Royce Allen Phillips v. Alicia Lucile Phillips ( 2021 )

Affirmed and Majority and Concurring Opinions filed August 31, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00618-CV
ROYCE ALLEN PHILLIPS, Appellant
V.
ALICIA LUCILE PHILLIPS, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2019-17786
MAJORITY OPINION
This is an appeal of a protective order in a family-law case.1 Appellant
Royce Allen Phillips (Husband) challenges the protective order rendered by the
1
Appellate courts have jurisdiction over appeals from final judgments and specific types
of interlocutory orders designated by the legislature as appealable. Lehmann v. Har–Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001); see, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014.
A judgment is final and appealable if it disposes of all parties and all issues. Lehmann, 39
S.W.3d at 195.
The Family Code provides that 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
trial court in favor of appellee Alicia Lucile Phillips (Wife) in two issues. In his
first issue, Husband argues that the trial court had no jurisdiction to consider the
protective order because a divorce proceeding involving the same parties was
pending in a different district court. In his second issue, he claims the trial court
erred because it did not file findings of fact identifying which disputed evidence
the final protective order relied order on. We affirm.
I. BACKGROUND
In 2018, Wife filed a petition for divorce from Husband, which was assigned
to the 246th District Court of Harris County. In March 2019, Wife filed an
application for protective order in the 280th District Court pursuant to Family
Code chapter 82. Tex. Fam. Code Ann. § 82.001. The 280th District Court is
designated as the domestic violence district court for Harris County and gives
preference to domestic violence cases. Tex. Gov’t Code Ann. § 24.112(h), (i). In
her first amended application, Wife alleged that although a suit for dissolution of
marriage was pending in Harris County, her application for protective order was
properly before the 280th District Court because she resided in Harris County. Tex.
Fam. Code Ann. § 85.062(a)(2). The 280th District Court issued an ex parte
temporary protective order in March 2019 before Husband appeared and answered.
marriage becomes a final, appealable order.” See Tex. Fam. Code Ann. § 81.009(a). However,
the application in this case was not filed as a motion in a suit for dissolution of a marriage. It was
filed under a separate cause number in a separate court, and the appellate record does not reflect
that it was consolidated with the divorce proceeding. See Davis v. Davis, No. 06-07-00059-CV,
2007 WL 1574278, at *1 (Tex. App.—Texarkana June 1, 2007, no pet.) (mem. op.). This court
has previously held that a family-violence protective order that gives injunctive relief and
disposes of all issues and parties is a final, appealable order. Ulmer v. Ulmer, 130 S.W.3d 294,
296 (Tex. App.—Houston [14th Dist.] 2004, no pet.); see also Vongontard v. Tippit, 137 S.W.3d
109, 110 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Even though the protective order was
rendered during the time that Husband and Wife had a pending divorce proceeding, the
protective order was not rendered against Husband “in a suit for dissolution of marriage.” And
because the final protective order disposed of all parties and all issues in the case, we conclude
that it was a final, appealable order.
2
Husband filed an answer claiming that Wife’s application for protective
order was frivolous because the 246th District Court had already denied “the same
issues.” Over three days in March and April 2019, the 280th District Court held a
hearing on Wife’s application for a protective order.2 On May 13, 2019, Husband
filed a motion to dismiss Wife’s application arguing that the 280th District Court
lacked subject-matter jurisdiction over Wife’s application. Alternatively, Husband
argued that Wife’s application should be abated because the 246th District Court
had dominant jurisdiction. The record does not indicate that Husband’s motion was
ever heard or ruled on by the trial court.
The trial court signed the final protective order in favor of Wife on May 24,
2019. The protective order expired twenty-four months from the date of signing,
and included findings that “family violence has occurred, was committed by
[Husband], and family violence committed by [Husband] is likely to occur in the
future.” After the trial court signed the protective order, Husband filed a request for
findings of fact and conclusions of law pursuant to Rule 296. Tex. R. Civ. P. 296.
Husband also filed a “Notice of Past Due Findings of Fact and Conclusions of
Law” pursuant to Rule 297. Tex. R. Civ. P. 297. Other than those contained in the
final protective order, the trial court did not make any additional findings of fact or
conclusions of law.
II. ANALYSIS
A. Mootness
Though not raised by the parties, we address mootness. The protective order
here has already expired and nothing in our record suggests it was the basis of any
other proceeding. Subject-matter jurisdiction is fundamental to our authority to
2
The Final Protective Order incorrectly states that Wife’s application was heard by the
trial court on May 9, 2019.
