Summary
concluding that without findings that family violence has occurred and is likely to occur in the future, a trial court may not issue a family-violence protective order unless a person has violated an existing protective order—not a temporary ex parte order—when the protective order was in effect and the protective order has since expired
Summary of this case from J.A.T. v. C.S.TOpinion
NO. 01-19-00488-CV
07-28-2020
Troy Wayne TAYLOR, Appellant v. Anna Lane TAYLOR, Appellee
Timothy A. Hootman, 2402 Pease St., Houston, Texas 77003, for Appellant. Kim Ogg, District Attorney, Harris County, Texas, Melissa H. Stryker, 500 Jefferson St., Suite 600, Houston, Texas 77002, for Appellee.
Timothy A. Hootman, 2402 Pease St., Houston, Texas 77003, for Appellant.
Kim Ogg, District Attorney, Harris County, Texas, Melissa H. Stryker, 500 Jefferson St., Suite 600, Houston, Texas 77002, for Appellee.
Panel consists of Justices Goodman, Landau, and Hightower.
Gordon Goodman, Justice
Troy Wayne Taylor appeals from a family-violence protective order entered by the trial court. We vacate the trial court's order and dismiss the case. BACKGROUND
The State filed an application for a family-violence protective order. The State alleged that Troy had been violent with his wife, Anna Lane Taylor.
The State requested the entry of a temporary ex parte order to bar Troy from interacting with Anna until its application could be heard. The trial court granted the State's request and entered a temporary ex parte order the same day. The order forbade Troy from communicating with Anna and possessing a firearm.
At the hearing on the State's application, Anna and Troy testified. Troy also called his son, first wife, and stepsister as witnesses. In rebuttal, the State called a peace officer who responded to a domestic violence call Anna made.
The evidence showed that Troy communicated with Anna by e-mail after entry of the temporary ex parte order. Troy explained he did not know the order forbade him from contacting Anna. The evidence also showed that Troy retained possession of a firearm for several days after entry of the temporary ex parte order. Troy similarly explained that he did not understand the order forbade him from keeping the firearm.
After hearing the evidence, the trial court granted the State's application and entered a family-violence protective order. In its order, the trial court found that Troy "violated a previous protective order that has expired." The trial court did not, however, find that family violence occurred and is likely to occur in the future.
The trial court made separate findings of fact and conclusions of law. The court concluded that entry of a family-violence protective order was warranted because Troy violated the temporary ex parte order.
Troy appeals. See TEX. FAM. CODE § 81.009(a).
DISCUSSION
Troy contends that the trial court erred by entering a family-violence protective order based on his violation of the temporary ex parte order. He argues that as a matter of law the entry of a family-violence protective order must be based on either findings that he (1) committed family violence and is likely to do so again or (2) violated a family-violence protective order that has since expired. Because the family-violence protective order at issue was based on neither, Troy argues that the order lacks a valid legal basis and therefore must be reversed.
Standard of Review
This case turns on the meaning of several Family Code provisions. We interpret statutes de novo. Silguero v. CSL Plasma , 579 S.W.3d 53, 59 (Tex. 2019).
Because the prerogative to enact statutes is the legislature's, our primary objective is to effectuate to the legislature's intent. See id. We therefore interpret statutes based on the plain language chosen by the legislature unless the surrounding context indicates the legislature intended a different meaning or the application of the plain language would yield absurd or nonsensical results that the legislature could not have intended. Id. When the statutory text is clear, the text alone is dispositive of the legislature's intent. Brazos Elec. Power Coop. v. Tex. Comm'n on Envtl. Quality , 576 S.W.3d 374, 384 (Tex. 2019).
We accord a statute's terms their common, ordinary meaning unless the legislature has defined a term, a term has a technical meaning, or a term bears another meaning when read in context. See id. Because text cannot be divorced from context, we do not interpret statutory words and phrases in isolation from one another. Worsdale v. City of Killeen , 578 S.W.3d 57, 69 (Tex. 2019). We also consider the statutory framework in which individual provisions reside. See id. ; Fort Worth Transp. Auth. v. Rodriguez , 547 S.W.3d 830, 838 (Tex. 2018).
