In re Lewis

BILL MEIER, Justice,

dissenting.

This court has previously held that a grandparent has standing to seek appointment as a child’s managing conservator under “the managing conservator” provision of family code section 102.004(a)(2) when only one managing conservator consents to the grandparent’s suit, even if there is more than one managing conservator. Because the majority departs from this precedent and relies on inapposite authority, I respectfully dissent.

Family code section 102.004(a)(2) provides that “a grandparent ... may file an original suit requesting managing conser-vatorship if there is satisfactory proof to the court that ... (2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.” Tex. Fam.Code Ann. § 102.004(a)(2) (West 2008). Only “the managing conservator” provision is relevant in this original proceeding. Case-*404law addressing the “both parents” provision of section 102.004(a)(2) is irrelevant.

In In re J.W.L., although we held that the relator’s attempted collateral attack on an agreed order failed because he could not show that the order was void on its face, this court went on to address the relator’s specific complaints that the grandparents lacked standing to bring or maintain suit. 291 S.W.3d 79, 84-86 (Tex.App.-Fort Worth 2009, orig. proceeding [mand. denied]). We cited family code section 102.004(a)(2) and reasoned that the grandparents had standing to file the modification suit under that section because “mother, one of the managing conservators, had already consented to her parents’ custodianship by filing the modification suit with her parents before her death.” Id. at 85-86 (emphasis added). Thus, this court unambiguously concluded that the grandparents had standing to seek appointment as managing conservators under “the managing conservator” provision of section 102.004(a)(2) when only one of two managing conservators consented to the grandparents’ suit. Id.

Approximately a year later, in In re Russell, this court once again addressed a relator’s argument that the grandparents lacked standing to seek possession of a child. 321 S.W.3d 846, 856-58 (Tex.App.Fort Worth 2010, orig. proceeding [mand. denied]). The grandparents argued that the relator had waived her right to complain about standing because of her signature on an associate judge’s report and because of her attorney’s agreement as to the form of a temporary order. Id. at 857.

We disagreed with the grandparents’ argument and cited J.W.L., reasoning that this case was “distinguishable from [J.W.L.], in which the mother joined, and thus consented to, the grandparents’ suit for managing conservatorship.” Id. n. 10. Thus, this court relied on J.W.L. to support its conclusion that the relator had not waived her standing argument because, unlike in J.W.L., the relator — alone—had not consented to the grandparents’ suit.

Instead of adhering to this court’s precedent, the majority chooses to rely on In re S.M.D., a case out of a different court of appeals. 329 S.W.3d 8 (Tex.App.-San Antonio 2010, pet. dism’d). In that case, the court sustained the relator’s argument that the child’s grandparent did not have standing under family code section 102.004(a)(2) to seek managing conservatorship. Id. at 12-14. The court reasoned in relevant part as follows:

[E]ven if Nonnie effectively consented to the petition in intervention, standing under section 102.004(a)(2) requires the consent or joinder in the petition of both parents. It is undisputed that Ed neither joined the petition in intervention nor consented to it. See Tex. Fam.Code Ann. § 102.004(a)(2) (requiring that both parents either file the petition or consent to the suit) [.]

Id. at 14. One thing is apparent from the court’s analysis: it relied on the “both parents” provision of section 102.004(a)(2) to support its holding that the grandparent lacked standing.1 There is nothing in the court’s analysis to indicate that it based its holding on “the managing conservator” *405provision of section 102.004(a)(2), which is the specific provision at issue here. Consequently, S.M.D. is entirely inapposite to this original proceeding, and the majority errs by relying on it.2

Even if the majority opinion’s position that this court’s pronouncements in J.W.L. and Russell are merely dicta and not controlling precedent is correct, proper statutory construction leads to the interpretation that the words “the managing conservator” should not be interpreted as meaning more than one “managing conservator.”

In Entergy Gulf States, Inc. v. Summers, the supreme court succinctly stated the proper procedure for statutory interpretation:

The meaning of a statute is a legal question, which we review de novo to ascertain and give effect to the Legislature’s intent. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.2007). Where text is clear, text is determinative of that intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) (“[Wjhen possible, we discern [legislative intent] from the plain meaning of the words chosen.”); see also Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651-52 (Tex.2006). This general rule applies unless enforcing the plain language of the statute as written would produce absurd results. Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999). Therefore, our practice when construing a statute is to recognize that “the words [the Legislature] chooses should be the surest guide to legislative intent.” Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999). Only when those words are ambiguous do we “resort to rules of construction or extrinsic aids.” In re Estate of Nash, 220 S.W.3d 914, 917 (Tex.2007).

282 S.W.3d 433, 437 (Tex.2009). Justice Green repeated:

Enforcing the law as written is a court’s safest refuge in matters of statutory construction, and we should always refrain from rewriting text that lawmakers chose ....

Id. at 443 (emphasis added). If the Legislature had- intended the phrase “the managing conservator” to include more than one person, it could have said “all managing conservators” or “both managing conservators”; those words were not used.

I would hold that because Jason consented to the intervention, the trial court did not clearly abuse its discretion by denying Meghan’s motion to strike the Car-rolls’ plea in intervention. Because, in my interpretation of J.W.L. and Russell, the majority disregards this court’s precedent and relies on inapposite authority to hold otherwise, I respectfully dissent.

. The court italicized the term "both” in its analysis and additionally used the terms "both parents” in its parenthetical to the citation of section 102.004(a)(2). S.M.D., 329 S.W.3d at 14. Moreover, one of the cases that S.M.D. cited as support appeared to rely on only the "both parents” provision of section 102.004(a)(2). See In re Cervantes, 300 S.W.3d 865, 875 (Tex.App.-Waco 2009, orig. proceeding) (op. on reh'g) (quoting "both parents”). The other cited case addressed the constitutionality of section 102.004(a)(2) and the issue of standing but on a different basis. See In re A.M.S., 277 S.W.3d 92, 96-99 (Tex.App.-Texarkana 2009, no pet.).

. To the extent that the S.M.D. court's analysis is ambiguous as to whether it relied on either the “both parents” provision or "the managing conservator” provision of section 102.004(a)(2), the opinion is equally inappo-site.