Tex.
Code of Crim. Proc. Article 17.292
Magistrate’s Order for Emergency Protection
(a)
At a defendant’s appearance before a magistrate after arrest for an offense involving family violence or an offense under Section 20A.02 (Trafficking of Persons), 20A.03 (Continuous Trafficking of Persons), 22.011 (Sexual Assault), 22.012 (Indecent Assault), 22.021 (Aggravated Sexual Assault), or 42.072 (Stalking), Penal Code, the magistrate may issue an order for emergency protection on the magistrate’s own motion or on the request of:(1)
the victim of the offense;(2)
the guardian of the victim;(3)
a peace officer; or(4)
the attorney representing the state.(b)
At a defendant’s appearance before a magistrate after arrest for an offense involving family violence, the magistrate shall issue an order for emergency protection if the arrest is for an offense that also involves:(1)
serious bodily injury to the victim; or(2)
the use or exhibition of a deadly weapon during the commission of an assault.(c)
The magistrate in the order for emergency protection may prohibit the arrested party from:(1)
committing:(A)
family violence or an assault on the person protected under the order; or(B)
an act in furtherance of an offense under Section 20A.02 (Trafficking of Persons) or 42.072 (Stalking), Penal Code;(2)
communicating:(A)
directly with a member of the family or household or with the person protected under the order in a threatening or harassing manner;(B)
a threat through any person to a member of the family or household or to the person protected under the order; or(C)
if the magistrate finds good cause, in any manner with a person protected under the order or a member of the family or household of a person protected under the order, except through the party’s attorney or a person appointed by the court;(3)
going to or near:(A)
the residence, place of employment, or business of a member of the family or household or of the person protected under the order; or(B)
the residence, child care facility, or school where a child protected under the order resides or attends;(4)
possessing a firearm, unless the person is a peace officer, as defined by Section 1.07 (Definitions), Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision; or(5)
tracking or monitoring personal property or a motor vehicle in the possession of the person protected under the order or of a member of the family or household of the person protected under the order, without the protected person’s effective consent, including by:(A)
using a tracking application on a personal electronic device in the possession of the person or the family or household member or using a tracking device; or(B)
physically following the person or the family or household member or causing another to physically follow the person or member.(c-1)
In addition to the conditions described by Subsection (c), the magistrate in the order for emergency protection may impose a condition described by Article 17.49 (Conditions for Defendant Charged with Offense Involving Family Violence)(b) in the manner provided by that article, including ordering a defendant’s participation in a global positioning monitoring system or allowing participation in the system by an alleged victim or other person protected under the order.(d)
The victim of the offense need not be present when the order for emergency protection is issued.(d-1)
The magistrate shall use the standardized order for emergency protection form created by the Office of Court Administration of the Texas Judicial System under Section 72.039 (Protective Order Applications, Forms, and Materials), Government Code, to issue an order for emergency protection under this article.(d-2)
A magistrate’s failure to use the standardized order for emergency protection form as required under Subsection (d-1) does not affect the validity or enforceability of the order for emergency protection issued.(e)
In the order for emergency protection the magistrate shall specifically describe the prohibited locations and the minimum distances, if any, that the party must maintain, unless the magistrate determines for the safety of the person or persons protected by the order that specific descriptions of the locations should be omitted.(f)
To the extent that a condition imposed by an order for emergency protection issued under this article conflicts with an existing court order granting possession of or access to a child, the condition imposed under this article prevails for the duration of the order for emergency protection.(f-1)
To the extent that a condition imposed by an order issued under this article conflicts with a condition imposed by an order subsequently issued under Chapter 85, Subtitle B, Title 4, Family Code, or under Title 1 or Title 5, Family Code, the condition imposed by the order issued under the Family Code prevails.(f-2)
To the extent that a condition imposed by an order issued under this article conflicts with a condition imposed by an order subsequently issued under Chapter 83, Subtitle B, Title 4, Family Code, the condition imposed by the order issued under this article prevails unless the court issuing the order under Chapter 83 (Temporary Ex Parte Orders), Family Code:(1)
is informed of the existence of the order issued under this article; and(2)
makes a finding in the order issued under Chapter 83 (Temporary Ex Parte Orders), Family Code, that the court is superseding the order issued under this article.(g)
An order for emergency protection issued under this article must contain the following statements printed in bold-face type or in capital letters:(h)
As soon as possible but not later than the next business day after the date the magistrate issues an order for emergency protection under this article, the magistrate shall send a copy of the order to the chief of police in the municipality where the member of the family or household or individual protected by the order resides, if the person resides in a municipality, or to the sheriff of the county where the person resides, if the person does not reside in a municipality. If the victim of the offense is not present when the order is issued, the magistrate issuing the order shall order an appropriate peace officer to make a good faith effort to notify, within 24 hours, the victim that the order has been issued by calling the victim’s residence and place of employment. The clerk of the court shall send a copy of the order to the victim at the victim’s last known address as soon as possible but not later than the next business day after the date the order is issued.(h-1)
