Appeal from the 446th District Court Ector County, Texas
Trial Court Cause No. E-16-01-0027-FM
consists of: Wright, C.J., Willson, J., and Bailey, J.
WRIGHT CHIEF JUSTICE
father and mother were involved in a divorce proceeding.
While the divorce proceeding was pending, the father filed a
separate suit in which he sought a protective order to
protect J.Z. from J.Z.'s mother; the father alleged that
the mother had been hitting J.Z. in the face. After a
hearing, the trial court granted the father's petition.
On appeal, the mother claims that she had no notice of the
hearing and that, therefore, the trial court's order
should be set aside. Because there has been no showing that
the mother received notice of the final hearing, we set aside
the trial court's order and remand the cause to the trial
divorce case was pending between the mother and the father,
the father sought and obtained a protective order against the
mother. In the order, the trial court limited the
mother's access to one of the children of the parties,
J.Z. When the father filed the application for the protective
order, he sought and obtained a temporary ex parte order by
which the trial court restricted the mother's contact
with J.Z. The trial court set a hearing on the application
for January 22, 2016, at 8:45 a.m. On January 15, 2016, a
process server served the mother with the application and the
order setting the case for a final hearing.
January 20, 2016, the father filed a motion for continuance
in this case. The father sent what he called a "Courtesy
Copy" of the motion for continuance to the mother's
attorney in the divorce case. The mother claimed that her
divorce lawyer did not represent her in this case. The
notation "Courtesy Copy" on the certificate of
service contained in the motion for continuance would be
congruent with the mother's claims, in her motion for new
trial and here, that her divorce lawyer did not represent her
in the protective order action and that she had no notice of
the date of the final hearing. The trial court granted the
motion for continuance, extended the ex parte order, and
reset the final hearing for January 29 at 8:45 a.m. In any
event, although the certificate of service contained a
reference to the motion for continuance, it did not contain a
certification of service of the order by which the trial
court reset the hearing.
in its final protective order the trial court found that the
mother, "although duly and properly cited, did not
appear and wholly made default, " there is nothing in
the record to show that she received any notice that the
trial court had reset the hearing to January 29. Because this
is a direct appeal, as opposed to an original proceeding, the
trial court's recitation does not create a presumption
that issuance, service, and return of citation are valid.
In re Sloan, 214 S.W.3d 217, 221 (Tex. App.-Eastland
2007, no pet.).
82.043(a) of the Texas Family Code provides that "[e]ach
respondent to an application for a protective order is
entitled to service of notice of an application for a
protective order." Tex. Fam. Code Ann. § 82.043(a)
(West 2014). Section 82.041(a)(6) of the Family Code provides
that the notice must show the date, time, and place of the
hearing. Id. § 82.041(a)(6). The notice of the
application "must be served in the same manner as
citation under the Texas Rules of Civil Procedure, except
that service by publication is not authorized."
Id. § 82.043(c). The notice provisions under
Section 82 do not apply if the suit is a part of a suit for
dissolution of marriage. Id. § 82.043(e).
Notice to be given in that event is the same as any other
notice for motions generally in marriage dissolution cases.
Id. The application for protective order in this
case is independent of the parties' pending divorce.
the language of Section 84.004(a) of the Family Code, if a
respondent to an application for protective order is served
with notice of the application within forty-eight hours of
the scheduled hearing, she is entitled, upon request, to have
the hearing rescheduled for a date not later than fourteen
days after the date set for the hearing. Id. §
84.004(a). Subsection (b) of that section also provides that
"[t]he respondent is not entitled to additional service
for a hearing rescheduled under this section."
Id. § 84.004(b). That language seems to say by
implication that the converse is true: a party is entitled to
additional service for hearings rescheduled in another
manner, such as at the request of the petitioner. Rule 21 of
the Texas Rules of Civil Procedure provides:
An application to the court for an order and notice of any
hearing thereon, not presented during a hearing or trial,
must be served upon all other parties not less than three
days before the time specified for the hearing, unless
otherwise provided by these rules or shortened by the court.
Tex. R. Civ. P. 21(b). The Rules of Civil Procedure also
provide guidelines for how those notices are to be given when
they are required. See Tex. R. Civ. P. 21, 21a.
record shows the father gave no notice of any kind to the
mother, whether under the Texas Rules of Civil Procedure or
the Texas Family Code, concerning the resetting of the
January 22 hearing. The burden was upon the father to make
that showing, and he failed to meet that burden. See
Lease Fin. Grp., LLC v. Childers, 310 S.W.3d 120, 126
(Tex. App.-Fort Worth 2010, no pet.). Due process of law
requires notice in accordance with law. See In re
Marriage of Little, No. 10-08-00078-CV, 2008 WL 3115357,
at *1 (Tex. App.-Waco, Aug. 6, 2008, no pet.) (mem. op., not
designated for publication) (due process requires compliance
with notice provisions). Here, when the trial court conducted
the hearing and entered the protective order in the absence
of any notice as to the January 29 hearing, the mother's
due process rights were violated. We sustain the mother's
sole issue on appeal.
aside the order of the trial court and remand this cause to
that court for further ...