







COURT OF APPEALS








COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
 
WILLIAM EDGAR DEMPSEY, SR.,                   )
                                                                              )              
No.  08-04-00306-CV
Appellant,                          )
                                                                              )                    Appeal from the
v.                                                                           )
                                                                              )                
388th District Court
IRMA DELGADO DEMPSEY,                            )
                                                                              )            
of El Paso County, Texas
Appellee.                           )
                                                                              )               
(TC# 2004CM3064)
                                                                              )
 
O
P I N I O N
 
Appellant William
Edgar Dempsey, Sr. appeals a protective order granted on June 17, 2004 in favor
of Irma Delgado Dempsey.  In five issues,
Appellant complains that the trial court abused its discretion in finding Appellee=s testimony credible, erred in finding
family violence on global allegations, and erred in denying his motion for a
continuance.  Finding we lack
jurisdiction, we dismiss the appeal.
 PROCEDURAL BACKGROUND




William Dempsey,
Sr. and Irma Dempsey were married on January 1, 1991 and have no children
together.  On May 13, 2004, Appellee
filed an original petition for divorce in the 388th District Court in cause
number 2004CM3064.  On May 28, 2004,
Appellee petitioned the court for a protective order pursuant to Title 4, Texas
Family Code.  An order to Show Cause on
the application was filed on June 8, 2004. 
A hearing on the protective order was held on June 17, 2004 before the
Associate Judge, who found that family violence had occurred and was likely to
occur again in the future.  The district
judge approved the associate judge=s
recommendations that same date. 
Appellant filed his notice of appeal from the order on June 25, 2004 and
requested findings of fact and conclusions of law on July 8, 2004.  The findings of fact and conclusions of law
were filed on July 9, 2004.  Appellee
filed an amended original petition for divorce on August 16, 2004.  A final hearing on the divorce was held on
September 1, 2004.  A final order on the
divorce does not appear in the record, but according to Appellant=s brief, the judgment was signed on
October 31, 2004.
JURISDICTION




Appellate courts
have jurisdiction over appeals from final judgments and such interlocutory
orders as the Legislature deems appealable. 
See Tex.Civ.Prac.&Rem.Code
Ann. ''
51.012, 51.014 (Vernon 1997 & Supp. 2004-05); Hughey v. Hughey, 923
S.W.2d 778, 779 (Tex.App.--Tyler 1996, writ denied).  A judgment is final and appealable if it
disposes of all parties and all issues.  Lehmann
v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  A protective order granted while a divorce
action is pending between the same parties is not a final judgment because it
does not dispose of all issues in the case and must be classified as an
unappealable interlocutory order.  Ruiz
v. Ruiz, 946 S.W.2d 123, 124 (Tex.App.--El Paso 1997, no writ); Bilyeu
v. Bilyeu, 86 S.W.3d 278, 282 (Tex.App.--Austin 2002, no pet.); see also
Escobar v. Escobar, No. 08-03-00348-CV, 2004 WL 759265, at *1 (Tex.App.--El
Paso 2004, no pet.).  Because the
protective order in this case was issued during the pendency of the divorce, it
is an unappealable interlocutory order.[1]  See Bilyeu, 86 S.W.3d at 282
(concluding that Amandamus
is the proper procedure for appellate review of a family violence protective
order in effect while the parties=
divorce is pending in the trial court.@).
We conclude that
we have no jurisdiction and dismiss the appeal.
 
 
September
15, 2005
DAVID WELLINGTON
CHEW, Justice
 
Before Barajas, C.J., McClure, and Chew, JJ.




[1]
The Texas Legislature has recently amended Title 4 of the Texas Family Code to
specifically address the issue of when a family violence protective order is
appealable in the context of a pending divorce. 
See Act of 2005, 79th Leg., R.S., ch. 916, ' 2, 2005 Tex.Gen.Laws 3150, 3150-51 (to be codified as Tex.Fam.Code Ann. ' 81.009)(eff. June 18, 2005).  The statute now clarifies that A[a] protective order rendered against a
party in a suit for dissolution of a marriage may not be appealed until the
time the final decree of dissolution of the marriage becomes a final,
appealable order.@  Id. at 3151.  


