degree continuous-violation under § 25.072), bond-condition tightening for any new case, mandatory family-violence affirmative finding under CCP Art. 42.013, federal § 922(g)(8) and § 922(g)(9) firearm prohibitions, and severe immigration consequences for non-citizens.
Class A misdemeanor first-offense exposure under § 25.07(c) is up to 365 days in the county jail and a $4,000 fine. In DFW practice, first-offense cases without aggravators frequently resolve through deferred-adjudication probation under CCP Art. 42A.101 — 12-24 months supervision, no-contact-with-protected-person condition, GPS monitoring during the probation period in higher-risk cases, BIPP (Battering Intervention and Prevention Program) attendance under § 42A.5045, drug-and-alcohol assessment if substance use was involved, and court costs in the $300-800 range. Successful completion produces dismissal; failure produces revocation and conviction with the full one-year exposure.
Third-degree felony exposure under § 25.07(g) is 2-10 years TDCJ and a fine up to $10,000 under PC § 12.34. Probation is available for first-time felony defendants under CCP Art. 42A.054 with a 5-10 year supervision term, expanded conditions (more frequent reporting, more intensive GPS, mandatory BIPP completion, possible inpatient anger-management treatment), and substantially higher revocation exposure. Second-degree felony exposure under § 25.072 continuous violation is 2-20 years TDCJ and a fine up to $10,000 under PC § 12.33. The felony-grade cases dramatically narrow plea-negotiation room — DFW prosecutors typically demand TDCJ time or substantial felony probation rather than reduction to a misdemeanor.
CCP Art. 42.013 requires the trial court to enter an affirmative finding of family violence in the judgment of any § 25.07 case where the underlying order was a family-violence PO or EPO. The affirmative finding triggers the federal § 922(g)(9) lifetime firearm ban — a Lautenberg-Amendment-style prohibition that attaches to any conviction (including deferred-adjudication disposition under State v. Eakins, 71 S.W.3d 443 (Tex. App.—Austin 2002), and DOJ ATF Form 4473 interpretation) where the affirmative finding is entered. The defendant becomes ineligible to possess firearms or ammunition for life under federal law unless the conviction is later expunged or set aside.
Federal § 922(g)(8) operates separately during the order's pendency. Where the underlying PO is a qualifying intimate-partner order with the required findings, § 922(g)(8) makes any firearm possession a separate federal crime — 10 years in BOP under 18 U.S.C. § 924(a)(8) and a fine up to $250,000. A defendant prosecuted under PC § 25.07(a)(5) for firearm possession during the order can also be prosecuted under § 922(g)(8) in federal court for the same conduct; concurrent state and federal prosecutions are common in cases involving aggravating factors. United States v. Rahimi, 602 U.S. 680 (2024), upheld § 922(g)(8) against a Second Amendment challenge.
Immigration consequences for non-citizens are severe. A § 25.07 conviction qualifies as a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E) — triggering removal proceedings for any non-citizen including lawful permanent residents. The deferred-adjudication trap applies: under Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), and Matter of Salazar-Regino, 23 I&N Dec. 223 (BIA 2002), Texas deferred adjudication is a "conviction" for federal immigration purposes even though it is not a conviction under state law. Counsel must analyze immigration exposure before negotiating any plea — Padilla v. Kentucky, 559 U.S. 356 (2010), requires defense counsel to advise non-citizen clients of immigration consequences as a Sixth Amendment matter.
