May v. Gibson, 11-25-00228-CV, February 12, 2026.
Synopsis
The Eleventh Court of Appeals dismissed an appeal of a protective order after the appellant filed a voluntary motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.1(a)(1). The motion was predicated on the trial court’s subsequent vacatur of the underlying judgment, rendering the appellate challenge moot in the eyes of the appellant.
Relevance to Family Law
In Texas family law practice, particularly regarding Title 4 protective orders, the landscape of litigation can shift rapidly even after a notice of appeal is filed. This case illustrates a critical strategic off-ramp: the trial court’s vacatur of a challenged order during the pendency of an appeal. For practitioners, this highlights the importance of continuing to negotiate or litigate at the trial level during the appellate process where jurisdictional windows allow. When a trial court is persuaded to vacate a problematic order, Rule 42.1 provides a clean procedural mechanism to terminate the appeal, thereby avoiding the costs of further briefing and the risk of an adverse published precedent.
Case Summary
Fact Summary
This appeal originated from a protective order issued by the 318th District Court of Midland County. Following the entry of the order, Appellant Zachery Albert May initiated the appellate process with the Eleventh Court of Appeals. However, while the appeal was pending, the trial court entered an order vacating the very protective order that served as the basis for the appeal. Recognizing that the trial court’s action provided the relief sought or otherwise obviated the need for appellate intervention, May filed a motion to dismiss his appeal. He specifically stated that he no longer desired to continue the appellate process because the underlying judgment had been vacated. To support this motion, May provided the appellate court with a file-marked copy of the trial court’s order of vacatur.
Issues Decided
The primary issue was whether the appellate court should grant a voluntary dismissal of an appeal under Texas Rule of Appellate Procedure 42.1(a)(1) when the trial court has vacated the judgment being appealed.
Rules Applied
The court applied Texas Rule of Appellate Procedure 42.1(a)(1). This rule permits an appellate court to dismiss an appeal in accordance with a motion filed by the appellant, provided that the dismissal does not prevent another party from seeking relief to which it would otherwise be entitled or interfere with the court’s ability to resolve the merits if a cross-appeal is pending.
Application
The court’s analysis was purely procedural and focused on the Appellant’s compliance with the requirements for voluntary dismissal. Upon receiving May’s motion, the court reviewed the attached evidence—the file-marked vacatur from the 318th District Court. Because the Appellant explicitly stated he no longer desired to pursue the appeal and provided proof that the underlying controversy (the protective order) had been resolved by the trial court’s own vacatur, the appellate court found the requirements of Rule 42.1(a)(1) were satisfied. The court did not need to reach the merits of the original protective order because the Appellant’s motion effectively withdrew the case from the court’s docket.
Holding
The Eleventh Court of Appeals granted the Appellant’s motion and dismissed the appeal in its entirety.
The court held that pursuant to Rule 42.1(a)(1), an appellant’s expressed desire to terminate proceedings following the trial court’s vacatur of the underlying judgment is a sufficient basis for dismissal. This holding confirms the appellate court’s deference to an appellant’s voluntary choice to abandon a challenge when the trial court provides relief post-judgment.
Practical Application
This case serves as a tactical reminder for family law litigators dealing with expedited appeals or protective orders. If a trial court maintains plenary power or if a statutory mechanism allows for the modification or vacatur of an order after a notice of appeal is filed, practitioners should not cease trial-level efforts. Securing a vacatur in the district court is often more efficient than awaiting a multi-month appellate cycle. Once the trial court vacates the order, the appellant can utilize Rule 42.1 to close the appellate file, saving the client significant resources.
Checklists
Strategic Voluntary Dismissal
- Verify the trial court’s jurisdiction to enter the vacatur (ensure plenary power has not expired).
- Obtain a file-marked, signed copy of the order vacating the judgment.
- Confirm that no cross-appeals are pending that would survive the dismissal of your client’s appeal.
- File the Motion to Dismiss under TRAP 42.1(a)(1) in the Court of Appeals immediately upon receipt of the vacatur.
- Specify in the motion how costs should be handled (typically taxed against the appellant unless otherwise agreed).
Avoiding Post-Vacatur Complications
- Ensure the vacatur order is broad enough to extinguish all findings of family violence that could impact future custody (SAPCR) litigation.
- Notify any relevant law enforcement agencies or registries that the protective order has been vacated to ensure the client’s record is cleared.
- Review the impact of the dismissal on any supersedeas bonds or stays currently in place.
Citation
May v. Gibson, No. 11-25-00228-CV, 2026 WL (Tex. App.—Eastland Feb. 12, 2026, no pet. mem. op.).
Full Opinion
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