Affirmed and M a jority and Concurring Opinion s 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, T exas Trial Cou r t Cause No

. 2019

- 17786

M A J O R I T Y O P I N I O N
This is an appeal of a protective order in a family

- law case. 1 Appellant Royce Allen Phillips (Hus band) challenges the protective order rendered by the

1 Appellate courts have jurisdiction over appeals fr om final judgm ent s and specific types of interlocutory orders design at ed by the legisl ature as appealable

. Lehmann v. Har

– Con Corp ., 39 S.W.3d 191, 195 (Tex. 200 1); se e, e.g ., Tex. Civ. Prac. & Rem. Code Ann. § 51.014

. A judgment is final and appealable if it disposes o f a ll parties and all issues. Lehmann
, 39 S.W.3d at 19 5. The F amily Code provides that a “ p rotective order rendered against a party in a suit for d iss olution of a marriage may not be appealed until th e t ime the final decree of d issolution of the2

trial court in favor of appell ee Alicia Lucile Phillips ( W ife) i n two issue s. In his first issue, Husband a r g ue s that th e trial court had no jurisdiction to consider the protective order because a divo rce proceeding involving the same parties was pending in a different district court. In his second issue, h e clai ms t h e trial cour t erred because it did no t file findings o f f act identifying which disputed evidence
the final prot ective order relied order on. We affirm

. I. B ACKGROUND
In 2018, Wife filed a petition for divorce from Husband , which was assigned
to the 246th Di strict Co urt of Harr is Cou nty

. In Ma rch 2019, W ife filed an applicatio n for protective order in the 28 0th District Court pursuan t to Family
Code chapter 82

. Tex. Fam. Code Ann. § 82.001

. The 280 th Dis trict Court is
d esignated a s the domestic violence district cou rt for Ha rris Count y and gives preference to domestic vio lence cases

. Tex. Gov’t Code Ann. § 24.112(h), (i). In
her fir st amended application, Wife alleged that although a suit for dissolution of marriage was pe nding in Harris County, her application for prote ctive ord e r was properly before th e 280 th District Court because she resid ed in Harris County. Tex. Fam. Code Ann. § 85.062 (a)(2). The 280 th District Court issued a n ex parte temporary protecti ve orde r in March 2019 before Husband appeared a nd answ ered

.

marriage b eco me s a final, appea lable order. ” Se e Tex. Fam. Code An n. § 81.009( a )

. H owever, t he application in this case was not file d as a mot ion in a suit for dissolution of a marriage. It was filed under a separate cause number in a separate cour t , an d the appellate record does not reflect that it was consolidated wi th the divorce proc eeding

. See Davis v. Davis , No. 06

- 07

- 00059

- CV, 2007 WL 157427 8 , at * 1 (Te x. App.

— Texarkana June 1, 2007, no pet.) ( mem. op.)

. Thi s c ourt has previously held tha t a family

- violen ce p rot ective order that gives injunctive r elief and disp ose s of all is sues and part ies is a final, appealable order. Ulmer v. Ulmer , 130 S.W.3d 294, 2 96 (Tex. App.

— Houston [14th Dist.] 2004, no pet.) ; see also Vongontard v. Tippit
, 137 S. W.3d 109, 110 (Tex. A pp.

— Houston [1st Dist.] 2004, no pet

. )

. Even though t he protecti ve order was render ed during th e time that Husband and Wife had a pending di vorce p roc eeding
, the protective order was not rendered against Husb and “in a suit for dissolut ion of marriage. ” A nd b e cause the final protective order di s posed of all p art ies and all issue s in the c ase, we conclude that it was a final, appealable order.3

H us band file d an answer claiming that Wife ’ s application for protective
order was frivolous because the 246 th District Court had already denied “ the same
issues

. ” Over three da ys in March and April 2019 , the 280 t h D i st rict C ourt held a hearing on Wif

e ’ s app li cation fo r a protective orde r. 2 O n May 13 , 2019, Husband
filed a motion to dismiss Wife ’ s appli cation arguing that the 2 80 th District Court lacked subject

- matter jur isdiction over Wife ’ s app lication. Alternat ivel y, Husband

argue d that W i fe ’ s appli c ation should be a bated because the 24 6 th District Court
ha d dominant jurisdiction. The record does not indicate that Husband ’ s motion was
ever hear d or ruled on by the trial court.

