Restraining Orders

Sexual assault is defined in two ways in Texas law for the purposes of getting a protective order, depending on whether the victim is an adult or a child:

1. Sexual assault is the penetration of the anus or genitals with any object or with someone’s sexual organ, or penetration of the mouth with someone’s sexual organ, without the agreement (consent) of the victim.¹ “Consent” can be either explicit (express) or implied (apparent).² 

“Without consent” of the victim means:

• The victim is forced (compelled) to take part by actual or threatened physical force or violence. Note: The threat of violence can be to the victim or another person;
• The victim is unconscious or physically unable to resist;
• Due to a mental disability, the victim is mentally incapable of agreeing to or resisting the act;
• The victim has not agreed and the abuser knows that the victim does not know that the sexual assault is occurring;
• The abuser knows that the victim is so intoxicated by a drug or any substance that the victim cannot agree to the act;
• The abuser is a public servant who forces the victim to participate;
• The abuser is a healthcare or mental health provider, and the victim is their current or former patient;
• The abuser is a clergyman who forces the victim to participate by misusing their position as a spiritual advisor;
• The abuser is a healthcare professional doing an assisted reproduction procedure, and they use reproductive material from a donor that the victim did not agree to use;
• The abuser forces the victim to agree or act by using their power or influence to take advantage of the victim’s dependency on them because they are:
  • a caregiver hired to assist the victim with activities of daily life;
  • a coach; or
  • a tutor; or
• The abuser is an employee of a facility where the victim is a resident.³

2. Sexual assault could involve any of the following acts between a child and an adult, regardless of whether the adult knows the age of the child, when the abuser knowingly or intentionally:

• caused the penetration of the anus or sexual organ of a child by any means;
• caused the penetration of the mouth of a child by the sexual organ of the abuser;
• caused the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the abuser;
• caused the anus of a child to contact the mouth, anus, or sexual organ of another person, including the abuser; or
• caused the mouth of a child to contact the anus or sexual organ of another person, including the abuser.⁴

However, there could be a valid defense to the crime of sexual assault, as described in #2, above, if the perpetrator can prove that:

• they were the spouse of the child at the time of the offense; or
• at the time of the offense, the abuser was not more than three years older than the victim, and all of the following are true:
  • the abuser was not a convicted sex offender;
  • the abuser did not have a reportable conviction or adjudication for a sexual offense;
  • the victim was at least 14 years old at the time of the offense;
  • the abuser was not committing bigamy; and
  • the victim agreed to the act, meaning there was no force or threat.⁵

You can go to our Selected Texas Statutes page to read the definitions of sexual assault and aggravated sexual assault. For other crimes that could qualify a person to get this type of protective order, go to Who qualifies for a sexual assault or abuse, stalking, or trafficking protective order?

¹ Tex. Penal Code § 22.011(a)(1)
² Tex. Penal Code § 1.07(a)(11)
³ Tex. Penal Code § 22.011(b)
⁴ Tex. Penal Code § 22.011(a)(2)
⁵ Tex. Penal Code § 22.011(e)

Indecent assault is when the abuser does any of the following to you for without your consent for the sexual pleasure of the abuser or another person:

• touches your anus, breast, or genitals;
• puts your anus, breast, or genitals in contact with another person;
• exposes or attempts to expose your genitals, pubic area, anus, buttocks, or nipple; or
• causes you to come into contact with the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of any person.¹

¹ Tex. Penal Code § 22.012(a)

A judge can order the offender to:

• stop doing anything that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass you, your family, or any member of your household;
• stop communicating directly or through another person (indirectly) with you, or your family or household member in a harassing manner;
• stay away from your and your family/household members’ home, school, child care facility, workplace, or business;
• turn over any firearms in his/her possession to law enforcement unless the person is a peace officer actively engaged in employment as a sworn, full-time paid employee of a state agency, and the judge can suspend his/her license to carry a concealed handgun;
• not track or monitor your personal property or motor vehicle without your permission by using either a tracking application/device or by physically following you; and
• take other actions that the judge decides are necessary to reduce the likelihood of future harm to you or your family or household member.¹

Note: Even if the order doesn’t specifically say that the abuser has to turn over his/her firearms, possession of a firearm by a non-police officer respondent is illegal under Texas state law and federal law. Please see TX State Gun Laws and Federal Gun Laws for more information.

¹ Tex. C.C.P. Art. 7B.005(a)