In re S.M.

658 S.W.3d 876

For the Protection of S.M.

No. 08-21-00126-CV

Court of Appeals of Texas, El Paso.

December 16, 2022

ATTORNEY FOR APPELLANT: Mario A. Gonzalez, 1707 Wyoming Ave., El Paso, TX 79902.

ATTORNEY FOR APPELLEE: Jo Anne Bernal, County Attorney, 500 E. San Antonio, Room 503, El Paso, TX 79901.

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

OPINION

GINA M. PALAFOX, Justice Appellant, Julio Molinar, appeals from the trial court's denial of his motion to vacate an agreed protective order of which he is the subject. He claimed the agreed protective order should be declared void and unenforceable. We conclude Molinar's motion to vacate is an impermissible collateral attack on the agreed protective order and dismiss the appeal for lack of jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND¹

On February 17, 2011, an application for protective order was filed against Molinar on behalf of S.M., a child and family member. The El Paso County Attorney's Office provided representation to applicant, who was later identified as S.M.’s mother. The application alleged that applicant and respondent were residents of El Paso. As grounds, it further alleged that Molinar had committed acts of family violence, or sexual assault, against S.M. Applicant sought the protective order under Title 4 of the Texas Family Code or, alternatively, under Article 7A.01 of the Texas Code of Criminal Procedure. After a hearing before an associate judge, at which Molinar was represented by counsel but did not attend, the parties entered an agreed protective order signed by the associate judge on April 11, 2011.² S.M.’s mother signed as to form and substance, while the assistant county attorney and Molinar's attorney, respectively, signed as to form only.

In the agreed protective order, the trial court entered a finding that it had subject matter jurisdiction of the case. The court also made a finding that the parties had agreed to the terms of the protective order, evidenced by their signatures and subject to approval by the court, that the terms of the protective order were in the best interest of the member of the family or household, and the agreement was made a part of the protective order. The protective order was granted until April 7, 2024, S.M.’s eighteenth birthday. Following the court's rendering of the order, Molinar neither requested a de novo hearing before the referring court, nor filed a motion for new trial, nor appealed the agreed protective order to this Court. See Molinar v. S.M. , No. 08-15-00083-CV, 2017 WL 511888, at *1 (Tex. App.—El Paso 2017, pet. denied).

Over a year later, in July 2012, Molinar moved to vacate the agreed protective order alleging several grounds including that he was no threat to S.M., that she had no fear of him, that he was not present at the hearing to present contrary evidence, that the termination date exceeded two years, that he had not been charged or arrested on any criminal allegations, and that applicant pursued the order as a means of harassment and for wrongful purposes. Id. After a hearing, the associate judge denied the motion to vacate. Id.

In July 2014, Molinar filed a second motion to vacate alleging grounds identical to those of the first motion. Id. at *2. At the hearing that followed, Molinar admitted he had agreed to the protective order on the advice of counsel, and he was aware his attorney had signed the protective order. Id. When he agreed to the protective order, Molinar had been under investigation for sexually abusing S.M., but ultimately, he was not charged. Id. He had then sought to resume contact with S.M. Id. The associate judge vacated the protective order, finding no continuing need for it. Id. After applicant requested a de novo hearing, the district court denied the second motion to vacate. Id. Molinar appealed, and this Court affirmed the denial of the motion to vacate the protective order. Id. We determined the motion was governed by Article 7A.07 of the Code of Criminal Procedure, and that Molinar lacked standing to file a motion to vacate or rescind the agreed protective order. Id. Further, we found that if Molinar had standing to file his motion, he had otherwise failed to preserve the issues in the trial court that he had raised on appeal. Id. at *3 (citing TEX. R. APP. P. 33.1(a)(1)(A) ).

On September 23, 2020, Molinar filed a third motion to vacate the agreed protective order signed on April 11, 2011. Although he styled his motion as a motion to vacate the agreed protective order, he otherwise argued the order is void and could be attacked collaterally. Both the associate court and referring court denied his third motion to vacate, which forms the basis of this appeal.

II. STANDARD OF REVIEW AND APPLICABLE LAW

We review a challenge to the trial court's subject matter jurisdiction de novo. Tex. Dept. of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004).