We cannot rewrite a statute in the guise of interpreting it. Pedernal Energy v. Bruington Eng'g , 536 S.W.3d 487, 492 (Tex. 2017). We can neither add to nor subtract from statutory language. See Gunn v. McCoy , 554 S.W.3d 645, 672 (Tex. 2018). We cannot alter a statute's meaning by inserting terms the legislature omitted. Silguero , 579 S.W.3d at 59. Nor can we alter its meaning by interpreting its terms in a way that makes them meaningless or superfluous. Brazos Elec. , 576 S.W.3d at 384.
Applicable Law
An applicant is entitled to the entry of a protective order if, after an evidentiary hearing, the trial court finds that family violence has occurred and is likely to occur in the future. FAM. §§ 81.001, 84.001(a), 85.001(b). At the close of the hearing, the trial court must make explicit findings as to whether family violence occurred and is likely to occur in the future. Id. § 85.001(a).
If the trial court finds that family violence has occurred and is likely to occur in the future, it must enter "a protective order as provided by Section 85.022" as to the "person found to have committed family violence." Id. § 85.001(b)(1). Section 85.022 authorizes the court to require completion of a battering intervention and prevention program. Id. at § 85.022(a). It also allows the court to prohibit the person from:
(1) committing family violence;
(2) communicating:
(A) directly with a person protected by an order or a member of the family or household of a person protected by an order, in a threatening or harassing manner;
(B) a threat through any person to a person protected by an order or a member of the family or household of a person protected by an order; and
(C) if the court finds good cause, in any manner with a person protected by an order or a member of the family or household of a person protected by an order, except through the party's attorney or a person appointed by the court;
(3) going to or near the residence or place of employment or business of a person protected by an order or a member of the family or household of a person protected by an order;
(4) going to or near the residence, child-care facility, or school a child protected under the order normally attends or in which the child normally resides;
(5) engaging in conduct directed specifically toward a person who is a person protected by an order or a member of the family or household of a person protected by an order, including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person;
(6) possessing a firearm, unless the person is a peace officer, as defined by Section 1.07, Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision; and
(7) harming, threatening, or interfering with the care, custody, or control of a pet, companion animal, or assistance animal, as defined by Section 121.002, Human Resources Code, that is possessed by or is in the actual or constructive care of a person protected by an order or by a member of the family or household of a person protected by an order.
Id. § 85.022(b).
An exception allows a trial court to enter a family-violence protective order without making findings that family violence has occurred and is likely to occur in the future. Id. § 85.002. The exception provides:
If the court finds that a respondent violated a protective order by committing an act prohibited by the order as provided by Section 85.022, that the order was in effect at the time of the violation, and that the order has expired after the date that the violation occurred, the court, without the necessity of making the findings described by Section 85.001(a), shall render a protective order as provided by Section 85.022 applying only to the respondent and may render protective order as provided by Section 85.021.
Id. In other words, if a person subject to a family-violence protective order violates prohibitions imposed under Section 85.022 when the order is in effect but the order has since expired, the trial court shall impose a new family-violence protective order based solely on that violation. See id. ; Coffman v. Melton , 448 S.W.3d 68, 72 n.5 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
A trial court ordinarily must hear an application for a family-violence protective order within 14 days of its filing. See FAM. § 84.001(a). If immediate protection is needed, an applicant may request the entry of a temporary ex parte order. See id. § 82.009(a). This request must detail the alleged family violence and explain the need for immediate relief. Id. § 82.009(a)(1). If the trial court finds a "clear and present danger of family violence," it may enter a temporary ex parte order without further notice or a hearing. Id. § 83.001(a). In the temporary ex parte order, the trial court "may direct a respondent to do or refrain from doing specified acts." Id. § 83.001(b).
Analysis
The question presented is whether a violation of a temporary ex parte order qualifies as a violation of a protective order for purposes of the exception authorizing a trial court to enter a family-violence protective order without finding that family violence has occurred and is likely to occur in the future. We answer no.
Statutory Text and Framework
A trial court ordinarily may enter a family-violence protective order only if it finds that family violence has occurred and is likely to occur again. Id. §§ 81.001, 84.001(a), 85.001(b). A single exception exists for occasions when someone violates an existing protective order while it remains in effect but has since expired. Id. § 85.002. In this limited circumstance, the trial court can enter a family-violence protective order without making the usual findings about family violence. Id.