T he trial court signed the final protectiv e order in fa vor of Wi fe on May 2 4,
2019

. The prot ecti ve order expir ed twenty

- four m onths from th e d ate of si gning
, and include d fi ndings that “ family violence has occurred, was committed by [ Husband ] , a nd family vio l enc e committed by [Husband ] is likely t o occur in th e futu re. ” A fter t h e trial cou rt sign ed the protective order , Husband file d a reque st for
findi ngs of fact and concl usions of law pursuant to Ru le 296. Tex. R. Civ. P

. 296

. Hus band also filed a “ Notice of Past Due F i ndings of Fac t and Conclusi ons of
Law ” pursua n t to Rule 29 7

. Tex. R. Civ. P. 297. Other than t hose contained in the final p rotective or der, t h e trial court did not make any additional findin gs of fact or
conclusions of law

. II. A NALYSIS

A. Mootness

T hough not raised by the parties, we addr ess mootn ess. T he p rotective or d er here has alread y expi red and nothing in our record suggests it was th e b asis of any
other proce eding. Subject

- ma tter jurisdiction is funda mental to our aut hority t o

2 T h e Fi nal Protective Order incorrectly states that Wife ’ s a pp lication was heard by the trial c ourt on May 9, 2019

.4

dispose of ca ses

. Heckman v. Willia mson C nty

. , 369 S.W.3 d 137, 16 2 (T ex. 2 0 12) ( “a case is moot when the c ourt ’ s actio n on the merits cannot affect the parties ’
ri ghts or interest ” ). However, Texas cour ts have re cognized a “colla teral

consequ ence s” excep tion to the moo tne ss doctrine that allows an appellate cou rt to

rev iew a cas e after it b e c omes moot. Marshal l v. Housing Auth. of the City of San
Antonio , 198 S.W .3d 782, 789 (Tex. 2 006); State for Prot . of Cocke rham v.
Cockerham , 218 S.W.3d 298, 302 (Te x. A pp.

— Texarka na 2007, no pet.) (collecting cases). Under t hat exc epti on, a n expire d pro t ective order based o n a findin g of family violence is reviewable because th e “effects of a p rotective order

carry significa nt collateral lega l repercussions a nd a soc ial stigma

. ” Co cke rham
, 218 S.W.3d at 303 ; see In re Salgado , 5 3 S .W.3 d 752, 757

– 5 8 (Tex. App.

— El
Paso 2001 , n o pet. )

. Becaus e the order here is based on the allegatio ns of abuse
directed to w ards a sp ouse , Husb and is e nt itled to appe lla te review

. B. S ubject

- matter jur isdiction

R elying on Family Code section 85. 062 , Hu sb and argues th e final p rotect ive
ord er is void be cause the trial court lacked su bject

- ma tter jurisdiction

.

“ [S]ubject

- ma tter jurisdiction is esse ntial t o a court ’ s po wer to decide a cas e.”
Bla nd Indep. Sch. Dist. v. Blue
, 34 S.W.3d 547, 553

– 54 (Tex

. 2000 )

. Consequent l y, a court cannot render a binding ju dgmen t concerning matte rs ov er which it lacks subject

- matter jurisdicti on

. See In re United Serv s. Auto . Ass ’ n , 30 7
S .W.3d 299, 309 (Tex

. 2010)

