Emergency Protective Order in an Assault Case

An abundance of caution is the approach the law takes with allegations of family violence. This is especially true immediately following whatever altercation took place that landed a person in jail. Chapter 17 of the Code of Criminal Procedure describes the legal process through which a person can be released from jail on bail, with a general theme of: “the quicker the better.” This isn’t the case with a family violence charge.

Where most people charged with a misdemeanor offense are eligible for immediate jail release, the law envisions a person charged with family violence actually appearing before a judge. Not only does this create a “cooling down” period, it gives the judge the opportunity to issue an Emergency Protective Order (“EPO”). An EPO is designed to protect the alleged victim from the alleged assailant once he or she is released on bail. A person subject to an EPO will be prohibited from harassing or threatening the alleged victim and going near his or her home, place of employment or business. An EPO may also prevent a person from going near the home, child-care facility or school of his or her children.

The usual effect of an EPO is to kick a person out of the family home. Sometimes this can be an overabundance of caution – especially when family members agree that things were blown out of proportion and both prefer not to be subject to such restrictions. In these situations Section 17.292 of the Code of Criminal Procedure permits a judge to modify the terms of the EPO.

An EPO may be modified if the judge finds: (1) the order as originally issued is unworkable; (2) the modification will not place the victim of the offense at greater risk than did the original order; and (3) the modification will not in any way endanger a person protected under the order. For all intents and purposes, opening the door to modification requires the blessing of the victim. Once the door is open, modification is considered on a case by case basis.

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