Abuse victims may apply to a court, without the alleged abuser’s participation, for an order evicting the respondent abuser from their home. A kick out order is a temporary order excluding a family member based on allegations of violent crimes such as domestic or family violence.
Under the Texas Family Code, an alleged victim may ask the court for this order without notice to the other party. These are used in an emergency where the court finds a clear and present danger of family violence. A judge issues these orders before a final protective order.
The alleged perpetrator may be excluded from a residence that is jointly owned or leased by the applicant and the respondent, owned or leased solely by the applicant or owned or leased by the respondent who has an obligation to support the applicant or their child.
Applicants must file an affidavit containing detailed facts and circumstances supporting this eviction and provide supporting testimony at a court hearing. The respondent does not attend this proceeding.
Judges determine whether the applicant resided on the premises or resided there 30 days before the application was filed, the respondent committed family violence against a household member within 30 days before the application and there is a clear and present danger that the alleged perpetrator is likely to commit family violence against a household member.
The judge may stop this hearing to telephone the respondent and offer them a chance to attend when the hearing resumes. But the hearing must resume before the end of the workday even if the respondent cannot attend.
If the order is granted, the court will order law enforcement to accompany the applicant to their residence, inform the respondent that the court evicted them, protect the applicant while they take possession of the residence or gather personal property if the respondent refuses to leave.
Law enforcement may not arrest alleged perpetrators until the court issue a final protective order which evicts them. Police can ask an abuser to leave the residence and protect the applicant, but they cannot arrest that person for refusing to leave under this temporary order.
If the court issues a final protective order, law enforcement will accompany the applicant to their residence, notify the respondent that the court ordered their eviction and protect the applicant while taking possession of their residence and the respondent gathers their personal property. Law enforcement may remove the respondent from the residence or arrest them if they do not comply with this order.
You should seek legal representation if you are charged with domestic violence. An attorney can help protect your rights.