Our county has two County Courts at Law. One handles criminal matters and the other civil. Protective Orders were previously handled by the "criminal" County Court at Law, but have recently been assumed by the "civil" County Court at Law. Rather than either issuing or not issuing a final protective order, the new Judge has been issuing a temporary injunction sua sponte while he takes the Protective Order request under advisement. He then sets a status hearing several months out where he will entertain making a final ruling on the Protective Order. Any advice on how to handle this situation would be very much appreciated.

Not knowing the civil court-at-law judge, I'll work from the presumption that the judge's chosen mode of procedure stems from a lack of understanding of the procedures and purposes for them underlying Title 4 of the Family Code and its relation to section 25.07 of the Penal Code. Of course, the provisions relating to protective orders envision, ideally, that the entire process will take no more than 14 days from filing to entry of a final order. That assumes your county doesn't have a population of more than 2 million or a district court which encompasses more than one county. (SeeFam. Code sec. 84.002.) In that event, 20 days is the presumptive window, subject to extension on your request. (Id.) Failure of service also can result in an extension. (Fam. Code sec. 84.003.)

Absent any of those circumstances, the statute provides that the court "shall" set a date for a final hearing and "may not" set that date for more than 14 days from the filing of the application. (Fam. Code sec. 84.001(a).) The clear intent from the statute is a procedure that is expedient in granting relief to victims of family or dating violence. That a temporary ex parte order may be granted supports that intent, with the purpose of providing criminally-enforceable protection to the victim in the interim between filing and the final hearing. (See Pen. Code sec. 25.07(a) [temporary ex parte order served on respondent subject to sec. 25.07].) So, at the very least, it might be useful to ask the judge for entry of a temporary ex parte protective order instead of a garden variety temporary injunction, which is enforceable only by contempt.

In the bigger picture, I hesitate to speculate on how difficult your judge might be about the scheduling issue. Ultimately, though, the Family Code's provision on scheduling is, subject to exceptions discussed above, mandatory. So, I suppose, the nuclear option would be to mandamus your judge. That is likely to make future proceedings signficantly more difficult, if not downright contentious. But it may serve as a backdrop for an earnest discussion with the judge about the purposes of Title 4, not only with regard to ultimate relief granted, but also the intent that the relief be available on an expedited basis.

I would point your judge to 84.001 and 85.001.

84.001- The hearing MUST set a date not later than 14 days (unless you're in one of a very few urban counties where you get 20 days).

85.001- "At the close of a hearing on an application for a protective order, the court shall find..." At the close, and shall. There's no room in that for a "temporary injunction," or even for a judge to have the discretion to take the case under advisement.

You might couple that with a discussion with your judge regarding the charging requirements of 25.07 for violation of a protective order. In order for the process to have any teeth at all, there must be "an order issued under... Chapter 85, Family Code." Chapter 85 makes no provision whatsoever for a "temporary injunction." By doing so, the judge is denying relief to petitioner because there's nothing that's enforceable. The worst, MAYBE, that could happen would be for the judge to hold the respondent in contempt of the temporary injunction, but there's certainly no criminal penalties that attach.

You might be more politic in your discussion that this, but your judge is violating victims of family violence a second time by denying them the relief to which they're entitled.

Thank you both for the helpful advice. I sincerely appreciate it.