Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 05-19-2022
Case Style:
Ronderrick Johnson v. Talaun Bathsheba Hassean Simmons
Case Number: 02-19-00071-CV
Judge:
Lee Gabriel
On appeal from The Before Sudderth; Gabriel and Kerr
Court:
Court of Appeals
Second Appellate District of Texas
at Fort Worth
233rd District Court
Tarrant County, Texas
Plaintiff's Attorney:
Defendant's Attorney: Stephen A. Lund
Description:
Fort Worth, Texas - Family Violence lawyer represented Appellant with appealing a default family violence protective order.
On January 23, 2019, Simmons applied for a family violence pro tective order
against Johnson. In her affidavit in support of the application, Simmons stated that
she had lived with Johnson from September 2017 until December 26, 2018. She
described an incident occurring on or about December 26, 2018, in which she refused
Johnson’s sexual advances, and he then grabbed her by the throat, told her that she
belonged to him, threatened her, and attempted to rape her. Simmons averred that
Johnson repeatedly attempted to contact her following the incident—she estimated
that he called her 100 times in early January 2019.
On January 24, 2019, the trial court granted a temporary ex parte protective
order in favor of Simmons, and the trial court set a hearing for January 30, 2019, for
Johnson to show cause why the temporary ex parte protective order should not be
3
made into a final protective order. Johnson, who was incarcerated in the Tarrant
County jail, was served with the application on January 24, 2019, and he was given
notice of the January 30, 2019 hearing. The return of service was filed by the district
clerk on January 25, 2019—five days before the hearing.
On January 30, 2019, the trial court heard Simmons’s application for protective
order. Johnson did not attend the hearing. Simmons testified regarding the
December 26, 2018 incident and regarding Johnson’s repeated attempts to contact her
in early January 2019. At the conclusion of the hearing, the trial court signed a default
family violence protective order in Simmons’s favor. This appeal ensued.
II. DOES RULE 107(h) APPLY TO FAMILY VIOLENCE
PROTECTIVE ORDERS?
A. STANDARD OF REVIEW
In his sole point, Johnson argues that the trial court erred by granting the
default family violence protective order because the proof of service of the application
for protective order had not been on file for ten days prior to the entry of the
protective order as allegedly required by Rule 107(h). Johnson’s point requires us to
address the legal question of whether Rule 107(h) applies to family violence protective
orders. We review legal questions de novo. Godoy v. Wells Fargo Bank, N.A.,
575 S.W.3d 531, 536 (Tex. 2019); Murray v. Murray, 276 S.W.3d 138, 143 (Tex. App.—
Fort Worth 2008, pet. dism’d). Answering that legal question requires us to determine
whether the Legislature intended for Rule 107(h) to apply to family violence
4
protective orders when the Legislature enacted Title 4 of the Family Code—the
statutes authorizing family violence protective orders. See Tex. Fam. Code Ann.
§§ 71.001–93.004. We review questions of statutory construction de novo. Crosstex
Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 389 (Tex. 2014); Tex. Mut. Ins. Co. v.
Baker, 292 S.W.3d 798, 802 (Tex. App.—Fort Worth 2009, no pet.). Both of those
questions—whether Rule 107(h) applies to family violence protective orders and
whether the Legislature intended for Rule 107(h) to apply to family violence
protective orders—are issues of first impression for our court.
B. RULES OF STATUTORY CONSTRUCTION
Our primary objective in statutory construction is to give effect to the
Legislature’s intent. City of Dallas v. TCI West End, Inc., 463 S.W.3d 53, 55 (Tex. 2015);
Boenig v. StarnAir, Inc., 283 S.W.3d 444, 446 (Tex. App.—Fort Worth 2009, no pet.).
To achieve this, “we look first and foremost to the words of the statute.” Lexington
Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006); see Fitzgerald v. Advanced Spine
Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999) (“[T]he words [the Legislature]
chooses should be the surest guide to legislative intent.”). We construe the statute’s
words according to their plain and common meaning unless a contrary intention is
apparent from the context or unless such a construction leads to absurd results.
Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010); City of Rockwall v.
Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008).
