In Texas, a Magistrate's Order of Emergency Protection, or MOEP, is a temporary protective order that is automatically issued in Assault Family Violence Cases. In many cases, the MOEP is necessary to protect the victim. Often, however, the MOEP is not necessary and becomes a problem for alleged victims who just want their loved one to return home. This blog post addresses what a Texas Magistrate's Order of Emergency Protection is and how to go about amending the MOEP.
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What is a Texas Magistrate's Order of Emergency Protection (MOEP)
A Texas Magistrate's Order of Emergency Protection (MOEP) is a temporary protective order issued to protect the victim in an Assault Family Violence case. The prosecutor is the one who requests the MOEP. The alleged victim does not have to request that a MOEP be issued, as the judge automatically orders a MOEP at the beginning of an assault-family member case. The conditions of the MOEP vary depending on the type of case and the underlying facts.
After someone is charged with family violence, the MOEP will prevent that person from returning to the home for between 2-3 months and frequently will prevent the person from having any contact whatsoever with the alleged victim.
Possible Conditions of a MOEP in Texas
no threatening or harassing contact with the alleged victim
no contact at all with the complaining witness or victim
committing an assault against the alleged victim
possessing a firearm
cannot go to the address of place of employment of the victim or member of the victim's family
But I Never Requested a MOEP!
When someone is arrested for Assault-Family Member or Family Violence in Texas, the state automatically issues a magistrate's order of emergency protection (MOEP) for the safety of the victim. Many alleged victims in family violence cases never requested a MOEP or protective order in the first place, however the state of Texas will issue the MOEP regardless.
This creates problems for families who want nothing more than to move on from the incident and just want to drop the charges. The best piece of advice I can give is to speak with an experienced Houston assault attorney to learn how to drop assault charges against a family member.
How Long does a Magistrate's Order of Emergency Protection (MOEP) last?
In a misdemeanor assault-family member case, a magistrate's order of emergency protection, or MOEP, lasts for 61 days from the date it was issued.
If a deadly weapon is alleged to have been used in the offense, the MOEP lasts for 91 days from the date it was issued.
How to Amend a Magistrate's Order of Emergency Protection (MOEP) in Texas
Consult an Experienced Criminal Defense Attorney
I often get asked by my clients how to amend a magistrate's order of emergency protection in Texas. The alleged victim never requested a protective order and wants their loved one to return to the home or to be able to contact them. The best piece of advice I can give is to hire a top criminal defense attorney in Houston to defend the assault case and advise you the best way to go about amending a MOEP.
Contact the district attorney directly to Amend the MOEP
The person who requested the MOEP is the district attorney, therefore one of the most effective ways to amend a MOEP is to contact them directly to amend the MOEP. They will want to know whether a protective order is necessary and whether there is a history of violence in the home. Tell the prosecutor why you want to amend the MOEP, whether you want your loved one to return home and whether you are in any danger.
Be careful when contacting the district attorney by yourself without a lawyer, as anything you say could be used against you or your loved one in the future. Remember that the prosecutor does not represent you. They represent the state of Texas. Their goal is to prove the underlying assault case against your loved one. They are not necessarily looking out for the best interests of you and your family. They are trying to build their case, many times at the expense of the best interests of your family.
Appear in Court with an Attorney to Speak with the Judge
Ultimately the judge makes the decision as to whether a Magistrate's Order of Emergency Protection gets amended. Instead of contacting the district attorney directly, it may be a better idea to go to court with your lawyer and speak with the judge directly. In my experience as a criminal defense attorney in Houston, it is often more effective to appear in court and speak with the judge face to face regarding the MOEP. This way, the judge can see and hear from the alleged victim directly.
The first question the judge typically asks is whether anyone has spoken to the alleged victim and whether they want the MOEP in place. Instead of doing this alone, my advice would be to hire a lawyer to go with you so that your rights are protected and you don't subject yourself to any future criminal liability.
Read the Language of the MOEP
Before taking steps to amend a Magistrate's Order of Emergency Protection (MOEP), make sure to read the language of the MOEP and understand the specific conditions that are listed. More often than not, the MOEP will contain a condition preventing any threatening or harassing contact towards the alleged victim. This is not the same thing as no contact whatsoever. The accused can still have contact with the victim, as long as that contact is not made in a threatening or harassing manner.
Penalties for Violation of a Magistrate's Order of Emergency Protection (MOEP) in Texas
The penalty for violating a Magistrate's order of emergency protection in Texas can range anywhere from a Class A Misdemeanor to a 3rd Degree Felony, depending on the person's criminal history, how the alleged violation occurred and how many times a violation occurred.
Class A Misdemeanor Violation of Protective Order
Under Section 25.07 of the Texas Penal Code, violation of a Protective order or MOEP is typically a Class A Misdemeanor with a punishment range of 0 to 365 days in jail and/or up to a $4,000 fine.
3rd Degree Felony Violation of Protective Order
Under Section 25.07 of the Texas Penal Code, violation of a MOEP is enhanced to a 3rd degree felony in the following situations:
the person has previously been convicted two or more times of violation of a protective order;
the order was violated by committing an assault or stalking.
the person violated the protective order 2 or more times within the span of 12 months The penalty for a 3rd degree felony in Texas is confinement in prison between 2 to 10 years and/or a fine of up to $10,000.
Contact Mercer & Keirnan Assault Defense Attorneys for a Free Consultation
At Mercer & Keirnan, Criminal Defense Attorneys, we have over 40 years of experience defending persons accused of assault, assault on a family member and aggravated assault in Houston. If you have questions about a Magistrate's Order of Emergency Protection in Texas or anything related to an assault charge in Houston, contact us directly at 713-236-9700 for a free consultation.