In Harris County if you are charged with Assault-Family Violence the magistrate who sets your bond has statutory authority to delay your release from jail for up to an additional 48 hours after your bond has been posted.
In order to do that the magistrate must find certain circumstances exist to justify your continued detention. They won’t tell you what those circumstances are. It would be up to your lawyer to know them and to contest their existence on your behalf. But, seeing as how you are not appointed a defense lawyer at the time of your magistration (as of the date of this writing) it becomes easy to see how these continued detentions can become the standard operating procedure in any case involving allegations of domestic abuse. That’s usually the first thing they’ll do.
In most cases, the next thing that will happen is you will be given a copy of something called a “Magistrate’s Order for Emergency Protection.” In Harris County, the shorthand we use to refer to these is the acronym “MOEP.” If a MOEP is not issued at the time of your magistration it can also happen at your first or a subsequent court setting.
Your complainant has the authority to request this sort of protection. But, in my experience, the district attorney will make this request on behalf of the complainant—whether the complainant needs or wants it—in nearly every such case.
The MOEP is a 60-day order that includes a list of things you cannot do while you are out on bond. If you live with the complainant you need to understand that you will not be able to go home; at least initially. It doesn’t matter if you own the house and the other party is merely living there. The order will prevent you from going to or near the residence, place of employment, or business of the person protected under the order.
What should be particularly worrisome to those on bond for these offenses is that, among other things, you are prohibited from communicating with the complainant in a threatening or harassing manner. It is not worrisome because I think you should be allowed to do those things; I don’t. It should be worrisome because of how easy it would be for your complainant to interpret anything you say as a threat or as harassment. More importantly, the interpretation of your complainant is not and should not be your primary concern.
Your primary concern should be understanding how police and prosecutors will interpret the complainant’s claim that you have harassed or threatened them.
If you are subject to a MOEP it is important to understand what incredible leverage your complainant has over you. Whether that is fair in light of the circumstances is a different question. What is without doubt is that it is the reality of your situation.
If there is a claim that you have violated the MOEP, you can be re-arrested, charged with a new offense for violation of a protective order, and held without bail.
Keep in mind these are all things that can happen before anyone has investigated the case to determine whether a crime has actually occurred. These are things that can happen if even your complainant wants to stand by your side and work things out.
That is the main reason I suggest to clients that they—at least temporarily—disengage. Do not ignore the terms of the MOEP. Do not bond out and go immediately in search of the complainant. Do not call or text or email or PM or Snap or Skype or attempt to make contact using any other kind of communication. Do not respond or reply if the complainant does any of the above in an attempt to contact you. If you see that person out in public you should turn and head the other way. Avoid confrontation at all costs.
I’m not advocating that you be weak. I’m advocating that you be smart. Once you’ve been accused and charged with having committed a family assault, every presumption will be made in favor of the complainant. Law enforcement will not be interested in any explanation. So, the smart thing to do is to avoid situations in which you might need one.
Take a step back and take a deep breath.
Allow the notion that cooler heads prevail to work in your favor. Protect your liberty. You are not going to be able to fix your relationship or make peace with the idea of moving on from your current one from inside of a jail cell.