Vacated and Dismissed and Memorandum Opinion filed May 4, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00754-CV
JOSEPH KELSEY WAYNE MOROTT, Appellant
V.
BRIAN TERRY TINCH, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2021-76938
MEMORANDUM OPINION
Joseph Kelsey Wayne Morott appeals the trial court’s final protective order
favoring appellee Brian Terry Tinch. Among several arguments, Morott contends
the trial court erred in granting a protective order pursuant to Texas Code of
Criminal Procedure Chapter 7B for a reason other than the ones enumerated in the
statute and in awarding attorney’s fees to Tinch. We agree, vacate the protective
order, and dismiss the case.
Background
Morott and Tinch were in a long-term dating relationship that ended in 2020
when the two signed a partition agreement. Tinch is a physician and Morott is a
nurse. In 2021, Morott contacted Tinch’s employer and certain of Tinch’s friends
and family, allegedly regarding concerns that Tinch was involved with the illegal
distribution of controlled substances.
On November 23, 2021, Tinch filed an application for a protective order in
district court. In the application, Tinch alleged that he and Morott had been in a
dating relationship and Morott committed family violence along with conduct that
“was reasonably likely to harass, annoy, alarm, abuse or embarass [sic]” Tinch.
Tinch asserted the trial court had jurisdiction under Texas Family Code section
71.002 and requested the court issue a protective order pursuant to code sections
71.004 and 85.022. Tex. Fam. Code §§ 71.002, 71.004, 85.022.
The trial court held a hearing on the application on December 13, 2021, with
both Morott and Tinch and their respective counsel in attendance. At the
conclusion of the hearing, the trial judge observed that there were no allegations
made of family violence but that the judge had reason to believe Tinch was the
victim of harassment pursuant to Texas Penal Code section 42.07 and Chapter 7B
of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. art. 7B.001–
7B.104; Tex. Penal Code § 42.07. The judge further stated that issuance of a
protective order was necessary for Tinch’s safety and welfare and “for the
prevention of further conduct by” Morott.
Similarly, in the final protective order itself, the trial court stated that Morott
and Tinch were in a dating relationship and Tinch was “a victim of harassment
pursuant to Texas Penal Code 42.07 and Chapter 7(B) of the Texas Code of
Criminal Procedure.” The court again stated that the order was necessary for
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Tinch’s safety and welfare and to prevent future harassment. Among other things,
the order prohibits Morott for a period of ten years from communicating with
Tinch in a threatening or harassing manner; going within 500 feet of Tinch, his
residence, or place employment; or possessing a firearm. The court also ordered
Morott to pay Tinch’s attorney’s fees of $2500.
Discussion
In four issues, Morott contends the trial court erred in (1) granting a
protective order under Chapter 7B for a reason other than the ones enumerated in
the statute, (2) finding Tinch was a victim of harassment even though he is not a
recipient of any of Morott’s allegedly harassing communications and lacks
standing to prosecute under Penal Code section 42.07(a), (3) finding Morott’s
conduct constituted harassment in the absence of sufficient evidence to support
such finding, and (4) ordering Morott to pay Tinch’s attorney’s fees. We will begin
by addressing the first issue regarding whether the trial court’s protective order
was appropriate.
As indicated above, protective orders in Texas are governed by provisions in
the Family Code and the Code of Criminal Procedure. See Tex. Code Crim. Proc.
art. 7B.003; Tex. Fam. Code § 85.001; see also Straughan v. Girsch, No. 14-20-
00763-CV, 2022 WL 2977049, at *3 (Tex. App.—Houston [14th Dist.] July 28,
2022, no pet.) (mem. op.). Although Tinch applied for a protective order pursuant
to Family Code provisions relating to cases involving family violence, the trial
court found at the hearing on the application that there were no allegations of
family violence and instead issued a protective order based on a finding of
harassment under Penal Code section 42.07 and Code of Criminal Procedure
Chapter 7B. Morott did not object in the trial court and does not complain on
appeal that the trial court’s judgment does not comport with Tinch’s pleadings. See
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In re C.Z.P., No. 14-17-00565-CV, 2019 WL 386048, at *7 (Tex. App.—Houston
[14th Dist.] Jan. 31, 2019, no pet.) (mem. op.) (holding argument that relief
granted in judgment did not conform to pleadings was not preserved because it was
raised for first time on appeal).
In his first issue, Morott argues instead that the trial court’s order was
improper because the trial court expressly based it on a finding that Tinch had been
a victim of harassment under Penal Code section 42.07, which is not a proper
ground for issuance of a protective order under the Code of Criminal Procedure.
We agree.
