Magistrate’s Order for Emergency Protection
Magistrate’s Orders for Emergency Protection (E.P.O.) are often the first opportunity for a survivor of Intimate Partner Violence to receive legally enforceable protection from their abuser. Even though an E.P.O. should not create a false sense of security for survivors, they remain a powerful tool in creating greater safety for them. These orders are intended to be a temporary stop gap until a victim can apply for a longer lasting, stricter order. To see how to apply for one of these types of orders, click here.
How to Request an E.P.O.
An E.P.O. may only be issued immediately following the arrest of a person for certain crimes. Most often, it is when the victim meets with the police after the arrest – either at the scene where the arrest occurred or shortly thereafter. If the victim qualifies, the police officer should notify the victim that they may request an E.P.O. The officer will then assist the victim in filling out the application for an E.P.O. and will make sure the request is included with the arrest paperwork.
Who Issues an E.P.O.
An E.P.O. may be issued by a magistrate whom the arrested person is brought before (see Art. 15.17 Code Criminal Procedure) at the jail facility shortly after their arrest for any offense involving family violence. No court hearing is required; the magistrate simply reviews the application with the survivor’s information and decides whether to issue the E.P.O.
Who It Can Protect
There are two main situations in which an E.P.O. may be granted:
- Relationship and Offense:
- The alleged victim is in a “special relationship” with arrested person: spouses, relations by blood or marriage, current or former partners in intimate relationships, and those living together without any additional relationship; and
- A particular type of offense is being alleged: any crime listed under Title 5 of the Texas Penal Code will qualify. These are known as crimes against persons and in general they are all assaultive types of offense.
- A certain type of offense is being alleged to have been committed against anyone:
- These include crimes like Trafficking of Persons, Sexual Assault, and Stalking
E.P.O.s are Most Commonly Issued in Assault Cases
The crime of assault covers a large range of actions and provides a broad range of punishments depending on the type of action alleged. Class C Misdemeanor Assault is any unwanted contact or threat of unwanted contact. It does not require that injury or pain be caused. Pushing, shoving and grabbing are common examples. Class A Misdemeanor Assault adds the requirement that bodily injury occurred. Bodily Injury is not a medical term; it simply means the contact caused the victim pain. This can also be a threat to cause bodily injury. Slapping, punching or pulling of hair are common examples. Felony Assault adds the element of causing serious bodily injury, using or exhibiting a deadly weapon or strangulation.
It is important to note that a law enforcement officer may take an offender to jail for ANY of the above offenses and if a “special relationship” exists with the victim an E.P.O. may be issued for ALL of the above offenses.
An E.P.O. is Temporary
An E.P.O is valid for between 30 and 90 days from the date it is signed. It cannot be extended or renewed. However, it can serve as a “kick out” order and prohibit the abuser from going to or near the marital residence or any residence of the survivor.
What’s in an E.P.O.?
An E.P.O. does not prohibit all contact between the arrested person and the alleged victim. It prohibits threatening, violent and harassing contact with the victim. It allows the alleged victim to designate locations that the arrested person may not go within a specified distance of, generally 500 feet. An E.P.O. can cover the alleged victim in the criminal charge and also all members of his/her family and household. NOTE: An E.P.O. is not a custody order, nor does it replace or alter any custody orders that are currently in place. It can also include provisions for the protection of the victim’s pets. An E.P.O. also prohibits the arrested person from possessing any firearm for the duration of the order and if they have a handgun license, that license is suspended by the state for the duration of the order.
Once issued, an E.P.O. is entered into the Texas Crime Information Center. This is a statewide database that all Texas law enforcement can access to determine if someone they encounter has an active warrant for their arrest, or in this case, an active protective order against them. Violation of any type of protective order is its own offense and is separate from the original offense that got the survivor the E.P.O. in the first place.
E.P.O. and Family Law
Most often, victims who have received an E.P.O. as a result of an arrest in Dallas County are directed to the Dallas County District Attorney’s Protective Order program to apply for a two-year protective order. If the victim has an open family law case, the District Attorney housed at the family law courthouse will take over the proceedings. The judge who hears the victim’s custody/divorce must also hear this protective order.
Written by Erin Bakker, senior director of legal services at Genesis Women’s Shelter & Support.