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Protective Order Defense Lawyers
Defending Against Protective Orders in Frisco, Carrollton, Collin, Denton & Surrounding Counties
The Family Law Experience Advantage
Because Protective Order applications fall under both the Family Code and the Code of Criminal Procedure, they are often times filed without any real criminal charges at all. In fact, the allegations may be based on very old evidence of prior altercations that didn’t even result in injuries. These applications for protective order are often times filed in conjunction with Child Custody Proceedings or Divorce Actions as a way to gain the advantage based on old and or exaggerated claims of domestic violence in the past and the claim that it’s likely to occur again in the future. The Protective Order Defense Lawyers at Ridgely Davis Law are extremely experienced with Protective Orders given their practice in family law as well as criminal defense. Often times, Family Law Practitioners and even Prosecutors lack the time needed to adequately prep an alleged victim prior to giving testimony in court and this is where the experienced Protective Order Defense Lawyers at Ridgely Davis Law can decimate a protective order application and by extension an criminal charge for domestic violence.
The 1st Step to Getting a Protective Order Issued
The process of obtaining a Texas Protective Order starts with an application. Typically the situations giving rise to the filing of a Protective Order Application, especially in the conservative counties of Collin and Denton County, are domestic abuse or stalking allegations. In those instances, the courts in Texas will generally issue restraining orders immediately to protect the victims but a more in depth hearing will be required prior to making the Temporary Protective Order a Final Protective Order.
A protective Order can be pursued both under the Texas Family Code and under Chapter 7A of the Texas Code of Criminal Procedure for a person who has been the target of continuous sexual abuse of a child, indecency with a child, sexual assault, aggravated sexual assault, or stalking is eligible to submit an application for a protective order. This eligibility extends to the parent or guardian of a victim who is younger than 17 years old.
A victim, or the victim’s parent or legal guardian if the victim is under the age of 18, may submit an application for an application for the offenses of trafficking, continued trafficking, and coerced prostitution.
Additionally, a prosecutor may submit an application for a protection order on behalf of a victim.
Under the law, the court can grant a Temporary Protective Order if it is determined that there has been family violence in the past and that it is likely to occur again in the near future. In this instance, the judge will schedule a final hearing that is distinct from any criminal proceedings and will then issue a temporary protective order. However, if at the final hearing the court determines that violence occurred in the past and that it is likely to occur again in the future after you’ve had the opportunity to put on a defense to the protective order application, the Judge can issue a Final Protective Order which can last for up to 2 years and it can also be extended beyond this time period if the alleged victim requests such an extension.
The Effects of A Protective Order
During the pendency of both the Temporary and the Final Protective Order, you may be prohibited from committing domestic abuse, making any threats – either directly or indirectly via other people – or coming near the other person’s home or place of employment if a protection order has been issued against you. Additionally, you may be prohibited from making any form of contact with the alleged victim. You will not be permitted to own any firearms or possess ammunition, and the judge may also order you to participate in a program designed to help victims of domestic violence.
A Protective order can remain in effect for the amount of time specified by the judge, which can be up to two years. If you are sentenced to time in jail or prison, the order may continue to be in effect for up to a year after you are released.
If you breach any of the restrictions that are outlined in an Protective Order, will most likely face criminal charges. The district attorney’s offices in both Collin and Denton Counties are very serious about allegations of violating a Texas Protective Order and these prosecutors regularly file additional charges with enhancement penalties for even small violations.
What makes matters more difficult is when you and the alleged victim decide to reconcile. If the Protective Order against you is still in effect, even if you and your spouse are making plans to get back together and she invites you over, the police have the authority to and will exercise that authority to arrest you.
Where may a Protective Order be Submitted for Filing?
It may be submitted in the county in which the applicant resides, in the county in which the alleged offender resides, in any county in which an element of the alleged offense occurred, or in any court that has jurisdiction over a protective order issued under Title 4 of the Family Code that involves the same parties named in the application.
Hearing on the Protective Order
During the hearing, when the victim will be required to testify, the court will decide whether or not there are reasonable reasons to assume the applicant is the victim of sexual assault or abuse, stalking, or trafficking. In the event that the magistrate decides in the affirmative, the court is going to issue a protection order that consists of a declaration of the requisite findings. One would think that with such high consequences for a violation that a Protective Order would be difficult to obtain, but often times, it isn’t. Testimony only without any other proof of previous family violence may be sufficient to convince the court to approve a protection order.
