## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 19

- 0007 1

- C V

___ ________________________

On Appeal from the 233rd District Court Tarrant County, Texas Trial Court No. 233

- 654949

- 19
Before Sudderth, C.J.; Gabriel and Ke rr, JJ. Opinion by Justice Gabriel 

### R ONDERRICK 

### J OHNSON 

### , Appellant

V


### . T ALAUN 

### B ATHSHEBA 

### H ASSEAN 

### S IMMONS 

### , Appellee2 OPINION
A ppellant Ron d errick Johnson appeals a default family violence pro tective
order issued in favor of Appellee Talaun Bathsheba Hassean Simmons, a former member of Johnson’s household. See Tex. Fam. Code Ann. § 85. 006. In his sole point, Johnson argues that the trial court erred by gra nting the default family violence protective order because the proof of service of the applicati on fo r protective order had not been on file for ten days prior to the entry of the pro tective order as allegedly required by Texas Rule of Civil Procedure 107( h)

. See Tex. R. Civ. P. 107(h ). We will
affirm

. I. BACKGR OUND On January 23, 201 9, Si mmons applied for a family violence protective order against Johnson. In her affidavit in sup port of the application, Simmons stated that she had lived with Johnson from Septem ber 2017 until December 26, 2018. She
described an incident occurring on or a bout Dece mber 26, 2018, in which she refused Johnson’s se xual advances, and he then g rabbed her by the throat, t old he r that she belonged to him, threaten ed her, a nd att empt ed to rape her. Simmons averred that Johnson repeatedly attempted to cont act her f oll owing the incident

— she estimated
that he call ed her 100 times in early January 2019. On Ja n uary 24, 2019, the trial court granted a temporar y ex p arte protective order in favor of Simmons, and the trial court set a hearing for J anuar y 30, 201 9 , for Johnson to show cause why the temporary e x parte protective order should not be3

made into a fin al prot ective order. John son, who was inca rc erated 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 dis tri ct clerk on January 2 5 , 2019

— five days before the h eari ng . On Ja nuary 30, 2019, the trial court he ard Simmons ’ s application for protective order. Jo hnson di d not attend the hearing. Simmons testified regarding the
Dece mber 26, 20 18 incident and regarding Johnson ’ s repeated attemp ts to contact her
in earl y Jan u ary 2019. At the conclusion of the hearing , the trial court signed a default family violence protective order in Simmons ’ s favor

. This appeal en sued.

II
. DOES RULE 107( h) APPLY TO FAMILY VIOLENCE

PRO TE CTIVE ORDERS?
A. S TANDAR D O F R EVIEW In his sole point, Johnson argu es that the trial court erred by granting the
default family violence protective order because the proof of service of the applicati on fo r protective order had not been on file for ten days prior to the entry of the protective order as allegedly required b y Rule 107(h)

. Johnson ’ s point requires us to address the legal question of w het her Rule 107(h) applies to family vio lence protective
orders. We review legal questions de novo. Godoy v. Wells Far g o Bank, N.A. , 575 S.W.3d 531 , 536 (Tex. 2019); Mu rray v. Murray , 276 S.W.3d 138, 143 (Tex. App.

— Fort Worth 2008, pet. dism ’ d). Answering that legal question requires us to de termine whether the Legislature intended for Rule 1 07(h) to appl y to family viol e n ce4

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

– 9 3 .00 4

. We review questions of statutory const ructio n de novo. Crosstex Energy S e rvs., L.P. v. Pro Plus, Inc. , 43 0 S.W.3d 384, 389 (Tex. 2014 ) ; Tex. Mut. Ins. Co. v.
Baker , 292 S.W.3d 798, 802 (Tex. App.

— F ort Worth 2009, no pet.)

. Both of th o se questions

—

whether Rule 107(h) applies to family violence prot ect ive orders and
whether the Legislature intended for Rule 10 7(h) to apply to family violence protective orders

— are issues of first impression for our court.