A judgment entered without subject matter jurisdiction is void. In re D.S. , 602 S.W.3d 504, 520 (Tex. 2020). If the record establishes that the trial court lacked subject matter jurisdiction over the suit, any judgment rendered by the court is void and subject to collateral attack. PNS Stores, Inc. v. Rivera , 379 S.W.3d 267, 273–74 (Tex. 2012). Only a void judgment may be collaterally attacked. Perez v. State , No. 08-15-00253-CR, 2017 WL 1955338, at *3 (Tex. App.—El Paso May 11, 2017, pet. ref'd) (not designated for publication) (analyzing a challenge to a protective order issued under Chapter 85 of the Texas Family Code and citing Browning v. Prostok , 165 S.W.3d 336, 346 (Tex. 2005) ). "All errors other than jurisdictional deficiencies render the judgment merely voidable, and such errors must be corrected on direct attack." Browning v. Placke , 698 S.W.2d 362, 363 (Tex. 1985).

A direct attack is an attempt to correct, amend, modify, or vacate a judgment and must be brought within definite time periods after the rendition of the judgment as dictated by procedural rules. PNS Stores , 379 S.W.3d at 271–72. Some examples of a direct attack are an appeal, a motion for new trial, and a bill of review. Id. at 271. A collateral attack, however, is an attempt "to avoid the binding effect of a judgment in order to obtain specific relief that the judgment currently impedes." Id. at 272.

Void judgments can be collaterally attacked at any time. Id. "After the time to bring a direct attack has expired, a litigant may only attack a judgment collaterally." Id.

In contrast, a protective order that is not void, only voidable, is only subject to direct attack. Robertson v. Emanuel-Johnson , No. 01-20-00198-CV, 2021 WL 5773880, at *3 (Tex. App.—Houston [1st Dist.] Dec. 7, 2021, pet. denied) (mem. op.).

III. DISCUSSION

Molinar raises one issue on appeal. He contends the referring court erred in refusing to vacate the purportedly void protective order, asserting the court lacked subject matter jurisdiction to enter it when it was entered. He argues the court lacked subject matter jurisdiction because it failed to make mandatory findings under the Code of Criminal Procedure. Appellee counters that the agreed protective order is valid and not subject to Molinar's collateral attack. We agree with Appellee.

The agreed protective order at issue was requested pursuant to Title 4 of the Texas Family Code, or, alternatively, under article 7A.01 of the Texas Code of Criminal Procedure. The order was issued based on provisions then in effect. Section 7A.03 of the Code of Criminal Procedure required a court to make certain findings at the end of a hearing on an application for a protective order under that chapter, and, if the court found reasonable grounds to support issuance of a protective order under that section, the statute permitted the trial court to "issue a protective order that includes a statement of the required findings." See Act of May 25, 2007, 80th Leg., R.S., ch. 882, § 1, 2007 Tex. Gen. Laws 1902, repealed by Act of May 21, 2019, 86th Leg., R.S., ch. 469, § 3.01(2), 2019 Tex. Gen. Laws 1065, 1151.

In a similar provision, the prior version of Section 85.001 of Texas Family Code provided, at the close of a hearing on an application for a protective order, the court shall make certain findings, and, depending on its determinations, shall issue a protective order. See Act of Apr. 27, 2001, 77th Leg., R.S., ch. 91, § 6, 2001 Tex. Gen. Laws 176, 177 (amended 2011) (current version at TEX. FAM. CODE ANN. § 85.001 ). The statute, however, did not require that the findings be recited in the protective order unless the first applicant is also a subject of the protective order, which is not the case here. See Act of Apr. 27, 2001, 77th Leg., R.S., ch. 91, § 6, 2001 Tex. Gen. Laws 176, 177 (amended 2011) (current version at TEX. FAM. CODE ANN. § 85.001 ).

Unlike the Code of Criminal Procedure, the Family Code specifically provided for the entry of an agreed protective order. Section 85.005 allowed the parties to a proceeding to agree in writing to the terms of a protective order applying to a person who committed family violence, subject to the approval of the court. See Act of Apr. 21, 1997, 75th Leg., R.S., ch. 34, § 1, 1997 Tex. Gen. Law 76, 83 (amended 2005) (current version at TEX. FAM. CODE ANN. § 85.005 ). That provision stated: "If the court approves an agreement between the parties, the court shall render an agreed protective order that is in the best interest of the applicant[.]" Id.

Although the Code of Criminal Procedure then in effect did not allow for an agreed protective order by its own terms, it otherwise provided: "[t]o the extent applicable, except as otherwise provided by this chapter, Title 4, Family Code, applies to a protective order issued under this chapter." Act of May 20, 2003, 78th Leg., R.S., ch. 836, § 1, 2003 Tex. Gen. Laws 2622, 2623, repealed by Act of May 21, 2019, 86th Leg., R.S., ch. 469, § 3.01(2), 2019 Tex. Gen. Laws 1065, 1151. And we have previously stated: "[N]o part of Chapter 7A of the...