In Dallas County, a special court is devoted to hearing and granting protective orders.  Usually the applicant (the person seeking the protective order) will be represented by the District Attorney’s Office.  A respondent will have to represent him/herself or retain counsel—counsel will not be appointed by the Court.  This Court probably provides the minimal required due process but in practice it grants protective orders too freely.

Protective orders have the lower burden of proof associated with a civil trial, but lack many of the protections of the Rules of Civil Procedure.

Procedural Tools to Fight a Protective Order

Remember, in Dallas County these are heard in the criminal courts but that does not change the fact that they are governed by the Rules of Civil Procedure. The nature of the protective order limits the use of many of the Rules of Civil Procedure, but the Rules still provide ways to fight the protective order (provided that it has not been requested as part of a pending divorce).

1) Section 82.021 of the Family Code provides that a respondent in not required to file an answer, but an answer is not prohibited. File it and include the standard request for disclosure. This goes on the bottom of the answer and is short. Should the attorney for the applicant not respond to your request for disclosure and should the hearing on the protective order not be held for more than 30 days after service you object to any one testifying for the applicant. Failing to disclose their witnesses prevents these witnesses from testifying.

2) Section 82.022 of the Family Code allows a respondent to file his or her own protective order. This must be accomplished in a separate application that meets the requirements of § 82.004 and § 82.041 of the Family Code. The DA will not represent a respondent when the DA’s office already represents the applicant. The respondent can use the form that the DA provides and do this pro se or retain an attorney to file it for them.

3) Once a counter-claim (the respondent’s own protective order) has been filed, the respondent may approach the attorney for the applicant and seek an agreed protective order, a plea, under § 85.005 of the Family Code. Also, this is a civil court so there is an absolute right to non-suit under Rule 162.

4) If the trial court grants the applicant’s request for a protective order, then read paragraph 5 of the standard Dallas County protective order. Do not let them get away with making everything confidential. If you do, then you or your client can be found guilty of violating the protective order by being too close to a home, business, etc. of an unidentified family member. Instead, the information that remains confidential is the information in § 85.007 of the Family Code. This does not extend to cover the applicant’s entire extended family or household. AND do not sign that you consent to the order.

5) Then ask for findings of fact and conclusions of law under TRCP 296-99. If the DA does not file them within 20 days then file a notice of late filing of fact and conclusions of law. If the DA still does not file them then you have created a presumption against the protective order.

6) Section 85.025(b) of the Family Code allows you to move for removal of the protective order one year after it has been imposed.

7) File a motion for new trial and consider filing an appeal.

This does not constitute legal advice. You are advised to retain and consult with your own attorney.