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“Emergency Ex Parte Applications for TROs” – By Marianne Howland and George Shake

Attorneys are often approached by their family members and friends for legal advice on family law matters, regardless of the attorney’s actual practice area. Below is some information that might be helpful for you when you are providing guidance to those you love (or are at least related to).

During a divorce or child custody suit, a party can request the court to provide an emergency order to address concerns for the protection of people or preservation of property without holding a hearing. This request is made by filing an Emergency Ex Parte Application for a Temporary Restraining Order (Application). The Texas Family Code lays out the process by which this extraordinary relief might be granted. The first step is that a lawsuit must be filed before or with the Application. A judge cannot legally help a party in an emergency until a lawsuit is filed.

The second step is to determine if an affidavit is required, and if so, attach it to the pleading. The Texas Family Code excludes some types of Applications from some of the requirements of an affidavit required from the Texas Civil Rules of Civil Procedure. So, it is very important to read the relevant Texas Family Code section to determine when an affidavit is needed and to what facts must be sworn.

For example, if your brother is asking the court to temporarily prevent his wife from having any access to their children, he is going to have to prepare an affidavit explaining why the children’s safety and welfare require the court to grant the Application. His affidavit must state facts showing that immediate and irreparable injury will result before notice can be served and a hearing can be held.

For a temporary restraining order regarding property, Sections 6.501 and 6.503 of the Texas Family Code will guide you. A temporary restraining order may not exclude the other party from the marital residence though. According to the Texas Family Code, you do not need to attach an affidavit with your Application alleging that immediate or irreparable loss or damage before notice and hearing, nor do you need to define the injury or state why it is irreparable (as required by TRCP 680).

It is very important to note that Dallas County (and most surrounding counties) has a standing order in family law cases that goes into effect upon the filing of the original petition. These standing orders include many of the protections that parties seek and should be reviewed before filing an Application.

The next step is to review the local rules. In Dallas County, that means the dedicated “Local Rules of the Family Courts of Dallas County.” (The Local Rules of The Civil Courts of Dallas County do not apply to family law cases).  In surrounding counties, that may mean the general local rules or a section within those rules that are specific to family law cases.

Most counties have very specific local rules regarding the request for ex parte relief. Some counties require that notice be provided to the opposing counsel, or even to an unrepresented opposing party, with a certain amount of notice prior to presenting an Application to the Court. Attorneys who do not comply with these technical rules are turned away, so the rules must be read and adhered to. Most counties require that you include a certificate on your Application certifying that you followed the applicable local rules.

Next, the attorney must make sure he or she is prepared to present the application to the court. An Application will be decided on its contents and an affidavit, if required. But the court will likely have a few questions. It is critical to be very familiar with the pleadings and facts alleged within.

Once the court reviews the Application it will determine whether to grant the Application. If the court does grant the TRO, it will set a hearing within 14 days to review whether the Temporary Restraining Order shall be continued. This can be reset for another 14 days under particular circumstances. If the Application is denied, oftentimes a Temporary Orders hearing can be set in an expedited fashion.

It is the opinion of the authors that our local courts receive quite a number of Applications that fall far short of a true emergency. Therefore, we counsel caution before attempting to obtain this extraordinary relief unless necessary. A whole case could be colored by a dramatic claim that cannot be supported by the pleadings or underlying facts.

Marianne Howland and George Shake are partners at Duffee+Eitzen and can be reached at marianne@d-elaw.com and george@d-elaw.com, respectively.

CHECK YOUR LOCAL COURT RULES BELOW