B.C. v. Rhodes

• Decision Date: 11 September 2003
• Docket Number: No. 03-02-00543-CV.,03-02-00543-CV.
• Citation: 116 S.W.3d 878
• Parties: B.C., Appellant, v. Scotty L. RHODES on behalf of T.L.R., Appellee.
• Court: Texas Court of Appeals

116 S.W.3d 878

B.C., Appellant, v. Scotty L. RHODES on behalf of T.L.R., Appellee.

No. 03-02-00543-CV.

Court of Appeals of Texas, Austin.

September 11, 2003.

Don Morehart, Law Offices of Morehart and Weinman, Austin, for Appellant.

Alison Gardner, Travis County Atty's Office Protective Orders Div., Austin, for Appellee.

Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.

OPINION

BEA ANN SMITH, Justice.

A student at the Texas School for the Deaf claimed that another student she had been dating raped her. Both students are minors. After a hearing, the trial court found that dating violence had occurred and entered a family-violence protective order. The boy who is subject to the order appeals, claiming that (1) only an adult member of a dating relationship is entitled to seek a family-violence protective order on the basis of dating violence, and (2) the evidence is legally and factually insufficient to support the court's finding that he had committed an act of dating violence. The State has filed a motion to dismiss alleging that we are without jurisdiction to review family-violence protective orders. We hold that, in the absence of other pending litigation between the parties, family-violence protective orders are final and appealable, that minors in dating relationships are entitled to seek such orders, and that there is legally and factually sufficient evidence to support the court's order in this case. We therefore affirm the protective order.

BACKGROUND

B.C. and T.L.R. were eighth-grade classmates at the Texas School for the Deaf. They both lived on campus during the school year. T.L.R. testified that just prior to the assault, she considered B.C. to be her "boyfriend."

After the two had been "dating" for around two weeks, B.C. initiated an unwanted sexual encounter with T.L.R. One day after school B.C. approached T.L.R. and told her that he wanted to have sex with her. T.L.R. told him "no" and went into a girls' restroom to "try to get away from him." B.C. followed her into the restroom. When he came in she was standing at the far end of the restroom. She told him, "I don't want this." He then approached her and started to take her clothes off. She did not struggle with him because he had a "really weird look on his face" that scared her.¹ After he had removed all of her clothes, he undressed and told her to "lay down on the floor." Fearful, she complied. B.C. penetrated her. She then pushed him off of her, put her clothes on, and left the restroom. B.C. also got dressed, told T.L.R. not to tell anyone about the incident, and attempted to hug her before she left. T.L.R. testified that while B.C. was on top of her "[her] stomach hurt," and later that day she was scared, could not eat, and her stomach continued to hurt "real bad."

The next day T.L.R. "broke up" with B.C. in the cafeteria, telling him, "This is off." Several of their classmates were present and B.C. became angry and left. In the days following the restroom encounter, T.L.R. related what had happened to her to close friends and some school staff members.

The school initially took steps to protect T.L.R. by putting B.C. in an "alternative education program"—which segregated him from the rest of the school—for ten days. A week after the incident, however, the school placed the two students on the same bus to take them to their respective homes in Waco and Dallas for the weekend. A few weeks after that, T.L.R.'s father sought to obtain a protective order on her behalf. The court first issued a temporary order, then, after holding a hearing, issued a final protective order requiring among other things that B.C. refrain from communicating with T.L.R. and her family, from following and harassing T.L.R and her family, and from going within 25 feet of T.L.R.

DISCUSSION

Jurisdiction

In Bilyeu v. Bilyeu we held that a family-violence protective order rendered during the pendency of the parties' divorce is not a final judgment for purposes of appeal. 86 S.W.3d 278, 282 (Tex.App.-Austin 2002, no pet.). At that time we expressly reserved "the issue of whether a protective order rendered post-divorce or in the absence of a pending divorce between the parties is within our jurisdiction to review by appeal."² We resolve that issue today.

Family-violence protective orders generally remain in effect for the period stated in the order, which cannot exceed two years. See Tex. Fam.Code Ann. § 85.025(a)(1) (West 2002). Such orders are valid and enforceable pending further action by the rendering court or until the order is properly superseded by another court with jurisdiction over the order. See id. § 85.009 (West 2002). The issuing court has the power to modify an existing protective order after notice and hearing, see id. § 87.001 (West 2002); however, the order generally may not be modified to extend the period of its validity beyond two years after the order was rendered. See id. § 87.002 (West 2002).

