      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-02-00543-CV



                                           B.C., Appellant

                                                   v.

                         Scotty L. Rhodes on behalf of T.L.R., Appellee




             FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY
              NO. 262619, HONORABLE MIKE DENTON, JUDGE PRESIDING



                                            OPINION


                A student at the Texas School for the Deaf claimed that another student she had been

dating raped her. Both students are minors. After a hearing, the trial court found that dating

violence had occurred and entered a family-violence protective order. The boy who is subject to the

order appeals, claiming that (1) only an adult member of a dating relationship is entitled to seek a

family-violence protective order on the basis of dating violence, and (2) the evidence is legally and

factually insufficient to support the court’s finding that he had committed an act of dating violence.

The State has filed a motion to dismiss alleging that we are without jurisdiction to review family-

violence protective orders. We hold that, in the absence of other pending litigation between the

parties, family-violence protective orders are final and appealable, that minors in dating relationships

are entitled to seek such orders, and that there is legally and factually sufficient evidence to support

the court’s order in this case. We therefore affirm the protective order.
                                         BACKGROUND

               B.C. and T.L.R. were eighth-grade classmates at the Texas School for the Deaf. They

both lived on campus during the school year. T.L.R. testified that just prior to the assault, she

considered B.C. to be her “boyfriend.”

               After the two had been “dating” for around two weeks, B.C. initiated an unwanted

sexual encounter with T.L.R. One day after school B.C. approached T.L.R. and told her that he

wanted to have sex with her. T.L.R. told him “no” and went into a girls’ restroom to “try to get away

from him.” B.C. followed her into the restroom. When he came in she was standing at the far end

of the restroom. She told him, “I don’t want this.” He then approached her and started to take her

clothes off. She did not struggle with him because he had a “really weird look on his face” that

scared her.1 After he had removed all of her clothes, he undressed and told her to “lay down on the

floor.” Fearful, she complied. B.C. penetrated her. She then pushed him off of her, put her clothes

on, and left the restroom. B.C. also got dressed, told T.L.R. not to tell anyone about the incident,

and attempted to hug her before she left. T.L.R. testified that while B.C. was on top of her “[her]

stomach hurt,” and later that day she was scared, could not eat, and her stomach continued to hurt

“real bad.”

               The next day T.L.R. “broke up” with B.C. in the cafeteria, telling him, “This is off.”

Several of their classmates were present and B.C. became angry and left. In the days following the




       1
        T.L.R.’s counselor testified that T.L.R. later told her that she was afraid of B.C. during this
encounter because she knew he had “a tendency to . . . blow up.”

                                                  2
restroom encounter, T.L.R. related what had happened to her to close friends and some school staff

members.

               The school initially took steps to protect T.L.R. by putting B.C. in an “alternative

education program”—which segregated him from the rest of the school—for ten days. A week after

the incident, however, the school placed the two students on the same bus to take them to their

respective homes in Waco and Dallas for the weekend. A few weeks after that, T.L.R.’s father

sought to obtain a protective order on her behalf. The court first issued a temporary order, then, after

holding a hearing, issued a final protective order requiring among other things that B.C. refrain from

communicating with T.L.R. and her family, from following and harassing T.L.R and her family, and

from going within 25 feet of T.L.R.


                                           DISCUSSION

Jurisdiction

               In Bilyeu v. Bilyeu we held that a family-violence protective order rendered during

the pendency of the parties’ divorce is not a final judgment for purposes of appeal. 86 S.W.3d 278,

282 (Tex. App.—Austin 2002, no pet.). At that time we expressly reserved “the issue of whether

a protective order rendered post-divorce or in the absence of a pending divorce between the parties

is within our jurisdiction to review by appeal.”2 We resolve that issue today.




       2
          Because this issue was not before the Bilyeu court, we do not today retreat from the path
defined in Bilyeu, as the dissent suggests. Rather we distinguish the lack of finality of a protective
order issued in the context of a pending divorce which has not disposed of all issues between the
parties from the finality of other protective orders that dispose of all issues and all parties.

                                                   3
                Family-violence protective orders generally remain in effect for the period stated in

the order, which cannot exceed two years. See Tex. Fam. Code Ann. § 85.025(a)(1) (West 2002).

