Charles Hayward James v. Alice P. Hubbard--Appeal from 285th Judicial District Court of Bexar County

DISSENTING OPINION
No. 04-98-00570-CV
Charles Hayward JAMES,
Appellant
v.
Alice P. HUBBARD,
Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CI-02965
Honorable Andy Mireles, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Dissenting Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 16, 1998

Because I believe this court should continue to follow the sound reasoning of Normand v. Fox, 940 S.W.2d 401 (Tex. App.--Waco 1997, no writ), and dismiss this appeal for want of jurisdiction, I respectfully dissent.

It is well settled that we have appellate jurisdiction over final judgments and interlocutory orders which the Legislature has deemed appealable. Tex. Civ. Prac. & Rem. Code Ann. 51.014 (Vernon 1997 & Supp. 1998); accord Normand, 940 S.W.2d at 402-03. A judgment which disposes of all issues and parties is considered final and appealable. Ruiz v. Ruiz, 946 S.W.2d 123, 124 (Tex. App.--El Paso 1997, no writ) (citing Jobe v. Lapidus, 874 S.W.2d 764, 765 (Tex. App.--Dallas 1994, writ denied). Arguably a protective order "disposes of" all issues between the parties to the extent that it fashions a remedy to avoid future harm or violence between the parties. However, as observed by the Normand court, a trial court retains the power to modify the order during the order's effective period. Normand, 940 S.W.2d at 403; see Tex. Fam. Code Ann. 87.001 (Vernon Supp. 1998). This statutory grant of power "clouds the protective order's finality," precluding it from being considered a final, appealable judgment. See Normand, 940 S.W.2d at 403. That is, while the protective order ostensibly meets the requirements of what is considered a "final order," the statutory scheme in place suggests a contrary status. Indeed, the statutory scheme advances appropriate social policies in the area of family violence prevention. Pursuant to Tex. Fam. Code Ann. 87.001 (Vernon Supp. 1998), the trial court can modify a protective order to meet the changing circumstances in volatile situations. Additional injunctive restrictions can be imposed or items can be deleted as required by the circumstances. A pending appellate review of these orders could have a chilling effect on the trial court's willingness to modify the order, despite factual circumstances that might otherwise prompt the court to change the protective order. While the same chilling effect may arise from a mandamus, that is always a possibility in any matter pending in a trial court that is subject to mandamus review. Mandamus, however, would at least be a more expedient method of review. Additionally, the limited nature of review on mandamus seems more appropriate given the trial court's superior position to address the volatile and potentially life-threatening situations presented in the family violence context. For these reasons, I reject the majority's conclusion that a protective order is, in reality, a permanent (and thus appealable) injunction.

Moreover, the Legislature has not expressly provided for appellate review of this order. See Tex. Fam. Code Ann. 81.001 et seq. (Vernon Supp. 1998); Tex. Civ. Prac. & Rem. Code Ann. 51.014 (Vernon 1997 & Supp. 1998). This omission has not gone unnoticed. In 1997, House Bill 2811 was introduced proposing an amendment which would provide a mechanism for appellate review of protective orders issued pursuant to the Family Code. In the bill analysis of H.B. 2811, it is recognized that:

Texas appellate courts do not have jurisdiction to review and consider appeals of protective orders granted under the Family Code. Under recent case law, a protective order is not a "final" order, and a protective order does not fall within the parameters for interlocutory review. Thus a person against whom a protective order is granted has no rights of appeal other than application for writ of mandamus, which limits the complaining party's right of review to an assertion that the court abused its discretion.

House Comm. on Juvenile Justice & Family Issues, Bill Analysis, Tex. H.B. 2811, 75th Leg., R.S. (1997). Notably, H.B. 2811 "died" in calendar committee. Until the Legislature allows for appellate review of protective orders issued pursuant to the Family Code, either by amending the Family Code or by providing for an interlocutory appeal, mandamus is the appropriate manner in which to seek review of a protective order issued pursuant to the Family Code. Normand, 940 S.W.2d at 404 (citations omitted).

CATHERINE STONE

JUSTICE

PUBLISH

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