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Gonzalez v. Perez

Court of Appeals of Texas, Eighth District, El Paso

July 10, 2019

YOLANDA PATRICIA GONZALEZ, APPELLANT,
v.
IRMA PEREZ, APPELLEE.

          Appeal from the 65th District Court of El Paso County, Texas (TC# 2017DCM7313)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, JUSTICE

         Yolanda Patricia Gonzalez brings a restricted appeal from a protective order. We reverse and remand.

         FACTUAL SUMMARY

         Irma Perez filed an application for a protective order pursuant to Article 7A.01(a)(1) of the Texas Code of Criminal Procedure based on allegations that Perez's sister, Yolanda Patricia Gonzalez, had been stalking her. See Tex.Code Crim.Proc.Ann. art. 7A.01(a)(1); Tex.Penal Code Ann. § 42.072(a). The trial court granted Perez's motion for substituted service and ordered that service on Gonzalez be effected by affixing a copy of the application for protective order, order to show cause, and order extending temporary ex parte order to the front door of her residence. The citation return recites that a Deputy Sheriff posted the application on the door of the El Paso County Courthouse rather than Gonzalez's residence. The trial court entered a default protective order on April 9, 2018 pursuant to Article 7A of the Texas Code of Criminal Procedure and Title 4 of the Texas Family Code. Significantly, Gonzalez admits in her brief that she received notice that the protective order had been entered. Despite receiving this notice, Gonzalez did not file a timely motion for new trial seeking to set aside the default judgment based on defective service. See Tex.R.Civ.P. 329b(a)("A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed."). Likewise, she did not file a timely notice of appeal from the protective order.

         On June 29, 2018, the trial court signed an amended nunc pro tunc protective order. Gonzalez did not file a timely notice of appeal from the amended protective order. More than two months after the trial court signed the amended protective order, she instead filed a motion to vacate the protective order. Following a hearing, the trial court denied the motion to vacate, and Gonzalez filed a timely notice of appeal from that order. Her notice of appeal also states that this is a restricted appeal.

         DEFECTIVE SERVICE

         In her sole issue, Gonzalez contends that the default protective order is void due to defective service and should be vacated. As part of this issue, she argues that the trial court erred by failing to grant her motion to vacate. Perez has not filed a brief.

         Standing

         It is necessary to first address whether Gonzalez had standing to file a motion to vacate the protective order. Gonzalez did not file a timely notice of appeal from either the April 9, 2018 protective order or the June 29, 2018 amended nunc pro tunc protective order. Consequently, she is relegated to challenging the protective order by other means. The Family Code permits either the original applicant or the person subject to the protective order to move the issuing court to reconsider the continuing need for a protective order after one year. Tex.Fam.Code Ann. § 85.025(b); see R.M. v. Swearingen, 510 S.W.3d 630, 634 (Tex.App.-El Paso 2016, no pet.). Assuming for the sake of argument that Gonzalez's motion to vacate can be construed as a motion to reconsider pursuant to Section 85.025(b), it was premature. Therefore, Gonzalez did not have standing under the Family Code to challenge the protective order.

         The trial court expressly found that there are reasonable grounds to believe that Perez is the victim of stalking, and the trial court recited in the protective order that it was entered pursuant to Article 7A of the Code of Criminal Procedure. A protective order entered under Article 7A may be rescinded only upon the request of the victim. Tex.Code Crim.Proc.Ann. art. 7A.07(b); R.M., 510 S.W.3d at 634. Consequently, Perez does not have standing to file a motion to vacate or rescind the protective order under Article 7A.07(b). See Molinar v. S.M., No. 08-15-00083-CV, 2017 WL 511888, at *2 (Tex.App.-El Paso Feb. 8, 2017, pet. denied); R.M., 510 S.W.3d at 634.

         Restricted Appeal

         A party can prevail in a restricted appeal only if: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Insurance Company of State of Pennsylvania v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009). In a restricted appeal, the face of the record consists of all papers on file in the ...


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