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  1. #1
    laboroflove11 is offline Junior Member
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    appealing a Restraining Order

    What is the name of your state (only U.S. law)? Texas

    I have just been to a hearing that moved a TRO to a PRO and the grounds for the action were only based on allegations that had no credible evidence to back the action, and no eyewitnesses. The only thing which was really against me from what I could determine was that my wife and I had been overnight in County Jail for domestic assault. Now the prosecuting DA had the charges dropped if we met the requested counseling mandated us. After counseling was completed we still worked on the marriage and lived separate but we were together on average 4 or 5 times a week, no further incidents to report until February 5, when my wife and I were in her car talking, she and I had been living together for about a month and I was about to give up my residence to be permanently in the home, this being too much pressure she had to find a way to force me out she wasn't ready but she could not tell me that, she has a daughter the daughter loved having me around. So i move out a week later we sit to talk she claimed in the petition that during that time I threatened her, and assaulted her, which is not true but there are no witnesses, and of course she never called the police nor did she visit a medical facility, so after our talk i did hug her, and said good bye, I didn't contact her till the following monday by text stating "i hope you have a nice day" fifteen minutes later, she calls hysterical saying her car caught fire and I had to have sabotaged the car. Which of course I did not, but to her I did. Let me state clearly and without hesitation, I love my wife, and if I am ever going to be whole with her, threatening and malicious actions are by no means the way to achieve that end. That being said I offered to go help and she refused me, I got a call a few minutes later from my mother-in-law, she told me not to worry my wife was under a lot of stress, give her space and time she will be ok. Well two days later i have this TRO, now permanent.

    The judge would not allow my character reference statements to be entered, even though under the rules of evidence where character is a must without eye witnesses, I believe i have legal grounds to make the appeal. I did not commit any acts of violence nor did I threaten to commit any. I would like some input. Thanks
  2. #2
    mistoffolees is offline Senior Member
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    The only chance you have of winning an appeal is to get an attorney.
  3. #3
    laboroflove11 is offline Junior Member
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    nearing the end

    as I was coming to the end of my defense, and very late in the day I asked for a continuance as the main witness I had was not able to make it due to a situation with a co-worker that made it mandatory for him to attend work although he had scheduled the day off in advance, as his testimony would have been what I needed to swing this case, in my belief. I have worked as a legal assistant for a private law firm in research and preparation of pleas, motions, affadivits, etc., however not in Texas. We had an associate justice, and I believe in this instance from Surpreme Court Civil code Rule No. 252 would apply here. Would I make my appeal on the grounds that the motion for continuance should have been granted in the interest of justice? Or would it be a New Trial because of the denial of an application for continuance being reasonable and not granted.

    Is it possible that I could find an attorney to represent me that would work on a periodic payment schedule. I do have a good job and I do have reasonable expenses, just not a ton of dough socked away. This action was completely premeditated and did not rely on actual events, and I have a way to prove that.
    Last edited by laboroflove11; 02-25-2011 at 10:38 PM. Reason: ask another question?
  4. #4
    Tex78704 is offline Member
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    Is this a restraining order or a protective order?

    Your biggest mistake was to not hire an attorney right off the bat.

    Your second biggest mistake will be to miss the three day deadline to appeal from the associate judges report to the district judge to review your case.

    Read the statutes relevant to 201.015 carefully to determine exactly when the clock for your three days starts. If you miss this deadline, your case will be up to a state court of appeals, from which you are pretty much screwed if you represented yourself in the lower court.

    Texas Family Code Section 201.015. APPEAL TO REFERRING COURT.
    (a) A party may appeal an associate judge's report by filing notice of appeal not later than the third day after the date the party receives notice of the substance of the associate judge's report as provided by Section 201.011.
  5. #5
    laboroflove11 is offline Junior Member
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    date of hearing and judgement

    This is a protective order, alleging potential threat of family violence. No violence was substantiated but based on a prior hicough we had in December of 2009, the Associate Judge ruled since there was an incident, without injury to either party, it still was assumed that there was a threat. The hearing ended at approximately 4:35 pm on February 24th, I am looking for an attorney, I can appear in the clerks office Monday to appeal the Associate Judges ruling. prior to resting my defense I requested a continuance because the only material witness in the case was forced to work when he had scheduled the time off for this hearing but she would not allow it. This witness would clear my name and refute the false allegations which resulted in the temporary order being issued in the first place.