Hearings of Child Victims May Be Considered
A statement made by a child younger than 14 years old who is a alleged victim of continuous sexual abuse of a child, indecency with a child, sexual assault, or aggravated sexual assault is admissible as hearsay evidence in a hearing for application for a protective order. This applies to only to children who have been victims of any of the aforementioned offenses: sexual abuse, indecency with a child, sexual assault, or aggravated sexual assault.
How Long Does an Order of Protection Stay in Effect?
When a timeframe is not specified in the order, the order remains in force for a period of two years beginning on the day it was signed. It was possible to issue the order for the remainder of the parties’ lives or for any other period of time. A motion to revoke the protective order can be submitted at any time by the victim or one of the parents or guardians indicated above on behalf of the victim however a skilled Collin | Denton County Protective Order Defense Lawyer from Ridgley Davis Law will understand how to confront such statements.
What exactly is a Protective Order in an Emergency?
After an arrest for an incident involving domestic violence or any of the other charges listed above, commonly results in a Judge issuing an EPO (Emergency Protective Order) prior to the alleged perpetrator being released from jail. At the request of the victim, the guardian of the victim, a peace officer, or the prosecutor, the magistrate has the authority to make this order. It is only accessible at the moment of an arrest for domestic violence or sexual assault.
The order will remain in effect for at least 31 days but no more than 61 days. If the arrest involves the use or presentation of a lethal weapon while committing an attack, the duration of the hold will be up to 91 days and will not be less than 61 days.
It is up to the discretion of the magistrate whether or not to issue this order; however, if the arrest involved significant physical injury or the use or exhibition of a lethal weapon during the commission of an attack, then it is required that this order be issued. In Collin and Denton County though, these Emergency Protective Orders are issued even in the face of very trivial accusations of domestic violence.
Is it possible to get the EPO dropped?
It is possible for a judge to alter or do away with the EPO. However, it is not a simple process nor is it one that judges are inclined to entertain. At the very least you will certainly need the cooperation and approval of the alleged victim and probably an Affidavit of Nonprosecution. The experienced Protective Order Defense Lawyers at Ridgely Davis Law serving Collin, Dallas, Denton and surrounding counties can help evaluate the potential to have the Emergency Protective Order dropped or modified as well as prepare an Affidavit of nonprosecution.
Once the Emergency Protective Order has been implemented, the prosecution in Collin, Dallas, Denton and surrounding counties will often choose to let the procedure play out slowly in court rather than move it along quickly. This is done to strengthen their case and obtain enhancement penalties if there is a violation and or more violence. This can be exceptionally hard on the alleged perpetrator because they will likely be excluded from their home, their personal belongings and their children until this protective order is resolved. This is where the combination of an attorney seasoned in Criminal Defense and Family Law really pays off because options for child custody or divorce actions can sometimes be filed and used to get around aspects of the protective order and ultimately to undermine the allegations in the criminal complaint by forcing the alleged victim to testify much sooner.
Penalties for violating a protective order?
In most cases, an offense is considered a Class A misdemeanor. It is a crime of the third degree if the defendant:
- Has a prior conviction for this section or any of the other bail conditions found in Chapter 25 of the Penal Code (2 or more times).
- Has in the past received a conviction for both this provision AND additional bond terms in Chapter 25 of the Penal Code.
- Has breached the protection order by engaging in stalking or assaulting the protected person.
- Disobeys Geographic Restrictions Is Another Form of Protective Order Violation Disobeys Geographic Restrictions
- Possesses a Firearm.
- Animal is harmed, threatened, or disrupted in some way by this.
- Attempts to remove, succeeds in removing, or tampers with GPS.
- Graffiti, criminal mischief, and arson are all forms of vandalism.
Consistent Disobedience of Multiple Court Orders
A person commits a crime of the third degree if they violate an order issued under Chapter 25 two or more times during a period of one year. The potential sentence is from two to ten years in prison, and the maximum fine is $10,000.
Schedule a Free Case Evaluation with an Experienced Protective Order Criminal Defense Lawyer in Frisco, TX serving Collin, Dallas, Denton and surrounding Counties. (469) 935-4600
Take the first Step
Accused of Assault Charges in the Collin, Denton County regions of Texas? It is essential to get an understanding on how to address the allegations and develop a plan to move forward. At Ridgely Davis Law our Assault Criminal Defense Lawyers are ready to answer your questions and help you develop a strategy to fight the charges in your unique Assault matter.