Appellate courts have jurisdiction over appeals from final judgments and certain interlocutory orders that the legislature has designated appealable. Bilyeu, 86 S.W.3d at 279; see Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex.1985); Tex. Civ. Prac. & Rem.Code Ann. §§ 51.012, .014 (West 1997 & Supp.2003). A judgment or order is final if it disposes of all issues and parties. See Hinde, 701 S.W.2d at 639; Cooke v. Cooke, 65 S.W.3d 785, 787 (Tex. App.-Dallas 2001, no pet.). Conversely, a judgment or order is interlocutory if it fails to dispose of all issues and parties. Cooke, 65 S.W.3d at 787.

Many of our sister courts have addressed this jurisdictional issue and concluded that family-violence protective orders are final and appealable. See, e.g., Kelt v. Kelt, 67 S.W.3d 364, 366 (Tex.App.-Waco 2001, no pet.); Cooke, 65 S.W.3d at 787-88; Striedel v. Striedel, 15 S.W.3d 163, 164-65 (Tex.App.-Corpus Christi 2000, no pet.); Winsett v. Edgar, 22 S.W.3d 509, 510 (Tex.App.-Fort Worth 1999, no pet.); James v. Hubbard, 985 S.W.2d 516, 518 (Tex.App.-San Antonio 1998, no pet.). The only court in the state to ever hold in a published opinion that these protective orders are not appealable was the Tenth Court of Appeals in Normand v. Fox. 940 S.W.2d 401, 402-04 (Tex.App.-Waco 1997, no writ). However, that court recently reversed its position and determined that protective orders are indeed final and appealable judgments. See Kelt, 67 S.W.3d at 366. In Normand, the court had reasoned that because the trial court retains the power to modify a protective order, such an order does not settle all disputed issues requiring judicial discretion and is therefore interlocutory. See 940 S.W.2d at 403.

We disagree with the proposition that the continuing ability to modify a protective order renders it interlocutory and therefore prevents it from being appealable. An analogy with permanent injunctions is instructive: a permanent injunction that disposes of all issues and parties is undoubtedly a final, appealable judgment. See Hubbard, 985 S.W.2d at 517. This is true despite the fact that the trial court retains jurisdiction to review open, vacate, and modify the injunction upon a showing of changed conditions. See Cooke, 65 S.W.3d at 788. Indeed, it appears that the trial court has even broader discretion to modify appealable permanent injunctions than it does protective orders. See id. While a trial court may vacate a permanent injunction upon a showing of changed conditions, it may not similarly vacate a protective order on the motion of a party until at least one year after the order was rendered. Id. (citing Tex. Fam.Code Ann. § 85.025(b)). Instead, the trial court's jurisdiction during the first year of a protective order is limited to modification of the order. Id. (citing Tex. Fam.Code Ann. § 87.001).

As with permanent injunctions, the trial court's continuing ability to modify a family-violence protective order does not convert it from final to interlocutory. See id. It is the disposition of the parties and the issues—not the retention of jurisdiction—that determines the finality of an order. See id. The mere fact that an order may someday be modified simply does not suggest that the trial court has not finally disposed of all the parties and issues. See id. We hold that a family-violence protective order that disposes of all the parties and issues can be appealed despite the continuing jurisdiction of the trial court to modify the order. Because the protective order in this case disposed of all the parties and issues, we overrule the State's motion to dismiss and address the merits of the case.³

Minors and Dating Violence

In his first point of error, B.C. argues that only an adult member of a dating relationship is entitled to seek a family-violence protective order for dating violence. Because T.L.R. is a minor, B.C. claims that the court was without subject-matter jurisdiction to issue the protective order. We disagree with B.C.'s interpretation of the family code.

The primary rule of statutory interpretation is to ascertain and give effect to the intent of the legislature. Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581, 583 (Tex.App.-Austin 2000, pet. denied) (citing Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994)). If the statute is unambiguous, we are required to seek this intent in the plain and common meaning of its words and not elsewhere. Id. (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex.1990); Seay v. Hall, 677 S.W.2d 19, 25 (Tex.1984)). A court may not add words to a statute unless necessary to give effect to clear legislative intent. Id. (citing Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901, 902 (Tex.1988); Meno v. Kitchens, 873 S.W.2d 789, 792 (Tex.App.-Austin 1994, writ denied)). Furthermore, we must consider the statute as a whole and avoid construing any clause, sentence, or phrase in isolation from the rest of the statute. Id. (citing Morrison v. Chan, 699 S.W.2d 205, 208 (Tex.1985))....