Motion to Vacate Protective Order in Texas

What Is a Motion to Vacate Protective Order?

Background

In 1990, the Supreme Court of Texas promulgated Texas Rule of Civil Procedure 76a, which provides guidelines and procedures for sealing court records. (Tex. R. Civ. P. Ann. 76a [Supp. 1991].) Rule 76a(9) states that the new rule applies to “all court records filed or exchanged after the effective date" and to "any motion to alter or vacate an order restricting access to court records, issued before the effective date.” (Tex. R. Civ. P. Ann. 76a(9)(a), (b) [Supp. 1991].) The effective date of the rule was September 1, 1990. (Pub. Citizen v. Ins. Serv. Off. Inc. (1992) 824 S.W.2d 811, 812.)

How to Structure the Motion

Under Tex. R. Civ. P. 76a(7):

Any person may intervene as a matter of right at any time before or after judgment to seal or unseal court records.... An order sealing or unsealing court records shall not be reconsidered on motion of any party or intervenor who had actual notice of the hearing preceding issuance of the order, without first showing changed circumstances materially affecting the order.

(Pub. Citizen v. Ins. Serv. Off. Inc. (1992) 824 S.W.2d 811, 813 citing Tex. R. Civ. P. Ann. 76a(7).)

Motion to Vacate Protective Order Under the Family Code

A protective order under section 85.022 of the family code may not be issued unless the trial court finds that family violence

has occurred and
is likely to occur in the future.

(Tex. Fam. Code Ann. § 81.001 (Vernon 2008); § 85.001(a), (c).)

A person who is the subject of a protective order “may file a motion . . . requesting that the court review the protective order and determine whether there is a continuing need for the order.” (Id. § 85.025(b).)

After a hearing, if the trial court finds there is a “continuing need” for the protective order, the order will remain in effect until the statutory two-year period expires; however, if the trial court finds there is no “continuing need,” the court “shall order that the protective order expires on a date set by the court.” (In re I.E.W. (2010) No. 13-09-00216-CV, at *1 quoting § 85.001(a), (c).)

Section 85.025(b) allows for “[a] person who is the subject of a protective order [to] file a motion not earlier than the first anniversary of the date on which the order was rendered requesting that the court review the protective order and determine whether there is a continuing need for the order.” (Id.)

Additionally, after filing the motion under Subsection (b), a person who is the subject of a protective order . . . that is effective for a period that exceeds two years may file not more than one subsequent motion requesting that the court review the protective order and determine whether there is a continuing need for the order. (Tex. Fam. Code Ann. § 85.025(b), (b-1).)

Thus, the subsequent motion may not be filed earlier than the first anniversary of the date on which the court rendered an order on the previous motion by the person. (Id.)

In order to invoke the trial court's extended jurisdiction for the purpose of determining whether there is a continuing need for the protective order, a movant must demonstrate as a threshold matter:

the protective order was rendered at least one year before the motion was filed; and
if the duration of the protective order exceeds two years, no more than one previous motion to vacate has been filed.

(Jackson v. Cave (2021) No.08-19-00260-CV, at *2-3 citing Tex. Fam. Code Amm. § 85.025(b), (b-1).)

Ex parte Protective Orders

An individual affected by a temporary ex parte order may file a motion at any time to vacate the order. (In re Goddard (2019) No. 12-18-00355-CV, at *3 citing § 83.004 [West 2014].) On the filing of the motion to vacate, the court shall set a date for hearing the motion as soon as possible. (Id.)

The Court’s Decision

“[T]he trial court's jurisdiction during the first year of a protective order is limited to modification of the order.” (B.C. v. Rhodes (2003) 116 S.W.3d 878, 882; Cooke , 65 S.W.3d at 788; see Tex. Fam. Code Ann. 87.001 (West 2019) (modification of protective order).

While a trial court may vacate a permanent injunction upon a showing of changed conditions, it may not similarly vacate a protective order on the motion of a party until at least one year after the order was rendered. (B.C. v. Rhodes (2003) 116 S.W.3d 878, 882 citing Tex. Fam. Code Ann. § 85.025(b).) Instead, the trial court's jurisdiction during the first year of a protective order is limited to modification of the order. (Id., citing Tex. Fam. Code Ann. § 87.001.)

Documents for Motion to Vacate Protective Order in Texas

Sort By

Shannon Renee Clements VS John Walden Shadden, Jr. document preview

Proposed Order on Motion to Vacate Protective Order - Proposed Order

2 pages

NO. 02689 SHANNON RENEE CLEMENTS IN THE DISTRICT COURT 410TH JUDICIAL DISTRICT JOHN WALDEN SHADDEN JR. HARRIS COUNTY, TEXAS ORDER ON MOTION TO VACATE PROTECTIVE ORDER On the court considered John Walden Shadden Jr. Motion to Vacate Protective or in the Alternative Modify Protective O…

Case Name Shannon Renee Clements VS John Walden Shadden, Jr.