Motion to Dismiss Denied; Affirmed in Part and Reversed in Part; Remanded; and
Majority and Concurring Opinions filed February 14, 2012.




                                                 In The

                               Fourteenth Court of Appeals
                                       ___________________

                                        NO. 14-08-00700-CV
                                       ___________________

                                   R.M. SPRAGUE, Appellant

                                                    V.

                                    D.L. SPRAGUE, Appellee


                           On Appeal from the 257th District Court
                                   Harris County, Texas
                             Trial Court Cause No. 2005-48988


                              CONCURRING OPINION

        This appeal presents an issue of statutory interpretation regarding subsections (a)
and (b) of former Texas Family Code section 3.007, which govern the characterization of
property interests in certain employee benefits.1 Appellant Robert M. Sprague (―Bob‖)



1
  See Act of May 24, 2005, 79th Leg., R.S., ch. 490, § 1, 2005 Tex. Gen. Laws 1353, 1353, repealed by Act
of May 29, 2009, 81st Leg., R.S., ch. 768, § 11(1), 2009 Tex. Gen. Laws 1950, 1953. All statutory
references in this opinion are to the version of the Texas Family Code that was in effect immediately prior
to the 2009 repealer.
and appellee Deborah L. Sprague (―Deborah‖) urge different interpretations of this statute,
and the statute’s meaning is the principal issue in this case.

          Under Texas law, in interpreting section 3.007, this court should begin by
examining the text of the statute to glean the intent of the legislature as reflected in the text
and in an effort to give meaning to the entire statute. The court then should determine
whether the statute is ambiguous based upon the statutory interpretations proffered by the
parties or suggested by the text. If the statute is unambiguous, the court must adopt the
interpretation supported by the statute’s plain language, without relying upon extratextual
sources to interpret the statute, unless such an interpretation would lead to absurd results.
If the statute is ambiguous, the court should cautiously consult extratextual aids to
interpretation in an effort to determine the legislature’s intent and give effect to the entire
statute. Because the majority does not follow this procedure in interpreting section 3.007,
I do not join the part of the majority opinion dealing with the first three issues.

                              This court should begin with the text.

          Under his first three issues, Bob raises an issue as to the proper interpretation of
subsections (a) and (b) of section 3.007. In his analysis as to what part of Bob’s pension
benefits is Bob’s separate property and what part is community property, Deborah’s expert
based his testimony on both of these subsections. In interpreting these subsections, this
court must begin by examining the text of the statute.2 But, the majority does not quote,
discuss, analyze, or apparently consider the text of subsection (b) at all.3 The majority


2
  See Carreras v. Marroquin, 339 S.W.3d 68, 71 (Tex. 2011) (stating ―statutory interpretation begins by
examining the text of the statute,‖ just before quoting the text of the statute at issue); In re Smith, 333
S.W.3d 582, 586 (Tex. 2011) (stating ―when construing a statute, we begin with its language‖); Fresh Coat,
Inc. v. K-2, Inc., 318 S.W.3d 893, 901 (Tex. 2010) (stating that ―we begin with the statute’s text‖ and that
―we examine the entire act to glean its meaning, try to give meaning to each word, and avoid treating
statutory language as surplusage where possible‖) (quotations omitted). See also Consumer Product
Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed. 2d 766 (1980)
(stating that ―the starting point for interpreting a statute is the language of the statute itself‖).
3
    See ante at pp. 10–13.

                                                     2
quotes subsection (a), but does not discuss or analyze its language in interpreting the
statute.4 The statute at issue reads in its entirety as follows:

          (a) A spouse who is a participant in a defined benefit retirement plan has a
          separate property interest in the monthly accrued benefit the spouse had a
          right to receive on normal retirement age, as defined by the plan, as of the
          date of marriage, regardless of whether the benefit had vested.

          (b) The community property interest in a defined benefit plan shall be
          determined as if the spouse began to participate in the plan on the date of
          marriage and ended that participation on the date of dissolution or
          termination of the marriage, regardless of whether the benefit had vested.5

Subsection (a) addresses the separate-property interest of a participant in a defined-benefit
retirement plan, and subsection (b) addresses the community-property interest in such a
plan.
             This court should address all of the parties’ proffered interpretations.

