Court of Appeals of Texas, Eighth District, El Paso
from the 65th District Court of El Paso County, Texas (TC#
McClure, C.J., Rodriguez, and Palafox, JJ.
T. RODRIGUEZ, JUSTICE
Patricia Gonzalez brings a restricted appeal from a
protective order. We reverse and remand.
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
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.
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
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
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.
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 ...