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dispose of cases. Heckman v. Williamson Cnty., 369 S.W.3d 137, 162 (Tex. 2012)
(“a case is moot when the court’s action on the merits cannot affect the parties’
rights or interest”). However, Texas courts have recognized a “collateral
consequences” exception to the mootness doctrine that allows an appellate court to
review a case after it becomes moot. Marshall v. Housing Auth. of the City of San
Antonio, 198 S.W.3d 782, 789 (Tex. 2006); State for Prot. of Cockerham v.
Cockerham, 218 S.W.3d 298, 302 (Tex. App.—Texarkana 2007, no pet.)
(collecting cases). Under that exception, an expired protective order based on a
finding of family violence is reviewable because the “effects of a protective order
carry significant collateral legal repercussions and a social stigma.” Cockerham,
218 S.W.3d at 303; see In re Salgado, 53 S.W.3d 752, 757–58 (Tex. App.—El
Paso 2001, no pet.). Because the order here is based on the allegations of abuse
directed towards a spouse, Husband is entitled to appellate review.
B. Subject-matter jurisdiction
Relying on Family Code section 85.062, Husband argues the final protective
order is void because the trial court lacked subject-matter jurisdiction.
“[S]ubject-matter jurisdiction is essential to a court’s power to decide a case.”
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000).
Consequently, a court cannot render a binding judgment concerning matters over
which it lacks subject-matter jurisdiction. See In re United Servs. Auto. Ass’n, 307
S.W.3d 299, 309 (Tex. 2010). For these reasons, subject-matter jurisdiction cannot
be waived by the parties. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852
S.W.2d 440, 443–44 (Tex. 1993). Determining whether a trial court had
subject-matter jurisdiction is a question of law, which we review de novo. City of
Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam).
4
Subject-matter jurisdiction is the power of a court to hear and determine
cases of a general class to which the case in question belongs. Deen v. Kirk, 508
S.W.2d 70, 72 (Tex. 1974). As a district court, the 280th District Court has
subject-matter jurisdiction over protective order proceedings like any other district
court. See Tex. Const. art. V, § 8 (“District Court jurisdiction consists of exclusive,
appellate, and original jurisdiction of all actions, proceedings, and remedies, except
in cases where exclusive, appellate, or original jurisdiction may be conferred by
this Constitution or other law on some other court, tribunal, or administrative
body.”); Tex. Gov’t Ann. § 24.007 (“district court has the jurisdiction provided by
Article V, Section 8, of the Texas Constitution”); Tex. Gov’t Code Ann.
§ 24.112(h), (i) (Harris County shall designate “domestic violence district court”
that gives preference to “domestic violence cases”); Tex. Gov’t Code Ann.
§ 24.457 (identifying 280th as district court for Harris County); Tex. Gov’t Code
Ann. § 24.951 (all district courts in county have concurrent civil and criminal
jurisdiction within territorial limits of county); see also Dubai Petroleum Co. v.
Kazi, 12 S.W.3d 71, 75 (Tex. 2000) (general presumption for courts of general
jurisdiction is they have subject-matter jurisdiction). Therefore, the 280th District
Court had jurisdiction over the subject matter of Wife’s protective order
application.
Husband argues that the language of Family Code section 85.062 deprived
the trial court of subject-matter jurisdiction:
APPLICATION FILED WHILE SUIT FOR DISSOLUTION
OF MARRIAGE OR SUIT AFFECTING PARENT-CHILD
RELATIONSHIP PENDING. (a) If a suit for dissolution of a
marriage or suit affecting the parent-child relationship is pending, a
party to the suit may apply for a protective order against another party
to the suit by filing an application:
(1) in the court in which the suit is pending; or
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(2) in a court in the county in which the applicant resides if the
applicant resides outside the jurisdiction of the court in which the suit
is pending.
Tex. Fam. Code Ann. § 85.062. The Family Code further provides that a “person
who wishes to apply for a protective order with respect to the person’s spouse and
who is a party to a suit for the dissolution of a marriage . . . must file the
application as required by Subchapter D, Chapter 85.” Tex. Fam. Code Ann.
§ 82.005 (emphasis added). Section 85.062 is contained within Subchapter D of
Chapter 85. The question we must then resolve is whether the language in section
82.005 makes the filing requirements of section 85.062 jurisdictional.3 Id.When used in a statute, the term “must” creates or recognizes a condition
precedent. Tex. Gov’t Code Ann. § 311.016(3). Texas courts have generally
interpreted “must” as mandatory, creating a duty or obligation. See Helena Chem.
Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). Even if a statutory requirement is
mandatory, this does not mean that compliance is necessarily jurisdictional. Id. at
494; Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999). When a
statute is silent about the consequences of noncompliance, we look to the statute’s
purpose to determine the proper consequences. Sinclair, 984 S.W.2d at 961.
Here, there is no stated consequence for noncompliance with the filing
requirements. However, Chapter 85 contemplates that a final protective order may
be rendered by a court other than the court in which a suit for dissolution of a
marriage is pending. Tex. Fam. Code Ann. § 85.062(c). In that situation, the clerk
3
The Family Code also references jurisdiction in chapter 71. Tex. Fam. Code Ann.
§ 71.002. For purposes of a protective order proceeding, “court” is defined as the “district court,
court of domestic relations, juvenile court having the jurisdiction of a district court, statutory
county court, constitutional county court, or other court expressly given jurisdiction under this
title.” Id. However, this definition does not change or restrict the jurisdiction of a district court
presiding over a protective-order proceeding.
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of the court that rendered the protective order shall (1) inform the clerk of the court
in which the suit is pending that a final protective order has been rendered and
(2) forward a copy of the final protective to the court in which the suit is pending.
Id. § 85.062(c)(1), (2). Chapter 85 also contains transfer procedures, which allow a
protective order rendered by a court other than the one in which a suit for
dissolution is pending to transfer the protective order. Id. §§ 85.062(d), .064. These
provisions indicate that the consequence for non-compliance is not jurisdictional.
Finally, public policy favors allowing immediate access to a tribunal for the safety
and protection of a spouse, as well as a child. See In re Salgado, 53 S.W.3d at 762.
Title 4 (Protective Orders and Family Violence) should be broadly construed to
“effectuate its humanitarian and preventive purposes.” Boyd v. Palmore, 425
S.W.3d 425, 430 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citation omitted);
Tex. Family Code Ann. §§ 71.001–93.004 (title 4). “The purpose of the statute is
to provide an expedited procedure for victims of domestic violence . . . [and] to
give immediate protection to the applicant.” Roper v. Jolliffe, 493 S.W.3d 624, 634
(Tex. App.—Dallas 2015, pet. denied). The determination that Husband asks this
court to make, that section 85.062 is jurisdictional and deprived the 280th District
Court of power to decide Wife’s application, is at odds with the purpose of Title 4.
See Tex. Gov’t Code Ann. § 24.112(k) (“The designated domestic violence district
court shall provide timely and efficient access to emergency protective orders . . .
for persons the court determines are victims of domestic violence.”). Therefore, we
conclude that an applicant’s compliance with section 85.062 is not jurisdictional.
See Sinclair, 984 S.W.2d at 961 (“the purpose behind section 410.253 does not
require dismissing the judicial review action for failure to timely file with the
Commission”); Hines v. Hash, 843 S.W.2d 464, 468–69 (Tex. 1992) (noting it is
not necessary to purpose of Deceptive Trade Practices-Consumer Protection Act’s
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presuit notice provision to dismiss plaintiff’s action if notice is not timely
provided).
Husband’s argument that Wife filed her application in the wrong court is
otherwise not a matter of fundamental error. Instead, Husband’s argument is more
properly characterized as an issue of dominant jurisdiction4 or venue, which
Husband did not preserve or raise on appeal. See Wyatt v. Shaw Plumbing Co., 760
S.W.2d 245, 248 (Tex. 1988) (court in which suit is first filed acquires dominant
jurisdiction); Gordon v. Jones, 196 S.W.3d 376, 382–83 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) (doctrine of dominant jurisdiction pertains to venue, not
subject-matter jurisdiction). Husband never timely challenged venue or dominant
jurisdiction in the trial court, nor did he seek to transfer the application to the 246th
District Court. See Hiles v. Arnie & Co., P.C., 402 S.W.3d 820, 826 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied) (dominant jurisdiction may be waived if
not timely asserted); Tex. R. Civ. P. 86 (“An objection to improper venue is
waived if not made by written motion filed prior to or concurrently with any other
plea, pleading or motion”); Tex. R. App. P. 33.1(a).
We overrule Husband’s first issue.
4
Despite its name, the doctrine of dominant jurisdiction is not jurisdictional. Dominant
jurisdiction applies when venue is proper in two or more Texas counties or courts. Gonzalez v.
