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Looney v. Ramirez

Court of Appeals of Texas, First District, Houston
Jul 12, 2007
No. 01-06-00815-CV (Tex. App. Jul. 12, 2007)

Opinion

No. 01-06-00815-CV

Opinion issued July 12, 2007.

On Appeal from the 308th District Court Harris County, Texas Trial Court Cause No. 2006-29024.

Panel consists of Justices NUCHIA, HANKS, and BLAND.


MEMORANDUM OPINION


Paul C. Looney, appellant, appeals a protective order prohibiting him from contacting and committing family violence against members of the household of his minor child for a period of two years and imposing certain other restrictions. In two points of error, Looney contends that sections 82.004 and 82.041 and chapter 84 of the Family Code are unconstitutional because they violate due process and due course of law. We affirm.

TEX. FAM. CODE ANN. §§ 82.004, 82.041, 84.001-.005 (Vernon 2002).

BACKGROUND

Robin Ramirez, appellant's former wife and appellee herein, filed an application for a protective order, which also included an ex parte temporary protective order until a hearing could be set. The trial court granted the temporary protective order and set a hearing. At the hearing, Ramirez testified that she and appellant had entered into an agreement as set forth in the proposed protective order. Ramirez further testified regarding details of the agreed protective order. In the written agreement, Looney specifically denied the commission of family violence, but agreed to the restrictions set out in the order. In response to the question as to whether the recited agreement was his agreement, Looney stated, "It is."

Looney did not complain in the trial court regarding the unconstitutionality of the statutes providing for the application for and issuance of a protective order. Looney filed a motion for new trial, but that motion asserted only Looney's perceived bias of the trial court as a basis for new trial. It did not challenge the constitutionality of any statutes.

DISCUSSION

To preserve error for appellate review, a party must make a timely request, objection, or motion to the trial court and obtain a ruling. TEX. R. APP. P. 33.1. The rule governing preservation of error applies to constitutional challenges. Valdez v. Valdez, 930 S.W.2d 725, 728 (Tex.App.-Houston [1st Dist.] 1996, no writ). Thus, failure to preserve a due-process complaint in the trial court results in waiver of the issue on appeal. See In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (holding that appellant waived constitutional claim because he did not raise it in trial court).

In this case, Looney raises two points of error. In his first point, he contends that sections 82.004 and 82.041 of the Family Code violate due process and due course of law because they do not provide for adequate notice of a complaint to enable the respondent to prepare a defense. See TEX. FAM. CODE ANN. §§ 82.004, 82.041 (Vernon 2002). In his second point, he contends that chapter 84 of the Family Code violates due process and due course of law because it does not provide the respondent with adequate time to prepare a defense. See TEX. FAM. CODE ANN. §§ 84.001-.005 (Vernon 2002). In response, Ramirez notes that Looney did not present these complaints to the trial court and thus did not preserve his complaints.

In his reply brief, Looney asserts that, because protective orders are quasi-criminal in nature, a challenge to the constitutionality of sections 82.004 and 82.041 and chapter 84 may be raised for the first time on appeal. To support this contention, Looney cites Rabb v. State, 730 S.W.2d 751 (Tex.Crim.App. 1987), and Barnett v. State, 201 S.W.3d 232 (Tex.App.-Fort Worth 2006, no pet.).

The rule in Rabb and Barnett, which permits a challenge to the constitutionality of a statute for the first time on appeal, applies to a statute upon which a defendant's conviction is based. Rabb, 730 S.W.2d at 752; see also Barnett, 201 S.W.3d at 232 ("This rule is limited to challenges to the constitutionality of the statute under which a defendant was actually convicted."). Looney was not convicted of any crime. Even if we view the protective order as a restraint on his liberty, chapters 82 and 84 were not the basis for any restraint. Chapter 82 governs the application for the protective order, and chapter 84 pertains to the hearing on the application. The rule in Rabb and Barnett does not apply to Looney's complaint.

Looney has waived these complaints regarding the constitutionality of chapters 82 and 84 of the Family Code because he did not raise them in the trial court. Accordingly, we overrule Looney's two points of error.

CONCLUSION

We affirm the judgment.


Summaries of

Looney v. Ramirez

Court of Appeals of Texas, First District, Houston
Jul 12, 2007
No. 01-06-00815-CV (Tex. App. Jul. 12, 2007)
Case details for

Looney v. Ramirez

Case Details

Full title:PAUL C. LOONEY, Appellant v. ROBIN RAMIREZ, Appellee

Court:Court of Appeals of Texas, First District, Houston

Date published: Jul 12, 2007

Citations

No. 01-06-00815-CV (Tex. App. Jul. 12, 2007)