A temporary ex parte order is a type of protective order. See id. §§ 82.009(a), 85.026(a). But the exception's text shows that it applies solely to family-violence protective orders, not temporary ex parte orders. The exception applies when a person violates "a protective order by committing an act prohibited by the order as provided by Section 85.022." Id. § 85.002. The lone type of protective order prohibiting acts as provided by Section 85.022 is a family-violence protective order based on findings that family violence has occurred and is likely to occur in the future. Id. § 85.001(b)(1). The provisions relating to temporary ex parte orders, in contrast, do not refer to Section 85.022. See id. §§ 83.001–.006. Instead, these provisions merely provide that a trial court "may direct a respondent to do or refrain from doing specified acts." Id. § 83.001(b). The exception's plain language therefore excludes temporary ex parte orders from its scope. To hold otherwise would amount to rewriting the exception to include an additional statutory cross-reference to the provisions relating to temporary ex parte orders, which the exception lacks. We cannot rewrite the exception. See Silguero , 579 S.W.3d at 59 (can't add terms legislature omitted); Upjohn Co. v. Rylander , 38 S.W.3d 600, 607 (Tex. App.—Austin 2000, pet. denied) (court couldn't ignore statute's cross-reference to single statutory provision and hold that statute also incorporated another statutory provision that wasn't cross-referenced).
The statutory framework in which the exception resides reinforces our conclusion that violations of temporary ex parte orders, as opposed to family-violence protective orders, fall outside the exception's scope. The legislature placed the relevant provisions concerning family-violence protective orders and temporary ex parte orders in separate chapters. FAM. §§ 83.001–.006, 85.001–.062. The exception immediately follows the provision authorizing entry of a protective order based on findings that family violence has occurred and is likely to occur in the future. Id. §§ 85.001–.002. To conclude that the exception nonetheless encompasses temporary ex parte orders, despite the absence of a statutory cross-reference to Chapter 83 or a reference to temporary ex parte orders by name within the exception, would require the court to disregard the overall statutory framework. This we cannot do. See Worsdale , 578 S.W.3d at 69 ; Rodriguez , 547 S.W.3d at 838.
State's Alternative Interpretation
The State concedes that the preceding interpretation of the exception is reasonable. But the State contends that the exception is ambiguous and also could reasonably be interpreted to apply to violations of a temporary ex parte order.
A statute is ambiguous if it is amenable to more than one reasonable interpretation and we cannot discern which of these possibilities the legislature intended based on the statute's language alone. Rodriguez , 547 S.W.3d at 838. When a statute is ambiguous, we may consider more than its language. See id. To resolve ambiguities in meaning, we may resort to extrinsic aids and canons of construction. See id. ; City of Rockwall v. Hughes , 246 S.W.3d 621, 626 (Tex. 2008).
The State argues that Section 85.002 may reasonably be interpreted to apply to violations of temporary ex parte orders because the statute refers to the violation of "a protective order," and the use of the indefinite article plausibly references any protective order, including temporary ex parte ones. This proposed interpretation, however, reads the words "a protective order" in isolation from the remainder of the statute, which limits applicable violations to acts "prohibited by the order as provided by Section 85.022." FAM. § 85.002. An interpretation that depends on a selective reading of words or phrases divorced from their immediate surroundings is not reasonable. See Worsdale , 578 S.W.3d at 69.
The State disputes that Section 85.002's cross-reference to Section 85.022 is an obstacle to its proposed interpretation. The State reasons as follows:
Premise 1: Section 85.022 is merely a detailed list of acts that a trial court may order a respondent to do or refrain from doing in a family-violence protective order.
Premise 2: Section 83.001(b) allows a trial court to enter a temporary ex parte order directing "a respondent to do or refrain from doing specified acts," which could include Section 85.022's acts despite the lack of an explicit cross-reference to them.
Conclusion: The cross-reference to Section 85.022 in Section 85.002 therefore does not limit the latter's application to violations of family-violence protective orders.
The flaw in the State's reasoning is that its interpretation of Section 85.002 makes the statute's cross-reference to Section 85.022 superfluous. Under the State's proposed interpretation of Section 85.002, the statute has the same meaning it would have if the legislature had omitted the phrase "by committing an act prohibited by the order as provided in Section 85.022." In other words, the State effectively proposes that we read the statute as if this phrase did not exist. But we cannot judicially rewrite the statute to omit this phrase. Pedernal Energy , 536 S.W.3d at 492. On the contrary, we must interpret the statute so that each word and phrase has meaning and none is discarded as surplusage. Id. An interpretation that gives a statute the same meaning as if it was revised to omit the very language that is at issue is not reasonable. See, e.g., Ex parte E.H. , No. 18-0932, ––– S.W.3d ––––, ––––, 2020 WL 2503898, at *4 (Tex. May 15, 2020) (rejecting interpretation that gave statute same meaning with or without disputed terms); H & C Commc'ns v. Reed's Food Int'l , 887 S.W. 2d 475, 478–79 (Tex. App.—San Antonio 1994, no writ) (rejecting interpretation that gave statute same meaning with or without disputed word).
