Magistrate's Emergency Protective Order — art. 17.292
The MOEP is the first protective order most people encounter. It is issued by a magistrate at first appearance after a family-violence arrest — typically the morning after the arrest. The defendant has no notice of the request and no opportunity to contest it before the order issues. The MOEP statute, Code of Criminal Procedure art. 17.292, sets three duration tiers:
| Trigger | Duration | Mandatory? |
|---|---|---|
| Assault with bodily injury or deadly-weapon threat | 31 to 61 days (default 61) | Yes — magistrate must issue under (a)(2) |
| Use or exhibition of a deadly weapon | 61 to 91 days (default 91) | Yes — magistrate must issue under (a)(3) |
| Other Title 5 family-violence offenses | Up to 31 days | Discretionary on State's request |
The MOEP is enforceable from the moment of signing until expiration. It can be modified or terminated only by the issuing magistrate or a successor court, and modification requires a hearing. The MOEP is the most-litigated protective order because it issues at the worst possible moment — before the defendant has counsel, before bond is set, and based only on the State's offered facts.
Ex Parte Protective Order — Family Code § 83.002
An ex parte order is the civil counterpart to the MOEP. The applicant — usually the alleged victim, sometimes the State — files an application for a protective order. The court can issue an ex parte order under Family Code § 83.001 based solely on the application and supporting affidavit, without notice to the respondent, if the court finds clear and present danger of family violence. Duration: up to 20 days under § 83.002, extendable for an additional 20 days under § 83.002(b) for a maximum of 40 days.
The ex parte order is a bridge to the final-protective-order hearing. The hearing must occur within the 20-day pendency (or within the extended 40-day window) unless continued for good cause. At the final hearing, the respondent appears and the case proceeds adversarially — see § 85.001 for the standard.
Final Protective Order — § 85.025
The final protective order is the workhorse of Texas's family-violence civil enforcement scheme. It issues after notice and a hearing, on a finding that (1) family violence has occurred, and (2) family violence is likely to occur in the future. The default duration under § 85.025(a) is up to two years from the date of issuance, with the court setting the actual duration based on the evidence.
The final order can do four things simultaneously:
- Prohibit family violence and contact with the applicant or applicant's family/household members.
- Prohibit going within a specified distance of the applicant's residence, employment, school, or other specified locations.
- Award temporary custody, visitation, and child-support arrangements pending a divorce or custody proceeding.
- Order surrender of firearms and prohibit firearm possession (federally and under Texas law) for the order's pendency.
Lifetime triggers under § 85.025(a-1)
Three factual findings can convert a standard two-year final order into a lifetime order under § 85.025(a-1):
- Serious bodily injury
- The respondent caused serious bodily injury — defined under Penal Code § 1.07(a)(46) as injury creating substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of a bodily member or organ — to the applicant or a member of the applicant's family/household.
- Two or more prior protective orders
- The respondent was the subject of two or more previous protective orders rendered against him to protect the applicant from family violence, and at least one of the prior orders made an affirmative finding of family violence.
- Felony family-violence conviction
- The respondent was convicted of a felony — typically aggravated assault, continuous violence against the family under § 25.11, or any felony assault involving family violence — and the conviction was for an offense involving family violence.
Lifetime orders are rare in practice. Applicants typically don't request the lifetime duration because the standard two-year order is sufficient for most purposes, and the lifetime designation increases the evidentiary burden at the final hearing. But when they're requested and granted, lifetime orders are extraordinarily consequential — they bar firearm possession, residence, and contact for the rest of the respondent's life, and modification post-issuance is extremely difficult.
Criminal Protective Order — art. 7B
Code of Criminal Procedure art. 7B is the modern reorganization of the former art. 7A, enacted in 2019. It applies to victims of:
- Sexual assault (Penal Code § 22.011)
- Indecent assault (Penal Code § 22.012)
- Sexual abuse of a child (Penal Code § 21.02)
- Continuous sexual abuse of a young child or disabled individual
- Compelling prostitution (Penal Code § 43.05)
- Trafficking (Penal Code § 20A.02)
- Stalking (Penal Code § 42.072)
Duration under art. 7B.007 is offense-tier dependent. For a first-degree-felony sex-offense conviction, the order runs for the lifetime of the defendant under art. 7B.007(a-1). For other qualifying offenses, the court sets duration based on the relevant factors enumerated in the statute — typically a long-tail order extending decades.