B. R ULES OF S TAT UTORY C ONST RUCTION Our primar

y objecti ve in statutory construction is to give ef fect to the Legi slature ’ s int e nt
. C

ity of Dallas v. TCI West End, Inc. , 463 S.W.3d 53, 55 (Tex. 2015);
B oenig v. StarnAir, Inc. , 283 S.W.3d 4 44, 446 (Tex. App.

— Fort Worth 2009, no pet.). To achieve this, “ we look first and foremost to the words of the st atute. ” Lexington
Ins. Co. v

. Strayhorn , 209 S.W.3d 83, 85 (T ex. 2006) ; see Fitzgerald v. Advanced Spine Fixation Sy s., Inc. , 996 S.W.2d 864, 86 6 (Tex. 1999) ( “ [T]he words [the Legislatu re]
chooses should be the surest guide to legislative intent. ” ). We construe the statute ’ s words a ccording to their p lain and comm on meaning unless a contrary intention is apparent from the context or unless such a constr uction leads to ab surd results.
P residio Indep. Sch . Dist. v. Scott , 309 S.W.3d 927, 930 (Tex. 2010); City of Rockwall v. Hughes , 2 4 6 S.W.3d 621, 625

– 26 (Tex. 2008)

.5

We consider statutes as a whole rather than viewing i ndividual prov isions in
i solation. City of Dallas

, 463 S.W.3d at 55; TGS

- NOPE C Geophys ical Co. v. Combs , 340 S.W .3d 432, 4 39 (Tex. 2011)

. We presume that the Legisla t ure cho se a statute ’ s language w

ith care, including each word chosen for a purpose. TGS

- NOPE C Geophysical , 340 S.W.3d at 439; Boenig , 283 S.W.3d at 447. L i kewise, “ every wor d

ex cluded from a statute must also be pr esumed to have been excluded for a purp o se. ”
Cameron v. Terrell & Garre tt, Inc. , 618 S.W. 2d 535, 540 (Tex. 1981) ; B o enig , 283 S.W.3d
at 447

. W hen construing a statute, “ [w ]e must avoid adopting a n interpr etation t hat

‘ renders any part of the statute meaningl ess . ’ ” City o f Dallas , 463 S.W.3d a t 55 (quoting Crosstex Energy , 430 S. W.3d at 390 )

. We also consider the objective the law
seeks to obtain and t he consequen ces of a part icu lar construction

. Tex. Dep ’ t of Tr ansp. v. City o f Sunset Valley , 146 S.W.3d 637, 642 (Tex. 2004) (cit ing Tex. Gov ’ t Code Ann. § 311.02 3(1) , (5) ) ; Boen ig

, 283 S.W.3d at 447 (citing same)

. Statutes are presumed to have been ena cted by the Legislature with complete knowledge of existing law and
with reference to it. Acker v. Texas Water Co mm ’ n , 790 S.W.2d 299, 301 (Te x . 1990);
Williams v. Williams , 19 S.W.3d 544, 547 (Tex. App.

— Fort Worth 2000, pet. denied)

.

C. R ULE 107( H ) AND T ITLE 4 OF THE F AMILY C ODE In its present form, Rule 107(h ) pro vides t hat “ [n]o de fault judgment shall be granted in any cause until proof of s e rvice . . . shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day o f judgment. ” Tex. R

. Civ. P. 107(h). Prior versions of Rule 107 , dating as far back as 1941, included simi lar6

language requiring that p r oof of service be o n file with the clerk of the court for at least ten days prior to th e entry of a def ault judgment. See

, e.g. , Civil Procedure Rules
Amended , Official Order

, 40 Tex. B.

J. 709, 711 (1977) (

providing pertinent language in
the version of R u le 107 that became effective Janua ry 1, 1978 : “ N o def au lt judgment shall be granted in any cause until the citation with p roof of service . . . sh all have
been on file with th e clerk of the court ten days, exclusive of the day of fil i ng and the day of jud gm ent. ” ) ; Rules of Civil Procedure , 3 Tex. B.J. 519, 54 1 (194 0) ( pr oviding pertinent language in the version of Rule 107 that became effective September 1,
1 94 1 : “ No default ju dg ment sh all be granted in any cause until the citati on, with the
officer ’ s re tu rn thereon, sh all have been on file with the clerk of the court ten days,

e xclusive of th e day of filing and the day of judgment. ” ).
Ti tle 4 of the F amily C ode, titled “ Prot ec tive Orders and F a mily Violence, ” was ori ginally en acted in 1979

