COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
JOHN GUERRERO, § No. 08-22-00042-CV
Appellant, § Appeal from the
v. § 383rd Judicial District Court
A.C.G., § of El Paso County, Texas
Appellee. § (TC# 2021DCM6921)
MEMORANDUM OPINION
John Guerrero appeals the issuance of a protective order by an associate judge on January
14, 2022 (the January Order). Prior to issuing the January Order, the trial court held a hearing and
issued an order vacating the trial court’s ruling and granting a new trial on December 30, 2021(the
December Order). Appellant raises three issues for our review: He challenges the authority of the
trial court to grant a new trial in the December Order, contends the trial court erred when it did
not, after a timely request, hold a de novo hearing on his objection to the December Order, and
contends the January Order is not supported by sufficient evidence of identification. We affirm.
Factual and Procedural Background On December 2, 2021, Viridiana Garcia filed an application for protective order on behalf
of Applicant, A.C.G., a minor child. 1 The application named Appellant, John Guerrero as the
respondent. On December 29, 2021, an associate judge conducted a final hearing by Zoom.
Appellant appeared through his attorney. On December 30, 2021, the associate judge denied the
application, stating “Respondent had not been identified.” On its own motion, the associate judge
reconsidered the denial of the application and ordered a new trial.
On January 4, 2022, Appellant filed a combined objection to the “sua sponte new trial” and
“request for hearing in front of district court.” The cause was returned to the docket and referred
to an associate judge on January 5, 2022. On January 14, 2022, the associate judge held a final
hearing on the application for protection, and Appellant appeared through his attorney.
On January 14, 2022, the associate judge issued a protective order, finding reasonable
grounds existed to believe A.C.G. was a victim of sexual assault or abuse. The January Order
noticed the parties of their right to a de novo hearing before the referring court pursuant to Section
201.012 of the Family Code. TEX. FAM. CODE ANN. § 201.012. Appellant did not file a request for
a de novo hearing by the referring court of the January Order. TEX. FAM. CODE ANN.
§ 201.015(a)(1) (a party may request a hearing before the referring court by filing a written request
“not later than the third working day after the date the party receives notice” of the substance of
the associate judge’s report).
On January 14, 2022, Appellant timely filed his notice of appeal. He raises three issues for
our review. We begin with Appellant’s second and third issues, which we construe as jurisdictional
challenges, and conclude with his first issue.
1 To protect the privacy of the child, we refer to her by her initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8.
2 Authority of the Trial Court to Grant a New Trial
In his second issue, Appellant contends the trial court erred when it sua sponte granted a
new trial in its December Order without a motion by either party. We construe this issue as a
jurisdictional challenge because Appellant contends the trial court did not have the authority to
grant a new trial. 2 He further contends because the trial court acted without authority, the
December 30, 2021 order is void. We first note, although Appellant relies on criminal precedent,
an application for a protective order is a civil proceeding governed by the Rules of Civil Procedure.
See e.g., Amir-Sharif v. Hawkins, 246 S.W.3d 297, 271 (Tex. App.—Dallas 2007, dism’d w.o.j.)
(“An application for a protective order is a civil matter.”). Rule 320 provides that a trial court may
grant a new trial on its own motion while it retains plenary power. TEX. R. CIV. P. 320; In re
Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 211 (Tex. 2009);
State and County Mut. Fire Ins. Co. v. Kelly, 915 S.W.2d 224, 227 (Tex. App.—Austin 1996, no
writ). Texas trial judges have wide discretion to order a new trial. See In re Rudolph Automotive,
LLC, 616 S.W.3d 171, 181 (Tex. App.—El Paso 2020, original proceeding).
