Q: I was arrested for Artical 17.292(a) I was ordered to stay 500’ from my fiancé home or place of employment for 61 days
I was made threatening comments to her. We are able to be with each other anytime other then at her home or place of employment. It was a class c misdemeanor.
My fiancé wants to remove the 61 day restriction. So I can go to her home. How does she go about getting this removed?
A: THANKS FOR YOUR QUESTION. Please do not otherwise meet with her. It would be a violation of the TRO or you could be prosecuted for tampering with a witness. She must go to the DA's office in the county where the case was filed to file an affidavit of non-prosecution. It is up to the DA whether the county will rescind the order. Best of luck to you.
Pursuant to Article 17.292(j) of the Texas Code of Criminal Procedure, the magistrate (judge) that issued the Emergency Protective Order can modify or vacate that order after notice to each affected party and a hearing.
The defendant and alleged victim are clearly "affected parties" but don't be surprised if the judge wants a representative from the prosecutor's office present at the hearing.
Your fiancé does not get to choose whether or not the order is modified... that decision will be made by the judge. However, her chances are better if she is represented by a local attorney rather than trying to do it herself.
First, an emergency protection order may be issued against someone arrested for a violation like you described. You didn't mention an arrest but I will assume you were. Further, I will assume that you were arrested for a violation that falls under the statute you cited. It all sounds legal for a magistrate to do. So, next what can be done.
You should hire a lawyer and remove the temporary protective order to the court that is handling your penal code violation and motion that court to amend the order because it isn't workable. It isn't an easy endeavour. Your lawyer would have to show the court that the alleged victim is in no danger if are allowed at her job or home and why the order is unworkable.
You should not contact the alleged victim in any way, including but not limited to, by phone, in person, within eyesight, through a mutual aquantence or family member, by mail or by carrier pigeon. Your order may not state any of those things specifically but it is implied. Just don't.
If you have an appointed lawyer, ask him to bring the order over to the court that you have been assigned. The magistrate is sometimes the same judge who will handle your underlying case. That may not be something an appointed lawyer has a duty to undertake; especially if the facts surrounding this are bad enough that in her professional opinion it would be a waste of the court's time to file a motion to amend the order.
thanks and good luck to you both. You are off to a bumpy start. Maybe one or both of you should reconsider and postpone the nuptuals for a year or two.
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