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Kick-Out Orders

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This article about kick-out orders was written by Legal Aid Society of Lubbock.

Is it possible to force an abuser to leave the home?


Yes. It is possible to force an abuser to leave the home. Apply for a protective order that specifically asks for a kick-out order.

Under the Texas Family Code, when an applicant asks for an ex parte protective order, he or she may ask the court to exclude the respondent from the residence, subject to some limitations:

  1. The residence the abuser is being excluded from is jointly owned or leased by the applicant and the abuser; or
  2. The applicant owns or leases the residence on their own;
  3. The residence is owned or leased by the abuser AND the abuser has an obligation to support the applicant or their child.

See Texas Family Code chapters 83.006 and 85.021(2).

 

What is an ex parte protective order?

An ex parte protective order is a temporary protective order issued by the court. It is issued before the formal hearing for a final protective order. It is issued without notice to the respondent in an emergency situation where the court finds a clear and present danger of family violence.

 

How do I ask the court for a kick-out order?

To ask that an ex parte protective order include a kick-out provision, applicants must:

  • file a sworn affidavit that describes the facts and circumstances, in detail, that require the respondent to be excluded from the residence; and
  • appear in person to testify at a hearing to justify the issuance of the order without notice to the respondent.

See Texas Family Code chapter 83.006(a).

What will the judge want to know before granting a request for a kick-out order?

Before the court may issue an ex parte protective order excluding the respondent from the residence, the court must consider the affidavit and testimony. And, the court must find the following to be true:

  • The person who is asking for the kick-out order resides on the premises or has resided there within 30 days before the date the application was filed;
  • The person being excluded has committed family violence against a member of the household within the 30 days before the date of the application; and
  • There is clear and present danger that the person to be excluded is likely to commit family violence against a member of the household.

See Texas Family Code chapter 83.006(b).

Will the judge contact an abuser before granting a kick-out order?

It depends.

The court may stop the hearing on the temporary ex parte order to contact the respondent by telephone to provide a chance to be there when the hearing resumes. But the court must resume the hearing before the end of the workday—without regard to whether the respondent can be there.

See Texas Family Code chapter 83.006(a).

 

Do you have to own or lease the home by yourself to have an abuser excluded from that home?

No. A person may be excluded from the occupancy of his residence if:

  • the residence is jointly owned or leased by the party receiving exclusive possession and there is another party being denied possession;
  • the residence is owned or leased by the party retaining possession; or
  • the residence is owned or leased by the party being denied possession and that party has an obligation to support the party or a child of the party granted possession of the residence.

See Texas Family Code chapter 85.21(2).

 

If the judge grants the kick-out order, does it change ownership of the property?

No. The protective order may grant the applicant the exclusive use and possession of the residence. But it does not affect the title to any real property.

See Texas Family Code chapter 85.023.

 

If the judge grants a kick-out order, how do you make the abuser leave?

Law enforcement will help. No one should try to force their abuser to leave on their own.

The court will order the sheriff, constable or police chief to provide an officer to:

  • go with you to the residence covered by the order;
  • tell the respondent that the court has excluded him or her from the residence;
  • protect you while you take possession of the residence; and
  • protect you if the abuser refuses to vacate the residence while you gather your necessary personal property.

See Texas Family Code chapter 86.003.

 

Will my abuser be arrested for refusing to leave the home once there is a kick-out order?

No. Abusers cannot be arrested until a final protective order that excludes them from the property is issued. While law enforcement can ask an abuser to leave—and protect you in the process—they cannot arrest an abuser for refusing to leave under a temporary ex parte protective order.

See Texas Family Code chapter 86.003.

 

Will my abuser be arrested for refusing to leave the home once there is a final protective order?

Yes. After a final protective order excluding an abuser from the residence is issued, the court will order the sheriff, constable or chief of police to provide an officer to:

  • go with you to the residence covered by the order;
  • tell the abuser that the court has ordered him or her excluded from the residence;
  • protect you while you take possession of the residence and the respondent gathers his or her necessary personal property.

If the respondent refuses to vacate the residence, law enforcement will:

  • remove him or her from the residence; and
  • arrest him or her for violating the court order.

See Texas Family Code chapter 86.004.

What legal terms describe the parties in a protective order application?

The applicant is the person filing an application for a protective order with the court.

The respondent is the person that the protective order is against.