Appellant asserts the trial court lacked the authority to grant a new trial without a motion
by either party. The opposite is true. Rule 320 expressly provides a trial court has the authority to
grant a new trial on its own motion during its plenary jurisdiction. TEX. R. CIV. P. 320. That is
exactly what occurred here. The associate judge ordered a new trial on the same day it issued the
December Order, which was within its plenary jurisdiction. Accordingly, we find the trial court
2 We further conclude that Appellant presents, in substance, a jurisdictional challenge because the grant of a new trial is not reviewable by direct appeal. See In re Rudolph Automotive, LLC, 616 S.W.3d 171, 181 (Tex. App.—El Paso 2020, original proceeding) (comparing direct appeal and mandamus review of a trial court’s decision to grant a new trial) (citing Cummins v. Paisan Const. Co, 682 S.W.2d 235, 236 (Tex. 1984) (finding a trial court’s order granting a new trial is not reviewable on appeal); and In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 209–10 (Tex. 2009) (allowing mandamus review when an order granting a new trial failed to sufficiently articulate the trial court’s reasoning).
3 acted within its authority and plenary power when ordered the new trial in its December Order.
Appellant’s second issue is overruled.
Personal Jurisdiction
Having concluded the trial court acted within its authority to order the new trial, we turn to
Appellant’s third issue in which he asserts there is insufficient evidence to support his
identification as the respondent in the new trial and resulting January Order. He asserts “[a]n
uncertain in-court identification of a defendant as the perpetrator of a crime, without more, is
insufficient to support a guilty verdict.” He contends the Clerk’s Record contains no evidence of
service of the application for the protective order, and no evidence was presented during the
hearing to identify him as the respondent. The County responds, and we agree, the substance of
Appellant’s third issue is jurisdictional.
Appellant again relies on criminal precedent, which is inapplicable to this appeal, to
support his contention. The Rules of Civil Procedure and the Family Code do not require the
respondent in a protective order proceeding be identified in the same manner as a defendant in a
criminal proceeding. And, because a protective application is a civil proceeding, we agree with the
County and construe Appellant’s contention he was not identified as contesting the trial courts
personal jurisdiction.
In a civil proceeding, a trial court acquires personal jurisdiction over a resident respondent
if the respondent is served with process, waives service of process, or makes a general appearance.
See e.g., Cotton v.
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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
JOHN GUERRERO, § No. 08-22-00042-CV
Appellant, § Appeal from the
v. § 383rd Judicial District Court
A.C.G., § of El Paso County, Texas
Appellee. § (TC# 2021DCM6921)
MEMORANDUM OPINION
John Guerrero appeals the issuance of a protective order by an associate judge on January
14, 2022 (the January Order). Prior to issuing the January Order, the trial court held a hearing and
issued an order vacating the trial court’s ruling and granting a new trial on December 30, 2021(the
December Order). Appellant raises three issues for our review: He challenges the authority of the
trial court to grant a new trial in the December Order, contends the trial court erred when it did
not, after a timely request, hold a de novo hearing on his objection to the December Order, and
contends the January Order is not supported by sufficient evidence of identification. We affirm.
Factual and Procedural Background On December 2, 2021, Viridiana Garcia filed an application for protective order on behalf
of Applicant, A.C.G., a minor child. 1 The application named Appellant, John Guerrero as the
respondent. On December 29, 2021, an associate judge conducted a final hearing by Zoom.
Appellant appeared through his attorney. On December 30, 2021, the associate judge denied the
application, stating “Respondent had not been identified.” On its own motion, the associate judge
reconsidered the denial of the application and ordered a new trial.
On January 4, 2022, Appellant filed a combined objection to the “sua sponte new trial” and
“request for hearing in front of district court.” The cause was returned to the docket and referred
to an associate judge on January 5, 2022. On January 14, 2022, the associate judge held a final
hearing on the application for protection, and Appellant appeared through his attorney.
On January 14, 2022, the associate judge issued a protective order, finding reasonable
grounds existed to believe A.C.G. was a victim of sexual assault or abuse. The January Order
noticed the parties of their right to a de novo hearing before the referring court pursuant to Section
201.012 of the Family Code. TEX. FAM. CODE ANN. § 201.012. Appellant did not file a request for
a de novo hearing by the referring court of the January Order. TEX. FAM. CODE ANN.
