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holding that, to extent trial court relied on emergency COVID-19 orders to deny constitutional right, such reliance was abuse of discretion
Summary of this case from In re Jetall Cos.Opinion
NO. 14-20-00491-CV
08-07-2020
IN RE V.K., Relator
Robert F. Hoffman, Jennie Smith, Karlene Dunn Poll, Houston, for Relator. Laura Dale, Houston, for Real Party in Interest.
Robert F. Hoffman, Jennie Smith, Karlene Dunn Poll, Houston, for Relator.
Laura Dale, Houston, for Real Party in Interest.
Panel consists of Chief Justice Frost and Justices Bourliot and Hassan.
Kem Thompson Frost, Chief Justice
On July 10, 2020, relator V.K. filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 ; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Barbara Stadler, presiding judge of the 280th District Court of Harris County, to vacate her June 8, 2020 temporary ex parte order and July 1, 2020 order denying relator's motion to vacate the temporary ex parte order. We conditionally grant the petition, in part, and deny the petition, in part.
BACKGROUND
Relator filed an original petition for divorce on October 28, 2019, and real party in interest J.K. ("Mother") filed an original counterpetition for divorce on November 1, 2019. This was not the first divorce proceeding between the parties.
On March 6, 2020, the 308th District Court, in which the parties divorce proceeding was pending, signed temporary orders, appointing relator and Mother temporary joint managing conservators and awarding each possession of the children 50% of the time. The 308th District Court awarded relator exclusive and private use and possession of the residence located on Haskell Street while the case is pending and enjoined Mother from entering or remaining on the premises of that residence. The 308th District Court awarded Mother exclusive and private use and possession of the residence on South Boulevard and similarly enjoined relator from entering or remaining on that premises. The 308th District Court also entered a temporary injunction prohibiting the parties from, among other things, threatening the other party or a child with imminent bodily injury or causing bodily injury to the other party or a child.
Mother and relator, on May 15, 2020, filed a joint notice of nonsuit of their divorce proceeding in the 308th District Court, and the court signed the order nonsuiting the case. However, on May 29, 2020, Mother filed a motion to set aside the nonsuit and reinstate the divorce case.
On June 3, 2020, Mother filed an application for a protective order in the 280th District Court, which is the designated Domestic Violence Court for Harris County, alleging that relator had committed acts of family violence against Mother in the presence of the parties' children. Also, on June 3, 2020, with the expectation that the 308th District Court would reinstate the divorce case, relator filed in that court an emergency motion to modify the March 6, 2020 temporary orders and request for additional temporary orders. At the time of this filing, relator was not aware that Mother was seeking a protective order.
See In re Keck , 329 S.W.3d 658, 660 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding) (explaining that 280th District Court was designated the Domestic Violence Court for Harris County and is the proper court for filing applications for protective orders under the Texas Family Code (citing Tex. Gov't Code Ann. § 24.112(h) )).
On June 8, 2020, the trial court, finding that "there is a clear and present danger of family violence unless [relator] is ordered to do or refrain from doing certain acts," signed the temporary ex parte protective order (the "Order"). The Order provides that it is valid until further order of the trial court pursuant to Supreme Court of Texas Emergency Order 20-9042. The Order prohibits relator from committing a myriad of acts defined as family violence. The Order also prohibits relator from "going to or near" the children's home and requires relator "to maintain at least 200 yards between himself and [Mother's] children." Mother's counsel provided relator's counsel with a copy of the Order after hours on June 12, 2020.
The Order set the hearing for August 10, 2020, to determine whether to issue the protective order prohibiting relator from (1) committing acts of family violence against Mother or the children; (2) communicating in any manner with Mother or the children except through Mother's attorney or a person appointed by the court; (3) going to or near or within 200 yards of any location where Mother and the children are known by relator to be; (4) going to or near the residence of Mother and the children; and (5) going to or near the child-care facilities or schools the children normally attend. At the August 10, 2020 hearing, the trial court would also determine whether to grant Mother exclusive possession of the children and specify the terms of relator's access to the children, if any.
Subsequently, on June 11, 2020, the 308th District Court granted Mother's motion to reinstate the divorce action, and signed the order granting the motion to reinstate on June 15, 2020.
On June 15, 2020, the legal assistant for relator's attorney, Robert Hoffman, emailed the court coordinator for the trial court, stating that relator would be filing a motion to vacate the temporary ex parte protective order and requesting available dates for the motion to vacate. The court coordinator responded that, due to the confidentiality of the court, she was "unable to disclose any information on the matter unless you are an attorney of record on this matter." Hoffman then emailed the court coordinator stating that he represented relator and wanted to determine the earliest date the motion to vacate could be set for a hearing and if the hearing would be "[Z]oom or live." Later that day, relator filed in the trial court his motion to vacate the temporary ex parte protective order, request for expedited hearing, and motion for sanctions.