Reliant Energy, Inc., 159 S.W.3d 615, 622 (Tex. 2005); see also In re Puig, 351 S.W.3d 301,
305 (Tex. 2011) (when jurisdiction of two courts is concurrent, issue is one of dominant
jurisdiction); Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001) (applying ripeness doctrine to
resolve issue of four competing venues). Dominant jurisdiction recognizes “the plaintiff’s
privilege to choose the forum” and accepts that choice as correct, provided “the forum is a proper
one.” Gonzalez, 159 S.W.3d at 622. Thus, “the court in which suit is first filed generally acquires
dominant jurisdiction to the exclusion of other courts if venue is proper in the county in which
suit was first filed.” Id. (citing Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988)).
Therefore, the doctrine of dominant jurisdiction pertains to venue and is not jurisdictional. See
Gordon v. Jones, 196 S.W.3d 376, 382–83 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see
also Curtis v. Gibbs, 511 S.W.2d 263, 266 (Tex. 1974) (dominant jurisdiction resolves venue
conflict between two courts with subject-matter jurisdiction).
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C. Findings of fact and conclusions of law
In his second issue, Husband argues that the trial court did not file findings of
fact and conclusions of law in response to his Rule 296 request. See Tex. R. Civ. P.
296. He argues that the trial court’s failure to do so constituted reversible error. See
Tex. R. Civ. P. 297 (“The court shall file its findings of fact and conclusions of law
within twenty days after a timely request is filed.”). Because the trial court never
stated which facts were accepted as proof of family violence in the final protective
order, Husband maintains that he does not know which allegations to focus on in
his appeal.
However, the final protective order contained the findings mandated by the
Family Code.5 See Tex. Fam. Code Ann. § 85.001 (trial court shall find whether
“family violence has occurred and family violence is likely to occur in the future”).
The court complied with the statutory requirements by including the following
findings in the final protective order:
The Court finds that all requirements for a Protective Order have been
met and that this Court has jurisdiction over the parties and this
action. The Court further finds that the Applicants have shown that the
Application for a Protective Order should be GRANTED and that
granting this Protective Order is necessary to prevent future family
violence by Royce Allen Phillips and is in the best interest of the
Applicant and those to be protected in this Order.
5
Rule 299a states that findings of fact should not be recited in a judgment, but should be
filed as a separate document. Tex. R. Civ. P. 299a. However, section 85.001 directs the court to
find whether family violence has occurred and is likely to occur in the future, and to include
these findings in the protective order. Tex. Fam. Code Ann. § 85.001(a), (c). When there is a
conflict between a statute and a rule, the statute prevails over the rule. Jackson v. State Office of
Admin. Hearings, 351 S.W.3d 290, 298 (Tex. 2011) (“[W]hen a rule of procedure conflicts with
a statute, the statute prevails unless the rule has been passed subsequent to the statute and repeals
the statute as provided by Texas Government Code § 22.004.”) (quoting Johnstone v. State, 22
S.W.3d 408, 409 (Tex. 2000)); see Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424, 425 (Tex.
1971) (“[When a] rule of the court conflicts with a legislative enactment, the rule must yield.”).
Though this issue was not raised by the parties, we note that the rule predates the applicable
statute.
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The Court finds that family violence has occurred, was committed
by [Husband], and family violence committed by [Husband] is likely
to occur in the future.
Husband’s argument here is premised on the assumption that the trial court’s
findings of fact must list all evidence or proof supporting the protective order;
however, he offers no legal authority for this argument. We disagree. The final
protective order already included a finding that family violence occurred, and the
court was not required to make a finding on each statement or allegation made by
Wife. See Peña v. Garza, 61 S.W.3d 529, 531–32 (Tex. App.—San Antonio 2001,
no pet.) (trial court is not required to make additional findings when protective
order contains findings required by statute); see also Nicholas v. Envtl. Sys. (Int’l)
Ltd., 499 S.W.3d 888, 894–95 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)
(“The trial court is not required to set out in detail every reason or theory by which
it arrived at its final conclusions. Nor is the trial court required to accept amended
findings and conclusions that merely resolve evidentiary issues or are otherwise
unnecessary.”).
Husband states that he cannot properly present his appeal because he does
not “know if his appeal should focus on the insufficiency of holding papers in front
of a phone as a basis for family violence or upon challenging the trial court[’s]
discretion for disallowing Appellant to explain how Appellee’s bruising really
occurred.” Husband did not explain how the absence of the requested findings
prevented him from making either of those challenges on appeal.
We overrule Husband’s second issue.
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III. CONCLUSION
We affirm the trial court’s final protective order as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Spain, Hassan, and Poissant. (Poissant, J., concurring).
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