5
We consider statutes as a whole rather than viewing individual provisions in
isolation. City of Dallas, 463 S.W.3d at 55; TGS-NOPEC Geophysical Co. v. Combs,
340 S.W.3d 432, 439 (Tex. 2011). We presume that the Legislature chose a statute’s
language with care, including each word chosen for a purpose. TGS-NOPEC
Geophysical, 340 S.W.3d at 439; Boenig, 283 S.W.3d at 447. Likewise, “every word
excluded from a statute must also be presumed to have been excluded for a purpose.”
Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981); Boenig, 283 S.W.3d
at 447. When construing a statute, “[w]e must avoid adopting an interpretation that
‘renders any part of the statute meaningless.’” City of Dallas, 463 S.W.3d at 55
(quoting Crosstex Energy, 430 S.W.3d at 390). We also consider the objective the law
seeks to obtain and the consequences of a particular construction. Tex. Dep’t of Transp.
v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004) (citing Tex. Gov’t Code Ann.
§ 311.023(1), (5)); Boenig, 283 S.W.3d at 447 (citing same). Statutes are presumed to
have been enacted by the Legislature with complete knowledge of existing law and
with reference to it. Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990);
Williams v. Williams, 19 S.W.3d 544, 547 (Tex. App.—Fort Worth 2000, pet. denied).
C. RULE 107(H) AND TITLE 4 OF THE FAMILY CODE
In its present form, Rule 107(h) provides that “[n]o default judgment shall be
granted in any cause until proof of service . . . shall have been on file with the clerk of
the court ten days, exclusive of the day of filing and the day of judgment.” Tex. R.
Civ. P. 107(h). Prior versions of Rule 107, dating as far back as 1941, included similar
6
language requiring that proof of service be on file with the clerk of the court for at
least ten days prior to the entry of a default judgment. See, e.g., Civil Procedure Rules
Amended, Official Order, 40 Tex. B.J. 709, 711 (1977) (providing pertinent language in
the version of Rule 107 that became effective January 1, 1978: “No default judgment
shall be granted in any cause until the citation with proof of service . . . shall have
been on file with the clerk of the court ten days, exclusive of the day of filing and the
day of judgment.”); Rules of Civil Procedure, 3 Tex. B.J. 519, 541 (1940) (providing
pertinent language in the version of Rule 107 that became effective September 1,
1941: “No default judgment shall be granted in any cause until the citation, with the
officer’s return thereon, shall have been on file with the clerk of the court ten days,
exclusive of the day of filing and the day of judgment.”).
Title 4 of the Family Code, titled “Protective Orders and Family Violence,” was
originally enacted in 1979. See Act of April 19, 1979, 66th Leg., R.S., ch. 98, § 11,
1979 Tex. Gen. Laws 182, 185, repealed and reenacted by Act of April 21, 1997, 75th Leg.,
R.S., ch. 34, §§ 1, 2, 1997 Tex. Gen. Laws 76, 76, 88 (current version at Tex. Fam.
Code Ann. §§ 71.001–93.004). Title 4 establishes the procedure for the issuance and
enforcement of family violence protective orders, which includes protective orders
sought by a member or former member of a household against another member of
the household. See Tex. Fam. Code Ann. §§ 71.004, 71.006, 81.001. The Legislature
stated that its purpose in enacting Title 4 was to:
7
provide protection and temporary shelter . . . for victims of family
violence and members of their family . . . [and] to reduce the high
incidence of deaths and injuries sustained by law enforcement officers in
handling family disturbances and to aid law enforcement officers in
protecting victims of family violence from serious or fatal injuries.
Act of April 19, 1979, 66th Leg., R.S., ch. 98, § 1, 1979 Tex. Gen. Laws 182, 182
(repealed and reenacted 1997); see Roper v. Jolliffe, 493 S.W.3d 624, 634 (Tex. App.—
Dallas 2015, pet. denied) (“The purpose of [Title 4] is to provide an expedited
procedure for victims of domestic violence; the purpose is not to correct past wrongs
or establish liability but to give immediate protection to the applicant.”).