A magistrate or clerk of the court may delay sending a copy of the order under Subsection (h) only if the magistrate or clerk lacks information necessary to ensure service and enforcement.(i)
If an order for emergency protection issued under this article prohibits a person from going to or near a child care facility or school, the magistrate shall send a copy of the order to the child care facility or school.(i-1)
The copy of the order and any related information may be sent under Subsection (h) or (i) electronically or in another manner that can be accessed by the recipient.(j)
An order for emergency protection issued under this article is effective on issuance, and the defendant shall be served a copy of the order by the magistrate or the magistrate’s designee in person or electronically. The magistrate shall make a separate record of the service in written or electronic format. An order for emergency protection issued under Subsection (a) or (b)(1) of this article remains in effect up to the 61st day but not less than 31 days after the date of issuance. An order for emergency protection issued under Subsection (b)(2) of this article remains in effect up to the 91st day but not less than 61 days after the date of issuance. After notice to each affected party and a hearing, the issuing court may modify all or part of an order issued under this article if the court finds that:(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.(k)
To ensure that an officer responding to a call is aware of the existence and terms of an order for emergency protection issued under this article, not later than the third business day after the date of receipt of the copy of the order by the applicable law enforcement agency with jurisdiction over the municipality or county in which the victim resides, the law enforcement agency shall enter the information required under Section 411.042 (Bureau of Identification and Records)(b)(6), Government Code, into the statewide law enforcement information system maintained by the Department of Public Safety.(k-1)
A law enforcement agency may delay entering the information required under Subsection (k) only if the agency lacks information necessary to ensure service and enforcement.(l)
In the order for emergency protection, the magistrate shall suspend a license to carry a handgun issued under Subchapter H (Definitions), Chapter 411 (Department of Public Safety of the State of Texas), Government Code, that is held by the defendant.(m)
In this article:(1)
“Family,” “family violence,” and “household” have the meanings assigned by Chapter 71 (Definitions), Family Code.(2)
“Firearm” has the meaning assigned by Chapter 46 (Weapons), Penal Code.(3)
“Business day” means a day other than a Saturday, Sunday, or state or national holiday.(n)
On motion, notice, and hearing, or on agreement of the parties, an order for emergency protection issued under this article may be transferred to the court assuming jurisdiction over the criminal act giving rise to the issuance of the emergency order for protection. On transfer, the criminal court may modify all or part of an order issued under this subsection in the same manner and under the same standards as the issuing court under Subsection (j).(1)
the victim of the offense;(2)
the guardian of the victim;(3)
a peace officer; or(4)
the attorney representing the state.(b)
At a defendant’s appearance before a magistrate after arrest for an offense involving family violence, the magistrate shall issue an order for emergency protection if the arrest is for an offense that also involves:(1)
serious bodily injury to the victim; or(2)
the use or exhibition of a deadly weapon during the commission of an assault.(c)
The magistrate in the order for emergency protection may prohibit the arrested party from:(1)
committing:(A)
family violence or an assault on the person protected under the order; or(B)
an act in furtherance of an offense under Section 20A.02 (Trafficking of Persons) or 42.072 (Stalking), Penal Code;(2)
communicating:(A)
directly with a member of the family or household or with the person protected under the order in a threatening or harassing manner;(B)
a threat through any person to a member of the family or household or to the person protected under the order; or(C)
if the magistrate finds good cause, in any manner with a person protected under the order or a member of the family or household of a person protected under the order, except through the party’s attorney or a person appointed by the court;(3)
going to or near:(A)
the residence, place of employment, or business of a member of the family or household or of the person protected under the order; or(B)
the residence, child care facility, or school where a child protected under the order resides or attends;(4)
possessing a firearm, unless the person is a peace officer, as defined by Section 1.07 (Definitions), Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision; or(5)
tracking or monitoring personal property or a motor vehicle in the possession of the person protected under the order or of a member of the family or household of the person protected under the order, without the protected person’s effective consent, including by:(A)
using a tracking application on a personal electronic device in the possession of the person or the family or household member or using a tracking device; or(B)
physically following the person or the family or household member or causing another to physically follow the person or member.(c-1)
In addition to the conditions described by Subsection (c), the magistrate in the order for emergency protection may impose a condition described by Article 17.49 (Conditions for Defendant Charged with Offense Involving Family Violence)(b) in the manner provided by that article, including ordering a defendant’s participation in a global positioning monitoring system or allowing participation in the system by an alleged victim or other person protected under the order.(d)
The victim of the offense need not be present when the order for emergency protection is issued.(d-1)
The magistrate shall use the standardized order for emergency protection form created by the Office of Court Administration of the Texas Judicial System under Section 72.039 (Protective Order Applications, Forms, and Materials), Government Code, to issue an order for emergency protection under this article.(d-2)
