Divorce and custody cases are filled with challenges, often including TROs. If you live in the Austin area and want legal counsel to help do what’s best for your family, contact Evans Family Law Group today.
(Tex. Fam. Code § 6.501 and 105.001)
A TRO, by its nature, takes effect almost immediately upon signature by the Court and, according to the Family Code, are expressly for the purpose of preservation of property, the protection of a party, or the protection of a child who is the subject of the case.
Purpose of TRO
A TRO prohibits or “restrains” a party from a specific behavior, act, or taking certain action that is prohibited by the TRO. For example, TRO’s are used to prohibit withdrawals from bank accounts, selling or “alienating” property of which the other spouse may have an interest, incurring debt, harassing another party, or from removing a child or un-enrolling a child from school or day care. TRO’s are only valid as against the other parent or spouse to the case and are not binding on a third party, such as a bank, child care provider, or other employer.
Applying for TRO with The Court
An application or request for a TRO, in family cases, is brought by a party in the context of a divorce or custody case. TRO’s can be brought “ex parte”, meaning without notice to the other party affected by the Order. For most types of relief available under a TRO, an affidavit or sworn testimony of a party is not required. However, when seeking to attach a child, require a child to be taken into the possession of another party or person designated by the Court, or when seeking to exclude a parent from having access to their child – the application must be supported by an affidavit of that party and state reasons why the party or child will suffer “irreparable harm” if the TRO is not granted.
Duration of TRO
TRO’s are statutorily effective for 14 days unless extended or dissolved by the Court. If not extended either by the Court or by agreement of the parties, a TRO will automatically expire at midnight of the 14th calendar day after it is signed by the Court. See Tex. R. Civ. Proc. 680. See also In re Walkup, 122 S.W.3d 215 (Tex. App. – Houston [1st Dist] 2003). See also Giron v. Gonzalez, 247 S.W.3d 302 (Tex. App. – El Paso 2007, no p et). The TRO must contain a notice for a hearing to be held as soon as possible or within the 14 days after a TRO is granted to determine whether or not the terms of the TRO should be made into a temporary injunction and take precedence over hearings regarding other types of family law matters.
Actual Notice Required to be Effective
A TRO is not effective until the responding party receives actual notice of the Order, either by personal service or “otherwise” and is required before the terms of the TRO can be enforced by the Court. See Ex parte Conway, 419 S.W.2d 827 (Tex. 1967). Once a Court issues a TRO, the clerk of the Court is required to issue a writ and is required to be served on the party against whom the TRO was granted “immediately”, but no later than 3 days prior to the hearing on the temporary injunction.
Types of Relief Available in TRO
Tex. Fam. Code. § 6.501 provides a list of 28 different restraints of behavior or prohibitions which can be included in a TRO. However, this list is not exclusive and the Court can Order other kinds of relief not enumerated in 6.501, provided such is for the preservation of property , the protection of a party, or the protection of a child that is part of the case.
However, the under section 6.501 of the Family Code, there are some express limitations on what can be Ordered by the Court through a TRO. Generally, any type of relief that requires notice and a hearing cannot be Ordered in a TRO. More specifically, a TRO cannot decide custody (known as “conservatorship), or grant a party exclusive use of a residence, or obligate party to pay bills. A TRO cannot prohibit a spouse from spending money for their own reasonable and necessary living expenses. A TRO cannot exclude a party from their own residence, unless there are allegations of family violence inside of an application of a protective order.
TRO Not Subject to Appeal
TRO’s are not subject to appeal and can only reviewed through a process known as a “Writ of Mandamus”. However, the Court’s have so much discretion in granting them that very few of these procedures are met with success. Rather, upon receipt of a TRO, if you believe that that Order has been rendered improperly or does not comply with the family code, you have a right to seek to dissolve or even modify the TRO upon 2 days’ notice, or less if given permission by the Court. Upon receipt of notice of the issuance of a TRO, you should immediately discuss this with your attorney and thoroughly analyze whether this is an option available to you.