The trial court advised the parties of the following in a June 16, 2020 email:
My court coordinator informed you that you needed to file a notice of appearance in this matter to which you have failed to do so. Please do so today.
We cannot set any matters until your appearance has been filed and we can properly link you as the attorney of record for the Respondent to this case.
Please review our policies and procedures located on the Court's website. We are in the process of updating those procedures and the Zoom procedures so please check the website frequently for updated information.
We are not having any non-essential hearings at this time in person or via Zoom.
The Motion to Vacate is not an essential hearing, therefore we will not be hearing this matter either in person or via Zoom.
All non essential [sic] matters are ruled on by submission with 10 days [sic] notice for the opposing side to respond. I will consider the 10 day [sic] timeframe once your notice of appearance has been filed.
Once you have filed the notice of appearance and have properly served Ms. Dale [Mother's counsel] of the same then I will give her 10 days to respond to the motion before ruling on such by submission.
Whatever evidence you wish to intend to [sic] the Court to consider needs to be properly authenticated, marked and have an exhibit list corresponding to such exhibits and provide the same to Ms. Dale.
On June 18, 2020, Hoffman emailed the court coordinator of the trial court, asking for confirmation of the date for submission of relator's motion to vacate so that he could properly notice it. The court coordinator responded that the motion would be submitted to the trial court on June 26, 2020.
Also, on June 18, 2020, Hoffman asked the court coordinator how to obtain a copy of the application for the protective order. The court coordinator responded that Hoffman should "reach out to Ms. Dale's Office for Assistance."
On June 22, 2020, Hoffman's legal assistant emailed to the trial court and Mother's counsel a dropbox link to relator's "exhibits for the submission hearing" on relator's motion to vacate the Order, request for an expedited hearing, and motion for sanctions scheduled for Friday, June 26, 2020. Relator also filed his notice that he was tendering additional exhibits. The following day, June 23, 2020, the trial court advised that it would not be considering any documents that were not provided at the time the motion to vacate was filed.
Relator, on June 25, 2020, filed his first amended motion to vacate the Order, request for expedited hearing, motion for sanctions, and request to tender all evidence tendered. Attached to the amended motion to vacate were additional exhibits. Relator also filed an objection to hearing his motion to vacate by submission. In this objection, relator asserted that the proceeding is essential under the "Family Courts Joint Statement Regarding Health and Safety Concerns" dated March 12, 2020. Relator asserted that Family Code section 84.003 required an evidentiary hearing on his motion to vacate the Order and that the trial court's refusal to hold such an evidentiary hearing violated his due process rights under the Fourteenth Amendment to the United States Constitution. Relator objected to the trial court's requirement that his motion to vacate the Order be submitted to the trial court without a full evidentiary hearing, and relator requested an evidentiary hearing either in-person or by the use of video-conferencing technology. Mother also filed her response to relator's original motion to vacate on June 25, 2020.
The trial court emailed the parties, stating that it would not review relator's first amended motion to vacate or any documents submitted with the same because "[t]hey are NOT timely filed. This should have done [sic] at the outset of the motion or at least when you filed your notice of appearance. You had plenty of time to do this - sending this at the 11th hour is not permissible nor professional in my Court."
On June 26, 2020, Mother's counsel emailed the trial court about whether the court would be considering Mother's response:
My understanding from your attached email was that my response was due 10 days from the date Mr. Hoffman filed his appearance. On June 16, 2020, your Honor sent the attached email to Mr. Hoffman and myself stating that once Mr. Hoffman filed a notice of appearance and properly served my office with the same, that the Court would give my office 10 days to respond before ruling by submission. Mr. Hoffman filed and served his notice of appearance on June 16, 2020, 10 days from the date of Mr. Hoffman's notice of appearance is today, June 26, 2020.
Additionally, there was a miscommunication between my office and the Court. My office received notification that Mr. Hoffman's Motion for Expedited hearing was set for 6/29/20. My office received notification that Mr. Hoffman's Motion for Expedited hearing was set for 6/29/20. My office inquired if the Court was moving all settings to the 29th. My office received an email (attached) from the court on 6/24/20, that the motion to vacate by submission was set for 6/29/20. My office relied on this email and believing that the court would not rule on the motion to vacate today.