    Would I appeal the Assoc. Judges Ruling based on the denial of the continuance which as I see in the rules pertaining to this request, as I was sworn, I stated the reason the material witness was not present, which fell within an acceptable exclusion for non-attendance, yet the application was denied. ??

    Yes I need a good lawyer, suggestions please it is in Montgomery County 418th
    Last edited by laboroflove11; 02-26-2011 at 03:20 PM. Reason: found the reference to code mentioned
  6. #6
    Tex78704 is offline Member
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    If your hearing ended on Thursday, then 3 days after that should give until close of business on Tuesday to file an appeal. I would not recommend you file the appeal yourself, but instead wait for an attorney who can do it correctly.

    Go online and also use the yellow pages this weekend to find some family law attorneys in your area. Get a list of at least half a dozen, and start calling first thing Monday morning. Call in sick to work if you have to. Hopefully at least a couple of these will make time for a quick appointment. Then show up for the appointment with all the documentation you have from the court in hand. If you have a couple of appointments scheduled, avoid the temptation to go with the first attorney, and at least try to speak with two before writing a check to one of them.

    Most attorneys should have no problem whipping out a notice of appeal and having it filed within a few hours if needed. Once the appeal is duly filed and served, you will then have some breathing room to prepare for the next hearing.

    I would strongly advise you to NOT attempt to do this appeal on your own. A protective order is serious business, and you could very easily end up losing for the wrong reasons if you take one step further without an attorney.


    201.015. APPEAL TO REFERRING COURT.

    (a) A party may appeal an associate judge's report by filing notice of appeal not later than the third day after the date the party receives notice of the substance of the associate judge's report as provided by Section 201.011.

    (b) An appeal to the referring court must be in writing specifying the findings and conclusions of the associate judge to which the party objects. The appeal is limited to the specified findings and conclusions.

    (c) On appeal to the referring court, the parties may present witnesses as in a hearing de novo on the issues raised in the appeal. The court may also consider the record from the hearing before the associate judge, including thecharge to and verdict returned by a jury, if the record was taken by a court reporter.

    (d) Notice of an appeal to the referring court shall be given to the opposing attorney under Rule 21a, Texas Rules of Civil Procedure.

    (e) If an appeal to the referring court is filed by a party, any other party may file an appeal to the referring court not later than the seventh day after the date the initial appeal was filed.

    (f) The referring court, after notice to the parties, shall hold a hearing on all appeals not later than the 30th day after the date on which the initial appeal was filed with the referring court.
  7. #7
    laboroflove11 is offline Junior Member
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    the opposing party did not have counsel

    my wife represented herself and as I am excluded from any contact per the protective order, would I rely solely on service through constabulary means, or could I mail it first class mail to her mother?
  8. #8
    stealth2 is offline Senior Member
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    Your lawyer will be in the best position to answer your questions.
  9. #9
    garrula lingua is offline Senior Member
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    Quote Originally Posted by Tex78704 View Post
    Is this a restraining order or a protective order?

    Your biggest mistake was to not hire an attorney right off the bat.

    Your second biggest mistake will be to miss the three day deadline to appeal from the associate judges report to the district judge to review your case.

