Concurring opinion issued April 19, 2016




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00082-CV
                           ———————————
                MARY LYNN KANTARA GERKE, Appellant
                                        V.
                     JAMIL JAMES KANTARA, Appellee


                   On Appeal from the 311th District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-46281


                           CONCURRING OPINION

      I agree that we lack jurisdiction over this attempted appeal. I concur only in

the judgment because I disagree with the court’s unnecessary and incorrect

conclusion, as a matter of first impression, that the 2007 enactment of Family Code
Section 201.007(a)(16) created a special class of nonappealable “final orders” under

Title 5 of the Family Code.

      The only basis for our jurisdiction invoked by the appellant is the Family

Code’s authorization for an associate judge to “sign a final order that includes a

waiver of the right of appeal pursuant to Section 201.015.” TEX. FAM. CODE

§ 201.007(a)(16). But the order signed by the associate judge in this case does not

include “a waiver of the right of appeal pursuant to Section 201.015,” so it cannot

be a “final order” authorized by Section 201.007(a)(16), no matter whether such an

order would have been appealable if it did. Accordingly, we lack appellate

jurisdiction.

      The court concedes: “The order itself contains no such waiver of appeal.”

Nevertheless, in its zeal to tackle the broader question of whether a final order as

contemplated by Section 201.007(a)(16) ever would be appealable, the court assures

that “there is authority for the proposition that, even if the waiver does not appear in

the order itself, so long as the waiver is in the record, it is sufficient to waive an

appeal for the purposes of section 201.007(a)(16).” Not so.

      The only authority provided for this supposed rule—which defies the plain

text of Section 201.007(a)(16)—is the two-paragraph non-published per-curiam

opinion in Wells v. Wells, No. 14-09-00811-CV, 2010 WL 3292978 (Tex. App.—

Houston [14th Dist.] Aug. 19, 2010, pet. denied). The Wells opinion does rely on a



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litigant’s waiver of the Section 201.105 right to appeal to the referring court. See

Wells, 2010 WL 3292978, at *1. It says not a word about the appellate jurisdiction

of the court of appeals, or whether the “waiver of the right of appeal pursuant to

Section 201.015” must be included within the order to make it an associate judge’s

“final order” authorized by Section 201.007(a)(16).1

      Because the order Gerke seeks to appeal did not include a waiver of the right

of appeal, see TEX. FAM. CODE § 201.007(a)(16), I concur in the judgment that we

lack appellate jurisdiction over the associate judge’s order. I don’t think it is

necessary to reach the broader question of whether an associate judge’s “final order”

entered pursuant to Section 201.007(a)(16) can be appealed to the court of appeals.

      Moreover, the court’s answer to this novel question cannot be squared with

the plain text of the relevant statutes. “An appeal may be taken by any party to a suit

from a final order rendered under” Title 5 of the Family Code, TEX. FAM. CODE

§ 109.002(b)    (emphasis     supplied),   which     includes   Chapter     201    and

Section 201.007(a)(16). The court provides no convincing explanation for why a



1
      Indeed, the notice of appeal and briefs filed in Wells confirm that the issue
      presented on appeal was the validity of an order of the referring court, and no
      party disputed the jurisdiction of the court of appeals. See Appellant’s Brief
      at 2, Wells v. Wells, No. 14-09-00811-CV, 2010 WL 3292978 (Tex. App.—
      Houston [14th Dist.] Aug. 19, 2010, pet. denied); Brief of Appellee at 1–2,
      Wells, No. 14-09-00811-CV; Notice of Appeal, II Clerk’s Record at 397,
      Wells, No. 14-09-00811-CV.


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Section 201.007(a)(16) “final order” is not a “final order” eligible to be appealed

pursuant to Section 109.002(b).

      The court expresses concern that the order in question never was signed by

the referring judge. However, the Family Code was amended in 2007 to expressly

confirm that a “party’s failure to request a de novo hearing or a party’s waiver of the

right to request a de novo hearing before the referring court does not deprive the

party of the right to appeal to or request other relief from a court of appeals or the

supreme court.” Act of September 1, 2007, 80th Leg., R.S., ch. 1235, § 6 (emphasis

supplied) (codified as TEX. FAM. CODE § 201.016(a)). This provision would be

meaningless unless associate judges were empowered to enter some orders that

could be directly appealed to the court of appeals, and indeed they are. Among the

many powers granted to associate judges by Section 201.007, an associate judge is

expressly authorized to “sign a final order that includes a waiver of the right of

appeal pursuant to Section 201.015.” TEX. FAM. CODE § 201.007(a)(16).