The trial court responded the same day that it was "going to move the rendition date to Tuesday [June 30, 2020] so I can review Ms. Dale's response. I am NOT reviewing any other motions, documents or anything that has been filed other than that." Mother filed her response to relator's original motion to vacate the same day.
On July 1, 2020, the trial court denied relator's motion to vacate the Order, request for hearing, and motion for sanctions.
Relator brings this mandamus proceeding, challenging the Order and the order denying relator's motion to vacate the Order. Alternatively, relator requests that this court compel the respondent to set aside the order denying his motion to vacate and hold a hearing and consider relator's evidence in support of his motion. As addressed below, we conditionally grant the petition to the extent that we direct the respondent to (1) vacate its July 1, 2020 order denying relator's original motion to vacate, and (2) hold an evidentiary hearing on relator's motion to vacate the Order, either in-person or by the use of video-conferencing technology. We deny the remainder of the petition.
MANDAMUS STANDARD OF REVIEW
Ordinarily, to be entitled to a writ of mandamus, the relator must show that the trial court clearly abused its discretion, and that the relator lacks an adequate remedy by appeal. In re Dawson , 550 S.W.3d 625, 628 (Tex. 2018) (original proceeding) (per curiam). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re H.E.B. Grocery Co., L.P. , 492 S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P. , 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam).
Courts are to assess the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Team Rocket, L.P. , 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). Because this balance depends heavily on circumstances, it must be guided by analysis of principles rather than simple rules that treat cases as categories. In re McAllen Med. Ctr., Inc. , 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). In evaluating benefits and detriments, we consider whether mandamus will preserve important substantive and procedural rights from impairment or loss. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).
ANALYSIS
I. Refusal to Hold an Evidentiary Hearing on Relator's Motion to Vacate
A. No Waiver on Mandamus Review
As an initial matter, Mother claims that relator waived his complaints as to the trial court's refusal to hold an evidentiary hearing on his motion to vacate the Order. Mother asserts that, although relator filed his objection to hearing the motion to vacate the Order by submission, relator did not set his objection prior to the hearing on the motion to vacate or request a ruling from the trial court. We conclude that by proceeding to rule on the motion to vacate the Order by submission after relator asserted his objection to this procedure, the trial court impliedly overruled relators objection and thus relator did not waive his complaints as to the trial court's refusal to hold an evidentiary hearing on his motion to vacate the Order, and relator satisfied the requirement for a predicate request and a refusal to act. See In re Perritt , 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding) (per curiam); Brubaker v. Brubaker , No. 03-18-00273-CV, 2019 WL 6205518, at *3 (Tex. App.—Austin Nov. 21, 2019, no pet.) (mem. op.).
B. Abuse of Discretion
Relator contends that the trial court abused its discretion and denied relator due process by refusing to hold an evidentiary hearing required by Family Code section 83.004. See Tex. Fam. Code Ann. § 83.004. Under the United States Constitution, no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV, § 1. Due process at a minimum requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Mosley v. Tex. Health & Human Servs. Comm'n , 593 S.W.3d 250, 265 (Tex. 2019). "The natural right existing between parents and their children is one of constitutional dimensions." Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985). "[T]he right of a parent to maintain custody and raise his or her child ‘is an interest far more precious than any property right.’ " In re M.S. , 115 S.W.3d 534, 547 (Tex. 2003) (quoting Santosky v. Kramer , 455 U.S. 745, 758–59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). The United States Constitution provides parents due process rights as to the care, custody, and control of their children. In re N.G. , 577 S.W.3d 230, 234 (Tex. 2019). Under the United States Constitution, relator has a liberty interest in the care, custody, and control of his children that is entitled to due process.
Relator contends that Family Code section 83.004 requires a live, evidentiary hearing on motions to vacate temporary ex parte orders. Mother contends that section 83.004 does not provide for a live evidentiary hearing but, instead a motion to vacate may be by submission. The parties have not cited and research has not revealed any case on this point, so this appears to be an issue of first impression. We review the trial court's interpretation of applicable statutes de novo. See Johnson v. City of Fort Worth , 774 S.W.2d 653, 655–56 (Tex. 1989). In construing a statute, our objective is to determine and give effect to the Legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen , 15 S.W.3d 525, 527 (Tex. 2000). If possible, we must ascertain that intent from the language the Legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Id. The words of a statute cannot be examined in isolation, but must be informed by the context in which they are used. TGS–NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 441 (Tex. 2011). If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision's words. St. Luke's Episcopal Hosp. v. Agbor , 952 S.W.2d 503, 505 (Tex. 1997).
