## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00040

- CV

RICHARD LEE DIX , Appellant

V. BRITTANY FOSTER , Appellee

On Appeal from the 123rd District Court Panola County, Texas Trial Court No. 2022

- 118

Before Mo rriss, C.J., Stevens and van Cleef , JJ. Memorandum Opinion by Chief Justice Morriss2 

### ME MORANDUM OPINION Appellant Richard Lee Dix has served many years of a thirty

- eight

- year sentence for aggravated sexual assault of a child

. The now - adult victim of that crime , Brittany Foster , armed with allegations of Dix ’ s bad behavior and a threatening communication sent by Dix from prison , sought a lifetime protective order to keep Dix away from her and her family. On May 6, 2022, at 8:00 a.m., Dix was serve d b y “ personal deliver[ y] ” through his legal agent, with the notice of application for a protective order, 1 Foster ’ s application for a protective order, her protective order declara tion, the court ’ s temporary ex parte protective order against Dix, a show

caus e or der, and a notice of hearing. 2 The hearing , held May 11, 2022, and not attended by Dix, resulted in issuance of the requested protective order. Dix appeals from that order , asserting that his due process rights were violated due to improper servi ce a n d a lack o f adequate notice of the hearing on Foster ’ s application for a protective order

. Because we disagree, we affirm the order. In the sprin g of 2022, Foster learned that Dix could be released from prison August 16,
2022 , prompting he r effort t o se ek the protec tive order

. Foster filed a sw orn declaration with her application for a protective order , stating that Dix, her biological father, committed multiple

1 The notice explained that an application for a protective order had been filed by Foster aga in s t Dix, and stated , ANY ANSWER MUST BE FILED BEFORE THE HEARING ON THE APPLICATION. IF YOU RECEIVE THIS NOTICE WITHIN 48 H OURS BEFORE THE TIME SET FOR THE H EARING, YOU MAY REQUEST THE COU RT TO RE
- SCHEDU L E THE HEARING NOT L ATER THAN 14 DAYS AFTER THE DA TE SET FOR THE HEARING. IF YOU DO NOT ATTEND THE HEARING, A DEFAULT JUDGMENT MAY BE TA KEN AND A FINAL PROTECTIVE ORDER MAY BE ISSUED.

2 The trial court ordered Dix to appear for the hearing on May 11, 2022 , at 1:30 p .m. via Zoom or other video

conferenci ng method as instructed by the court.3

sexual assaults against her when she was between eleven and thirteen years of age. 3 I n 2003 , Dix had pled guilty to the charge and had received his sentence

. Accord ing to Foster, while Dix

was in prison, he had sent unwanted letters to her and her mother. Also , per Foster, Dix had sent her a letter , i n 2008, t hreate n ing t o “ hunt [Foster] d own and make [her] p a y for all the pain he had been through in prison. ” After a temporary ex parte protective order 4 was issued May 2 and the above

- described service was accomplished May 6 , t he trial court held its hearing on Foster ’ s application on May 11, 2022 , without Di x in atte n dance

. After Foster testified , the trial court entered a final protective order against Dix , which noted that Dix “ failed to appear, although duly served with citation and notice

. ” Five days later, o n May 16, 2022, Dix filed an answe r and a motion for

c o ntinuance of hearing stating that “ [he] was served on May 6, 2022, via email through the Unit
L aw L ibrary and by certified mail on May 9, 2022 [ ,] ” and asking for a forty

- five

- day

c ontinuance of the hea ring on Foster ’ s application. On June 9, 2022, Dix fi l ed his notice of appeal. In his sole point of error on appeal, Dix maintains that his due process rights were violated because he was not properly served with Fo ster ’ s application for a protective order o r

3 At the time she filed the appli cation , Foster was more than eighteen years of age.

4 Artic le 7B.002(a) state s, If the court f

inds from the information contained in an appli cation for a protective order that there i s a clear and present danger of sexual assault or abuse , i ndecent assault, stalking, trafficking, or other har m to the applica nt, the court, wit hout further notic e to the alleged offender and without a hearing , may issue a temporary ex parte order for th e protection of the applicant or any other member of the app licant’s family or household.
T EX
. C ODE C RIM
. P RO C
. A NN . art. 7B. 002(a) (Supp.)

.4

given adequate notice o f the hearing on her applic a tion

. 5 Dix contends that the trial court erred when it granted Foster ’ s application and issued the lifetime protective order against hi m. We disagree. The trial court granted Foster ’ s applica tion for a protective order pursu a nt to Article 7B of t he Texas Code of Criminal Procedure , 6 which states, in part , “ T o the extent applicable, except as otherwise provided by this subchap ter, Title 4, Family Code, applies to a protective order issu ed under this chapter. ” T EX
. C ODE C RIM
. P ROC
. A NN art. 7 B.008 (Supp.)

. Title 4 of the Texas Family Code, entitled “ Protective Orders and Family Violence, ” provides the procedure for the issuance and e nforc ement of family violence protective orders , incl uding protective orders sought by a current or former fa mily memb er of a household against another member of the household. T EX
. F AM
. C ODE A NN . § 71.00 4, § 71.006 (Supp.)