      The court also posits a distinction for these purposes of an order “rendered”

by a court, as compared to an order that merely has been “signed.”2 Under the Family


2
      The court relies on Railroad Comm’n v. Texas Citizens for a Safe Future &
      Clean Water, 336 S.W.3d 619 (Tex. 2011), for the proposition that “[w]hen
      the Legislature uses a word or phrase in one portion of a statute but excludes
      it from another, the term should not be implied where it has been excluded.”
      336 S.W.3d at 628. And while this concept is useful, it has its limits. After all,
      “[s]ometimes drafters do repeat themselves and do include words that add
      nothing of substance.” ANTONIN SCALIA & BRYAN A. GARNER, READING

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Code: “‘Render’ means the pronouncement by a judge of the court’s ruling on a

matter.” Id. § 101.026. If the power to “sign a final order” does not entail the inherent

power to pronounce a ruling on the subject matter of the order, then the court may

have a point. To the contrary, I conclude that when an associate judge exercises the

Section 201.007(a)(16) statutory power to “sign a final order that includes a waiver

of the right of appeal pursuant to Section 201.015,” the associate judge pronounces

a ruling on that matter and thereby “renders” the order by signing it.3

      The court also expresses concern that Section 201.016(b) and (c) do not

specify a controlling date for purposes of taking an appeal from a

Section 201.007(a)(16) final order. In particular, the court observes that

Section 201.016(c)’s reference to the date “an agreed order or a default order is

signed by an associate judge” corresponds to some of the categories of final orders




      LAW: THE INTERPRETATION OF LEGAL TEXTS 176 (2012). As explained above,
      there is ample textual basis to conclude that the inclusion of the word “render”
      in Section 201.007(a)(14) adds no substantive meaning that reasonably could
      be found lacking in Section 201.007(a)(16).
3
      To the extent the court seeks solace from Robles v. Robles, 965 S.W.2d 605
      (Tex. App.—Houston [1st Dist.] 1998, pet. denied), and its outdated footnote
      reference to an associate judge’s lack of power to “render judgment,” 965
      S.W.2d at 609 n.4, it suffices to note that the case was decided before the
      Legislature granted associate judges the power to issue final orders pursuant
      to either Section 201.007(a)(14), effective in 2003, or Section 201.007(a)(16),
      effective in 2007. See Act of Sept. 1, 2003, 78th Leg., R.S., ch. 477, § 2; Act
      of June 15, 2007, 80th Leg., R.S., ch. 839, § 1.


                                           5
that an associate judge may issue under Section 201.007(a)(14),4 but not the powers

under Section 201.007(a)(16) (which do not explicitly relate to “agreed” or “default”

orders). But regardless of the reasons (or lack thereof) to explain why the later

enactment of Section 201.007(a)(16) was not accompanied by an amendment to

Section 201.016(c) to expressly include the new category of associate judges’ final

orders, the failure of the Legislature to do so does not undermine the effect of

Section 201.007(a)(16)’s plain language, as explained above. The Legislature

authorized associate judges to sign final orders including a waiver of the right to

appeal in the form of a de novo hearing to the referring court (§ 201.007(a)(16)), and

in the same legislative session—the 80th Legislature—expressly specified that by so

doing a party did not waive its right to appeal to the court of appeals (§ 201.016(a)).

Based on these changes, there is no reason why the 80th Legislature should have

anticipated any confusion about whether some additional order would have to be

“rendered” by the referring court to activate the right of appeal to the court of

appeals. Under Title 5 of the Family Code, a “final order” is an appealable order.

TEX. FAM. CODE § 109.002(b). As between the associate judge who rendered the

final order and the bypassed referring court, there could be no confusion about the



4
      Section 201.007 authorizes an associate judge to issue “a final order agreed
      to in writing as to both form and substance by all parties” and “a final default
      order.” TEX. FAM. CODE § 201.007(a)(14)(A) & (B) (emphasis supplied).


                                          6
fact that the associate judge’s order would supply the controlling date for purposes

of an appeal to the court of appeals.5 So the failure of Section 201.016 to confirm

the obvious in that regard sheds no additional light on the appealability of a

Section 201.007(a)(16) final order.

      Contrary to the court’s apparent premise, nothing in the Family Code provides

that only orders of the referring court can be appealable, or that

Section 201.007(a)(14) is the exclusive avenue for an associate judge’s ruling to

become an appealable final order. As previously noted, I don’t think it’s necessary

for this court to reach these issues of statutory interpretation in order to dismiss for

want of jurisdiction. Because I also disagree with the court’s conclusion that

Section 201.007(a)(16) created a special class of nonappealable “final orders” under

Title 5 of the Family Code, I simply concur in the judgment dismissing the appeal.



                                               Michael Massengale
                                               Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.

Justice Massengale, concurring.



5
      See TEX. FAM. CODE § 109.002(a) (“An appeal from a final order rendered in
      a suit, when allowed under this section or under other provisions of law, shall
      be as in civil cases generally under the Texas Rules of Appellate Procedure.”);
      TEX. R. APP. P. 26.1 (time to perfect appeal for civil cases).


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