          Bob worked for Shell for approximately eighteen years before he married Deborah
on July 6, 1985. He then worked for approximately eighteen more years before retiring on
June 30, 2003. Bob petitioned for divorce in 2005, and the trial court granted Bob a
divorce in 2008. In one of Bob’s arguments regarding the interpretation of subsections (a)
and (b), Bob asserts that subsections (a) and (b) do not apply to cases in which the
retirement-plan participant has retired before the date of divorce. Bob notes that under
subsection (b), the community-property interest in the retirement plan is determined as if
the retirement-plan participant (Bob) participated in the plan through the date of divorce.
Bob argues that because he retired and stopped accruing pension benefits more than four
years before the date of divorce, the methodology for computing the separate-property and
community-property interests contained in subsections (a) and (b) cannot apply in the case
under review. The majority does not mention or analyze this statutory-interpretation
argument.
4
    See ante at pp. 10–13.
5
    Act of May 24, 2005, 2005 Tex. Gen. Laws at 1353.
                                                   3
          Deborah argues against this statutory interpretation. Under Deborah’s proffered
interpretation, subsections (a) and (b) need not both apply in a particular case. Deborah
maintains that the proper interpretation of subsections (a) and (b) is as follows: subsection
(a) applies only in cases in which a spouse was accruing benefits in a defined-benefit
retirement plan when the parties married, and subsection (b) applies only in cases in which
a spouse will continue to accrue benefits in a defined-benefit retirement plan after the date
of divorce. The majority does not mention or analyze this statutory-interpretation
argument.

                 This court should determine whether the statute is ambiguous.

          This court’s role in interpreting section 3.007 is to determine and give effect to the
legislature’s intent.6 After reviewing the statute’s text and considering the context and the
various possible interpretations of the statute, we must determine if the statute is
ambiguous. 7        If the statute is unambiguous, then we must adopt the interpretation
supported by the statute’s plain language, without relying upon extratextual sources to
interpret the statute, except in the rare situation in which such an interpretation would lead
to absurd results. 8 We cannot use extratextual sources, such as legislative history, to
interpret a statute in a way that contradicts the statute’s unambiguous language.9 But if the


6
    See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000).
7
  See Cail v. Serv. Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983); Dob’s Tire & Auto Center v. Safeway
Ins. Agency, 923 S.W.2d 715, 719 (Tex. App.—Houston [1st Dist.] 1996, writ dism’d w.o.j.).
8
 See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011); Alex Sheshunoff
Management Servs., L.P. v. Johnson, 209 S.W.3d 644, 651–52 & n.4 (Tex. 2006).
9
  See Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 283–84 (Tex.1999) (holding that, although
Texas Government Code section 311.023 states that courts may consider the legislative history of
unambiguous statutes, the legislative history of a statute cannot be used to alter the unambiguous meaning
of a statute, except for the rare instance in which it is used to show a typographical error); Ramco Oil & Gas,
Ltd. v. Anglo Dutch (Tenge) L.L.C., 171 S.W.3d 905, 915 (Tex. App.—Houston [14th Dist.] 2005,
published Rule 24 order) (stating that courts cannot use legislative history to interpret statute in a manner
that contradicts the statute’s unambiguous language).


                                                      4
statute’s meaning is uncertain or if there is more than one reasonable interpretation of the
statute, then the statute is ambiguous, and in determining the legislature’s intent, we may
proceed with caution in consulting extratextual interpretation aids, such as legislative
history or an administrative agency’s interpretation of the statute.10

          The majority does not determine whether subsections (a) and (b) are ambiguous.
The majority does not state whether the statute’s meaning is uncertain or susceptible to
more than one reasonable interpretation. The majority does rely upon legislative history
in interpreting the statute, but the majority does not indicate whether it has concluded that
the statute is ambiguous or whether it is using legislative history in the interpretation of
unambiguous provisions.11 Though the legislative history quoted by the majority may
contradict Bob’s alternative argument that section 3.007(a) codifies the time-allocation
rule of Taggart v. Taggart, 552 S.W.2d 422, 424 (Tex. 1977), this legislative history does
not address Bob’s argument that subsections (a) and (b) do not apply to cases in which the
retirement-plan participant has retired before the date of divorce.12

                    This court should conclude that the statute does not apply.
          Using the methodology outlined above, this court should conclude that subsections
(a) and (b) are ambiguous.            This court also should adopt Bob’s interpretation that
subsections (a) and (b) do not apply to the case under review because the retirement-plan
participant retired before the date of divorce. Under this statutory interpretation, the
determination of Bob’s separate-property interest in his pension benefits would be based
upon the common law. Under a common-law analysis, this court should conclude that the
Taggart time-allocation rule does not apply to this case. Thus, the legal insufficiency,
factual insufficiency, charge error, and constitutional arguments under Bob’s first three
issues lack merit.

10
     In re Smith, 333 S.W.3d at 586, 588; Alex Sheshunoff Management Servs., L.P., 209 S.W.3d at 652.
11
     See ante at p.12.
12
     See id.
                                                     5
       Because the majority fails to conduct the statutory analysis for subsections (a) and
(b) of section 3.007, I do not join this part of its opinion. I respectfully concur in the
judgment as to the first three issues and I join the remainder of the majority’s opinion.




                                          /s/       Kem Thompson Frost
                                                    Justice



Panel consists of Chief Justice Hedges and Justices Frost and Christopher. (Christopher, J.,
majority).




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