Because of the nature of the relief anticipated and the danger that it seeks to
avoid, Title 4 utilizes a “very abbreviated procedure.” Martinez v. Martinez, 52 S.W.3d
429, 432 (Tex. App.—Fort Worth 2001, pet. denied) (op. on reh’g). As part of that
“very abbreviated procedure,” the trial court is required to hold a hearing on an
application for a family violence protective order within fourteen days of the filing of
the application. Tex. Fam. Code Ann. § 84.001(a). This “short deadline recognizes
the need for prompt resolution of the applicant’s request.” St. Germain v. St. Germain,
No. 14-14-00341-CV, 2015 WL 4930588, at *5 (Tex. App.—Houston [14th Dist.]
Aug. 18, 2015, no pet.) (mem. op.) (citing Barbee v. Barbee, No. 12-09-00151-CV, 2010
WL 4132766, at *6 (Tex. App.—Tyler Oct. 20, 2010, no pet.) (mem. op.)). The
application for a family violence protective order must be served on the respondent in
the same manner as citation under the Texas Rules of Civil Procedure, except that
service by publication is not authorized. Tex. Fam. Code Ann. § 82.043(c). If the
8
respondent is served with notice of the application within the forty-eight hours before
the hearing, the trial court, on request by the respondent, shall reschedule the hearing
for a date not later than fourteen days after the date set for the hearing. Id.
§ 84.004(a). A court may render a default family violence protective order when the
respondent does not attend the hearing if the respondent was served with (1) a copy
of the application for protective order and (2) a notice of the hearing on the
application for protective order. Id. § 85.006(a).
D. ANALYSIS
We begin our analysis by once again noting the purpose of Title 4—to provide
an expedited procedure to protect victims of family violence and to reduce the
number of deaths and injuries to those victims and to the law enforcement officers
charged with handling family disturbances. See Act of April 19, 1979, 66th Leg., R.S.,
ch. 98, § 1, 1979 Tex. Gen. Laws 182, 182 (repealed and reenacted 1997); Roper, 493 at
634. The Legislature chose a very abbreviated timeline for a trial court to hear an
application for a family violence protective order, requiring the trial court to hold a
hearing “not . . . later than the 14th day after the date the application is filed.” Tex.
Fam. Code Ann. § 84.001(a). By choosing the language “not . . . later than the 14th
day after the date the application is filed,” the Legislature necessarily contemplated
that a hearing could be held less than fourteen days after the application is filed. See
TGS-NOPEC Geophysical, 340 S.W.3d at 439 (stating that the Legislature chooses a
statute’s language with care); Boenig, 283 S.W.3d at 447 (same). Indeed, Section
9
84.004(a)—which requires the trial court to reschedule a hearing upon a respondent’s
request when the respondent has been served with an application within the
forty-eight hours before the hearing—contemplates that the trial court may hear an
application for a family violence protective order forty-nine hours after the application
is filed. See Tex. Fam. Code Ann. § 84.004(a). Rule 107(h), however, requires that
proof of service be on file with the clerk for ten days, exclusive of the day of filing
and the day of judgment, prior to the entry of a default judgment. Tex. R. Civ. P.
107(h). If we adopt Johnson’s construction, a hearing on an application for a family
violence protective order—at least one that could result in the entry of a default
protective order—necessarily could not be held at any point prior to the eleventh day
after the date the proof of service was filed. And a hearing could only be held on the
eleventh day in a perfect world where an application is filed, notice of the application
is served on the respondent, proof of service is returned to the clerk, and proof of
service is filed by the clerk all in the same day. We do not live in a perfect world.
Simmons’s brief ably points out the real-world challenges presented by Johnson’s
construction:
One such situation involves holidays. For an application filed on the eve
of a holiday, the notice may not issue for multiple business days (almost
certainly the case at Thanksgiving or Christmas). The process server
may not even receive the notice until day four, which would mean the
notice would have to be served, returned and filed all in the same
day. . . . [Another scenario is if] the officer serves the respondent toward
the end of the day on a Friday, and the clerk’s office is closed. Return is
made on Monday, too late unless Friday was the day the application was
10
filed. Another is that the return is made timely, but the clerk does not
file it the same day.
. . . .
