Vacate and Dismiss and Opinion Filed October 3, 2022
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00378-CV
IN THE INTEREST OF I.A.F., A CHILD
On Appeal from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-16-12222
MEMORANDUM OPINION
Before Justices Molberg, Partida-Kipness, and Carlyle
Opinion by Justice Carlyle
Appellant Father appeals from a two-year protective order rendered against
him on appellee Mother’s application.1 Father contends the trial court lacked
jurisdiction as to the protective order and it was based on an unconstitutional statute.
We vacate the trial court’s protective order and dismiss this case to the extent
described below.
Background
Father and Mother were married in 1999 and have a child, I.A.F., who was
born in 2004. In 2016, Mother filed for divorce. The case was assigned to the trial
1
Mother has not filed a brief in this Court.
court and given case number DF-16-12222. In June 2017, the trial court signed an
agreed final decree of divorce in case number DF-16-12222, appointing Father and
Mother joint managing conservators of I.A.F. and addressing all matters relating to
the child and the parties’ property. Neither Father nor Mother filed post-judgment
motions or appealed the June 2017 divorce decree.
In October 2020, Mother filed an application for a protective order against
Father in case number DF-16-12222 in the trial court. The application complained
of stalking and harassment of Mother but did not mention I.A.F. or request protection
regarding the child.
Father filed a plea to the jurisdiction contending, among other things, (1) the
trial court has no power to enter a protective order in case number DF-16-12222
because the protective order matter is outside the scope of the trial court’s continuing
jurisdiction and the trial court’s plenary power has otherwise expired as to that case,
and (2) the “stalking statute” relied on by Mother, Texas Penal Code section 42.072,
is unconstitutional.
Following a hearing, the trial court rendered a February 25, 2021 two-year
protective order that, among other things, prohibits Father from being within 500
feet of Mother and from harassing her electronically. The protective order states it is
in the best interest of Mother “and the child the subject of this suit” but does not
otherwise mention I.A.F. or provide for any protection regarding the child.
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Father filed a March 2021 motion for new trial reasserting his arguments
described above. Mother filed a response asserting, among other things, that “the
Protective Order was granted under Texas Family Code Title 4, which gives Texas
Family Courts authority to hear Protective Order Applications.” At the hearing on
Father’s motion for new trial, the trial court stated that Title 4’s section 85.063
requires “that all applications for Protective Orders involving parties for a prior
divorce action must be filed in the court that rendered the final divorce decree” and
“doesn’t state that you can’t file it in the same cause number.” The trial court denied
Father’s motion for new trial.
Standard of review and applicable law
Whether a trial court retains jurisdiction is a question of law we review de
novo. E.g., Mullins v. Mullins, 202 S.W.3d 869, 873 (Tex. App.—Dallas 2006, pet.
denied). Generally, “[t]he trial court, regardless of whether an appeal has been
perfected, has plenary power to grant a new trial or to vacate, modify, correct, or
reform the judgment within thirty days after the judgment is signed.” TEX. R. CIV. P.
329b(d).
Notwithstanding Rule 329b, the Texas Family Code provides for continuing
jurisdiction in certain circumstances. The court that rendered a decree of divorce or
annulment retains the power to enforce a property division, subject to certain
limitations. TEX. FAM. CODE § 9.002. Additionally, the family code’s Title 5, which
governs “The Parent–Child Relationship and the Suit Affecting the Parent–Child
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Relationship,” states in section 155.001(a) that “[e]xcept as otherwise provided by
this section, a court acquires continuing, exclusive jurisdiction over the matters
provided for by this title in connection with a child on the rendition of a final order.”
Id. § 155.001(a); see also id. § 101.025 (“parent–child relationship” means “the legal
relationship between a child and the child’s parents” and “includes the mother and
child relationship and the father and child relationship”). Section 155.002 provides
that “a court with continuing, exclusive jurisdiction retains jurisdiction of the parties
and matters provided by this title.” Id. § 155.002. Section 155.003, titled “Exercise
of Continuing, Exclusive Jurisdiction,” states that “a court with continuing,
exclusive jurisdiction may exercise its jurisdiction to modify its order regarding
managing conservatorship, possessory conservatorship, possession of and access to
the child, and support of the child.” Id. § 155.003.
The family code’s Title 4 is titled “Protective Orders and Family Violence.”
Id. §§ 71.001–93.004. Title 4’s section 85.063(a) states:
(a) If a final order has been rendered in a suit for dissolution of
marriage or suit affecting the parent–child relationship, an
application for a protective order by a party to the suit against
another party to the suit filed after the date the final order was
rendered, and that is:
(1) filed in the county in which the final order was rendered, shall
be filed in the court that rendered the final order; and
(2) filed in another county, shall be filed in a court having
jurisdiction to render a protective order under this subtitle.
Id. § 85.063(a).
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Under section 85.064, “[i]f a protective order that affects a party’s right to
possession of or access to a child is rendered after the date a final order was rendered
in a suit affecting the parent–child relationship, . . . the court may transfer the
protective order to the court of continuing, exclusive jurisdiction” if the court “finds
that the transfer is: (1) in the interest of justice; or (2) for the safety or convenience
of a party or a witness.” Id. § 85.064(b)–(c). Additionally, section 82.007 requires
that an application requesting a protective order for a child who is subject to the
continuing exclusive jurisdiction of a court under Title 5 must include “a copy of
each court order affecting the conservatorship, support, and possession of or access
to the child.” Id. § 82.007.