Protective Order Statute
SUBCHAPTER A. PROTECTIVE ORDER FOR VICTIMS OF SEXUAL ASSAULT OR ABUSE, INDECENT ASSAULT, STALKING, OR TRAFFICKING
Art. 7B.001. APPLICATION FOR PROTECTIVE ORDER.
(a) The following persons may file an application for a protective order under this subchapter without regard to the relationship between the applicant and the alleged offender:
(1) a person who is the victim of an offense under Section 20A.02, 20A.03, 21.02, 21.11, 22.011, 22.012, 22.021, 42.072, or 43.05, Penal Code;
(2) any adult, including a parent or guardian, who is acting on behalf of a victim described by Subdivision (1), if the victim is younger than 18 years of age or an adult ward; or
(3) a prosecuting attorney acting on behalf of a person described by Subdivision (1) or (2).
(a-1) Except as provided by Subsection (a-2), if an application has not yet been filed in the case under Subsection (a), the attorney representing the state shall promptly file an application for a protective order with respect to each victim of an offense listed in Subdivision (1) of that subsection following the offender’s conviction of or placement on deferred adjudication community supervision for the offense.
Text of subsection as added by Acts 2021, 87th Leg., R.S., Ch. 846 (S.B. 623), Sec. 3
(a-1) In addition to the persons having standing to file the application under Subsection (a), the state sexual offense response coordinator described by Subchapter J-1, Chapter 432, Government Code, with the consent of a person who is the victim of an offense under Section 22.011, 22.012, or 22.021, Penal Code, alleged to have been committed by a person subject to Chapter 432, Government Code, may file an application for a protective order under this subchapter on behalf of the victim.
(a-2) The attorney representing the state may not file an application under Subsection (a-1) with respect to a victim if the victim requests that the attorney representing the state not file the application. This subsection does not apply to a victim who is younger than 18 years of age or who is an adult ward.
(b) An application for a protective order under this subchapter may be filed in:
(1) a district court, juvenile court having the jurisdiction of a district court, statutory county court, or constitutional county court in:
(A) the county in which the applicant resides;
(B) the county in which the alleged offender resides; or
(C) any county in which an element of the alleged offense occurred; or
(2) any court with jurisdiction over a protective order under Title 4, Family Code, involving the same parties named in the application.
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
Amended by:
Acts 2021, 87th Leg., R.S., Ch. 787 (H.B. 39), Sec. 5, eff. September 1, 2021.
Acts 2021, 87th Leg., R.S., Ch. 787 (H.B. 39), Sec. 6, eff. September 1, 2021.
Acts 2021, 87th Leg., R.S., Ch. 846 (S.B. 623), Sec. 3, eff. September 1, 2021.
Acts 2021, 87th Leg., R.S., Ch. 915 (H.B. 3607), Sec. 4.002(b), eff. September 1, 2021.
Art. 7B.002. TEMPORARY EX PARTE ORDER.
(a) If the court finds from the information contained in an application for a protective order that there is a clear and present danger of sexual assault or abuse, indecent assault, stalking, trafficking, or other harm to the applicant, the court, without further notice to the alleged offender and without a hearing, may issue a temporary ex parte order for the protection of the applicant or any other member of the applicant’s family or household.
(b) For purposes of this article, a military protective order issued to a person because the person was a reported victim of an offense under Section 22.011, 22.012, or 22.021, Penal Code, constitutes sufficient information for a court to find there is a clear and present danger of sexual assault or abuse or other harm to the applicant.
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
Amended by:
Acts 2021, 87th Leg., R.S., Ch. 846 (S.B. 623), Sec. 4, eff. September 1, 2021.
Acts 2021, 87th Leg., R.S., Ch. 915 (H.B. 3607), Sec. 4.002(c), eff. September 1, 2021.
Art. 7B.003. REQUIRED FINDINGS; ISSUANCE OF PROTECTIVE ORDER. (a) At the close of a hearing on an application for a protective order under this subchapter, the court shall find whether there are reasonable grounds to believe that the applicant is the victim of sexual assault or abuse, indecent assault, stalking, or trafficking.
(b) If the court finds that there are reasonable grounds to believe that the applicant is the victim of sexual assault or abuse, stalking, or trafficking, the court shall issue a protective order that includes a statement of the required findings.
(c) An offender’s conviction of or placement on deferred adjudication community supervision for an offense listed in Article 7B.001(a)(1) constitutes reasonable grounds under Subsection (a).