§ 201.015(a)(1) (a party may request a hearing before the referring court by filing a written request
“not later than the third working day after the date the party receives notice” of the substance of
the associate judge’s report).
On January 14, 2022, Appellant timely filed his notice of appeal. He raises three issues for
our review. We begin with Appellant’s second and third issues, which we construe as jurisdictional
challenges, and conclude with his first issue.
1 To protect the privacy of the child, we refer to her by her initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8.
2 Authority of the Trial Court to Grant a New Trial
In his second issue, Appellant contends the trial court erred when it sua sponte granted a
new trial in its December Order without a motion by either party. We construe this issue as a
jurisdictional challenge because Appellant contends the trial court did not have the authority to
grant a new trial. 2 He further contends because the trial court acted without authority, the
December 30, 2021 order is void. We first note, although Appellant relies on criminal precedent,
an application for a protective order is a civil proceeding governed by the Rules of Civil Procedure.
See e.g., Amir-Sharif v. Hawkins, 246 S.W.3d 297, 271 (Tex. App.—Dallas 2007, dism’d w.o.j.)
(“An application for a protective order is a civil matter.”). Rule 320 provides that a trial court may
grant a new trial on its own motion while it retains plenary power. TEX. R. CIV. P. 320; In re
Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 211 (Tex. 2009);
State and County Mut. Fire Ins. Co. v. Kelly, 915 S.W.2d 224, 227 (Tex. App.—Austin 1996, no
writ). Texas trial judges have wide discretion to order a new trial. See In re Rudolph Automotive,
LLC, 616 S.W.3d 171, 181 (Tex. App.—El Paso 2020, original proceeding).
Appellant asserts the trial court lacked the authority to grant a new trial without a motion
by either party. The opposite is true. Rule 320 expressly provides a trial court has the authority to
grant a new trial on its own motion during its plenary jurisdiction. TEX. R. CIV. P. 320. That is
exactly what occurred here. The associate judge ordered a new trial on the same day it issued the
December Order, which was within its plenary jurisdiction. Accordingly, we find the trial court
2 We further conclude that Appellant presents, in substance, a jurisdictional challenge because the grant of a new trial is not reviewable by direct appeal. See In re Rudolph Automotive, LLC, 616 S.W.3d 171, 181 (Tex. App.—El Paso 2020, original proceeding) (comparing direct appeal and mandamus review of a trial court’s decision to grant a new trial) (citing Cummins v. Paisan Const. Co, 682 S.W.2d 235, 236 (Tex. 1984) (finding a trial court’s order granting a new trial is not reviewable on appeal); and In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 209–10 (Tex. 2009) (allowing mandamus review when an order granting a new trial failed to sufficiently articulate the trial court’s reasoning).
3 acted within its authority and plenary power when ordered the new trial in its December Order.
Appellant’s second issue is overruled.
Personal Jurisdiction
Having concluded the trial court acted within its authority to order the new trial, we turn to
Appellant’s third issue in which he asserts there is insufficient evidence to support his
identification as the respondent in the new trial and resulting January Order. He asserts “[a]n
uncertain in-court identification of a defendant as the perpetrator of a crime, without more, is
insufficient to support a guilty verdict.” He contends the Clerk’s Record contains no evidence of
service of the application for the protective order, and no evidence was presented during the
hearing to identify him as the respondent. The County responds, and we agree, the substance of
Appellant’s third issue is jurisdictional.
Appellant again relies on criminal precedent, which is inapplicable to this appeal, to
support his contention. The Rules of Civil Procedure and the Family Code do not require the
respondent in a protective order proceeding be identified in the same manner as a defendant in a
criminal proceeding. And, because a protective application is a civil proceeding, we agree with the
County and construe Appellant’s contention he was not identified as contesting the trial courts
personal jurisdiction.
In a civil proceeding, a trial court acquires personal jurisdiction over a resident respondent
if the respondent is served with process, waives service of process, or makes a general appearance.