. See Act of Apr il 19, 1979, 66th Leg., R.S., ch. 98, § 11,
1979 Tex. Gen. Laws 1 82, 185, repealed and reenacted by Act of Ap ril 21, 1997 , 75th Leg.,
R .S., ch. 34, §§ 1, 2, 1997 Tex. Gen . L aw s 76, 76, 88 (current version at Tex. Fam.
Code Ann

. §§ 71.001

– 9 3 .00 4 )

. Ti t le 4 establishes the procedure for the issuance and
enforcement of fam ily violence prote ctive orders , which includes protective orders sought by a member or fo rmer member of a ho us ehold against another member of
the household

. See Tex. Fam. C ode Ann. §§ 71. 00 4 , 71.006, 81.001

. The Legislature stated that its purpose in ena c ting Title 4 was to:7

provide protection and temporary shelter . . . for victims of family
v iolence and memb er s of their family . . . [and] to reduce the high in cidence of deaths and injur ies sustained by law enforcement officers in handling family disturb ances and to aid l aw enforcement officers in protecting victims of family violence from serious or fatal inj ur ies

. Act of April 19, 1979, 66th Leg. , R.S., ch. 98, § 1, 1979 Tex. Gen. La ws 182, 182 (rep ealed and reenacted 1997) ; see Roper v. Jolliffe , 49 3 S.W.3d 624, 634 (T ex. App.

— Dallas 2015, pet. denied) ( “ The purpose of [Title 4] is t o provide an expedited
p rocedure for victim s of do mestic violence; the purp ose is n ot to correct past wro ngs or establ ish liability but to give immediate protection to th e applicant. ” ).
B e cause of the nature of the relief an t icipated and the danger th at it seeks to avoid, Title 4 utilizes a “ very abbreviated procedure. ” Martinez v. Martinez , 52 S.W.3d
429 , 4 32 (T ex. App.

— For t Worth 2001, pet. denied) (op. on reh ’ g)

. As part of that

“ ve ry abbreviated pro cedure, ” the trial court is required to hold a hearing on an application fo r a family violence protective order within fourteen days of the fil ing of
the a pplication . Te x. Fam. Code Ann. § 84.001(a). This “ short deadline recognize s the need for prompt re solution of the applicant ’ s request. ” St. Germain v. St. Germain , No. 14

- 1 4

- 00341

- CV, 2015 WL 4930588, at *5 (Tex. App.

— Houston [14th Dist.]
A ug. 18, 2015 , no pet.) (mem. o p.) (citin g Barbee v. Barbee , No. 12

- 09

- 00151

- CV, 2010
WL 4132766 , at *6 (T ex. App.

— Tyler O ct. 20, 2010, no pet.) (mem. op.))

. The application for a family v

io lence protective order must be served on the respon dent in
the sam e manner as citation under the Texas Rules of Civil Procedure , except that service by publicati on is not authoriz ed . Tex. Fam. Code Ann. § 82.043 (c)

. If the8

respondent is served with not ic e of the application within the forty

- eight hour s b efore
the heari ng, the tria l court , o n reques t by the respondent, shall reschedule the hearing
for a date not later than fourtee n days after the date set for the hearing. Id

. § 84.004(a)

. A court may r en der a default family violence protective order whe n the respondent does not at t end the hearing i f the respondent was served with (1) a c opy of the application for pro tective order and (2) a notice of the hearing on the application f

or protective order

. Id

. § 85.006( a).
D
. A NALYSIS
We begin our analysis by once again n oting the pu rpose of Title 4

— t o provide an expedited procedure to protect victims of fa mily violence and to reduce the
number of deaths and injurie s to those victims and to the law enforce me nt officers charged with handling family dist urbanc es. See Act of April 19, 1 979, 66th Leg. , R.S., ch. 98, § 1, 1979 Tex. Gen. La ws 182, 182 (rep ealed and reenacted 1997) ; Roper , 493 at 634. The Legislature chos e a very abbre viated time line for a trial c ourt to hear an application for a family violence p rotective order, requiring the trial court to hol d a hearing “ not . . . later t han the 14th day aft er the date the application is filed. ” Tex.
Fam. Code Ann