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
Amended by:
Acts 2021, 87th Leg., R.S., Ch. 787 (H.B. 39), Sec. 7, eff. September 1, 2021.
Acts 2021, 87th Leg., R.S., Ch. 915 (H.B. 3607), Sec. 4.002(d), eff. September 1, 2021.
Art. 7B.004. HEARSAY STATEMENT OF CHILD VICTIM. In a hearing on an application for a protective order under this subchapter, a statement that is made by a child younger than 14 years of age who is the victim of an offense under Section 21.02, 21.11, 22.011, 22.012, or 22.021, Penal Code, and that describes the offense committed against the child is admissible as evidence in the same manner that a child’s statement regarding alleged abuse against the child is admissible under Section 104.006, Family Code, in a suit affecting the parent-child relationship.
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
Amended by:
Acts 2021, 87th Leg., R.S., Ch. 915 (H.B. 3607), Sec. 4.002(e), eff. September 1, 2021.
Art. 7B.005. CONDITIONS SPECIFIED BY PROTECTIVE ORDER. (a) In a protective order issued under this subchapter, the court may:
(1) order the alleged offender to take action as specified by the court that the court determines is necessary or appropriate to prevent or reduce the likelihood of future harm to the applicant or a member of the applicant’s family or household; or
(2) prohibit the alleged offender from:
(A) communicating:
(i) directly or indirectly with the applicant or any member of the applicant’s family or household in a threatening or harassing manner; or
(ii) in any manner with the applicant or any member of the applicant’s family or household except through the applicant’s attorney or a person appointed by the court, if the court finds good cause for the prohibition;
(B) going to or near the residence, place of employment or business, or child-care facility or school of the applicant or any member of the applicant’s family or household;
(C) engaging in conduct directed specifically toward the applicant or any member of the applicant’s family or household, including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person; and
(D) possessing a firearm, unless the alleged offender is a peace officer, as defined by Section 1.07, Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision.
(b) In a protective order that includes a condition described by Subsection (a)(2)(B), the court shall specifically describe each prohibited location and the minimum distance from the location, if any, that the alleged offender must maintain. This subsection does not apply to a protective order with respect to which the court has received a request to maintain confidentiality of information revealing the locations.
(c) In a protective order, the court may suspend a license to carry a handgun issued under Section 411.177, Government Code, that is held by the alleged offender.
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
Art. 7B.006. WARNING ON PROTECTIVE ORDER. (a) Each protective order issued under this subchapter, including a temporary ex parte order, must contain the following prominently displayed statements in boldfaced type, in capital letters, or underlined:
“A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500 OR BY CONFINEMENT IN JAIL FOR AS LONG AS SIX MONTHS, OR BOTH.”
“NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER.”
“IT IS UNLAWFUL FOR ANY PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A FIREARM OR AMMUNITION.”
(b) Each protective order issued under this subchapter, except for a temporary ex parte order, must contain the following prominently displayed statement in boldfaced type, in capital letters, or underlined:
“A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH. AN ACT THAT RESULTS IN A SEPARATE OFFENSE MAY BE PROSECUTED AS A SEPARATE OFFENSE IN ADDITION TO A VIOLATION OF THIS ORDER.”
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
Art. 7B.007. DURATION OF PROTECTIVE ORDER; RESCISSION. (a) A protective order issued under Article 7B.003 may be effective for the duration of the lives of the offender and victim or for any shorter period stated in the order. If a period is not stated in the order, the order is effective until the second anniversary of the date the order was issued.
(a-1) The court shall issue a protective order effective for the duration of the lives of the offender and victim if the offender is:
(1) convicted of or placed on deferred adjudication community supervision for an offense listed in Article 7B.001(a)(1); and
(2) required under Chapter 62 to register for life as a sex offender.
(b) The following persons may file at any time an application with the court to rescind the protective order:
(1) a victim of an offense listed in Article 7B.001(a)(1) who is 18 years of age or older;
(2) subject to Subsection (b-1), a parent or guardian acting on behalf of a victim of an offense listed in Article 7B.001(a)(1) who is younger than 18 years of age or an adult ward; or
(3) a person not otherwise described by Subdivision (1) or (2) who filed the application for the protective order.
(b-1) A parent or guardian may not file an application to rescind the protective order under Subsection (b)(2) if the parent or guardian is the alleged offender subject to the protective order.
(c) To the extent of any conflict with Section 85.025, Family Code, this article prevails.