. For th ese reasons, subject

- matter jurisdiction cannot
be waiv ed by the pa r ties

. See T ex as Ass ’ n of Bus. v. Tex a s Air Control Bd. , 852 S.W.2d 440, 443

–

44 (Tex. 1993)

. Determining whether a trial court had
sub ject

- matter jurisdiction is a question of law, which we review de novo. Ci t y of
Hous ton v. Rhule, 41 7 S .W.3d 4 40 , 442 (Tex

. 201 3 ) (per curiam).5

Sub ject

- mat ter j urisdicti on is the po w e r of a court to hear a nd determine

cases of a general class to which the case in question belongs

. Deen v. Kirk , 508 S.W.2d 70, 72 (T ex. 1 9 74 )

. As a district court
, the 280 th Distri ct C ourt has

s u bjec t

- matte r jurisdictio n over protec tive order proceedings like any other district

court

. Se e Tex. Const. art

. V, § 8 (“District Court jurisdiction consists of exclus ive, appellate, and original jurisdiction of all actions, proceedings, and r em edies, exc e pt i n cases where exclus ive, appellat e, or original jurisdiction may be conferred by
this Constitution or o ther law on some other court, tribunal, or administrative
bo dy.”); Tex. Gov’t Ann. § 24.007 ( “ district c ourt has the jurisdiction provid ed by
Articl e V, Section 8, of the Te xas Constitut ion ” ) ; Tex. Gov’t Code Ann. § 24.112 (h), (i) ( Harris Count y s hall designate “ do mesti c violence district court ” that gives preferen ce to “ domestic violence cases ” ) ; Tex. Gov’t Code Ann. § 24 .457 (identifying 2 80 th as d i s tric t court for Harris C ounty) ; Tex. Gov’t Code Ann. § 24.951 ( all district courts in county have concurrent civil an d criminal jurisdiction within territorial limits of county ) ; see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 ( Tex. 200 0) ( general p resu mption for courts of general juri sdiction is they have s ubject

- matter jurisdiction ) . Therefore, the 280 th District Court had jur isdiction over the subject matter o f Wife ’ s pr otective order application

.
H u sb and argues that the language of F am ily Code s e ctio n 85

. 06 2 deprived
th e trial court of sub

ject

- matter jurisdiction :

AP PLICATION FILED WHILE SUIT FOR DI SSOLUTION OF MARR IAGE OR SUIT AFFECTING PARENT

- CHILD RELATIO N SH IP PENDING. ( a) If a suit fo r dissolution of a marriage or suit affecting th e parent

- c h ild relatio nship is pend ing, a party to the suit may apply for a protect ive order against another party t o the suit by fil ing an application: (1) in the court in wh ich the suit i s pending; or6 (2) in a court in the county in which the applican t r esides i f the applica nt resides ou tside the jur isdiction of the court in which the suit is pending.

Tex. Fam. Code Ann. § 85.062

. The Family C ode further provides that a “ person who wis hes to apply for a protective order with respect to the person ’s spo us e and
who i s a party t o a suit for the dissoluti on of a marriage . . . must file the applicati on as required by Su b chapter D, Chapter 85. ” Tex. Fam. Code Ann. § 82.005 (emphasis added)

. Section 85.062 is contained within S u bch apter D of
C hapter 85

. The q ue stion we m u st t hen res olve is wheth er the lang ua ge in section
82.005 makes the filing requirements of section 85.062 jurisdictional

. 3 Id

. When used in a statute, the term “must” creates or recognizes a condition precedent. Tex. Gov’t Code Ann. § 311.016( 3)

. Texas c o u rts have ge nerally
inter preted “must” as mandatory, creating a duty or obligation. See H elena Chem.
Co. v. Wilkins , 47 S.W.3d 486, 493 (Tex. 2001)

. E ven if a statutory req uirem ent is mandatory, this does not mean that com pliance is necessari ly jurisdictio nal. Id

. a t 494; Albe rtson ’ s, Inc. v. Sinclair , 984 S.W.2d 958, 961 (Tex. 1999)