Such orders are valid and enforceable pending further action by the rendering court or until the order

is properly superseded by another court with jurisdiction over the order. See id. § 85.009 (West

2002). The issuing court has the power to modify an existing protective order after notice and

hearing, see id. § 87.001 (West 2002); however, the order generally may not be modified to extend

the period of its validity beyond two years after the order was rendered. See id. § 87.002 (West

2002).

                Appellate courts have jurisdiction over appeals from final judgments and certain

interlocutory orders that the legislature has designated appealable. Bilyeu, 86 S.W.3d at 279; see

Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985); Tex. Civ. Prac. & Rem. Code Ann. §§ 51.012,

.014 (West 1997 & Supp. 2003). A judgment or order is final if it disposes of all issues and parties.

See Hinde, 701 S.W.2d at 639; Cooke v. Cooke, 65 S.W.3d 785, 787 (Tex. App.—Dallas 2001, no

pet.). Conversely, a judgment or order is interlocutory if it fails to dispose of all issues and parties.

Cooke, 65 S.W.3d at 787.

                Many of our sister courts have addressed this jurisdictional issue and concluded that

family-violence protective orders are final and appealable. See, e.g., Kelt v. Kelt, 67 S.W.3d 364,

366 (Tex. App.—Waco 2001, no pet.); Cooke, 65 S.W.3d at 787-88; Striedel v. Striedel, 15 S.W.3d

163, 164-65 (Tex. App.—Corpus Christi 2000, no pet.); Winsett v. Edgar, 22 S.W.3d 509, 510 (Tex.

App.—Fort Worth 1999, no pet.); James v. Hubbard, 985 S.W.2d 516, 518 (Tex. App.—San

Antonio 1998, no pet.). The only court in the state to ever hold in a published opinion that these



                                                   4
protective orders are not appealable was the Tenth Court of Appeals in Normand v. Fox. 940 S.W.2d

401, 402-04 (Tex. App.—Waco 1997, no writ). However, that court recently reversed its position

and determined that protective orders are indeed final and appealable judgments. See Kelt, 67

S.W.3d at 366. In Normand, the court had reasoned that because the trial court retains the power to

modify a protective order, such an order does not settle all disputed issues requiring judicial

discretion and is therefore interlocutory. See 940 S.W.2d at 403.

               We disagree with the proposition that the continuing ability to modify a protective

order renders it interlocutory and therefore prevents it from being appealable. An analogy with

permanent injunctions is instructive: a permanent injunction that disposes of all issues and parties

is undoubtedly a final, appealable judgment. See Hubbard, 985 S.W.2d at 517. This is true despite

the fact that the trial court retains jurisdiction to review, open, vacate, and modify the injunction

upon a showing of changed conditions. See Cooke, 65 S.W.3d at 788. Indeed, it appears that the

trial court has even broader discretion to modify appealable permanent injunctions than it does

protective orders. See id. While a trial court may vacate a permanent injunction upon a showing of

changed conditions, it may not similarly vacate a protective order on the motion of a party until at

least one year after the order was rendered. Id. (citing Tex. Fam. Code Ann. § 85.025(b)). Instead,

the trial court’s jurisdiction during the first year of a protective order is limited to modification of

the order. Id. (citing Tex. Fam. Code Ann. § 87.001).

               As with permanent injunctions, the trial court’s continuing ability to modify a family-

violence protective order does not convert it from final to interlocutory. See id. It is the disposition

of the parties and the issues—not the retention of jurisdiction—that determines the finality of an



                                                   5
order. See id. The mere fact that an order may someday be modified simply does not suggest that

the trial court has not finally disposed of all the parties and issues. See id. We hold that a family-

violence protective order that disposes of all the parties and issues can be appealed despite the

continuing jurisdiction of the trial court to modify the order. Because the protective order in this

case disposed of all the parties and issues, we overrule the State’s motion to dismiss and address the

merits of the case.3


Minors and Dating Violence

               In his first point of error, B.C. argues that only an adult member of a dating

relationship is entitled to seek a family-violence protective order for dating violence. Because T.L.R.

is a minor, B.C. claims that the court was without subject-matter jurisdiction to issue the protective

order. We disagree with B.C.’s interpretation of the family code.

               The primary rule of statutory interpretation is to ascertain and give effect to the intent

of the legislature.    Southwestern Life Ins. Co. v. Montemayor, 24 S.W.3d 581, 583 (Tex.

