Magistrate's Order of Emergency Protection in Texas

Magistrate's Order of Emergency Protection in Texas

A Magistrate's Order of Emergency Protection, or MOEP, is another name for an emergency protective order. Magistrates in the State of Texas have extensive authority—and, in certain cases, a legal obligation—to issue these orders following a variety of arrests. In fact, the court could issue these orders before a defendant is ever released after their arrest.

These orders can dramatically impact your life. They could prevent you from entering your home, contacting your family, or even seeing your children. The failure to comply with these orders can bring additional criminal consequences that should not be underestimated.

If you are facing an emergency protective order in the Houston area, it is important that you seek legal counsel immediately. These orders can carry consequences that might not be immediately clear to you. Let Board Certified criminal defense attorney Doug Murphy advise you on how to address these orders and potentially have them lifted by the court.

What Is a Magistrate's Order of Emergency Protection?

Most protective orders require a lengthy process that includes a hearing. This process is designed to prevent the potential for violence while balancing the due process rights of the accused. However, Texas law allows, and in some cases requires, the courts to issue an emergency order of protection following a person's arrest. Often, this order is entered before the defendant has the opportunity to bail out of jail.

These orders are different from standard protection orders; their purpose is to prevent an alleged complaining witness from suffering further harm when the accused is released from confinement. Unlike a protection order, a magistrate has the power to issue these without first holding a hearing. These orders are available regardless of the relationship between the two parties. A protection order, on the other hand, is only available when two parties have specific relationships with each other.

Who Can Issue a MOEP?

According to state law, only magistrates have the power to issue a MOEP. Texas Code of Criminal Procedure § 2.09 sets out the judges that qualify as magistrates. They include:

• Justice of the Supreme Court
• Court of Appeals Justices
• District Court Judges
• Associate Judges
• Probate Judges
• Justices of the Peace

Essentially, any judge in the State of Texas has the power to issue a MOEP.

How to Obtain a MOEP in Houston

Unlike a standard protection order, there is not a lengthy process that comes with obtaining a MOEP. These orders are ultimately issued by a magistrate whether or not the alleged complaining witness seeks one. In some cases, it is within a magistrate's discretion to enter a MOEP. In other cases, the entry of these orders is mandatory.

A magistrate has the discretion to issue a MOEP after arrests for certain types of offenses. A discretionary MOEP could be issued any time prior to the defendant's release from custody. Offenses that qualify for a discretionary MOEP include family violence, sexual assault, aggravated sexual assault, or stalking.

Other circumstances take the decision to execute a MOEP out of the hands of the magistrate. It becomes mandatory to issue a MOEP after any arrest for a family violence charge if an alleged offense resulted in serious bodily injury. Additionally, a MOEP is mandatory if the accused is alleged to have displayed a deadly weapon. In either of these cases, the court must issue a MOEP prior to the defendant's release from confinement pending trial.

Often, the magistrate will issue a MOEP on their own motion. However, in cases where a MOEP is discretionary, the magistrate could issue one at the request of the complaining witness, their guardian, a Texas peace officer, or the prosecuting attorney. It is not uncommon for the prosecution to seek a MOEP in most cases where they are available.

What a MOEP Means for the Accused

When it comes to how a MOEP impacts the accused, these emergency orders of protection can vary. The court has the discretion to bar an array of behavior from the accused. This starts with the prohibition of committing any acts of family violence. The order can also require that the accused not stalk another individual, including the complaining witness. These options are somewhat redundant, given both acts are already illegal in and of themselves.

A magistrate also has the power to bar any communication from the accused to the complaining witness. This could include direct communication in person, via email or social media, or over the phone. It can also bar any indirect harassing or threatening communication through an intermediate like a friend or family member. The order could also prevent the accused from appearing near the complaining witness's home, workplace, school, or childcare facility. This can expand beyond the complaining witness and also include anyone in their household.

In addition to these options, every MOEP must address a number of issues related to firearm possession. A MOEP automatically suspends the defendant's concealed handgun license. Additionally, it prohibits the defendant from possessing a gun for as long as the MOEP is in effect. This provision could be waived by the magistrate if the defendant is a licensed peace officer.

While these options are allowed without a hearing, some consequences require one to satisfy due process. For example, a MOEP cannot remove a defendant from their home without the opportunity to be heard.

Finally, these orders can also require the defendant to submit to global positioning system (GPS) monitoring. This provision could be included in the order or as a condition of bail. These orders are in effect as soon as the court issues them, although the defendant must be notified immediately.

Duration of a MOEP

The length of time these orders can last can vary. The maximum length of time any MOEP can last is 90 days. However, the minimum duration of these orders varies. Discretionary orders must last at least 30 days, while mandatory orders last at least 60 days.

Violation of a MOEP

The violation of a MOEP carries additional criminal consequences. However, you are still entitled to defend yourself against allegations that you violated an emergency order just like you would any other criminal offense.

To prove that you violated a MOEP, the state must establish a number of factors. The first and most obvious factor is that you were subject to the terms and conditions of a MOEP at the time of the alleged violation. In other words, you cannot be in violation for acts that occurred before the entry of the MOEP or after it expires.

The state must also show you were aware of the magistrate's order. This could be through formal notice or even if your attorney was notified. In most cases, the orders are entered prior to a defendant's release. When this occurs, a copy of the order is usually provided to a defendant while in custody.

Additionally, the state must establish that you engaged in one of the following:

• Committed family violence,
• Committed sexual assault or an act in furtherance of sexual assault,
• Committed stalking or an act in furtherance of stalking,
• Directly communicated with the complaining witness or a member of their household in a threatening manner,
• Indirectly communicated with a complaining witness in a threatening manner,
• Violated an order to remain a set distance from the complaining witness or a member of their household, or
• Possessed a firearm.

To establish that you are in violation of a MOEP, the state must prove its case beyond a reasonable doubt. If they fail to meet even one of these elements, you are entitled to an acquittal on charges you violated your MOEP.

Fighting a Protective Order or an Alleged Violation

Because the state has no obligation to inform you that they are even pursuing a MOEP against you, the chances of preventing the entry of these orders in certain cases are low. That said, courts have the power to amend or remove these orders upon a showing that the parties face hardships if the order remains in place.

If you are accused of violating a MOEP, there are also strategies for avoiding a conviction on these charges. If you were unaware of the MOEP or inadvertently made contact with the complaining witness, you might be able to avoid an order of violation being entered against you.

There are some actions you should be aware of that are not a valid defense. You are never entitled to retaliate against a complaining witness, even if they wronged you in some way. Additionally, you are still required to stay a certain distance from the defendant even if the order does not provide confidential information regarding the complaining witness's whereabouts.

Despite these limitations, violation hearings are often winnable. An experienced defense attorney can advise you on the best way to avoid violating these orders entirely.

Let a Houston Domestic Violence Defense Attorney Help

Whether you are facing a MOEP or have been accused of violating an order, your best bet is to contact legal counsel immediately. Attorney Doug Murphy has extensive experience taking on domestic violence cases in the Houston area. To discuss your best course of action following a MOEP, schedule a free consultation with the Murphy & McKinney Law Firm, P.C. today by calling 713-229-8333 or contacting us online.