Section 83.001 of the Texas Family Code, entitled "Requirements for a Temporary ex parte Order," provides:
If the court finds from the information contained in an application for a protective order that there is a clear and present danger of family violence, the court, without further notice to the individual alleged to have committed family violence and without a hearing , may enter a temporary ex parte order for the protection of the applicant or any other member of the family or household of the applicant.
Tex. Fam. Code Ann. § 83.001(a) (emphasis added). Section 83.004 provides that "[a]ny individual affected by a temporary ex parte order may file a motion at any time to vacate the order." Tex. Fam. Code Ann. § 83.004. "On the filing of the motion to vacate, the court shall set a date for hearing the motion as soon as possible. " Id. (emphasis added). Texas Family Code section 83.006 provides that under certain circumstances the trial court must hold a hearing on an application for a temporary ex parte protective order:
(a) Subject to the limitations of Section 85.021(2), a person may only be excluded from the occupancy of the person's residence by a temporary ex parte order under this chapter if the applicant:
(1) files a sworn affidavit that provides a detailed description of the facts and circumstances requiring the exclusion of the person from the residence; and
(2) appears in person to testify at a temporary ex parte hearing to justify the issuance of the order without notice.
...
(c) The court may recess the hearing on a temporary ex parte order to contact the respondent by telephone and provide the respondent the opportunity to be present when the court resumes the hearing. Without regard to whether the
respondent is able to be present at the hearing, the court shall resume the hearing before the end of the working day.
Tex. Fam. Code Ann. § 83.006 (emphasis added).
Section 83.001 provides that a trial court may render a temporary ex parte protective order "without a hearing." Tex. Fam. Code Ann. § 83.001(a). If the applicant seeks a temporary ex parte protective order in which the trial court excludes a person from the occupancy of the person's residence, section 83.006 requires the applicant to file a sworn affidavit and to "appear in person to testify at a temporary ex parte hearing." Tex. Fam. Code Ann. § 83.006(a). Thus, to grant this type of temporary ex parte protective order a trial court must hold a hearing. See id. The Legislature provides in section 83.006 that the trial court "may recess the hearing on a temporary ex parte order to contact the respondent by telephone and provide the respondent the opportunity to be present when the court resumes the hearing." Id. "Hearing" in section 83.006 cannot mean either a live, evidentiary hearing or a submission of the application for ruling by the court without a live hearing, because the Legislature requires that the applicant testify in person and allows the trial court to recess the hearing to contact the respondent and give the respondent the opportunity to be present when the court resumes the hearing. See id. Under section 83.006's plain text, the term hearing means a live, evidentiary hearing not a submission to the trial court for ruling without a live hearing. See id. In the context of this statutory scheme it would not be reasonable to construe "hearing" under section 83.004 to mean something different than what it means under section 83.006. See TGS–NOPEC Geophysical Co. , 340 S.W.3d at 441. We hold that under the unambiguous language of section 83.004 the Legislature requires that the trial court hold a live evidentiary hearing on a motion to vacate a temporary ex parte protective order. See Tex. Fam. Code Ann. §§ 83.001, 83.004, 83.006 ; TGS–NOPEC Geophysical Co. , 340 S.W.3d at 441.
The "Family Courts Joint Statement Regarding Health and Safety Concerns" dated March 12, 2020, and updated on July 9, 2020, states, in relevant, part:
2. Designation of Essential Court Matters: Unless a case is designated below as an Essential Court Matter, all in-person hearings and trials will be continued until further notice. Essential Court Matters will proceed as usual, however, you, [sic] must contact each individual court.
3. For the Family Division (including IV-D courts and the Project Courts), Essential Court Matters include:
• Suits brought under Texas Family Code Title 4 (protective orders and family violence);
* * *
• Other matters that may be designated by the Court at its discretion.
Any question regarding whether a matter is an Essential Court Matter should be addressed to the Court where a case is assigned.
This Joint Statement by the Harris County Family Court provides that suits for protective orders and family violence under Title 4 of the Family Code are "Essential Court Matters," and such matters "will proceed as usual." A motion to vacate a temporary ex parte protective order is part of a suit for a protective order and family violence. See Tex. Fam. Code Ann. § 83.004. The Joint Statement does not distinguish motions to vacate from other proceedings in suits for protective orders and family violence. Thus, a motion to vacate a temporary ex parte protective order is an "Essential Court Matter" under the Joint Statement by the Harris County Family Court.
The trial court's website contains the "280th Judicial District Court Harris County Texas Zoom Protocols and Procedures," which provide, in relevant part:
The following policies and procedures apply to the 280TH Judicial District Court and are effective April 1, 2020, and will continue in effect until further Court Orders.