Firearm consequences — § 922(g)(8) + § 46.04(c)
The firearm-consequence map for each PO type:
| Order type | Federal § 922(g)(8) | Texas § 46.04(c) |
|---|---|---|
| MOEP (art. 17.292) | Uncertain — issues without full hearing; conservative answer: yes | Yes — active ch. 85 order during pendency |
| Ex parte (§ 83.002) | No — no notice and hearing requirement met | Yes |
| Final (§ 85.001 standard) | Yes — issues after hearing with notice | Yes |
| Final lifetime (§ 85.025(a-1)) | Yes — lifetime during pendency of order | Yes — lifetime |
| Criminal 7B | Yes if order meets statutory requirements | Yes if order issued under ch. 85 procedure |
The Supreme Court upheld § 922(g)(8) against a Second Amendment challenge in United States v. Rahimi, 144 S. Ct. 1889 (2024). The Court reasoned that disarming individuals subject to credible-threat protective orders is consistent with the nation's historical tradition of firearms regulation.
Violating a protective order — § 25.07 + § 25.072
Penal Code § 25.07 makes it a Class A misdemeanor to violate a protective order in any of the prohibited ways — contact, threat, going within prohibited distance, possession of firearm, etc. Two enhancements operate:
- § 25.07(g) third-degree felony — Two or more violations within 12 months OR a violation involving assault, threat to commit an assault, or stalking. The mandatory minimum has teeth: third-degree felony with potential prison time and a deadly-weapon finding overlay.
- § 25.072 continuous violation — Stalking-style enhancement when the respondent engaged in conduct constituting two or more violations during a 12-month period. Third-degree felony with no probation eligibility under aggravated facts.
The single biggest practical risk is "consensual contact" charges. If the protected party calls the respondent and the respondent answers, the State can charge the respondent with a § 25.07 violation regardless of who initiated the contact. The order, not the protected party, controls. Once the order is in place, the respondent must avoid all contact — full stop.
Modification, extension, and vacating
- Extension — § 85.025(b)
- The applicant can apply for an additional protective order before the current one expires. Extension requires a new application, notice to the respondent, and a hearing at which the court finds family violence is likely to occur in the future. There is no automatic-renewal mechanism.
- Modification — § 87.001
- Either party can move to modify the order based on changed circumstances. The court has broad discretion to modify terms (e.g., contact restrictions, residence-distance buffer, firearm-surrender condition) while keeping the order's core prohibitions intact.
- Vacating — § 87.002
- The court can vacate (rescind) the order on the applicant's motion if the applicant requests dismissal. The applicant's wish to reconcile is not enough by itself — the court must find that the order is no longer needed. Some courts treat vacating motions skeptically because of concerns about coerced withdrawal.
- Default Termination — automatic expiration
- The order ends on the expiration date written in the order. No further court action is needed for a standard expiration. The respondent's firearm rights and contact rights restore automatically upon expiration, subject to any other pending bans.
How to defeat a protective-order application
Final protective-order hearings move fast — typically a single hearing of 30 to 90 minutes. The applicant has the burden of showing family violence occurred and is likely to recur. Defense strategy turns on three pillars:
- Contest the predicate event. The applicant must prove that family violence under Family Code § 71.004 actually occurred. The respondent's testimony, witness testimony, medical records, prior consistent statements, and timing-of-injury photos can defeat the predicate.
- Contest "likely to recur." Even if the predicate is established, the applicant must show family violence is likely in the future. Distance (one party moved away), changed circumstances (substance-abuse treatment completed), and absence of recent contact all support no-recurrence.
- Negotiate the order's terms. Where the order is going to issue regardless, defense counsel can negotiate scope, duration, and firearm conditions. Stipulated orders without an affirmative finding of family violence avoid some of the worst federal collateral consequences.
