Protective orders under Code Crim. Proc. art. 7B in stalking cases

What Subchapter 7B actually covers

Subchapter 7B of the Code of Criminal Procedure — formerly Chapter 7A — authorizes protective orders for victims of stalking, sexual assault, sexual abuse, indecent assault, trafficking of persons, and continuous trafficking of persons.¹ The protective-order regime is independent of any active criminal prosecution and does not require a family-violence or dating-violence relationship between the victim and the respondent.

The articles in Subchapter 7B include the threshold definitions (Art. 7B.001), the application procedures (Art. 7B.002), the temporary ex parte order (Art. 7B.003), the hearing on the protective order (Art. 7B.004), the contents of the order (Art. 7B.005), the duration (Art. 7B.007), and modification and rescission (Art. 7B.008). Read the current text at statutes.capitol.texas.gov/Docs/CR/htm/CR.7B.htm.

Who can apply, and where

An application under Subchapter 7B may be filed by the alleged victim or by an adult member of the victim’s family or household if the victim is a child. The application is filed in the district court or county court at law in the county where the victim resides, in the county where the offense occurred, or in the county where the respondent resides.

One feature that distinguishes 7B orders from Family Code Chapter 85 family-violence orders is that 7B does not require a current or former family or dating relationship. A stalking victim and the alleged stalker may be strangers, coworkers, neighbors, or acquaintances. The protective-order regime reaches the conduct, not the relationship.

The application typically requires:

• An affidavit from the applicant describing the conduct.
• A description of the relationship, if any.
• The proposed protections sought.
• Any police-report references, prior protective orders, or related criminal-case numbers.

Temporary ex parte order under Art. 7B.003

The trial court may issue a temporary ex parte order without notice to the respondent if the court finds from the application and supporting affidavit that there is a clear and present danger of stalking, sexual assault, indecent assault, sex trafficking, or trafficking. The order is in effect for a period not to exceed 20 days, subject to extension upon the request of the applicant or on the court’s own motion.

The ex parte order can prohibit the respondent from:

• Communicating with the applicant or members of the applicant’s household.
• Going within a designated distance of the applicant’s residence, workplace, school, or child-care facility.
• Threatening, harassing, or following the applicant.
• Possessing a firearm during the order’s effectiveness.

The temporary order is served on the respondent and a return of service is filed. Violation of an ex parte order — even pending the contested hearing — is a separate offense under the Penal Code.

The final hearing and standard of proof

At the contested hearing under Art. 7B.004, the trial court must find by a preponderance of the evidence that reasonable grounds exist to believe the applicant is the victim of one of the predicate offenses. The court is not making a criminal finding; the standard is the civil preponderance.

The hearing is generally an evidentiary one. Witnesses are sworn, exhibits are admitted, and the rules of evidence apply. The respondent has the right to counsel (typically privately retained), to cross-examine, and to present a defense.

If the court finds the predicate, it issues a final order with content set out in Art. 7B.005. The order may include the same prohibitions as the temporary ex parte order, plus additional protections tailored to the case.

Duration and renewal

Under Art. 7B.007, the default duration of a Subchapter 7B protective order is the period stated in the order, up to the applicant’s lifetime in cases involving certain offenses. For stalking, the typical duration is up to two years, although the court may extend that based on the evidence at the hearing.

For sexual-assault and trafficking cases, the order may be entered for the lifetime of the applicant if the court finds particular factors are present, including a pattern of conduct, prior convictions of the respondent for similar offenses, or a finding that the respondent presents a continuing threat.

How Subchapter 7B differs from Family Code Chapter 85

Defense practitioners and applicants alike sometimes treat 7B and Chapter 85 as interchangeable. They are not.

Relationship predicate

Family Code Chapter 85 requires a family, household, or dating relationship between the parties. Subchapter 7B requires none.

Conduct predicate

Chapter 85 requires past family violence or a likelihood of future family violence. Subchapter 7B requires one of the listed predicate offenses — stalking, sexual assault, etc.

Forum

Chapter 85 orders are typically issued by family district courts. Subchapter 7B orders are typically issued by district courts handling criminal-related civil matters or county courts at law.

Firearm prohibition

Both types of orders trigger 18 U.S.C. § 922(g)(8) federal firearm prohibition if certain findings are made. The 7B order’s federal trigger requires the same elements — notice, opportunity to be heard, and an explicit finding that the respondent presents a credible threat or a no-physical-violence prohibition.

Duration

Chapter 85 orders default to two years; 7B orders can extend to lifetime more readily on certain predicates.

Modification

Both orders are modifiable, but 7B modification requires a hearing under Art. 7B.008.

Federal firearm consequence

A 7B protective order can trigger the federal firearm bar under 18 U.S.C. § 922(g)(8). The federal predicate requires:

1. An order issued after a hearing of which the respondent received actual notice and had an opportunity to participate.
2. An order that restrains the respondent from harassing, stalking, or threatening an intimate partner or child, or from engaging in conduct that would place such a person in reasonable fear of bodily injury.
3. An order that either (a) includes a finding of credible threat or (b) prohibits the use, attempted use, or threatened use of physical force.

The Fifth Circuit has addressed § 922(g)(8) doctrine in recent years; the Supreme Court in United States v. Rahimi, 602 U.S. ___ (2024), upheld § 922(g)(8) against a facial Second Amendment challenge.² A 7B order that meets the federal predicate elements will trigger the federal bar.

Evidence at the 7B contested hearing

The contested hearing under Art. 7B.004 is an evidentiary proceeding. The recurring evidence categories:

1. Direct testimony from the applicant about the alleged conduct.
2. Photographs of injuries, property damage, or other physical evidence.
3. Text messages, emails, voicemails, and social-media communications from the respondent to the applicant or about the applicant.
4. Phone records, GPS records, or surveillance footage showing the respondent’s presence.
5. Testimony from third-party witnesses — coworkers, neighbors, family members.
6. Police reports and incident reports.
7. Medical records documenting any injuries or psychological treatment.
8. Expert testimony in some cases (forensic mental-health evaluators, threat assessment experts).

The applicant has the burden of proof by a preponderance of the evidence. The respondent has the right to cross-examine and to present a defense, including alibi evidence, evidence of consensual contact, or evidence that the alleged conduct never occurred.

Enforcement mechanics

A 7B protective order is enforced through:

Criminal violation under Penal Code § 25.07

Violation of a 7B protective order is a Class A misdemeanor, with felony enhancement for repeat violations or violations involving stalking.

Civil contempt

The issuing court retains contempt authority. A respondent who violates the order can be held in contempt with jail or financial sanctions.

Federal firearm exposure

For orders meeting the § 922(g)(8) elements, federal possession of a firearm during the order’s effective period is a federal offense.

Bond modification

If the respondent is on bond in a related criminal case, a 7B order violation can trigger bond revocation in the criminal proceeding.

Other consequences

License-to-carry suspension, employer notification in some industries, immigration consequences for noncitizens.

Law enforcement can arrest without a warrant on probable cause to believe a 7B order has been violated. The Texas LEAP (Law Enforcement Activity Protocol) system flags active protective orders, and the responding officer can rely on the LEAP record to establish the order’s existence.

Modification and rescission of 7B orders

Article 7B.008 permits either party to request modification or rescission of a 7B protective order. The court holds a hearing applying the same evidentiary standards as the original hearing.

Grounds typically supporting modification or rescission:

• Material change in circumstances since the original order. The respondent has completed counseling, moved out of the area, or otherwise eliminated the conduct that supported the order.
• Reconciliation between the parties. The applicant may seek modification or termination if the relationship has changed. Note that the applicant’s consent alone does not terminate the order — the court must enter a modification or rescission order.
• Procedural defect in the original order. If the original order was entered without proper notice or hearing, modification may be available as a corrective measure.
• Expiration approaching. As the order’s default duration approaches, modification can extend, shorten, or alter terms.

Modification of a § 922(g)(8)-triggering order is particularly consequential. A modification that removes the credible-threat finding or the use-of-physical-force prohibition can lift the federal firearm bar without terminating the order entirely. Counsel for respondents should consider whether targeted modification is preferable to seeking full rescission, which the court is less likely to grant.

What to do if you are a respondent in a 7B proceeding

If you have been served with a 7B application or a temporary ex parte order, three things are time-critical:

1. Do not contact the applicant. Any communication during the pendency of the ex parte order can be evidence at the hearing and can independently violate the order.
2. Calendar the hearing date. Failing to appear can result in entry of a default final order. The final order is much harder to undo than to defend against.
3. Retain counsel familiar with both civil protective-order practice and the federal firearm interaction. A respondent who consents to a finding without understanding § 922(g)(8) implications may end gun rights permanently.

For respondents who have a related criminal case, the 7B order’s contents can constrain conduct relevant to the criminal matter, and any inconsistency between the criminal bond conditions and the 7B order needs to be addressed in both forums.