See e.g., Cotton v. Cotton, 57 S.W.3d 506, 511 (Tex. App.—Waco 2001, no pet.). A respondent
makes a general appearance if he (1) invokes the court’s judgment on any question other than
jurisdiction; (2) acts in a manner that demonstrates the case is properly pending; or (3) seeks
affirmative action from the court. Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998).
4 Although Appellant contends that the Clerk’s Record contains no evidence of service, our
review indicates he was properly served. And, although he did not personally appear at the hearing,
he made general appearances through his attorney during all stages of the proceeding below.
Because we conclude the trial court had personal jurisdiction over Appellant, and there is no
requirement for a civil respondent to be identified in-court, we overrule Appellant’s third issue.
De Novo Hearing Before Referring Court
In Appellant’s first issue, he contends he timely requested a de novo hearing before the
referring court to contest the December Order, and the trial court’s failure to hold the hearing was
error. We review a trial court’s decision to grant or deny a de novo hearing for an abuse of
discretion. See Fountain v. Knebel, 45 S.W.3d 736, 739–40 (Tex. App.—Dallas 2001, no pet.).
Failure to hold a hearing when timely requested is an abuse of discretion. Id.
The Family Code provides that a judge may refer “to an associate judge any aspect of a
suit over which the court has jurisdiction . . . [u]nless a party files a written objection to the
associate judge hearing a trial on the merits[.]” TEX. FAM. CODE ANN. § 201.005(a),(b). “Referral
is not binding on the parties, so if either party timely objects, the referring court ‘shall hear the
trial on the merits or preside at a jury trial.’” Interest of A.L.M.-F., 593 S.W.3d 271, 273 (Tex.
2019) (citing TEX. FAM. CODE ANN. § 201.005(b),(c)); see Ex parte Keith, No. 04-17-00641-CV,
2017 WL 5615494, *1 (Tex. App.—San Antonio Nov. 22, 2017, no pet.) (mem. op.). Once the
associate judge issues a ruling on the referred matter, the Family Code requires the associate judge
to issue a report, which may contain findings, conclusions, or recommendations. TEX. FAM. CODE
ANN. § 201.011.
A party has the right to appeal an associate judge’s findings to the referring court in a de
novo hearing by requesting such a hearing within three days after the party receives notice of the
5 associate judge’s report. TEX. FAM. CODE ANN. § 201.015(a)(1). A party who timely requests a
hearing before the referring court is entitled to a hearing by statute and failure to hold a de novo
hearing or rule on a party’s timely request is an abuse of discretion. See Fountain, 45 S.W.3d at
739–40.
Appellant contends he timely requested a de novo hearing in response to the December
Order when he filed a combined objection to the granting of a new trial and requested the matter
be referred back to the referring court. However, the December Order vacated the original
judgment and returned the case to the trial court’s docket “as though there had been no previous
trial or hearing.” Markowitz v. Markowitz, 118 S.W.3d 82, 88 (Tex. App.—Houston [14th Dist.]
2003, pet. denied). Section 201.015 of the Family Code provides a party may request a de novo
hearing before the referring court after it receives notice of “(1) the substance of the associate
judge’s report . . .; or (2) the rendering of the temporary order, if the request concerns a temporary
order . . . .” TEX. FAM. CODE ANN. § 201.015(a)(1),(2). The December Order did neither. Instead,
it reset the case as if no hearing was held and no ruling was issued. Markowitz, 118 S.W.3d at 88.
Accordingly, Appellant could not request a de novo hearing to review the December Order and
the trial court’s failure to grant his request was not an abuse of discretion. 3 We overrule
Appellant’s first issue.
CONCLUSION
The judgment of the trial court is affirmed.
YVONNE T. RODRIGUEZ, Chief Justice
March 21, 2023
3 Appellant contends throughout his briefings that he requested a hearing after the December Order. He does not contend that he objected to an associate judge presiding over the new trial, nor did he object to the referral prior to the trial. See TEX. FAM. CODE ANN. 201.005(b).
6 Before Rodriguez, C.J., Soto, J., and Marion, C.J. (Ret.) Marion, C.J. (Ret.) (Sitting by Assignment)