If you are charged with domestic violence – known as assault-family violence in Texas – it is very likely that you will have a protective order in place that could prohibit you from communicating with the alleged victim or going to the home or workplace of the alleged victim. One common question a defendant in an assault-family violence case may have is whether it is possible to lift these orders and return home while the case is resolved. This article addresses how an attorney may go about getting a protective order or bond condition modified in an assault-family violence case.
In Texas, protective orders (known as Magistrate’s Order of Emergency Protection, or “MOEP” for short) are effective for 60 or 90 days depending on whether it is alleged that a deadly weapon was used in the assault-family violence incident. Additionally, it is important to note that the judge may separately create a bond condition prohibiting contact with the alleged victim of domestic violence. This is very common in assault-family violence cases filed in the Houston area. Unlike a MOEP, a bond condition does not expire on its own and typically stays in effect for the duration of the case.
If you have either of these conditions in place, it is critical that you obey them. If you violate a bond condition relating to the protection of a victim and the court becomes aware of the violation, you could be held in jail without bond. Under Texas Penal Code 25.07 you could also be charged with the offense of Violation of Protective Order, which is a separate criminal offense. Additionally, the violation of a MOEP or a bond condition in an assault-family violence case will make it more difficult for your attorney to obtain a good result in your case since the District Attorney’s Office will believe that the initial incident was not an isolated event and that you may present a real danger to the alleged victim. In short, it is critical that you strictly comply with all orders imposed by the court in a domestic violence case.
In order to be in compliance with a MOEP or bond condition in a domestic violence case, it is often necessary for a defendant to move out of the home. Obviously, this can create a huge hardship on a family as a defendant will have to pay for housing elsewhere and will not be able to return home to help take care of children or with the care of the household. Fortunately, it is possible to ask a judge to amend a MOEP and bond conditions in an assault-family violence case to allow a person to return home.
How can a protective order and bond conditions be modified in a misdemeanor assault-family violence case?
If the domestic violence case is filed as a misdemeanor (and most assault-family violence cases are filed as misdemeanors in the Houston area), then a request to modify the MOEP and bond conditions can usually be done at the first court setting. The first step will be for the assault-family violence attorney to speak with the alleged victim (known as the complaining witness) before the court to verify that she does wish for the MOEP and/or bond conditions to be modified.
If the complaining witness would like the orders to be modified, typically it is a good idea for her to appear in court. Very often, the judge will want to ask her questions to verify that she does indeed wish for the MOEP and bond conditions to be modified, whether she feels in danger, whether there are firearms in the home, or whether there has been violence in the past. Very often, the prosecutor will also want to speak with the complaining witness in court prior to the orders being modified. A complaining witness should always arrive at court separately and even sit in a different part of the courtroom, to not create an impression that the court’s orders have not been followed.
If the prosecutor and judge are satisfied that the complaining witness wishes that the orders be modified, then typically the orders will be changed to prohibit “threatening and harassing” behavior, and not all contact of any kind. The correct approach to get these orders modified will vary from court to court but an experienced assault-family violence lawyer will know the best way to proceed.
How can a protective order and bond conditions be modified in a felony assault-family violence case?
In felony cases, judges in the Houston area are often much more reluctant to lift MOEPS and modify bond conditions in assault-family violence cases. Assault-family violence cases are filed as felonies where there is an allegation of choking, where there is a prior conviction, where there is an allegation that a deadly weapon was used, or where there has been a serious bodily injury.
In felony cases, judges typically have a greater concern that the complaining witness is in genuine danger, particularly when they are dealing with a defendant who has a prior assault family violence case or is alleged to have caused serious bodily injury. As a result, they will often be reluctant to lift MOEPs and modify bond conditions right away. In some cases, they may want to wait for some days or weeks before considering such a request. As in misdemeanor cases, a judge will usually want to speak to the complaining witness before granting any request. Again, the correct approach will vary depending on the facts of the case, the prosecutor representing the State, and the judge. But even in felony assault-family violence cases, it is possible to get bond conditions and MOEPs lifted with the help of an experienced attorney.
The reality is that properly defending an assault-family violence case can take many months – and sometimes over a year – so it is important that a defendant is able to go back to living a normal life while the assault-family violence attorney handles the case.
Attorney Jose Ceja regularly handles assault-family violence cases throughout the Greater Houston area. He regularly obtains excellent results for clients in Harris County, Fort Bend County, Montgomery County, Galveston County, Brazoria County, Waller County, and Chambers County. If you are charged with assault-family violence, Ceja Law Firm would be happy to offer you a free consultation.