Also, if there are any difficulties in serving the respondent, a default
order would be unavailable. If the respondent were in another county, it
might take a few days just to get the notice to the appropriate process
server. The respondent might be hard to locate or evade service. And,
the serving officer likely has more than one document to serve, so he
might not be able to make several attempts at service in one day. In any
of these scenarios, it is unlikely that a return on service would be timely.
In yet another example, service may be accomplished by certified mail,
return receipt requested. . . . If Rule 107(h) applies, the notice would
have to be mailed, signed for by the respondent, returned to the process
server, and the return filed within three days. Only in a best-case
scenario is a piece of certified mail delivered the next day, and the return
receipt delivered the day after. A default order would almost never be
available if the notice is served by certified mail, even though Title 4
authorizes service in that manner.
Given these real-world challenges, it would be difficult—if not practically
impossible in most instances—for the proof of service to be on file within three days
of the application for a family violence protective order such that a hearing could be
held within fourteen days of the application. Adopting Johnson’s construction would,
for all intents and purposes, render the Legislature’s inclusion of the phrase
“not . . . later than the 14th day after the date the application is filed” meaningless. See
City of Dallas, 463 S.W.3d at 55; Crosstex Energy, 430 S.W.3d at 390. Section 84.004(a)
would likewise be rendered meaningless by adopting Johnson’s construction. If a
default judgment cannot be granted prior to the eleventh day after an application for a
family violence protective order is filed, there is no reason for the Legislature to have
11
stated that a trial court must reschedule a hearing upon a respondent’s request when
the respondent has been served with an application within the forty-eight hours
before the time set for the hearing. See Tex. Fam. Code Ann. § 84.004(a).
We also are mindful of the words the Legislature excluded from Title 4. See
Cameron, 618 S.W.2d at 540 (stating that words excluded from a statute must be
presumed to have been excluded for a purpose); Boenig, 283 S.W.3d at 447 (same).
While Section 82.043(c) states that “[n]otice of an application for a protective order
must be served in the same manner as citation under the Texas Rules of Civil
Procedure,” it does not state that the return of service must be accomplished in the same
manner as the Texas Rules of Civil Procedure. Tex. Fam. Code. Ann. § 82.043(c)
(emphasis added). If the Legislature had intended for the return of service to be
accomplished in the same manner as the Texas Rules of Civil Procedure, it could have
stated so, as the Legislature has made a distinction between service and return of
service in other statutes. See, e.g., Tex. Transp. Code Ann. § 286.066(b) (“Notice
under this section . . . shall be served and returned in the same manner and for the
same length of time as provided for the service of citation in a civil action in justice
court.”); Tex. Code Crim. Proc. Ann. art. 22.05 (“[A] surety is entitled to notice by
service of citation, the length of time and in the manner required in civil actions; and
the officer executing the citation shall return the same as in civil actions.”); Tex. Est.
Code Ann. § 112.102(5) (“An applicant for an order . . . must prove to the court’s
satisfaction that . . . citation has been served and returned in the manner and for the
12
length of time required by this title.”). We presume that the Legislature chose its
words carefully and that it intended to require service but not the return of service to
be accomplished in the same manner as the Texas Rules of Civil Procedure. See TGSNOPEC Geophysical, 340 S.W.3d at 439; Cameron, 618 S.W.2d at 540; Boenig,
283 S.W.3d at 447.
The parties have pointed us to only one case addressing the interplay between
Rule 107(h) and family violence protective orders, Lancaster v. Lancaster, No. 01-14-
00845-CV, 2015 WL 9480098 (Tex. App.—Houston [1st Dist.] Dec. 29, 2015, no
pet.) (mem. op.), and we have found no other.1
In Lancaster, a wife applied for a
1We have found several cases affirming family violence protective orders in
circumstances where the application was served less than eleven days prior to the
entry of the protective order; none of these cases, however, are default cases and none
address Rule 107(h). See, e.g., Caballero v. Caballero, No. 14-16-00513-CV, 2017 WL
6374724, at *5–6 (Tex. App.—Houston [14th Dist.] Dec. 14, 2017, no pet.) (mem.
