People use "restraining order" to describe almost anything a court might do to keep someone away. In Texas the terms are not interchangeable, and the difference matters enormously. A temporary restraining order is a civil tool that preserves the status quo in a pending lawsuit. A protective order is a distinct remedy under Title 4 of the Family Code, it carries criminal consequences for violation, and it is entered into a law enforcement database.
If you are considering applying for one, or if one has been filed against you, understanding which instrument is in play and what it actually requires changes how you should approach it. Our family law attorneys in Conroe handle both sides of these matters. Here is the framework.
The Three Instruments People Confuse
Temporary restraining order. A civil order issued in a pending case, commonly a divorce, typically restraining both parties from conduct such as disposing of property, harassing the other party, or removing children from the state. Violation is addressed through contempt in the civil case. It is not entered into a criminal database and it does not restrict firearm possession.
Magistrate's order for emergency protection. Issued by a magistrate following an arrest for family violence, assault, stalking, or a similar offense, under Article 17.292 of the Code of Criminal Procedure. It is entered at magistration, often without the victim requesting it. It generally lasts 31 to 61 days, or 61 to 91 days where a deadly weapon was involved. Violation is a criminal offense.
Protective order under Title 4 of the Family Code. The instrument most people mean. Obtained by application, with a hearing, and lasting substantially longer. Violation is a criminal offense under Penal Code Section 25.07.
These can overlap. A person arrested for family violence may be subject to an emergency protection order from the magistrate while a Family Code protective order application proceeds separately.
What You Must Prove
For a family violence protective order, the court must find that family violence has occurred and that family violence is likely to occur in the future.
Family violence under Section 71.004 includes an act by a family or household member intended to result in physical harm, bodily injury, assault, or sexual assault, or a threat that reasonably places the member in fear of imminent harm. It also covers abuse of a child and dating violence.
The relationship requirement matters. Title 4 applies to family members, household members, and dating relationships as those terms are defined in Chapter 71. Where no qualifying relationship exists, a different statutory basis is needed, and Texas provides separate protective orders for stalking, sexual assault, and human trafficking victims regardless of relationship.
The future harm element
Applicants frequently focus entirely on proving what happened and give little attention to the second element. Courts need evidence supporting a finding that violence is likely to recur. A pattern of prior incidents, continued contact after the incident, threats, escalation, and violation of prior orders all support that finding. A single incident followed by months of no contact is harder.
The Process
- Application. Filed by the applicant, an attorney, a prosecuting attorney, or the Department of Family and Protective Services. In Montgomery County, applications may be filed through the District Attorney's Office or through private counsel.
- Temporary ex parte order. If the application shows a clear and present danger of family violence, the court may issue a temporary ex parte protective order immediately, without notice to the respondent, generally effective up to 20 days and extendable.
- Service. The respondent must be personally served with the application and notice of hearing.
- Hearing. Typically set within 14 days of filing. Both parties may present evidence and testimony. This is a real evidentiary hearing, not a formality.
- Final order. If the court makes the required findings, it enters a protective order specifying its terms and duration.
Duration and Terms
A final protective order generally lasts up to two years. Texas law permits longer terms, including orders exceeding two years, where the respondent caused serious bodily injury or where the respondent has been the subject of two or more prior protective orders involving the same applicant with findings of family violence and likelihood of future violence.
The terms a court may impose include prohibiting contact with the protected person, prohibiting going near a residence, workplace, school, or childcare facility, prohibiting possession of a firearm, requiring completion of a battering intervention program, and addressing temporary conservatorship, possession, support, and use of property.
That last category is significant. A protective order can effectively decide temporary custody and possession issues, which is why these proceedings frequently become entangled with divorce and custody matters.
Consequences for the Respondent
The consequences extend well beyond staying away from someone.
Federal law prohibits firearm possession by a person subject to a qualifying protective order, and Texas Penal Code Section 46.04(c) makes possession an offense during the order's term. Employment in law enforcement, the military, and security is affected directly.
The order is entered into the Texas Crime Information Center and the National Crime Information Center, making it visible to any officer who runs the respondent's name.
Violation is a Class A misdemeanor under Penal Code Section 25.07, elevated to a third-degree felony with two prior convictions or where the violation involves an assault or stalking.
An order can also affect professional licensing, immigration status, housing applications, and family law proceedings where a family violence finding carries specific consequences under Chapter 153.
If a Protective Order Is Filed Against You
Do not ignore it. A default order entered because the respondent did not appear is just as binding as one entered after a contested hearing.
Do not contact the applicant, including to discuss dropping the case. That contact may itself violate a temporary ex parte order and will be presented at the hearing.
Gather evidence before the hearing. Messages, call logs, location records, photographs, and witnesses are all relevant, and the hearing is typically within two weeks, so the window is short.
Understand that agreed protective orders are common and carry the same consequences as contested ones. Agreeing without understanding the firearm prohibition, the database entry, and the effect on a related custody case is a decision people regret.
Montgomery County Practice
Protective order applications in Montgomery County are heard in the district courts, and the Montgomery County District Attorney's Office maintains a division that assists applicants in family violence cases. Local advocacy organizations also provide support with the application process and safety planning.
Because the hearing setting is short, both sides operate under real time pressure. Applicants should bring documentation to the initial filing rather than planning to supplement later. Respondents should retain counsel immediately rather than waiting to see how the hearing goes.
Where a criminal case is proceeding in parallel, coordination matters. Testimony given at a protective order hearing is transcribable and usable in the criminal case, which is a consideration for any respondent facing related charges. Our domestic violence defense page addresses that intersection.
Frequently Asked Questions
What is the difference between a restraining order and a protective order in Texas?
A temporary restraining order is a civil order in a pending lawsuit enforced through contempt. A protective order is issued under Title 4 of the Family Code, is entered into law enforcement databases, restricts firearm possession, and carries criminal penalties for violation.
How long does it take to get a protective order?
A temporary ex parte order can issue the same day the application is filed if the required showing is made. The hearing on a final order is typically set within 14 days.
Can a protective order be dropped?
The applicant may request dismissal, but the decision rests with the court, and where a prosecuting attorney filed the application the applicant does not control it. Contact between the parties to arrange a dismissal can itself violate an existing order.
How long does a protective order last in Texas?
Generally up to two years. Longer terms are available where the respondent caused serious bodily injury or has been subject to two or more prior protective orders involving the same applicant with the required findings.
Does a protective order affect custody?
Yes. A protective order may include temporary conservatorship and possession provisions, and a family violence finding carries specific consequences under Chapter 153 in a later custody determination.
Can I have a protective order removed from my record?
A protective order is a civil court record. Options for modification or vacatur are limited and fact-specific, which is why contesting the order at the hearing matters far more than addressing it afterward.
Your Next Step
Whichever side of this you are on, the hearing arrives quickly and the consequences last for years. Preparation in the first days determines the outcome far more than argument on the day.
Griffin & Cain, Attorneys at Law represents applicants and respondents in protective order proceedings throughout Montgomery and Walker Counties. Schedule your consultation with family law attorney Marissa Garcia as soon as an application is filed. Contact our Conroe office today. We serve clients in Conroe, The Woodlands, Montgomery, Willis, Magnolia, and Huntsville.