    Read the statutes relevant to 201.015 carefully to determine exactly when the clock for your three days starts. If you miss this deadline, your case will be up to a state court of appeals, from which you are pretty much screwed if you represented yourself in the lower court.
    This is incorrect. The time for filing a request for trial de novo was changed to seven days quite a while ago (around 9/09, I believe). The internet sources are, sometimes, outdated:

    Sec. 201.015. DE NOVO HEARING BEFORE REFERRING COURT. (a) A party may request a de novo hearing before the referring court by filing with the clerk of the referring court a written request not later than the seventh working day after the date the party receives notice of the substance of the associate judge's report as provided by Section 201.011.(b) A request for a de novo hearing under this section must specify the issues that will be presented to the referring court. (c) In the de novo hearing before the referring court, the parties may present witnesses on the issues specified in the request for hearing. The referring court may also consider the record from the hearing before the associate judge, including the charge to and verdict returned by a jury.(d) Notice of a request for a de novo hearing before the referring court shall be given to the opposing attorney under Rule 21a, Texas Rules of Civil Procedure.


    OP, put all relevant reasons (in short description) within the Request For Trial De Novo.
    File it ASAP. Some courts extend a little leniency to pro se litigants, but file ASAP. Remember that this is an entirely new trial, and you will have to 'prove up' each of your defenses/contentions, fully.
    Have your witnesses ready
    .
    The Court should notify you of the rehearing date within 30 days of your request.
  10. #10
    laboroflove11 is offline Junior Member
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    Trial de novo

    Great information. I had a solid case, and I really needed an attorney, my wife's defense was full of lies. I constructed a time line and she initiated all threats and acts of libel against me. I simply told her to stop and to think about what she was doing as in the end it would probably hurt her more. She has a 13 year old daughter who really likes me and that created jealousy, and tension where this should have been a great aspect to the dynamic we enjoy it was tension. I can prove she orchestrated my being forced from the residence. I have the witness for that. I have another witness that can verify that my behavior towards her after I left the residence was nothing but honorable. I had signed up for plenty of fish, as she was "through" with me, and I talked to a few women over the next couple of days, then I closed the account. She hacked into my email found the confirmation of closure of the account reopened it and wrote libelous stuff in a profile as me and then proceeded to write women and added her phone number and email address to have these women contact her. Messy I know but all this took place days before any filing for a TRO, she wanted to incite anger and I would not do it. I was not violent or threatening to her. Her own actions were undoing her fine. She may have sabotaged her own car to make the allegation against me. I watched as she lied and lied on the stand, her daughter's cell phone was found in my car, as we had been out to dinner together it likely was forgotten when i had my car detailed it was found by the cleaners, so now i am accused of stealing her child's phone as well it was hysteria and I could not help but object as this was conjecture and get overruled.
  11. #11
    Tex78704 is offline Member
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    Quote Originally Posted by garrula lingua View Post
    This is incorrect. The time for filing a request for trial de novo was changed to seven days quite a while ago (around 9/09, I believe)
    Thanks for the correction Garrula, and I apologize for the error.

    Three days did seem a bit unreasonable, and it makes sense it was amended to seven days.
    Besides a need to update my O'Connors Texas Family Code book, I will no longer use the onecle site which I have used for a quick online check in the past.

    A more reliable online source for the Texas Family Code is at the website of the Texas Legislature

    [url=http://www.statutes.legis.state.tx.us/]Texas Constitution and Statutes - Home[/url]
  12. #12
    garrula lingua is offline Senior Member
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    Tx78704,
    You're right - the Tx legislature site usually has the most up-to-date codes.

    There are also a lot of apps out now, which provide various Codes & the creators are stating they will update them. I guess time will tell.
  13. #13
    laboroflove11 is offline Junior Member
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    Thumbs up thanks so much

    This is a great reference site, and I was able to find the law, it was amended to 7 days in 2007 it seems, and the requirements for the request have been significantly removed to the point of it actually looking like a complete retrial, now I just need a way to serve the opponent without doing so directly as per the law I still am mandated to abide by the protective order.
  14. #14
    signspinner is offline Member
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    not happening

    not gonna win even with a lawyer.....durge music playing
  15. #15
    mistoffolees is offline Senior Member
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    Quote Originally Posted by signspinner View Post
    not gonna win even with a lawyer.....durge music playing
    You'd be the expert on that.

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