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
Amended by:
Acts 2021, 87th Leg., R.S., Ch. 787 (H.B. 39), Sec. 8, eff. September 1, 2021.
Acts 2021, 87th Leg., R.S., Ch. 787 (H.B. 39), Sec. 9, eff. September 1, 2021.
Acts 2021, 87th Leg., R.S., Ch. 915 (H.B. 3607), Sec. 4.002(f), eff. September 1, 2021.
Art. 7B.008. APPLICATION OF OTHER LAW. To the extent applicable, except as otherwise provided by this subchapter, Title 4, Family Code, applies to a protective order issued under this subchapter.
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
SUBCHAPTER B. STALKING PROTECTIVE ORDER
Art. 7B.051. REQUEST FOR PROTECTIVE ORDER. (a) At any proceeding related to an offense under Section 42.072, Penal Code, in which the defendant appears before the court, a person may request the court to issue a protective order under Title 4, Family Code, for the protection of the person.
(b) The request under Subsection (a) is made by filing an application for a protective order in the same manner as an application for a protective order under Title 4, Family Code.
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
Art. 7B.052. REQUIRED FINDINGS; ISSUANCE OF PROTECTIVE ORDER. The court shall issue a protective order in the manner provided by Title 4, Family Code, if, in lieu of the finding that family violence occurred and is likely to occur in the future as required by Section 85.001, Family Code, the court finds that:
(1) probable cause exists to believe that an offense under Section 42.072, Penal Code, was committed; and
(2) the nature of the scheme or course of conduct engaged in by the defendant in committing the offense indicates the defendant is likely in the future to engage in conduct prohibited by Section 42.072(a)(1), (2), or (3), Penal Code.
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
Art. 7B.053. ENFORCEMENT. The procedure for the enforcement of a protective order under Title 4, Family Code, applies to the fullest extent practicable to the enforcement of a protective order under this subchapter, including provisions relating to findings, contents, duration, warning, delivery, law enforcement duties, and modification.
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
SUBCHAPTER C. PROTECTIVE ORDER PROHIBITING OFFENSE MOTIVATED BY BIAS OR PREJUDICE
Art. 7B.101. REQUEST FOR PROTECTIVE ORDER. A person may request the court to issue a protective order under Title 4, Family Code, for the protection of the person at any proceeding:
(1) in which the defendant appears in constitutional county court, statutory county court, or district court;
(2) that is related to an offense under Title 5, Penal Code, or Section 28.02, 28.03, or 28.08, Penal Code; and
(3) in which it is alleged that the defendant committed the offense because of bias or prejudice as described by Article 42.014.
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
Art. 7B.102. REQUIRED FINDINGS; ISSUANCE OF PROTECTIVE ORDER. The court shall issue a protective order in the manner provided by Title 4, Family Code, if, in lieu of the finding that family violence occurred and is likely to occur in the future as required by Section 85.001, Family Code, the court finds that:
(1) probable cause exists to believe that an offense under Title 5, Penal Code, or Section 28.02, 28.03, or 28.08, Penal Code, was committed;
(2) the defendant committed the offense because of bias or prejudice; and
(3) the nature of the scheme or course of conduct engaged in by the defendant in committing the offense indicates the defendant is likely in the future to:
(A) engage in conduct prohibited by Title 5, Penal Code, or Section 28.02, 28.03, or 28.08, Penal Code; and
(B) engage in that conduct described by Paragraph (A) because of bias or prejudice.
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
Art. 7B.103. ENFORCEMENT. The procedure for the enforcement of a protective order under Title 4, Family Code, applies to the fullest extent practicable to the enforcement of a protective order under this subchapter, including provisions relating to findings, contents, duration, warning, delivery, law enforcement duties, and modification, except that:
(1) the printed statement on the warning must refer to the prosecution of subsequent offenses committed because of bias or prejudice;
(2) the court shall require a constable to serve a protective order issued under this subchapter; and
(3) the clerk of the court shall forward a copy of a protective order issued under this subchapter to the Department of Public Safety with a designation indicating that the order was issued to prevent offenses committed because of bias or prejudice.
Added by Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 1.02, eff. January 1, 2021.
Art. 7B.104. REPORTING. For an original or modified protective order issued under this subchapter, on receipt of the order from the clerk of the court, a law enforcement agency shall immediately, but not later than the 10th day after the date the order is received, enter the information required by Section 411.042(b)(6), Government Code, into the statewide law enforcement information system maintained by the Department of Public Safety.
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