. W hen a statute is silent about the consequences of noncompliance, we look to the statute ’ s
purpo se to determine the proper consequences. Sinc lair
, 984 S.W.2d at 96 1

. Here, the re is no s t ated cons equence fo r no ncompliance with the filing requirements

. Howev er, C hapter 85 contemplates that a final protective order may
be re ndered by a court other than the cou rt in whi ch a su it for dissolution of a

m arr iage is pending

. Tex. Fam. C ode Ann. § 85.06 2 ( c )

. In that situ ation, the clerk

3 The Family Code also references juri sdic tion in cha pter 71. Tex. Fa m. Code Ann. § 71.002. For purposes of a protective order procee ding
, “ court ” is defined as the “ district court, court of domestic relations, juvenile court having t he juris dic tion of a district court, statutory county court, con stitutio nal county court, o r other court expressly given jurisdiction under this title. ” Id . However, this definition does not change or restrict the jurisdiction of a dist rict court pres iding over a pro t ective

- order proceeding.7

of the court th a t rendered the protective order shall (1) inform the clerk of the court in which the suit is pending that a fi nal protective order has been rendered and ( 2) f orward a copy o f t h e final prot ective to t he c ourt in whi ch the s uit is pending.
Id

. § 85.062 ( c ) ( 1), (2)

. Chapte r 85 also contains transfer procedures, which allow a protective order rendered by a court othe r than the one in whi ch a suit for
diss olutio n is pendin g to tra nsf e r the protec tive orde r

. Id

. § § 8 5. 06 2 (d), . 06 4

. The se provision s indicate that the consequence for non

- compliance is not jurisdictional

. Finally
, p u b l i c policy favors allowing immediat e acc ess to a tribunal for the safety
and protecti on of a spouse , as wel l as a child. See In r e Salga do
, 53 S.W .3d at 762

. Title 4 ( Protective Order s and Family Viol ence ) should b e broadly construed to “effectuate its humanitarian and preventive purposes.” Boyd v. Palmore
, 425
S .W.3d 425, 430 (Tex. App.

— Houston [ 1st Dist. ] 201 1, no pet.) ( citatio n omitted ) ; Tex. Family Code Ann. § § 71.001

– 93.004 (title 4)

. “ The purpos e of the statute is to provide an expedited procedure for victims of domestic violence

. . . [and] t o give immediate protection to the applicant. ” R o per v. Jo l l iff

e , 4 93 S.W.3d 624, 6 34 (Tex. App.

—

Dallas 2015, pet. denied)

. The determination that Husband asks this

court to make, that sect ion 85.062 is juri sdictional and d ep rived the 280 th Distri ct Court of po wer to decide Wife ’ s application
, is at odds with the p urp o se of Title 4

. See Tex. Gov’t Code Ann. § 24.112 (k) ( “ T he designated domestic violence dist rict

cour t shall provide timely and efficient access to emergency prot ective orders

. . . fo r pers ons the court determines are victims of domestic vio lence. ” )

. T her e for e, we conclude t hat an applicant ’s com pliance wi th section 85 .062 is not jurisdictional.
See Sinc lair
, 984 S.W.2d at 961 ( “t he purpose behind section 410.253 does not require dismi ssing the judicial review action for failure to timely fil e with th e Com m iss ion ”); Hines v. Hash
, 843 S.W.2d 464, 46 8

– 69 (Tex. 1992) (noting it is not necessary to purpose of Deceptive Trade Practices

- Consumer Protection Act ’ s8

presuit notice provision to d ismiss plaintiff ’ s action if notice is not timely provided )

. Husban d ’ s a rgum ent that Wife fi led her ap plication in the wrong court is
otherwise not a matter of fund amental error

. Instead, Husband ’s argument is more properly characteri zed as an issue of dom inant jurisdiction 4 or venue , which Husband did not preserv e or rai s e on app eal

. See Wyatt v . Shaw P lumbing Co ., 760 S.W.2d 245, 248 (Tex. 1988) ( court in which sui t is first filed acqu ire s d ominant jurisdiction); Gordon v. Jo nes , 196 S.W.3d 376 , 382

– 83 (T ex. App.