. § 8 4.001(a). By choosing the language “ not
. . . later than the 14th day after the date the appl ication is filed, ” the Legi slature necessarily co ntemplate d

t hat a hearing cou l d be held less than fourteen days after the application is filed. See
TGS

- NOPE C Ge ophysical

, 340 S.W.3d at 439 ( stating tha t the Legislature chooses a

statute ’ s language with c are) ; Boenig , 283 S.W.3d at 447 ( same)

. Indeed, Section9

84.004( a)

—

whic h requ ires the trial court to reschedule a hearing upon a respondent ’ s request when the re spondent has been served with an applicati on within the
f orty

- eight hours before the hearing

— co ntemplates that the tria l c ourt may hear an application for a family violence protective order forty

- n ine hours after the application
i s filed. S ee Tex. Fam. Code Ann. § 84.004(a). Rule 107(h), however , requi re s that proof of service be on file with the clerk f or ten days, exc lusi ve of the day of filing
and the da y of ju dgment, prior to the en try of a defaul t judgment. Tex. R. Civ. P. 107(h). If we adopt Johnson ’ s construction, a hearing o n an applica t ion fo r a family violence p rotective order

— at least one tha t could result in th e entry of a default protective order

— necessarily could not be held at any point prior to the eleventh d ay aft er the date the proof of service was filed. And a hearing could o nly be he ld on the
ele venth day in a perfect world where an appli cation is filed , notic e of the application
is served on the responden t , proof of service is returned to the clerk, and proof of

ser vice is filed by the clerk all i n the same day

. We do not l ive in a perfect world.
Simmons ’ s brief ably poi nts out the real

- world challeng es pres ented by Johnson ’ s construction:
One such situation involves holida ys. For an application filed on the eve of a holid ay, the notice may not iss ue for multiple business days (a lm ost cert ainly the case at Thanksgiving or Christmas ). T he process serv er 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.

. . . [An other scenario is if] t he offi ce r serves the respondent toward the end of the day o n a F riday, and the clerk ’ s off ice is closed. Ret urn is made on Mond ay, too late unless Friday was the day the application was10

filed. Another is that the return i s made timely, but the clerk doe s not f il e it the same day.

. . . . A lso, if there are any dif ficul ties in serv

i ng the re spon dent , a default order would be unavail able. If the respondent were in another coun ty, it might take a few days just to get the no tice to the appropriate process ser ver . T he respond ent might be hard to locate or evade servic e. A nd, the serv i ng office r li kely has more than one document to ser ve, so he might not be able to make several attempts at servi ce in one day. In any of these scenarios, it is unlikely that a r eturn o n service would be timely.
I n yet another example, servi ce may be ac c om plished by c ertified mail, r eturn receipt request ed.

. . . If Rule 107(h) applies, the notice would have to be mailed, signed for by the respondent, returned to the process
s er ver, an d the retu rn filed within three days. Only in a best

- case scenario i s a piece o f certifie d mail delivered the next day, a nd the return receipt delivered the day after. A default order would a lmost never be available if the notice is served by cert ified m ai l, even though Title 4 author izes service in that m anner . G iven t he se real

- world c hallenges, it wo uld be difficult

— if not practically impossible in m ost ins tances

— for the proof of service to be on file within three d ays of th e ap pli ca tion for a family violence p rotective order suc h th at a hearing could be
held within fo ur t e en days of the application . Adopting Johnson ’ s construction woul d , for all intents and purposes, render the Legis lature ’ s inclusion of the phrase

