contrasting authority to modify protective order with continuing jurisdiction to modify an order that provides for the conservator-ship, support, or possession of and access to a child; pursuant to Section 156.004, a suit for modification is a new lawsuit filed after the rendition of a final order, but there is no similar provision found in Chapter 81
How later courts described this case
- contrasting authority to modify protective order with continuing jurisdiction to modify an order that provides for the conservator-ship, support, or possession of and access to a child; pursuant to Section 156.004, a suit for modification is a new lawsuit filed after the rendition of a final order, but there is no similar provision found in Chapter 81
- holding that order is unappealable, interlocutory order because trial court retains jurisdiction to modify it
- holding protective orders are not appealable
Written by the judges who cited it.
Later courts went against this
Disagreed with by James v. Hubbard, 1998 Tex. App. LEXIS 7765 (1998)
We therefore respectfully disagree with Normand and the cases following its reasoning.3
The opinion
VANCE, Justice,
dissenting.
The majority holds that the protective order is an interlocutory order over which we have no jurisdiction. I believe the order is “final” and appealable.
A judgment is final and appealable when it disposes of all parties and issues. Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex.1985). An interlocutory order is one made pending the final disposition of the merits of a case. City of Corpus Christi v. Public Util. Comm’n, 572 S.W.2d 290, 297 (Tex.1978). A judgment is interlocutory if it determines less than all issues, leaving something further to be determined and adjudicated in disposing of the parties and their rights. Starnes v. Holloway, 779 S.W.2d 86, 93 (Tex.App.—Dallas 1989, no writ). “Temporary orders” in a divorce action are interlocutory orders. Tex. Fam.Code Ann. § 3.58 (Vernon 1993). They expire with the entry of the final divorce decree which supersedes the temporary or *405 ders. Coke v. Coke, 802 S.W.2d 270, 273 (Tex.App.—Dallas 1990, writ denied).
Here, Marianne Fox sought a protective order against her ex-husband, Charles Normand, under Chapter 71. Tex. Fam.Code Ann. § 71.01-.19 (Vernon 1996). 1 No other proceeding was pending between the parties. The court’s protective order disposed of all the issues between the parties. I do not share the notion that the court’s ability to modify the order, after notice and hearing, clouds its finality. Once modified, the new order would also be final, assuming it disposed of all issues and parties.
Although I believe the order is final and appealable, I recognize that review by mandamus is a more expeditious remedy. 2 Because a protective order expires automatically one year after being granted, the issue may become moot before the merits can be finally determined on appeal. Id. § 71.13. Review by mandamus, however, limits the complaining party’s right of review to an assertion that the court abused its discretion. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). Thus, neither an ordinary appeal nor mandamus may provide effective appellate review.
The Legislature can declare its intent about the appealability of protective orders. It can decide which mechanism will be used to provide appellate review of an independently granted protective order, 3 either by declaring such an order final and allowing an appeal with an accelerated timetable, providing for an interlocutory appeal, or by inaction, in which event review will be, as the majority decides, by mandamus. See, e.g., Tex. Health & Safety Code Ann. § 574.070 (Vernon 1992) (appeals from court-ordered mental health services accelerated and given priority status); Tex. Civ. PRAC. & Rem.Code Ann. § 51.014 (Vernon Supp.1997) (interlocutory appeals generally).
. A proceeding seeking a protective order is an "independent remedy.” Magill v. Sheffield, 612 S.W.2d 677, 679 (Tex.Civ.App.—Dallas 1981, no writ).
. See White v. Blake, 859 S.W.2d 551, 558 (Tex.App.—Tyler 1993, orig. proceeding) (party argued that protective order was void because court lacked jurisdiction).
.This protective order arose post-divorce as an independent action. The finality of a protective order may be less clear when issued during a proceeding to dissolve a marriage. Tex Fam.Code Ann. §§ 3.581, 71.06 (Vernon 1996 & Supp. 1997).