In Re CAP

233 S.W.3d 896
CourtCourt of Appeals of Texas
DecidedAugust 16, 2007
Docket2-06-342-CV
StatusPublished

This text of 233 S.W.3d 896 (In Re CAP) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re CAP, 233 S.W.3d 896 (Tex. Ct. App. 2007).

Opinion

233 S.W.3d 896 (2007)

In the Interest of C.A.P., JR. and M.M.P., Children.

No. 2-06-342-CV.

Court of Appeals of Texas, Fort Worth.

August 16, 2007.

*898 Bryan K. Buchanan, Fort Worth, for appellant.

David W. Wynne, Fort Worth, for appellee.

PANEL B: LIVINGSTON, WALKER, and McCOY, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

Appellant Cody Allen P., Sr. appeals from the trial court's dismissal of his Petition to Modify Parent-Child Relationship from Standard Possession to Extended Possession of the Children for failure to state a cause of action. In his sole issue, appellant contends that the trial court erred by dismissing his petition because, although section 153.317 of the Texas Family Code does not provide for a separate cause of action for modification of a possession order, section 153.317 does not prohibit such an action either. We affirm.

II. Background Facts and Procedural History

On November 2, 2000, the trial court entered an order appointing both appellant and appellee, April Lynn K., as joint managing conservators of their two children, C.A.P., Jr. and M.M.P., in an initial suit establishing the parent-child relationship brought by appellee against appellant as the children's alleged father.[1]See TEX. FAM.CODE ANN. § 152.102(8) (Vernon 2002). About five years later, the trial court heard appellee's Suit to Modify the Parent-Child Relationship and to establish and acquire past-due child support, clarify insurance and health care obligations, increase the amount of child support appellant paid to her, and enter wage withholding. The trial court granted appellee's motion and entered a corresponding order on the same date, November 29, 2005.

Two months later, in January 2006, appellant filed a Petition to Modify Parent-Child Relationship seeking an Extended Possession Order under section 153.317 of the Texas Family Code.[2]See id. § 153.317 (Vernon Supp.2006). Appellee filed an answer and special exceptions on *899 March 6, 2006, arguing that appellant failed to timely request extended possession under section 153.317 because he should have requested it "before or at the time" of the hearing two months earlier.[3] Further, appellee asserted that there had been no substantial and material change in circumstances since the modification two months earlier that would justify further modification. Appellant filed his First Amended Petition to Modify Parent-Child Relationship on March 28, 2006, stating that a substantial and material change in circumstances had occurred since the previous modification because the children were older and were now both in school.[4] Appellee filed her First Amended Original Answer with special exceptions on June 27, 2006, maintaining the arguments contained in her Original Answer. The trial court conducted a hearing, sustained appellee's special exception number five, ruled appellee's special exception number four moot, and ordered appellant to replead.[5] When appellant failed to replead, the trial court struck appellant's pleadings, then granted a dismissal.

III. Texas Family Code Section 153.317

Appellant contends that the trial court erred by dismissing his petition because a possessory conservator can sue to modify a possession order from standard visitation to extended visitation under family code section 153.317 independently of a suit to modify. See id. Appellee responds that under section 153.317, a possessory conservator must elect extended visitation "before or at the time of the rendition of the original or modification order." Id. Appellee contends that such an election is also a compulsory counterclaim. Therefore, according to appellee, the trial court did not err by dismissing appellant's motion to modify because a possessory conservator cannot bring an independent cause of action *900 to modify a possession order. Both parties request interpretation of section 153.317.

A. Standard of Review

This is an issue of first impression. Statutory construction is a legal question that we review de novo, ascertaining and giving effect to the legislature's intent as expressed by the plain and common meaning of the statute's words. TEX. GOV'T CODE ANN. § 312.002 (Vernon 2005); F.F.P. Operating Partners, L.P. v. Duenez, No. 02-0381, ___ S.W.3d ___, ___, 2007 WL 1376357, at *2 (Tex.2007); Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004). We begin with the statute's plain language because we assume that the legislature tried to say what it meant and, thus, that its words are the surest guide to its intent. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex.1999). In ascertaining legislative intent, we do not confine our review to isolated statutory words, phrases, or clauses, but we instead examine the entire act. Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001); Rodgers v. Comm'n for Lawyer Discipline, 151 S.W.3d 602, 614 (Tex.App.-Fort Worth 2004, pet. denied). We may also consider, among other things, the statute's objectives, common law, former law, and similar provisions, and the consequences of the statutory construction. TEX. GOV'T CODE ANN. § 311.023(1)-(7) (Vernon 2005).

It is a well-settled rule of statutory construction that every word of a statute must be presumed to have been used for a purpose. See Quick v. City of Austin, 7 S.W.3d 109, 123 (Tex.1998); Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995). Likewise, every word excluded from a statute must also be presumed to have been excluded for a purpose. Quick, 7 S.W.3d at 123; Laidlaw Waste Sys., Inc., 904 S.W.2d at 659.

Further, it is well established in Texas that when provisions of the same statute may be in conflict, courts should harmonize them to give effect to both by assigning each a meaning that will permit each to stand. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001); Valero Transmission Co. v. Hays Consol. ISD, 704 S.W.2d 857, 864 (Tex.App.-Austin 1985, writ ref'd n.r.e.). A court should not assign a meaning to a statutory provision that would be inconsistent with other provisions of the same act, even though it might be susceptible to such a construction standing alone. See Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002); Clint ISD v. Cash Invs., Inc.,

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Related

Texas Department of Transportation v. City of Sunset Valley
146 S.W.3d 637 (Texas Supreme Court, 2004)
F.F.P. Operating Partners, L.P. v. Duenez
237 S.W.3d 680 (Texas Supreme Court, 2007)
Fitzgerald v. Advanced Spine Fixation Systems, Inc.
996 S.W.2d 864 (Texas Supreme Court, 1999)
Clint Independent School District v. Cash Investments, Inc.
970 S.W.2d 535 (Texas Supreme Court, 1998)
City of Dallas v. Mitchell
870 S.W.2d 21 (Texas Supreme Court, 1994)
Weiman v. Addicks-Fairbanks Road Sand Co.
846 S.W.2d 414 (Court of Appeals of Texas, 1992)
Laidlaw Waste Systems (Dallas), Inc. v. City of Wilmer
904 S.W.2d 656 (Texas Supreme Court, 1995)
Rodgers v. Commission for Lawyer Discipline
151 S.W.3d 602 (Court of Appeals of Texas, 2004)
Texas Department of Transportation v. Needham
82 S.W.3d 314 (Texas Supreme Court, 2002)
Helena Chemical Co. v. Wilkins
47 S.W.3d 486 (Texas Supreme Court, 2001)
Meritor Automotive, Inc. v. Ruan Leasing Co.
44 S.W.3d 86 (Texas Supreme Court, 2001)
Quick v. City of Austin
7 S.W.3d 109 (Texas Supreme Court, 1999)
Valero Transmission Co. v. Hays Consolidated Independent School District
704 S.W.2d 857 (Court of Appeals of Texas, 1985)
In the Interest of R.T.H.
175 S.W.3d 519 (Court of Appeals of Texas, 2005)
in the Interest of C.A.P., Jr. and M.M.P., Children
233 S.W.3d 896 (Court of Appeals of Texas, 2007)

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Bluebook (online)
233 S.W.3d 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cap-texapp-2007.