. “ The purpose of the statute is to prov ide an expedited procedure for victims of d omestic violence; the purpose is

n ot to corr ect past wro ngs or establish li ability but to give immediate protection to the applicant. Title 4 is remedial in nature and should be broadly construed to ‘ effectua te i ts humanitarian and preventive purposes. ’ ” Roper v. Jolliffe , 493 S.W.3d 624, 634 (Tex . App.

— Dallas 2015 , pet. denied) ( quoting Boyd v. Palmore , 425 S.W.3d 425, 430 (Tex. App.

— Houston [1 st Dist.] 2011, no pet.) )

. “ B ecause of the nature of the relief anticip ated and the danger that it see ks to avoid,

5 Whether service complied with the governing rules is a question of law that we review de novo. See Martell v. Tex. Concrete Enter. Readymix, Inc

. , 595 S. W .3d 279 , 282 (Tex. App

. — Houston [14 th Dist.] 2020, no pet.).

6 Article 7B.001( a) states, “The fol lowing may file an application for a protective order under this subchapt er without regard to the relationsh i p between the applicant and the alleged offender ” if, as in this case , the person is a victim of the offense of aggravated sexua l assault of a c hil d. T EX
. C ODE C RIM
. P ROC
. A NN
. art. 7B.001(a)(1) (Supp.)

. For protective orders issue d pursuant to the Texa s C ode of Criminal Procedur e, the order “may be effective for the duration of the lives o f the offender and the v ictim or for any shorter period stated i n the order .” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 7B.00 7 (a) (Supp.)

.5

Title 4 us es a ‘ very abbreviated proced ure. ’ ” Johnson v. Simmons , 597 S.W.3d 5 38, 542 (Tex. App.

— Fort Worth 2020, pet. denied) (quoting Martinez v. Martinez , 52 S.W.3d 429, 432 (Tex. App.

— Fort Wor th 2001, pet. denied) (op. on rehearing))

. Under Title 4, the trial court may enter a defaul t p rotective order “ that is bind ing on a respondent who does not attend a hearing if : (1) the respondent re ceived service of the application and notice o f hearing; and (2) proof of service was filed with t he court before the hearing. ” T EX
. F AM
. C ODE A NN . § 85.006 (Supp.)

. The trial court is requir ed to set a date and conduct a hearing on an application for a family violence protect ive order within fourteen days

o f the fi l ing of the application. T EX
. F AM
. C ODE A NN . § 84.001(a)

. A respondent is entitled to receive notice of the hearing, but if the hearing is scheduled within forty

- eight hours after t he respondent receive s notice, the court is r equired to reschedule the hearin g on respondent ’ s
requ est. T EX
. F AM
. C ODE A NN
. § 84.004

. Yet, the fact that a res pondent receive s less than two days ’ notice of a p rotective order heari ng does not itself prevent the court from g ranting the application for a protective order when the respondent fai l s to attend the hearing without asking to reschedule the hearing. T EX
. F AM
. C ODE A NN . § 85.006 (Supp.) In this case, the return of service , which wa s properly filed with the court on May 6, 2022 , at 9:01 a. m., specifically state d , “ ON Friday, May 6, 20 22 [,] at 8:0 0 A.M ., I Vincente G[.] Barrera, PERSONALLY DELIVERED THE AB OVE

- NAMED DOCUMENTS TO : Richard
Lee D ix, TDCJ#

. . . , by delivering to LEGAL AGENT, MS. THOMSON, 3001 S. EMILY DR,
B EEVILLE, BEE COUNTY, TX 78102. ” Further, t he hearing on Foster ’ s app lication was held

on May 11, 2022 , five days after Dix received notice of the hearing. He , therefore , received t he6

application for a protective order and notic e of hearing mo re than forty

- e ight hours before the hea ring. Consequently, Dix was not entitled to a continuance as a llowed under Section 84.004 of the Texas Family Cod e. 7 And, a lthough Dix filed a motion for a continuance of the hearing , he did so five d ays after the hearing on Foste r ’ s application had taken place. Dix also complains that prison officials did not recei ve notice of the hearing and, as a result , w ere un able to assist Dix with m aking a time ly appearance in court

. According to Dix,

“ Due to [his ] incarceration, a c ourt must notify Respondent and th e T. D.C .J. about [a] hearing if Respondent is to have opportuni ty to attend [the] hearing. ” Yet , despite D ix ’ s assertion, t he record shows that the Texas Department of Criminal Justice did, in fact, receive personal service and notice of the May 11 hearing o n May 6, th rough Dix ’ s legal agent , Ms. Thomson. 8
Dix was properly serve d with Foster ’ s application f or a protective order , and he likewise received ad equate notice of the hearing on her application. We , therefor e , find that the trial
court ’ s entry of a default prote ctive order in favor of Foster did not violate Dix ’ s due process rights. We overrule his so le point of error.
We affirm the trial court ’ s order

.

Josh R. Morriss, III Chief Justice Date Submitt ed: October 10, 2022 Da te Decided: Octob er 13 , 2022

7 There is no evidence in the rec ord, ot her than Dix’s self

- serving statement, that he did not receive notice via certified mail until May 9, 2022.

8 Dix does not deny that Thomso n was his legal agent. Moreover, Dix concedes that he received Foster’s application for a prote ctive order and not ice of the May 11 hearing via email on May 6.