An Essential Matter is the show cause or trial setting for the protective order case.
A Non-essential Matter is any ancillary matter related to the protective order matter such as Motion to Vacate or Motion for Continuance and other such matters .
Non-essential matters will be ruled on 10 days from the date the motion was filed. Any response to said motion shall be filed at least 3 days before the submission ruling date. Any specific questions regarding such should be directed to the Court for further information.
(Emphasis added).
Unlike the Family Courts Joint Statement, the trial court's procedures specifically designate a motion to vacate a temporary ex parte protective order as a non-essential matter, which is merely "an ancillary matter related to the protective order." The trial court states that it will only decide such non-essential matters by submission. A motion to vacate a temporary ex parte protective order is part of the whole proceeding related to a protective order, including the granting of the temporary ex parte protective order and the hearing to determine whether to grant a protective order. The motion to vacate cannot be separately categorized as a non-essential proceeding, merely ancillary to the protective order. The trial court's refusal to conduct an evidentiary hearing violates the Legislature's statutory mandate that motions to vacate be decided in a live, evidentiary hearing, not by submission. See Tex. Fam. Code Ann. § 83.004.
Moreover, any reliance by the trial court on the Supreme Court of Texas's COVID-19 Emergency Orders to deny Relator a hearing was improper. The Seventeenth COVID-19 Order provided that modification or suspension of "any and all deadlines and procedures, whether prescribed by statute, rule or order" was "[s]ubject only to constitutional limitations." "The Constitution is not suspended when the government declares a state of disaster." In re Abbott , 601 S.W.3d 802, 805 (Tex. 2020) (orig. proceeding) (per curiam). To the extent the trial court relied upon the Supreme Court of Texas's COVID-19 Emergency Orders and purported to modify or suspend the procedure for reviewing and ruling on relator's motion to vacate the Order so as to deny relator his statutory right to a live evidentiary hearing, the trial court violated relator's constitutional due process rights in doing so.
C. No Adequate Remedy by Appeal
Relator contends that he does not have an adequate remedy by appeal. In determining whether relator has an adequate remedy by appeal, we assess the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. See Team Rocket, L.P. , 256 S.W.3d at 262. This includes considering whether mandamus will preserve important substantive and procedural rights from impairment or loss. See Prudential Ins. Co. of Am. , 148 S.W.3d at 136. Relator has the right to due process with regard to the care, custody, and control of his children. See N.G. , 577 S.W.3d at 234. In this case, mandamus relief will preserve relator's important statutory right under section 83.004 to a live evidentiary hearing on his motion to vacate the Order. See Prudential Ins. Co. of Am. , 148 S.W.3d at 136. Therefore, the benefits of granting mandamus relief outweigh the detriments. See Team Rocket, L.P. , 256 S.W.3d at 262. Accordingly, we conclude that relator does not have an adequate remedy by appeal, and we sustain this issue.
II. Refusal to Consider Exhibits Attached to Amended Motion to Vacate
Relator further claims that the trial court would not consider the additional exhibits he submitted on June 22, 2020 or the evidence submitted in support of his amended motion to vacate that was not submitted in support of his original motion to vacate. For the reasons stated above, we are granting relator mandamus relief, directing the trial court to vacate its July 1, 2020 order denying relator's motion to vacate the Order, and directing the trial court to hold a live, evidentiary hearing on relator's motion to vacate the Order. Thus, relator will have the opportunity to present evidence at a live evidentiary hearing on his motion to vacate the Order, and any issue as to the trial court's refusal to consider evidence in support of that motion is not yet ripe.
III. Temporary Ex Parte Protective Order
The remainder of the issues in relator's petition challenge the propriety of the Order. To address these issues would require that we resolve disputed fact issues, which we cannot do in a mandamus proceeding. See In re Angelini , 186 S.W.3d 558, 560 (Tex. 2006) (orig. proceeding). Therefore, we conclude that the remaining issues in relator's petition lack merit, and we overrule them.
CONCLUSION
We hold that relator has established that the trial court abused its discretion by refusing to hold a live, evidentiary hearing on relator's motion to vacate the Order and he has no adequate remedy by appeal. Therefore, we conditionally grant the petition, in part, and direct the trial court to vacate its July 1, 2020 order denying relator's motion to vacate the Order and to hold a live, evidentiary hearing on relator's motion to vacate the Order, either in-person or by the use of video-conferencing technology. The writ will issue only if the trial court fails to act in accordance with this opinion. We deny the remainder of the petition and also dismiss as moot relator's motion for emergency relief.