A couple recent challenges have come up to the magistrate's order for emergency protection statute. the allegation is that art. 17.292 violates due process -- no standards, no findings, no right to be heard, no statutory mechanism to seek review of the initial order.
anyone have this battle before, and what are your thoughts on this issue? is this section fixing to go belly-up, or can it be saved?
The emergency protective order is temporary -- 60 days maximum. Meanwhile, the State should be filing for a more permanent protective order that involves a supporting affidavit, notice to the defendant, and a hearing. That isn't any different than the sort of temporary order that a respondent gets in a divorce petition. Should be plenty of due process, particularly given that there is likely to be a related criminal charge that is presumably supported by probable cause and an arrest.
If anyone is touchy about the protective order, the prosecutor should think about putting the conditions of the protective order into a motion for conditions of bond. A judge may impose all of the same conditions upon the defendant as part of a bond, and no one questions the due process associated with that order. So let's keep it safe out there.
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