The State further argues that policy considerations show its interpretation is the more reasonable one. The State asserts that its interpretation of Section 85.002 affords applicants greater protection from family violence, which better serves the objectives underlying the statute. This is debatable. But this debate is for the legislature, which implements public policy and chooses between competing policy objectives. See Creative Oil & Gas v. Lona Hills Ranch , 591 S.W.3d 127, 133–35 (Tex. 2019). When a statute is not reasonably susceptible to more than one interpretation, its text is dispositive of its meaning. Brazos Elec. , 576 S.W.3d at 384. We cannot judicially revise unambiguous statutes to ameliorate bad policy choices or improve good ones. Univ. of Tex. v. Garner , 595 S.W.3d 645, 651 (Tex. 2019) ; Cadena Comercial USA v. Tex. Alcoholic Bev. Comm'n , 518 S.W.3d 318, 338 (Tex. 2017). When the legislature speaks clearly, as it has here, its choices are not subject to judicial second-guessing. F.F.P. Operating Partners v. Duenez , 237 S.W.3d 680, 690 (Tex. 2007). For this reason, the State's policy argument is not well-taken.
We hold that the State's interpretation of Section 85.002 is not a reasonable one. Accordingly, we reject the State's assertion that the statute is ambiguous.
But assuming for argument's sake that Section 85.002 was ambiguous—forcing us to choose between Troy's and the State's interpretations—we hold in the alternative that Troy's is more reasonable because the State's would make the statute unconstitutional. At a minimum, due process requires fair notice and a meaningful opportunity to be heard. See Mosley v. Tex. Health & Human Servs. Comm'n , 593 S.W.3d 250, 265 (Tex. 2019). Trial courts enter temporary ex parte orders on limited notice and without a hearing. FAM. § 83.001(a). These orders are constitutional only because they are emergency in nature and brief in duration. See Rogers v. State , 183 S.W.3d 853, 867 (Tex. App.—Tyler 2005, no pet.). But the State's interpretation would enable parties to rely on violations of these brief emergency orders to secure protective orders of far greater duration without ever giving the respondent a chance to dispute that he had committed family violence and was likely to commit family violence in the future. See FAM. § 85.025(a)–(a-1) (duration of two years or more). In interpreting an ambiguous statute, the canon of constitutional avoidance requires us to avoid constitutional infirmities when possible. See Stockton v. Offenbach , 336 S.W.3d 610, 618 (Tex. 2011). This canon is an insuperable obstacle to the State's interpretation of Section 85.002.
In conclusion, we hold as a matter of law that Section 85.002 does not authorize a trial court to enter a family-violence protective order based on a respondent's violation of a temporary ex parte order. We sustain Troy's sole issue.
Disposition of the Appeal
Because a violation of a temporary ex parte order is not a legally valid basis for the entry of a family-violence protective order, the trial court was authorized to enter a family-violence protective order only upon finding that:
(1) Troy had committed family violence and is likely to commit family violence in the future; or
(2) Troy had violated a prior family-violence protective order that was in effect when violated but had since expired.
See FAM. §§ 85.001(b), 85.002. The trial court did not so find. Because the trial court made findings of fact and conclusions of law that lack any reference to these required findings, we can neither presume the existence of these omitted findings in support of the judgment nor independently review the record to ascertain whether the evidence would support such findings had they been made. See TEX. R. CIV. P. 299 ; Maldonado v. Bearden , No. 01-17-00371-CV, 2018 WL 4087411, at *5–6 (Tex. App.—Houston [1st Dist.] Aug. 28, 2018, no pet.) (mem. op.) (appellate review of family-violence protective order confined to findings of fact).
CONCLUSION
We vacate the trial court's order and dismiss the case. We note that nothing in this opinion prevents Anna from seeking further relief from the trial court in the form of a new protective order. See Maldonado , 2018 WL 4087411, at *6 n.3.