“ not
. . . later t han the 14th day aft er the date the application is filed ” meaningless. See
Ci ty o f Dal la s , 463 S.W.3d at 55 ; Crosstex Energy , 430 S. W.3d at 39 0. Section 84.0 04(a)
would likewis e be rendered meaningless by adopting Johnson ’ s construction. If a
d efault ju dgment cannot be granted prior to the eleventh day after an application for a family vi ol en ce protective order is filed, ther e is no reason for the Legis lature to have11

stated that a trial court must resc hedule a hearing upon a respondent ’ s request when

t he respondent has been served with an application wit hin t he fo rty

- eight hours
b efore the t

i m e set for the hearing. S ee Tex. Fam. Code Ann. § 84.004(a).
W e a lso are mindful of the words the Legislature excluded from Title 4. See
Cameron , 618 S.W .2d at 54 0 ( stating that w ords exc luded from a statute must be
pr esumed to have been ex cluded fo r 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 sa me mann er as citation under the Texas Rules of Civil
Procedu re,” it does not state that the retu rn o f service must be accomplished in the s ame manner as the Texas Rules of Civil Procedure . Tex . Fam. Code. Ann. § 82.043(c) (emphasis added). If the Leg isla ture ha d intended for the return of service to be accomplish ed in the same manner as th e Texas R ul es of Civil Procedure, it could have

stat ed so, as the Legislature has made a distinction b etween service and return of
service in other statutes

. S ee , e.g. , Tex. T ra nsp. Code Ann. § 286.0 6 6 (b) (“Notice

un der this sec tion . . . shall be served and retur ne d 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. P roc. Ann. art. 2 2. 05 (“[A] surety is entitled to notice b y service of cita tion, the length of ti me and in t he manner required in civil actions; and the officer executing the citation shall return the same as in civil actions.”); Tex. Est. Code Ann. § 112.1 02(5) (“A n appli ca nt for an order . . . must prove to the court’s

sat isfac tion that . . . citati on has be en s erved and returned in the manner and for the12

length of time required by this title.”). We presume that the Legislature chose its words carefully a nd that i t inten de d to require service but not the return of service to be accomplished in the s ame manne r as the Texas Rules of Civil Procedure. See TGS

NOPEC Geophysical

, 340 S.W.3d at 439; Camer on , 618 S.W.2d at 540; Boenig , 283 S.W.3d at 447

. T he parties h ave poi nt ed us to only one case addressing th e i nterplay bet ween Rule 1 0 7(h) and family violence p ro te ctive orders , Lancaster v. Lan caster , No. 01

- 14

- 00845

- CV, 2015 WL 9480098 (Tex. App.

— Hous ton [1st D ist.] Dec. 29, 2015, no pet.) (mem. op.) , and we have f ound no o ther. 1 In Lan caster , a w ife ap plied for a

1 We have found several cases affirming family viol e n ce protective orde rs in ci rcumstances wh ere the app licat i on was se rved less than eleven days prior to the entry of the pr otective order ; none of these ca ses, however, are default cases and none address Ru

le 107(h). See

, e.g. , Caballero v. Caballero , No. 1 4

- 16

- 005 13

- CV, 201 7 WL 6374724, at *5

– 6 (Tex. App.

— Ho u ston [ 14th Dist.] Dec. 14, 2017, no pet.) (mem. op.) (affirming family violence p rotecti ve order in case involving respondent who was served with the application for p rotective order forty

- e ight hours p ri or to hearing an d who did not request a co n tinuance); St. Germain , 2015 WL 4930588 , at *5 , *5 n .4 (a ffirming family violence protecti ve order in case i nvolving respondent who wa s served w i th t he application for p rotective order eight days before the or de r was granted); Taherzade h v. Gha leh

- Ass adi , 108 S. W.3d 927, 929 (Tex. App.

— Dallas 2003, pet. denied) (affirming fami ly violence protective order in case involving res ponde nt who w a s served with the application for protective order nine days before the o rd er was grante d). We have also fo und cas es re cogniz ing t hat other rules

— discovery rules and the right to a jury trial

— c onflict with Title 4 and the issua nce of family viole nce protective orders. See Roper , 493 S.W .3d at 630 ( holding Title 4 “ m akes clear t ha t the legislature intended that courts , not jurie s, act as the sole fact fi nders and have the respon sibility for making the findings necessary for the issuance of a famil y vio len ce protect ive order ” ); Martinez

