Texas Code of Criminal Procedure - Article 17.292. Magistrate's Order For Emergency Protection
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Art. 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 42.072, 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
42.072, 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; or
(B) a threat through any person to a member of the family or
household or to the person protected under the order;
(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; or
(4) possessing a firearm, unless the person is a peace
officer, as defined by Section 1.07, Penal Code, actively engaged
in employment as a sworn, full-time paid employee of a state agency
or political subdivision.
(d) The victim of the offense need not be present in court
when the order for emergency protection is 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, 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,
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:
"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT
RESULTS IN FAMILY VIOLENCE OR A STALKING OFFENSE MAY BE PROSECUTED
AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS
PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY
CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS. THE POSSESSION OF A
FIREARM BY A PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY
SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A
SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL
SUBDIVISION, WHO IS SUBJECT TO THIS ORDER MAY BE PROSECUTED AS A
SEPARATE OFFENSE PUNISHABLE BY CONFINEMENT OR IMPRISONMENT.
"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
UNLESS A COURT CHANGES THE ORDER."
(h) The magistrate issuing an order for emergency
protection under this article 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.
(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.
(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 in open court. 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, each municipal police department and
sheriff shall establish a procedure within the department or office
to provide adequate information or access to information for peace
officers of the names of persons protected by an order for emergency
protection issued under this article and of persons to whom the
order is directed. The police department or sheriff may enter an
order for emergency protection issued under this article in the
department's or office's record of outstanding warrants as notice
that the order has been issued and is in effect.
(l) In the order for emergency protection, the magistrate
may suspend a license to carry a concealed handgun issued under
Section 411.177, 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, Family Code.
(2) "Firearm" has the meaning assigned by Chapter 46, Penal
Code.
(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).
Added by Acts 1995, 74th Leg., ch. 658, Sec. 1, eff. June 14, 1995.
Amended by Acts 1997, 75th Leg., ch. 1, Sec. 4, eff. Jan. 28, 1997;
Acts 1997, 75th Leg., ch. 610, Sec. 1, eff. Sept. 1, 1997; Acts
1999, 76th Leg., ch. 514, Sec. 1, eff. Sept. 1, 1999; Acts 1999,
76th Leg., ch. 1412, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th
Leg., ch. 23, Sec. 4, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch.
424, Sec. 1, eff. Sept. 1, 2003.
Subsec. (j) amended by Acts 2005, 79th Leg., ch. 361, Sec. 1, eff.
June 17, 2005.
Article: 17.24 17.25 17.26 17.27 17.28 17.29 17.291 17.292 17.293 17.30 17.31 17.32 17.33 17.34 17.35
Last modified: August 10, 2007
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