App.—Austin 2000, pet. denied) (citing Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280

(Tex. 1994)). If the statute is unambiguous, we are required to seek this intent in the plain and

common meaning of its words and not elsewhere. Id. (citing Moreno v. Sterling Drug, Inc., 787


       3
          The Normand court concluded that because protective orders are not appealable, mandamus
is the appropriate remedy to challenge them. See 940 S.W.2d at 404. We note that neither
mandamus nor appeal provides for very effective review of protective orders. Mandamus is a more
expeditious remedy, but review is limited to an abuse of discretion standard. Conversely, because
of its short duration, a protective order will often expire before a standard appeal is decided. See id.
at 404-05 (Vance, J., dissenting). We feel that the most appropriate solution to this problem would
be for the legislature to provide for appellate review of family-violence protective orders on an
accelerated timetable. Cf. id.

                                                   6
S.W.2d 348, 352 (Tex. 1990); Seay v. Hall, 677 S.W.2d 19, 25 (Tex. 1984)). A court may not add

words to a statute unless necessary to give effect to clear legislative intent. Id. (citing Jones v.

Liberty Mut. Ins. Co., 745 S.W.2d 901, 902 (Tex. 1988); Meno v. Kitchens, 873 S.W.2d 789, 792

(Tex. App.—Austin 1994, writ denied)). Furthermore, we must consider the statute as a whole and

avoid construing any clause, sentence, or phrase in isolation from the rest of the statute. Id. (citing

Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985)).

                Section 71.004 of the family code defines family violence as


       (1) an act by a member of a family or household against another member of the
           family or household that is intended to result in physical harm, bodily injury,
           assault, or sexual assault or that is a threat that reasonably places the member in
           fear of imminent physical harm, bodily injury, assault, or sexual assault . . . ;

       (2) abuse . . . by a member of a family or household toward a child of the family or
           household; or

       (3) dating violence, as that term is defined by [s]ection 71.0021.4


Tex Fam. Code Ann. § 71.004 (West 2002).




       4
           Section 71.0021, in turn, defines dating violence as

           an act by an individual that is against another individual with whom that person
           has or has had a dating relationship [i.e., a continuing relationship of a romantic
           or intimate nature] and that is intended to result in physical harm, bodily injury,
           assault, or sexual assault or that is a threat that reasonably places the individual
           in fear of imminent physical harm, bodily injury, assault, or sexual assault.

Tex. Fam. Code Ann. § 71.0021 (West 2002).

                                                    7
               Section 82.002 sets out who is entitled to seek a protective order:

       (a) With regard to family violence under [s]ection 71.004(1) or (2), an adult
           member of the family or household may file an application for a protective order
           to protect the applicant or any member of the applicant’s family or household[.]


       (b) With regard to family violence under [s]ection 71.004(3) [i.e., dating violence],
           an application for a protective order to protect the applicant may be filed by an
           adult member of the dating relationship.

       (c) Any adult may apply for a protective order to protect a child from family
           violence.


Id. § 82.002 (West 2002).

               B.C. interprets section 82.002(b)—which states that an adult member of a dating

relationship may file an application for a protective order—as being the exclusive statutory

authorization for filing such an application. His argument entirely ignores section 82.002(c), which

states that “any adult may apply for a protective order to protect a child from family violence.” Id.

Because “dating violence” is expressly defined as a type of “family violence,” it follows that any

adult may apply for a protective order to protect a child from dating violence. Section 82.002(b)

actually operates to restrict adults from filing applications for dating-violence protective orders on

behalf of other adults—something they are entitled to do in some circumstances for other types of

family violence under section 82.002(a). See John J. Sampson, et al., Sampson & Tindall’s Texas

Family Code Annotated § 82.002, cmt. (12th ed. 2002) (“[A]ny adult may apply for a protective

order for the benefit of a child who is the victim of dating violence.”). We overrule the first issue

on appeal.




                                                  8
Sufficiency of the Evidence

               At the conclusion of the hearing, the court found that B.C. had committed family

violence against T.L.R. In his second and third points of error, B.C. contends that the evidence is

legally and factually insufficient to support the court’s finding.

               We review legal and factual sufficiency issues in a bench trial using the same

standards that we use in reviewing such issues following a jury verdict. See K.C. Roofing Co. v.