, 5 2 S.W.3d at 432 (

recognizing the “ inhere nt c onflict between normal discover y conte mplated by the rules of civil procedure and the ma ndatory four teen

- day (from the filing date) hearing date of the family code p rotec tive order p rovisions ” ) ; Williams , 19 S.W. 3d at 548 (holding Leg islature did not13

family violence protective order against her h us ba nd. Id

. at * 1. Th e husband was
served with the application and heari ng notice five days before the heari ng. Id

. The
husband did no t atten d the h earing, and the trial court signed a default f amily violence protective o rder against him. Id

. Three y ea rs later, the husband filed a petition for bill
of review that was den ied by the trial court. Id . at *1

– 2. On appeal, the husband
argu ed , amo ng other things, that the trial court er red by de nyin g his b ill of review
becaus e at the time the trial court s ig ne d the default family violence protective order against him, the retu rn of serv ice of the wi fe ’ s application had not been on file with
the cle rk ’ s office for “ the requisite ten da ys. ” Id . at *3 (citi ng Tex. R. Civ. P. 107 (h) ).
The F irst District Court o f Appeals agreed , holding that the default family violence
p rotective order was v oid

. Id

. at *4. While we may be g uided by ou r sister c our ts, “ w e are not bound by the precedent [s] [ they set] in d eterm inin g cases of first i mpress ion for us. ” In re Reard o n , 514 S.W.3d 919, 92 3 (Tex. App.

— Fo rt Worth 2017, orig. proceed ing) ; see M itch ell v. Joh n Wiesner, Inc. , 923 S.W.2d 262, 264 (Tex. Ap p.

— Beau mo nt 199 6, no writ) ( “ The opinions of a sister cour t of ap peals are not preceden t th at bind other courts of appeal s . ” )

. We decline to follow our sister court ’ s decision in Lancaster . O ur siste r

court ’ s opinion did not address what we have addresse d here

— wh ether th e

i nt en d f or jury to decide cases invo lving f amily viole nce protective orders because “ [i]t is not possible to comply with t he statuto ry require ment to hold a hearing within fou rteen days, yet also c omply with the rule that requir es filing of a written reques t fo r a jury trial th irty days in a dvance ” )

.14

Legisl ature intend ed for Rule 107 (h) to a pply to family violence pr ot ective orders

. Ap plying the r ule s of statutory construction set forth above , we hold t hat in passing Title 4, the Legislature did not intend for Rule 107(h) to apply t o fam il y violence protective orders. In our view, a pplying Rule 107(h ) to family violence protective
orders would render S ec tion 84.001(a) ’ s re quirement that a hearing be held

“ not
. . . later than the 14th day aft er the date the application is filed ” mea ningles s , would render Section 84.004 (a) ’ s r equirement that a trial cour t resc hedule hearings
upon a respondent ’ s request w he n the respondent has been served with an application
within the fo rt

y
- eight hours b efore the ti me set for the hearing meaningless, would

a sk u s to insert the words “ ret urn of service ” into Sect ion 8 2.043(c) , and would generally thwart the purpose of Ti t l e 4 by causing delay in what is meant to be an
exp edited proce ss . S ee Tex. Fam. Code Ann. § § 82.043(c), 84.00 1 (a) , 84 .004(a) ; Roper , 493 S. W.3d at 634

. We thus hold that Rule 107(h) does not apply to fami l y violence
protec tive order s . Having d etermined t ha t Rule 107( h) does not apply to family violence protective orders, we turn to t he provision of Title 4 author izing default family

v iolence protective o rder s. See Tex. Fam. Code § 85.006( a). That pro visio n simply requires a respondent to be served wit h a copy of the application for protective order and notice of the hearing on the application for protective order

. See id

. Here, Joh nson wa s served wi th both the application and notice of the hearing f ive d ays before the hearing

. Acc ordingly, we overru l e J ohnson ’ s sole point.15 III. CON CLUSION Having overruled Johnson’s sole point, we affirm the tri al court’s defa ult fami ly
viol enc e pr otec tive order.

/s/ Lee Gabriel
L ee Gabriel Jus tic e Delive red: February 20, 2020