A magistrate’s failure to use the standardized order for emergency protection form as required under Subsection (d-1) does not affect the validity or enforceability of the order for emergency protection issued.(e)
In the order for emergency protection the magistrate shall specifically describe the prohibited locations and the minimum distances, if any, that the party must maintain, unless the magistrate determines for the safety of the person or persons protected by the order that specific descriptions of the locations should be omitted.(f)
To the extent that a condition imposed by an order for emergency protection issued under this article conflicts with an existing court order granting possession of or access to a child, the condition imposed under this article prevails for the duration of the order for emergency protection.(f-1)
To the extent that a condition imposed by an order issued under this article conflicts with a condition imposed by an order subsequently issued under Chapter 85, Subtitle B, Title 4, Family Code, or under Title 1 or Title 5, Family Code, the condition imposed by the order issued under the Family Code prevails.(f-2)
To the extent that a condition imposed by an order issued under this article conflicts with a condition imposed by an order subsequently issued under Chapter 83, Subtitle B, Title 4, Family Code, the condition imposed by the order issued under this article prevails unless the court issuing the order under Chapter 83 (Temporary Ex Parte Orders), Family Code:(1)
is informed of the existence of the order issued under this article; and(2)
makes a finding in the order issued under Chapter 83 (Temporary Ex Parte Orders), Family Code, that the court is superseding the order issued under this article.(g)
An order for emergency protection issued under this article must contain the following statements printed in bold-face type or in capital letters:(h)
As soon as possible but not later than the next business day after the date the magistrate issues an order for emergency protection under this article, the magistrate shall send a copy of the order to the chief of police in the municipality where the member of the family or household or individual protected by the order resides, if the person resides in a municipality, or to the sheriff of the county where the person resides, if the person does not reside in a municipality. If the victim of the offense is not present when the order is issued, the magistrate issuing the order shall order an appropriate peace officer to make a good faith effort to notify, within 24 hours, the victim that the order has been issued by calling the victim’s residence and place of employment. The clerk of the court shall send a copy of the order to the victim at the victim’s last known address as soon as possible but not later than the next business day after the date the order is issued.(h-1)
A magistrate or clerk of the court may delay sending a copy of the order under Subsection (h) only if the magistrate or clerk lacks information necessary to ensure service and enforcement.(i)
If an order for emergency protection issued under this article prohibits a person from going to or near a child care facility or school, the magistrate shall send a copy of the order to the child care facility or school.(i-1)
The copy of the order and any related information may be sent under Subsection (h) or (i) electronically or in another manner that can be accessed by the recipient.(j)
An order for emergency protection issued under this article is effective on issuance, and the defendant shall be served a copy of the order by the magistrate or the magistrate’s designee in person or electronically. The magistrate shall make a separate record of the service in written or electronic format. An order for emergency protection issued under Subsection (a) or (b)(1) of this article remains in effect up to the 61st day but not less than 31 days after the date of issuance. An order for emergency protection issued under Subsection (b)(2) of this article remains in effect up to the 91st day but not less than 61 days after the date of issuance. After notice to each affected party and a hearing, the issuing court may modify all or part of an order issued under this article if the court finds that:(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.(k)
To ensure that an officer responding to a call is aware of the existence and terms of an order for emergency protection issued under this article, not later than the third business day after the date of receipt of the copy of the order by the applicable law enforcement agency with jurisdiction over the municipality or county in which the victim resides, the law enforcement agency shall enter the information required under Section 411.042 (Bureau of Identification and Records)(b)(6), Government Code, into the statewide law enforcement information system maintained by the Department of Public Safety.(k-1)
A law enforcement agency may delay entering the information required under Subsection (k) only if the agency lacks information necessary to ensure service and enforcement.(l)
In the order for emergency protection, the magistrate shall suspend a license to carry a handgun issued under Subchapter H (Definitions), Chapter 411 (Department of Public Safety of the State of Texas), Government Code, that is held by the defendant.(m)
In this article:(1)
“Family,” “family violence,” and “household” have the meanings assigned by Chapter 71 (Definitions), Family Code.(2)
“Firearm” has the meaning assigned by Chapter 46 (Weapons), Penal Code.(3)
“Business day” means a day other than a Saturday, Sunday, or state or national holiday.(n)
On motion, notice, and hearing, or on agreement of the parties, an order for emergency protection issued under this article may be transferred to the court assuming jurisdiction over the criminal act giving rise to the issuance of the emergency order for protection. On transfer, the criminal court may modify all or part of an order issued under this subsection in the same manner and under the same standards as the issuing court under Subsection (j).
Source:
Article 17.292 — Magistrate's Order for Emergency Protection, https://statutes.capitol.texas.gov/Docs/CR/htm/CR.17-COPY.htm#17.292 (accessed Apr. 20, 2024).