— Houston [1st Dist.] 2006, no pet.) ( doctrine of dominant ju risd icti o n pertains to v enue, not subject

- matter jurisdicti on ). Husband never timely challenged venue or d omin ant jurisdiction in the tr ial court , nor did he seek to transfer the applicati on to the 246 th
District Court

. See Hiles v . Arnie & Co., P.C

. , 402 S.W. 3d 8 2 0, 826 (Tex. Ap p.

— Houston [14th Dist.] 2013, pet. denied) ( dominant jurisdiction may be waived if

not ti mely asserted ) ; Tex. R. Civ. P. 86 ( “ An objectio n to improper venue is
waiv ed if not made by written motion filed prior to or con currently with an y oth er
p le a, pl e adin g or motion ” ) ; Tex. R. App. P. 33.1 (a )

. W e overrule Husban d ’s first issu e.

4 Despite its name, the doctrine of dominant jurisdict ion is not jurisdictional. Dominant jurisdiction applies when ve nue is pr oper in two or more Texas counties or courts. Gonzalez v. Reliant Energy, Inc ., 159 S.W.3d 6 15, 622 (Tex. 2005) ; see also In re Puig , 351 S.W.3d 301, 30 5 (Tex. 201 1 ) ( w hen jurisdictio n of two courts is concu rrent, issue is one of dominant jurisdic tion); Perry v. Del Rio , 66 S.W.3d 239, 252 (Tex. 2001) (applying ripeness doctrine to resolve issue of four competing v enues)

. D ominant jurisdiction recognizes “the plainti ff ’ s privilege to c hoose the forum” and accepts that choice as correct, provided “t he forum is a proper one.” Gonzalez , 159 S.W.3d at 622 . Thus, “the court in which suit is first filed generall y acquires dominant jurisdiction to the exclusion o f other cour ts if venue is prop er in the county in which suit was first filed.” Id. (citing Wyatt v. Shaw P lumbing Co ., 760 S.W.2d 245, 248 (Tex. 1988) )

. T h erefore, t he doctrine of dominant jurisd iction pertain s to venue and is not jurisdic tional

. See Gord on v. Jo nes , 196 S.W.3d 376 , 382

– 83 (Tex. App.

— H ouston [1st Dist.] 2006, no pet.) ; see also Curtis v. Gibbs , 511 S.W.2d 263, 266 (Tex. 1974) (dominan t jur isdictio n reso lve s venue conflict between two courts with subject

- m atter jurisdiction)

.9

C. Fi ndings of f

a ct a nd c onclusions of l aw
In hi s sec ond issue, Husban d argues that the tr ia l cou r t did not file findings of
fa ct and conclusions of law in resp onse to his Rule 296 req uest. See Tex. R. Civ. P.
296 . He argues that the trial court ’ s fai lure to do so const itu ted reversible error

. See
Tex. R. Civ. P. 297 ( “ The c ourt shall file its fi ndings of f a ct and conclusions of law
within twenty days after a tim ely requ est is filed. ” )

. Because the trial court never
stated whi ch f

acts were accepte d as proof of family vio len ce in the final pro tectiv e order
, Husband maintains t hat he does not know w h ich al legat ions to focus on in
h is appeal.
However, t he final prote ctiv e or der contained th e findin gs mandated by the Family Code

. 5 See Tex. Fam. Code An n. § 85.00 1 ( tri al court sh all find whether

“ family viol ence h as occurred and f a mily violence is likel y to o ccur i n the future ” )

. The c ourt complied with the statutory re quir emen t s by includ ing the following findings in the final protective order :
The Cour t finds th at all require men ts for a Protective Order hav e bee n met and that thi s Court has jurisdictio n over the p arties and this actio n

. The Court further finds that the App lica nts have shown t hat the Application for a Protective Order should be GRANTED a nd that gr anting this Pr ote ctive Order is necessary to p reven t 

### future family 

### vi o lence by Royce 

### Allen P hillip s 

### and is in 

### the best intere st of the Applicant 

### and those to 

### be pro tect ed in 

### this Order

.

