Section 25.071 is the counterpart to Section 25.07 for protective orders issued in bias or prejudice cases under Subchapter C, Chapter 7B of the Code of Criminal Procedure.
What the Statute Prohibits
A person commits an offense if, in violation of a Chapter 7B protective order, the person knowingly or intentionally:
- commits an offense under Title 5 (offenses against the person) or under Section 28.02 (arson), 28.03 (criminal mischief), or 28.08 (graffiti), and commits the offense because of bias or prejudice as described by Article 42.014 of the Code of Criminal Procedure;
- communicates — (A) directly with a protected individual in a threatening or harassing manner; (B) a threat through any person to a protected individual; or (C) in any manner with the protected individual, if the order prohibits any communication; or
- goes to or near the residence, place of employment, or business of a protected individual.
If conduct under this section also constitutes an offense under another section of the code, the actor may be prosecuted under either or both.
Penalty
Generally a Class A misdemeanor — up to one year in county jail and a fine of up to $4,000 — rising to a third-degree felony where the person has prior convictions under this section or where the violation was committed by an assault or stalking offense.
The Rules That Trip People Up
The order restrains you alone. Contact initiated by the protected person does not make a response lawful. Only the court that signed the order can change it, on a motion to modify.
Read the communication clause carefully. Some orders bar only threatening or harassing communication; others bar communication in any manner whatsoever, which reaches texts, email, social media comments and tags, and messages relayed through friends or relatives. Which clause applies decides the case.
"Goes to or near" is often the vaguest term in the order and the easiest to violate accidentally — a workplace on a regular commute, a shared shopping center, a mutual acquaintance's home nearby.
Defenses
Notice. The State must prove a knowing or intentional violation. Where the accused was never served and never informed of the terms, that element fails. The service return and any record of the order being read in court are the first documents to obtain.
The bias element (theory 1). Where the State proceeds on the offense-plus-bias theory, it must prove the underlying offense and that it was committed because of bias or prejudice under Article 42.014. Slurs during an unrelated dispute do not establish that the person was selected because of group identity.
The order's actual terms. Prosecutors regularly charge conduct the order did not prohibit.
Incidental contact. Unplanned encounters in public places, without more, are not knowing violations.
Validity and expiration. An order that had lapsed, was later modified, or was entered without the required findings cannot support a conviction.
Related
- Penal Code 25.07 — violating a protective order
- Section 12.47 — bias or prejudice penalty enhancement
- Protective orders · Bond conditions
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.