Abundis, 940 S.W.2d 375, 377 (Tex. App.—San Antonio 1997, writ denied). In considering legal

sufficiency, we consider all the evidence in the light most favorable to the prevailing party, indulging

every inference in that party’s favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d

276, 285-86 (Tex. 1998); Raymond v. Rahme & Williams Invs., 78 S.W.3d 552, 555-56 (Tex.

App.—Austin 2002, no pet.). In reviewing factual sufficiency, we consider all of the evidence and

uphold the finding unless the evidence is too weak to support it or the finding is so against the

overwhelming weight of the evidence as to be manifestly unjust. Raymond, 78 S.W.3d at 556. The

trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their

testimony. Id.; Cohn v. Comm’n for Lawyer Discipline, 979 S.W.2d 694, 696 (Tex. App.—Houston

[14th Dist.] 1998, no pet.). We will not substitute our judgment for that of the trial court merely

because we might reach a different conclusion. Raymond, 78 S.W.3d at 556; Cohn, 979 S.W.2d at

696.

               As mentioned above, the family code defines dating violence as an act against an

individual with whom one has or has had a dating relationship—i.e., a continuing relationship of a

romantic or intimate nature—intended to result in physical harm, bodily injury, assault, or sexual



                                                   9
assault, or a threat that reasonably places the individual in fear of imminent physical harm, bodily

injury, assault, or sexual assault. Tex. Fam. Code Ann. §§ 71.004, .0021. B.C. does not challenge

the court’s finding that he and T.L.R. were involved in a dating relationship; instead, he claims that

there is legally and factually insufficient evidence to prove that the requisite “act” or “threat”

occurred.

               B.C.’s argument relies on conflicting evidence. Patti McGinnis—one of the staff

members in whom B.C. confided—initially testified that B.C. had told her that “they took their

clothes off, she changed her mind and then said ‘no.’” When recalled to explain this testimony,

McGinnis stated that T.L.R. had told her that T.L.R. helped B.C. remove her clothes; however, the

subject of whether T.L.R. had ever “changed her mind” was not again discussed.

               T.L.R.’s testimony was different. She claimed that she told B.C. “no” twice before

he began to undress her, and that she did not help him undress her. Moreover, when T.L.R. was

recalled after McGinnis testified, T.L.R. explained: “I think [McGinnis] misunderstood me because

of our different signing maybe. I think she misunderstood me because sometimes she doesn’t really

understand my signs real well, but what I meant to say was that he took off my clothes.”5

               Making all inferences in favor of the trial court’s finding, as we must, we conclude

that T.L.R.’s testimony describing B.C.’s forced sexual penetration of her constitutes more than a

scintilla of evidence that B.C. engaged in an act intended to result in physical harm, bodily injury,


       5
           In his factual recitations supporting his second and third points of error, B.C. states that
“certain witnesses testified through a sign language interpreter resulting in various opportunities for
confusion due to the differences between spoken English and American Sign Language.” We find
little evidence of any such confusion. The one ambiguity that did come up was satisfactorily
clarified by the interpreter.

                                                  10
assault, or sexual assault to T.L.R. Moreover, we cannot say that the evidence is too weak to support

the court’s finding or that the finding is so against the overwhelming weight of the evidence as to

be manifestly unjust. As the sole judge of the credibility of the witnesses and the weight to be given

their testimony, the court was entitled to believe T.L.R.’s version of events. We overrule B.C.’s

second and third issues.6


                                          CONCLUSION

               In the absence of other pending litigation between the parties, family-violence

protective orders are final and appealable. Adults may apply for a protective order for the benefit

of a child who is the victim of dating violence. We hold that the evidence is legally and factually

sufficient to support the court’s findings in this case and affirm the entry of the protective order.




                                               Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear: Opinion by Justice B. A. Smith;
  Dissenting Opinion by Chief Justice Law

Affirmed

Filed: September 11, 2003




       6
          B.C. also claims that the evidence is legally and factually insufficient to support the trial
court’s finding that “family violence [is] likely to occur again in the future.” We disagree. T.L.R.
consistently testified that she feared B.C. The record contains evidence that, while in his alternative
education program, B.C. sent a hostile message to T.L.R. through his friend. Moreover, the fact that
the school put T.L.R. and B.C. on the same bus so soon after the incident indicates that it is not
taking sufficient care to prevent the recurrence of such an incident.

                                                  11