5 Rule 299a s tates that fin dings of fa ct should not be recite d in a judgment
, but should be filed as a separate document. Tex. R. Civ. P

. 299a. However, s ection 85.001 directs the c ourt to find wheth er family violence ha s occu rr ed and is likely to occur in the future, and to include these findi ngs in the protective o rder. Tex. Fam. Code Ann. § 85.001(a)
, (c)

. When there is a conflict be twe en a stat ut e and a rule, the statute prevails over the rule

. Jackson v. S tate Office of Ad m in. Hea r ings , 351 S.W.3d 2 90, 298 (Tex. 20 11) ( “ [W]hen a rule of procedure conflicts with

a statut e , the statute prevails unless the rule has been passed subse quent to the s tatute and repeal s the statute as pro vided by Texas Government Co de § 22.004 .” ) (q u oti ng J o hnstone v. State
, 22 S.W.3d 408, 4 09 (Tex. 2000) ) ; see Few v. Chart er Oak Fire Ins

. Co

. , 4 63 S.W.2d 424, 425 (Tex. 1971) (“[ Whe n a] rule of the c ourt conflict s with a legislative ena ctment, the rule mus t yield.”)

. Though this issu e was not raised b y t he p a rties, we note tha t the rule preda tes the applic able statute.10



### The Court 

### finds that family 

### violence has occurred

, was 

### commi tted by [H usband ]
, 

### and f

ami ly 

### violence committed by [Hus band] 

### is likely to occu r in 

### the future

. Husban d ’s ar gument here is premised on the assumption that the trial court ’s
f indi ngs of fact must list all evidence or proof supporting the protective order ; h owever , h e offer s no lega l a uthority for this argument. W e dis a gree . Th e fina l

p r otective order alread y inclu ded a finding that family v iolence occurred
, and the

court was no t r equired to make a fin d ing on each statement or allegation made by
Wife

. See Peñ a v

. Garz a , 6 1 S. W

. 3 d 52 9 , 5 3 1

– 3 2 ( Te x

. Ap p

. — Sa n Antoni o 200 1 ,

n o pe t

. ) ( trial co urt is not required t o make additi onal f inding s when protective order contains findings re qui red by statute ) ; see also Nicholas v. Envtl. Sys. (Int ’ l)
Ltd. , 499 S.W.3d 888, 894

– 95 (Tex . App.

— Housto n [ 14t h Dist.] 2016, pet. d enied ) (“The trial c our t is not required to set out i n detail ever y rea son or t heory by which
it arrived at its final conc lus ion s. Nor is the tria l court required to accept amended findings and conclusions th at merel y resolve evi den tia ry issues or are othe rwise

unnecessary .”)

. Husba nd st ates that he cannot p roperly pre sent h is appe al because he does

not “ know if his appe al sh oul d focus on the insufficiency of holding papers in front of a phone as a basis for fam ily vi olence or u pon challenging the trial court [ ’ s ]
discret ion for disal lowin g Appellant to explai n how Appel lee’s bruisin g really

o c curred. ” Husband did not explain how the absence of the requested findings

preve nte d him from making either of those challe nges on appea l

. We ov errule Husban d ’ s second issue.11 III. C ONCLUSION

We affi rm the trial co urt ’ s final protective order as ch allenged on appeal.

/s/ Charles A. Spain Justice

Pan el con sist s of Justi ce s Spain , Hassan , and Poiss ant

. (Poissant, J., concurring).