Statutory construction is a question of law that we review de novo. Silguero
v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019). Our primary objective when
construing a statute “is to determine the Legislature’s intent which, when possible,
we discern from the plain meaning of the words chosen.” Maxim Crane Works, L.P.
v. Zurich Am. Ins. Co., 642 S.W.3d 551, 557 (Tex. 2022) (quoting In re Nash, 220
S.W.3d 914, 917 (Tex. 2007)). “If a statute is clear and unambiguous, we apply its
words according to their common meaning without resort to rules of construction or
extrinsic aids.” Id. (quoting In re Nash, 220 S.W.3d at 917). “We use definitions the
legislature prescribed and any technical or particular meaning the words have
acquired.” Id. (quoting City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex.
2008)). “Otherwise, ‘[w]ords not statutorily defined bear their common, ordinary
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meaning unless a more precise definition is apparent from the statutory context or
the plain meaning yields an absurd result.’” Id. (quoting Fort Worth Transp. Auth. v.
Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018)). We also “consider the context and
framework of the entire statute” and “construe it as a whole.” Worsdale v. City of
Killeen, 578 S.W.3d 57, 69 (Tex. 2019).
Analysis
In his first issue on appeal, Father asserts the trial court “erred in finding that
it had jurisdiction to issue a protective order in a cause number that had been closed
for more than three years.” Father contends that though the trial court “could have,
of course, heard the same case under a different cause number,” none of the family
code provisions that establish continuing jurisdiction apply here “and thus the [trial
court] could not issue a protective order under a cause number that the [trial court]
no longer had plenary power over.”
Nothing in Mother’s protective order application implicated enforcement of a
property division. See TEX. FAM. CODE § 9.002. And though section 155.001(a)
provides the trial court with “continuing exclusive jurisdiction” over “the matters
provided for by this title in connection with a child on the rendition of a final order,”
nothing in the record shows Mother’s protective order application involved a Title 5
matter in connection with I.A.F. See id. §§ 155.001–.003; In re Saldana, 607 S.W.3d
448, 449–50 (Tex. App.—Houston [14th Dist.] 2020 no pet.) (“Presuming the [trial
court] has acquired continuing, exclusive jurisdiction under Family Code section
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155.001 as to relator’s son, this continuing, exclusive jurisdiction affects jurisdiction
in only matters covered by title 5 of the Family Code; it does not affect jurisdiction
in protective-order proceedings . . . within title 4 of the Family Code.”); see also
Copeland v. Copeland, No. 05-18-01431-CV, 2020 WL 4047969, at *2–3 (Tex.
App.—Dallas Jul. 20, 2020, no pet.) (mem. op.) (“[A] proceeding for protective
orders brought under Title 4 is an independent remedy which is not limited to the
court having continuing jurisdiction.”); TEX. FAM. CODE § 85.064(b)–(c) (allowing
for, but not mandating, transfer of a SAPCR protective order rendered in a court
other than the court of Title 5 continuing exclusive jurisdiction).
Though Title 4’s section 85.063(a) required the protective order application
in question to be filed in the trial court, section 85.063’s text does not mention
jurisdiction. TEX. FAM. CODE § 85.063(a). “Under the unambiguous text of Family
Code section 85.063(a), this section addresses the court in which an application for
a protective order should be filed; this section does not address which court has
jurisdiction to hear or rule upon a protective-order application.” In re Saldana, 607
S.W.3d at 449–50; see also Kelly v. Isaac, No. 05-19-00813-CV, 2020 WL 4746589,
at *4 (Tex. App.—Dallas Aug. 17, 2020, pet. denied) (mem. op.) (explaining that
venue and jurisdiction concern two different concepts: “where a dispute will be
tried” versus “power to try the case”). Because section 85.063(a) does not provide
for continuing jurisdiction and the record does not show the protective order was a
matter as to which the trial court otherwise had continuing jurisdiction, we conclude
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the trial court lacked jurisdiction to render the protective order in case number DF-
16-12222.
In his remaining issue, Father contends the trial court erred in determining that
the “stalking statute” relied upon in this case, penal code section 42.072, does not
violate the First Amendment to the United States Constitution. While this appeal was
pending submission, this Court issued an opinion concluding the complained-of
statute does not facially violate the First Amendment. Taherzadeh v. State, 648
S.W.3d 681, 686 (Tex. App.—Dallas 2022, no pet.) (citing Ex parte Barton, – S.W.3d
–, 2022 WL 1021061, at *6–8 (Tex. Crim. App. Apr. 6, 2021)). Thus, Father’s second
issue has no merit.
We vacate the trial court’s February 25, 2021 protective order in case number
DF-16-12222 and dismiss this case as to that protective order. We note that nothing
in this opinion precludes Mother from seeking further relief in the trial court in the
form of a new protective order.
/Cory L. Carlyle/
210378f.p05 CORY L. CARLYLE
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF I.A.F., A On Appeal from the 255th Judicial
CHILD District Court, Dallas County, Texas
Trial Court Cause No. DF-16-12222.
No. 05-21-00378-CV Opinion delivered by Justice Carlyle.
Justices Molberg and Partida-Kipness
participating.
In accordance with this Court’s opinion of this date, we VACATE the trial
court’s February 25, 2021 protective order in case number DF-16-12222 and
DISMISS the case as to that protective order.
It is ORDERED that each party bear their own costs of this appeal.
Judgment entered this 3rd day of October, 2022.
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