Affirmed and Majority and Concurring Opinions filed August 31, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00618-CV
ROYCE ALLEN PHILLIPS, Appellant
V.
ALICIA LUCILE PHILLIPS, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2019-17786
CONCURRING OPINION
I concur in the judgment and join the majority opinion, but write separately
to note the ever-expanding problem of subjecting parties to conflicting orders
issued by the protective order court and the court in which a divorce or suit
affecting the parent-child relationship (SAPCR) is pending, at times subjecting
opposing parties to a finding of contempt for complying with the order of one court
while disregarding or violating a conflicting order of the other court. This conflict
also allows one party to in effect circumvent the order of the court in which a
divorce or SAPCR is pending by filing a motion and obtaining a protective order in
a statutorily created protective order court.
The protective order courts in Harris County were created to allow victims
of family violence convenient access to the courts, a necessary and noble purpose.
See Tex. Gov’t Code Ann. § 24.112(h), (i). Family court dockets in Harris County
are voluminous and there is a necessity to immediately address family violence to
protect children, spouses, and domestic partners. Many studies indicate less than
fifty percent of all family violence incidents are reported to police, and that
domestic violence is endemic in our society. See Statewide Prevalence of Intimate
Partner Violence, INSTITUTE ON DOMESTIC VIOLENCE & SEXUAL ASSAULT (June
2011) (noting that more than one-third of adult Texans have personally
experienced intimate partner violence); Civil Protective Orders & Risk of
Subsequent Police-Reported Violence, 288 J. AMER. MED. ASS’N, 589 (2002)
(noting that victim is 80% less likely to be victimized after being granted a
protective order); Intimate Partner Violence, BUREAU OF JUSTICE STATISTICS (May
2000) (noting 198,366 incidents of domestic violence in the 2011 Crime in Texas
Report).
If the court in which the divorce or SAPCR proceeding is pending is
unavailable, it makes sense for the victim(s) of family violence to file for a
protective order in a court that can make factual findings and take immediate
action to protect family members. However, in the event of conflicting orders, Title
Four, Subtitle B Chapter 82 and 85, confuses, rather than clarifies, which court
order should prevail.
The 280th District Court is currently designated as the domestic violence
district court for Harris County. See Tex. Gov’t Code Ann. § 24.457 (identifying
280th as district court for Harris County). Family Code § 85.062 provides:
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APPLICATION FILED WHILE SUIT FOR DISSOLUTION
OF MARRIAGE OR SUIT AFFECTING PARENT-CHILD
RELATIONSHIP PENDING.
(a) If a suit for dissolution of a marriage or suit affecting the
parent-child relationship is pending, a party to the suit may apply for a
protective order against another party to the suit by filing an
application:
(1) in the court in which the suit is pending; or
(2) in a court in the county in which the applicant resides if the
applicant resides outside the jurisdiction of the court in which the suit
is pending.
Tex. Fam. Code Ann. § 85.062(a). The Family Code further mandates that a
“person who wishes to apply for a protective order with respect to the person’s
spouse and who is a party to a suit for the dissolution of a marriage . . . must file
the application as required by Subchapter D, Chapter 85.” Id. § 82.005 (emphasis
added). Section 85.062 is contained within Subchapter D of Chapter 85.
The combined statutes appear to require the parties to file for a protective
order in the court in which a divorce or SAPCR suit is pending (“must file the
application as required by Subchapter D, Chapter 85”), but Family Code
§ 85.062(a) provides if a suit for divorce or a SAPCR is pending, “a party to the
suit may apply for a protective order against another party to the suit by filing an
application . . . in the court in which the suit is pending.” Id. § 85.062. Because all
district courts have subject-matter jurisdiction over protective order proceedings,
see Tex. Const. art. V, § 8; Tex. Gov’t Code Ann. §§ 24.007, 24.112(h), (i),
24.951, and specifically, in Harris County, the 280th District Court has
jurisdiction over family violence cases, see Tex. Gov’t Code Ann. §§ 24.112(h), (i)
(providing that Harris County shall designate a “domestic violence district court”
that gives preference to “domestic violence cases”), 24.457 (identifying 280th as
district court for Harris County), the resulting confusion is understandable.
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Family Code § 85.064 allows for a transfer of a final protective order if the
order was rendered before the filing of a SAPCR or while a SAPCR is pending,
“and the court that rendered the order may, on the motion of a party or on the
court’s own motion, transfer the protective order to the court having jurisdiction of
the suit if the court makes the finding prescribed by Subsection (c).” Id.
§ 85.064(a). Section 85.064(a) allows the protective order court to transfer a
protective order under § 85.064(a) if the protective order court finds that the
transfer is: (1) in the interest of justice, or (2) for the safety and convenience of a
party or witness. Id. § 85.064(c). The provision is not mandatory. In re Compton,
117 S.W.3d 548, 550 (Tex. App.—Texarkana 2003, orig. proceeding); see Tex.
Fam. Code Ann. § 85.064(a). Family Code § 85.009 states that a protective order
under Chapter 85 is valid and enforceable, pending action by the court that
rendered the order until the order is superseded by another court with jurisdiction
over the order. Tex. Fam. Code Ann. § 85.009.
Because the protective order can (and often does) subject both parties to a
protective order for two years, the stakes are high. This result provides for the
possibility that conflicting orders will allow the parties, who often do not get along,
to attempt to use the courts as a weapon to escalate the animosity, length of
litigation, cost to the parties, and above all compound the detrimental effects of the
proceedings to the children. The failure of the legislature to resolve this conflict is
detrimental to the victims of family violence, potentially results in forum shopping,
causes confusion for the parties and counsel, and fails to promote judicial
economy.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Spain, Hassan, and Poissant. (Spain, J., majority).
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