Charles Roy Rodriguez v. Paula June Rodriguez

ORDER filed October 13, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-01026-CV
CHARLES ROY RODRIGUEZ, Appellant
V.
JANE DOE, Appellee
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 96717-F
ORDER
Appellant appeals from a family violence protective order signed on August
30, 2018. The clerk’s record contains a copy of the August 30 order but also includes
a copy of a Final Protective Order signed on November 14, 2018. Appellant’s notice
of appeal does not purport to appeal the November 14, 2018 order. In appellant’s
brief, he maintains the trial court lacked plenary power to sign the November 14,
2018 order. The record shows, however, that the trial court retained plenary
jurisdiction over the case at least until December 13, 2018, because a party timely
filed a motion to modify the August 30, 2018 order, and the motion to modify was
overruled by operation of law on November 13, 2018. See Tex. R. Civ. P. 329b(e)
(if motion for new trial timely filed, court retains plenary power to modify judgment
until 30 days after all such timely-filed motions are overruled). The trial court,
moreover, retains jurisdiction to modify a protective order. Tex. Fam. Code 87.001;
see In re S.S., 217 S.W.3d 685, 687 (Tex. App.—Eastland 2007, no pet.) (“Section
87.001 provides the trial court with jurisdiction and power to modify the protective
order.”); Ulmer v. Ulmer, 130 S.W.3d 294, 296 (Tex. App.—Houston [14th Dist.]
2004, no pet.) (concluding a family-violence protective order is a final, appealable
order and the ability of the trial court to modify the order does not render it
interlocutory); Cooke v. Cooke, 65 S.W.3d 785, 788 (Tex. App.—Dallas 2001, no
pet.) (during the effective period of a protective order, the trial court retains the
power and jurisdiction to modify the order by either deleting or adding items to the
order).
Although the reporter’s record has not been provided, it is undisputed the
parties had notice of a hearing and a hearing was held on November 7, 2018.
Thereafter, on November 14, 2018, the trial court signed a Final Protective Order.
Thus, the operable order in effect is the November 14, 2018 Final Protective Order.
Because the appellant’s notice of appeal and brief challenge only the August
30, 2018 Final Protective Order and that order has been supplanted by the Final
Protective Order signed November 14, 2018, the appeal is moot. Appellant should
be afforded the opportunity to file an amended notice of appeal challenging the
November 14, 2018 order, and an opportunity to file an amended brief, if he so
chooses.
The court will consider dismissal of this appeal for lack of jurisdiction on its
own motion unless appellant files an amended notice of appeal on or before October
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23, 2020. If appellant timely files an amended notice of appeal challenging the
November 14, 2018 order, the court will consider any additional briefing submitted
by the parties that is filed on or before October 28, 2020.
PER CURIAM
Panel consists of Justices Wise, Jewell, and Poissant.
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