Code of Criminal Procedure 7B.003 requires a trial court to issue a
protective order upon finding “that there are reasonable grounds to believe that the
applicant is the victim of sexual assault or abuse, stalking, or trafficking.” Tex.
Code Crim. Proc. art. 7B.003. The provision also requires that the trial court’s
order “include[] a statement of the required findings.” Id. Neither harassment nor
Penal Code section 42.07 criminalizing harassment is listed among the types of
conduct that support issuance of a protective order under Chapter 7B or any other
statute. Although the offense of stalking, which is included among the listed
conduct in Chapter 7B, is defined under the Penal Code as possibly including
harassment as one element of the offense, the two offenses are certainly not
synonymous. Even when stalking is alleged to include harassment as an element, it
additionally requires that the conduct have occurred “on more than one occasion
and pursuant to the same scheme or course of conduct that is directed specifically
at another person.” Tex. Penal Code § 42.072(a). Here, as indicated above, the trial
court found and expressly stated in the protective order that Morott committed
harassment under Penal Code section 42.07 but did not find or state in the order
that Morott committed stalking under section 42.072.
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In a remarkably similar appeal from the same trial court, our sister court held
that the trial court erred in issuing a protective order under the Code of Criminal
Procedure without making a required finding that the respondent had engaged in
conduct listed in the statute. Sharp v. Jimmerson, No. 01-20-00360-CV, 2021 WL
3624712, at *5 (Tex. App.—Houston [1st Dist.] Aug. 17, 2021, no pet.) (mem.
op.).1 As in the present case, the trial court in Sharp found, and stated in the order,
that the respondent had engaged in harassment but made no finding regarding
stalking. Id. at *2; see also Mu v. Tran, No. 05-21-00288-CV, 2022 WL 1314949,
at *3 (Tex. App.—Dallas May 3, 2022, no pet.) (mem. op.) (distinguishing Sharp
because the trial court expressly found the respondent engaged in stalking).
Although we have not addressed this specific issue under the Code of
Criminal Procedure, we have come to a similar conclusion in regards to a similar
provision in the Family Code. In Jovel v. Blanco, we held that a trial court’s
protective order violated Family Code section 85.001(d) because it did not
expressly state a finding required for a protective order for a period of over two
years. No. 14-20-00638-CV, 2022 WL 220251, at *4 (Tex. App.—Houston [14th
Dist.] Jan. 25, 2022, no pet.) (mem. op.); accord In re I.E.W., No. 13-09-00216-
CV, 2010 WL 3418276, at *9 (Tex. App.—Corpus Christi Aug. 27, 2010, no pet.)
(mem. op.). 2
1
At the time the trial court issued its order in Sharp, the Code of Criminal Procedure
protective order provisions were contained in Chapter 7A; the provisions were subsequently
recodified without substantive amendment in Chapter 7B. 2021 WL 3624712, at *1 n.1.
2
The statute at issue in Jovel required that “[i]f the court renders a protective order for a
period of more than two years, the court must include in the order a finding described by Section
85.025(a-1).” Tex. Fam. Code § 85.001(d) (emphasis added). The statute at issue here requires
that “[i]f the court finds that there are reasonable grounds to believe that the applicant is the
victim of sexual assault or abuse, stalking, or trafficking, the court shall issue a protective order
that includes a statement of the required findings.” Tex. Code Crim. Proc. art. 7B.003(b)
(emphasis added). Also of note, several courts have distinguished subsections (a) and (b) from
subsections (c) and (d) of Family Code section 85.001 because the latter subsections require
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The trial court did not make the findings required for the issuance of a
protective order pursuant to Code of Criminal Procedure 7B.003 and did not
include those findings in the order as also required. Moreover, the findings
documented in the order do not support a protective order under article 7B.003.
Accordingly, we sustain Morott’s first issue. Because we vacate the protective
order, we need not address his remaining issues.
We vacate the trial court’s protective order in its entirety and dismiss the
case.
/s/ Frances Bourliot
Justice
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
express findings (as does Code of Criminal Procedure article 7B.003(b)), whereas the former
subsections do not. See Pleasant v. Black, No. 05-20-01040-CV, 2022 WL 807190, at *5 (Tex.
App.—Dallas Mar. 17, 2022, no pet.) (mem. op.); Cox v. Walden, No. 13-20-00283-CV, 2022
WL 120014, at *2 n.3 (Tex. App.—Corpus Christi Jan. 13, 2022, no pet.) (mem. op.); In re
M.I.W., No. 04-17-00207-CV, 2018 WL 1831678, at *2 (Tex. App.—San Antonio Apr. 18,
2018, no pet.) (mem. op.).
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