Yolanda Patricia Gonzalez v. Irma Perez ( 2019 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
No. 08-18-00206-CV
YOLANDA PATRICIA GONZALEZ, §
Appeal from the
APPELLANT, §
65th District Court
V. §
of El Paso County, Texas
IRMA PEREZ, §
(TC# 2017DCM7313)
APPELLEE. §
§
OPINION
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
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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 appeal, including the reporter’s record. Norman Communications v. Texas
Eastman Company, 955 S.W.2d 269, 270 (Tex. 1997). Gonzalez has met the first two elements.
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We must determine whether Gonzalez’s motion to vacate the protective order constitutes
a timely-filed post-judgment motion. The motion to vacate was not filed within the time for filing
a motion for new trial pursuant to TEX.R.CIV.P. 329b. We have also found that it was not a timely-
filed motion to reconsider under the Family Code. Given our conclusion that Gonzalez does not
have standing to file a motion to vacate under Article 7A.07(b), we hold that the motion to vacate
does not constitute a timely-filed post judgment motion for purposes of the restricted appeal
analysis.
The only remaining issue is whether error is apparent on the face of the record. When
reviewing a default judgment in a restricted appeal, we do not indulge any presumptions in favor
of proper issuance, service, and return of citation. Primate Construction, Inc. v. Silver, 884 S.W.2d
151, 152 (Tex. 1994)(per curiam). Instead, the prevailing party bears the burden to prove proper
service of process. Primate Construction, 884 S.W.2d at 153. Error is apparent on the face of the
record when the record fails to show strict compliance with the rules relating to the issuance,
service, and return of citation. Primate Construction, 884 S.W.2d at 152-53; Camoco, LLC v.
Terrazas, 569 S.W.3d 270, 273 (Tex.App.—El Paso 2018, no pet.). The record before us is limited
to the clerk’s record as Gonzalez has not provided the Court with the record of the protective order
hearing on April 4, 2018 or the hearing on Gonzalez’s motion to vacate. We will not, however,
presume that the omitted portion of the record supports the default judgment because strict
compliance with the rules for citation must be affirmatively shown in the record. See GMR
Gymnastics Sales, Inc. v. Walz, 117 S.W.3d 57, 59 (Tex.App.—Fort Worth 2003, pet.
denied)(holding that presumption on appeal that omitted portion of the record contains facts that
support the judgment does not apply to a restricted appeal attacking a default judgment on the
grounds that service of process was defective).
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The Deputy Sheriff’s return reflects that he posted the citation on the door of the El Paso
County Courthouse rather than on the front door of Gonzalez’s residence as ordered by the trial
court. The recitations in the return of citation are prima facie evidence of the facts recited therein.
Primate Construction, 884 S.W.2d at 152. We conclude that error is shown on the face of the
record. Accordingly, we sustain the sole issue presented and reverse the amended nunc pro tunc
protective order. The cause is remanded to the trial court for further proceedings consistent with
this opinion.
July 10, 2019
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
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