Austin, TX asked in Criminal Law and Federal Crimes for Texas

Q: Husband charged with 1st assault charge and an epo put in place for 61days.

My husband went to jail for aggrv. Assault and there is an epo in place. He went to court and they gave him time served. Great right, but he's homeless has no where to stay basically in the streets, he goes to my cousins and has them call and ask if I can bring his shoes, clothes, & bike to get to a job he was gonna start. I said yes and without me knowing he showed up at my job waiting to get his things, and somebody(co-worker, my mom's friend) who knew there was a protective order in place called the cops on him. And he got arrested for violating the protective order? What can he or I do? There was no intention of any harm on me or anything he just wanted his bike and shoes to get to a job he was gonna start? How will he be charged can it be reconsidered?

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1 Lawyer Answer

Kiele Linroth Pace

Answered
  • Criminal Law Lawyer
  • Austin, TX
  • Licensed in Texas

A: The most important thing to remember about a protective order is that its not YOUR order so you can't give him permission to violate the order. A protective order is a JUDGE'S order. Judge's don't tolerate their orders being violated, and they don't care about the excuse.

The second most important thing to remember is that is almost always easier for the prosecutors to prove a criminal Violation of Protective Order case than it is to prove the original Assault charge. They don't need your cooperation to prove the violation because they have the other witness or witnesses that saw him at the protected location. This means you shouldn't expect that the state will give up the violation charge, at least until they are satisfied on the Assault.

What can you do? Several things actually, but the most important are to bond him out and to hire an attorney. After those two, the next important thing is to cooperate with his attorney to give your side of both the assault incident and the violation of protective order incident. Depending on the facts, you might be able to give a sworn statement that help the defense.

After he is out and has an attorney, another next thing you could do is contact the court and request an EPO modification hearing. The judge might be willing to remove the keep-away and no-contact conditions, or perhaps even terminate the EPO, but that won't happen without a hearing... or at least it shouldn't if everyone is playing by the rules as outlined in Art. 17.292(j) of the Texas Code of Criminal Procedure. Pay particular attention to 17.292(j)(1), 17.292(j)(2), and 17.292(j)(3) because those are what you have to prove to get the modification. Again, don't go down this rabbit trail until he is out of jail and represented by counsel. Getting the EPO modified could prevent a future violation, but it does not cure the previous violation.

Roy Lee Warren agrees with this answer

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