op.) (affirming family violence protective order in case involving respondent who was
served with the application for protective order forty-eight hours prior to hearing and
who did not request a continuance); St. Germain, 2015 WL 4930588, at *5, *5 n.4
(affirming family violence protective order in case involving respondent who was
served with the application for protective order eight days before the order was
granted); Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 927, 929 (Tex. App.—Dallas 2003,
pet. denied) (affirming family violence protective order in case involving respondent
who was served with the application for protective order nine days before the order
was granted). We have also found cases recognizing that other rules—discovery rules
and the right to a jury trial—conflict with Title 4 and the issuance of family violence
protective orders. See Roper, 493 S.W.3d at 630 (holding Title 4 “makes clear that the
legislature intended that courts, not juries, act as the sole fact finders and have the
responsibility for making the findings necessary for the issuance of a family violence
protective order”); Martinez, 52 S.W.3d at 432 (recognizing the “inherent conflict
between normal discovery contemplated by the rules of civil procedure and the
mandatory fourteen-day (from the filing date) hearing date of the family code
protective order provisions”); Williams, 19 S.W.3d at 548 (holding Legislature did not
13
family violence protective order against her husband. Id. at *1. The husband was
served with the application and hearing notice five days before the hearing. Id. The
husband did not attend the hearing, and the trial court signed a default family violence
protective order against him. Id. Three years later, the husband filed a petition for bill
of review that was denied by the trial court. Id. at *1–2. On appeal, the husband
argued, among other things, that the trial court erred by denying his bill of review
because at the time the trial court signed the default family violence protective order
against him, the return of service of the wife’s application had not been on file with
the clerk’s office for “the requisite ten days.” Id. at *3 (citing Tex. R. Civ. P. 107(h)).
The First District Court of Appeals agreed, holding that the default family violence
protective order was void. Id. at *4.
While we may be guided by our sister courts, “we are not bound by the
precedent[s] [they set] in determining cases of first impression for us.” In re Reardon,
514 S.W.3d 919, 923 (Tex. App.—Fort Worth 2017, orig. proceeding); see Mitchell v.
John Wiesner, Inc., 923 S.W.2d 262, 264 (Tex. App.—Beaumont 1996, no writ) (“The
opinions of a sister court of appeals are not precedent that bind other courts of
appeals.”). We decline to follow our sister court’s decision in Lancaster. Our sister
court’s opinion did not address what we have addressed here—whether the
intend for jury to decide cases involving family violence protective orders because “[i]t
is not possible to comply with the statutory requirement to hold a hearing within
fourteen days, yet also comply with the rule that requires filing of a written request for
a jury trial thirty days in advance”).
14
Legislature intended for Rule 107(h) to apply to family violence protective orders.
Applying the rules of statutory construction set forth above, we hold that in passing
Title 4, the Legislature did not intend for Rule 107(h) to apply to family violence
protective orders. In our view, applying Rule 107(h) to family violence protective
orders would render Section 84.001(a)’s requirement that a hearing be held
“not . . . later than the 14th day after the date the application is filed” meaningless,
would render Section 84.004(a)’s requirement that a trial court reschedule hearings
upon a respondent’s request when the respondent has been served with an application
within the forty-eight hours before the time set for the hearing meaningless, would
ask us to insert the words “return of service” into Section 82.043(c), and would
generally thwart the purpose of Title 4 by causing delay in what is meant to be an
expedited process. See Tex. Fam. Code Ann. §§ 82.043(c), 84.001(a), 84.004(a); Roper,
493 S.W.3d at 634. We thus hold that Rule 107(h) does not apply to family violence
protective orders.
Having determined that Rule 107(h) does not apply to family violence
protective orders, we turn to the provision of Title 4 authorizing default family
violence protective orders. See Tex. Fam. Code § 85.006(a). That provision simply
requires a respondent to be served with a copy of the application for protective order
and notice of the hearing on the application for protective order. See id. Here,
Johnson was served with both the application and notice of the hearing five days
before the hearing. Accordingly, we overrule Johnson’s sole point.
Outcome: Having overruled Johnson’s sole point, we affirm the trial court’s default family
violence protective order.
Plaintiff's Experts:
Defendant's Experts:
Comments: