How Texas [divorce] Courts get it wrong!
First, we need to establish a baseline, what is the Parent-child relationship?
According to the Supreme Court of the United States (SCOTUS) (echoed by the Supreme Court of Texas (SCoT)), it [Parent-child relationship] is a "fundamental liberty interest".
The SCOTUS and SCoT have both ruled that parents have a fundamental right to the "care, custody, control, or management" (in some combination of 3) to their children.
Texas Family Code does NOT give a definition of "POSSESSION" when it is speaking of children, however,
Texas Penal Code 1.07(39) does define "POSSESSION" as "...actual care, custody, control, or management"
Is it that far of a stretch to state confidently that when the SCoT is discussing (in some combination of) the "care, custody, control, or management" while referencing parental rights, they are necessarily speaking about "PARENTAL POSSESSION" of that child?
- "The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." We have long recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, "guarantees more than fair process." Washington v. Glucksberg, 521 U. S. 702, 719 (1997). The Clause also includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests." Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301-302 (1993).
The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children— is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." ...
In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e. g., Stanley v. Illinois, 405 U. S. 645, 651 (1972) ("It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children `come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements' " (citation omitted))... Quilloin v. Walcott, 434 U. S. 246, 255 (1978) ("We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected"); ...Santosky v. Kramer, 455 U. S. 745, 753 (1982) (discussing "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child"); Glucksberg, supra, at 720 ("In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the `liberty' specially protected by the Due Process Clause includes the righ[t] . . . to direct the education and upbringing of one's children" (citing Meyer and Pierce )). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
Troxel v. Granville, 530 US 57 - Supreme Court 2000 - "...that is, parents' fundamental right to make decisions concerning "the care, the custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); see Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985) ("The natural right existing between parents and their children is of constitutional dimensions.")"
In re AB, 437 SW 3d 498 - Tex: Supreme Court 2014 - "Both the parent and the child have a substantial interest in the accuracy and justice of a decision. These considerations —the parent's fundamental liberty interest in maintaining custody and control of his or her child..."
In re MS, 115 SW 3d 534 - Tex: Supreme Court 2003
The SCOTUS and SCoT have both ruled that parents have a fundamental right to the "care, custody, control, or management" (in some combination of 3) to their children.
Texas Family Code does NOT give a definition of "POSSESSION" when it is speaking of children, however,
Texas Penal Code 1.07(39) does define "POSSESSION" as "...actual care, custody, control, or management"
Is it that far of a stretch to state confidently that when the SCoT is discussing (in some combination of) the "care, custody, control, or management" while referencing parental rights, they are necessarily speaking about "PARENTAL POSSESSION" of that child?
What does this mean for the courts?
An argument can be made that the interpretation they [trial courts] have been using when construing Texas Family Code Chapter 153 is wrongly founded on bad interpretations of the statutes.
For example, as stated in:
In re JRD, 169 SW 3d 740 - Tex: Court of Appeals, 3rd Dist. 2005
"Moreover, the Supreme Court has expressly recognized that the "best interest of the children" is the proper standard for resolving disputes between parents on custody issues. Reno v. Flores, 507 U.S. 292, 303-04, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993);"
OR
IN INTEREST OF HBNS, Tex: Court of Appeals, 14th Dist. 2007
"The United States Supreme Court has expressly recognized that the best interest of the child is a proper standard for resolving disputes between parents on custody issues. Reno v. Flores, 507 U. S. 292, 303-04, 113 S.Ct. 1439, 1448,123 L. Ed.2d 1 (1993)."
Pay attention to what was stated in the above.
NOTE that these are only a few examples of some of the appellate court cases that seem to cite each other.
Now here is the full quote from Reno v. Flores at about 304:
Reno v. Flores, 507 US 292 - Supreme Court 1993
"The best interests of the child," a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion—much less the sole constitutional criterion—for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others. Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child's welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately. See Quilloin v. Walcott, 434 U. S. 246, 255 (1978). Similarly, "the best interests of the child" is not the legal standard that governs parents' or guardians' exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves. See, e. g., R. C. N. v. State, 141 Ga. App. 490, 491, 233 S. E. 2d 866, 867 (1977)."
Notice how the first sentence is basically what was cited/quoted by the appellate courts.
However, notice the very next word is *BUT*.
I made it very big so that it would stand out. (yes that is a HUGE but... OMG Becky...!)
It means that everything following it will goes against the first thought or sentence.
NOTE that the best interest is NOT the sole criterion!
It is NOT the sole constitutional criterion! (which was emphasized by SCOTUS)
It goes on to give an example basically showing that the best interest does NOT override a parents fundamental rights as long as the parent is FIT (i.e. provides for the child adequately) (also emphasized by SCOTUS).
Quite strikingly, it states directly that the best interests is NOT the legal standard that governs a parent's exercise of their custody.
Lets break that sentence down.
Best interests of the child is what the sentence is referring to.
It is NOT the legal standard that governs... (to control, direct, or strongly influence the actions and conduct of)... a parent's exercise... (To make use of. Thus to exercise a right or power is to do something which it enables the holder to do)... their custody ... (The care, possession, and control of a thing or person):
So to rephrase this portion of the sentence:
Best interests is NOT a legal standards that controls or directs a parent's right to make use of his or her possession/custody of his or her child:
So long as the parent has not been found to be UNFIT and that the child(ren) have been adequately cared for.
Their "interests" can be subservient to others interests including the interests of the parents.
So to bring this full circle.
The best interests of the children CANNOT supersede the fundamental liberty interests of a FIT parent.
Even if the court's primary consideration ... (a matter weighed or taken into account when formulating an opinion or plan) ... is the "best interest of the child "(see Texas Family Code 153.002), it is only a "consideration" or just one factor but is NOT a legal standard, NOR is it the SOLE CRITERION, and it is definitely NOT the SOLE CONSTITUTIONAL CRITERION.
For example, as stated in:
In re JRD, 169 SW 3d 740 - Tex: Court of Appeals, 3rd Dist. 2005
"Moreover, the Supreme Court has expressly recognized that the "best interest of the children" is the proper standard for resolving disputes between parents on custody issues. Reno v. Flores, 507 U.S. 292, 303-04, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993);"
OR
IN INTEREST OF HBNS, Tex: Court of Appeals, 14th Dist. 2007
"The United States Supreme Court has expressly recognized that the best interest of the child is a proper standard for resolving disputes between parents on custody issues. Reno v. Flores, 507 U. S. 292, 303-04, 113 S.Ct. 1439, 1448,123 L. Ed.2d 1 (1993)."
Pay attention to what was stated in the above.
NOTE that these are only a few examples of some of the appellate court cases that seem to cite each other.
Now here is the full quote from Reno v. Flores at about 304:
Reno v. Flores, 507 US 292 - Supreme Court 1993
"The best interests of the child," a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion—much less the sole constitutional criterion—for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others. Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child's welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately. See Quilloin v. Walcott, 434 U. S. 246, 255 (1978). Similarly, "the best interests of the child" is not the legal standard that governs parents' or guardians' exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves. See, e. g., R. C. N. v. State, 141 Ga. App. 490, 491, 233 S. E. 2d 866, 867 (1977)."
Notice how the first sentence is basically what was cited/quoted by the appellate courts.
However, notice the very next word is *BUT*.
I made it very big so that it would stand out. (yes that is a HUGE but... OMG Becky...!)
It means that everything following it will goes against the first thought or sentence.
NOTE that the best interest is NOT the sole criterion!
It is NOT the sole constitutional criterion! (which was emphasized by SCOTUS)
It goes on to give an example basically showing that the best interest does NOT override a parents fundamental rights as long as the parent is FIT (i.e. provides for the child adequately) (also emphasized by SCOTUS).
Quite strikingly, it states directly that the best interests is NOT the legal standard that governs a parent's exercise of their custody.
Lets break that sentence down.
Best interests of the child is what the sentence is referring to.
It is NOT the legal standard that governs... (to control, direct, or strongly influence the actions and conduct of)... a parent's exercise... (To make use of. Thus to exercise a right or power is to do something which it enables the holder to do)... their custody ... (The care, possession, and control of a thing or person):
So to rephrase this portion of the sentence:
Best interests is NOT a legal standards that controls or directs a parent's right to make use of his or her possession/custody of his or her child:
So long as the parent has not been found to be UNFIT and that the child(ren) have been adequately cared for.
Their "interests" can be subservient to others interests including the interests of the parents.
So to bring this full circle.
The best interests of the children CANNOT supersede the fundamental liberty interests of a FIT parent.
Even if the court's primary consideration ... (a matter weighed or taken into account when formulating an opinion or plan) ... is the "best interest of the child "(see Texas Family Code 153.002), it is only a "consideration" or just one factor but is NOT a legal standard, NOR is it the SOLE CRITERION, and it is definitely NOT the SOLE CONSTITUTIONAL CRITERION.
SCOTUS and SCoT have long held that "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family."
So the question is, why do the trial courts find it fitting to appoint a parent JMC (i.e. FIT) but then limit, restrict, or deny his or her possession (care, custody, control...) to the children?
Several legal "professionals" (attorneys and former judges) tend to agree that this is common practice. They state that "judges have broad discretion" when working with the best interest of the child.
Could it be that there is a bogus understanding [interpretation] of the statutes and judges are taking discretion where none was given?
So the question is, why do the trial courts find it fitting to appoint a parent JMC (i.e. FIT) but then limit, restrict, or deny his or her possession (care, custody, control...) to the children?
Several legal "professionals" (attorneys and former judges) tend to agree that this is common practice. They state that "judges have broad discretion" when working with the best interest of the child.
Could it be that there is a bogus understanding [interpretation] of the statutes and judges are taking discretion where none was given?
In order to read the Texas Statutes with an understanding of common words and phrases, look no further than Texas Gov't Code Chapter 311 (Code Construction Act)
Sec. 311.011. COMMON AND TECHNICAL USAGE OF WORDS. (a) Words and phrases shall be read in context and construed according to the rules of grammar and common usage.
Sec. 311.016. "MAY," "SHALL," "MUST," ETC. The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute:
(1) "May" creates discretionary authority or grants permission or a power.
(2) "Shall" imposes a duty.
(5) "May not" imposes a prohibition and is synonymous with "shall not."
SCoT has ruled"
The Legislature has given voice to common words found in the statutes, such as "SHALL".
This is defined as "imposing a duty", but what is a "duty"?
"Duty" is defined as: "A legal obligation that entails mandatory conduct or performance"
Merriam-webster defines "duty" as : "obligatory tasks, conduct, service, or functions that arise from one's position"
SCoT has stated that:
So it would NOT be a stretch to define the term "SHALL" as an "OBLIGATION" or "MANDATE" of the court to perform or not preform certain actions.
The Legislature has also given voice to two other terms "MAY" and "MAY NOT".
The term "MAY" is defined by the Legislature as giving the court "discretionary authority".
When a statute uses the term "MAY" we can be pretty sure that the court has some input into the actions that it chooses to take.
This is NOT to be confused with the term "MAY NOT".
Although they appear similar, the Legislature has given the term "MAY NOT" a hard, steadfast "PROHIBITION" [prohibit].
Merriam-webster defines "prohibition" as : "the act of prohibiting by authority" and then goes to further define "prohibiting" as : "to forbid by authority" or "to prevent from doing something"
Knowledge of these terms will come in handy when reading the Texas Statutes and will help in understanding exactly what the court is given "discretion" on, when the court is "obligated" to perform a certain action, and when the court is "prohibited" from performing certain actions.
According to the SCoT, "...and we enable citizens to rely on the laws as published without having to worry that they may carry some hidden meaning".
Shouldn't that mean that the plain language is the actual meaning from the statute?
Why does the trial court take so much discretion when interpreting the codes, when the SCoT has ruled that a ordinary citizen should be able to rely on the laws as they are written without "worry that they may carry some hidden meaning"?
Sec. 311.016. "MAY," "SHALL," "MUST," ETC. The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute:
(1) "May" creates discretionary authority or grants permission or a power.
(2) "Shall" imposes a duty.
(5) "May not" imposes a prohibition and is synonymous with "shall not."
SCoT has ruled"
- "Courts must take statutes as they find them. More than that, they should be willing to take them as they find them. They should search out carefully the intendment of a statute, giving full effect to all of its terms. But they must find its intent in its language, and not elsewhere. They are not the law-making body. They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of the written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain."
Diversicare General Partner, Inc. v. Rubio, 185 SW 3d 842 - Tex: Supreme Court 2005 - "By focusing on the language enacted, we encourage the legislature to enact unambiguous statutes, we discourage courts from usurping the legislature's role of deciding what the law should be, and we enable citizens to rely on the laws as published without having to worry that they may carry some hidden meaning."
HEALTH PRESBYTERIAN HOSP. v. DA, 569 SW 3d 126 - Tex: Supreme Court 2018 - "It is the Legislature's prerogative to enact statutes; it is the judiciary's responsibility to interpret those statutes according to the language the Legislature used, absent a context indicating a different meaning or the result of the plain meaning of the language yielding absurd or nonsensical"
Molinet v. Kimbrell, 356 SW 3d 407 - Tex: Supreme Court 2011
The Legislature has given voice to common words found in the statutes, such as "SHALL".
This is defined as "imposing a duty", but what is a "duty"?
"Duty" is defined as: "A legal obligation that entails mandatory conduct or performance"
Merriam-webster defines "duty" as : "obligatory tasks, conduct, service, or functions that arise from one's position"
SCoT has stated that:
- "By its plain and common meaning, "shall" denotes mandatory action. See TEX. GOV'T CODE § 311.016(2)" (emphasis added)
Perryman v. SPARTAN TEXAS SIX CAPITAL, 546 SW 3d 110 - Tex: Supreme Court 2018
So it would NOT be a stretch to define the term "SHALL" as an "OBLIGATION" or "MANDATE" of the court to perform or not preform certain actions.
The Legislature has also given voice to two other terms "MAY" and "MAY NOT".
The term "MAY" is defined by the Legislature as giving the court "discretionary authority".
When a statute uses the term "MAY" we can be pretty sure that the court has some input into the actions that it chooses to take.
This is NOT to be confused with the term "MAY NOT".
Although they appear similar, the Legislature has given the term "MAY NOT" a hard, steadfast "PROHIBITION" [prohibit].
Merriam-webster defines "prohibition" as : "the act of prohibiting by authority" and then goes to further define "prohibiting" as : "to forbid by authority" or "to prevent from doing something"
Knowledge of these terms will come in handy when reading the Texas Statutes and will help in understanding exactly what the court is given "discretion" on, when the court is "obligated" to perform a certain action, and when the court is "prohibited" from performing certain actions.
According to the SCoT, "...and we enable citizens to rely on the laws as published without having to worry that they may carry some hidden meaning".
Shouldn't that mean that the plain language is the actual meaning from the statute?
Why does the trial court take so much discretion when interpreting the codes, when the SCoT has ruled that a ordinary citizen should be able to rely on the laws as they are written without "worry that they may carry some hidden meaning"?
The merits of a Suit Affecting Parent Child Relationship (SAPCR) petition are governed by other statutes that contain additional safeguards.
As stated by the SCoT
In fact, Texas Family Code 153 contains many safeguards to protect the children.
- "The merits of a SAPCR petition are governed by other statutes that contain additional safeguards. See, e.g., TEX. FAM. CODE § 153.131 (the appointment of the parent or parents as managing conservators is in the child's best interest unless the court finds that the appointment "would significantly impair the child's physical health or emotional development")."
In Interest of HS, 550 SW 3d 151 - Tex: Supreme Court 2018
In fact, Texas Family Code 153 contains many safeguards to protect the children.
- Sec. 153.002. BEST INTEREST OF CHILD. The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.
- Sec. 153.004. HISTORY OF DOMESTIC VIOLENCE OR SEXUAL ABUSE. (a) In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party's spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.
(b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault in violation of Section 22.011 or 22.021, Penal Code, that results in the other parent becoming pregnant with the child.... - Sec. 153.005. APPOINTMENT OF SOLE OR JOINT MANAGING CONSERVATOR. (a) In a suit, except as provided by Section 153.004, the court:
(1) may appoint a sole managing conservator or may appoint joint managing conservators; and
(c) In making an appointment authorized by this section, the court shall consider whether, preceding the filing of the suit or during the pendency of the suit:
(1) a party engaged in a history or pattern of family violence, as defined by Section 71.004;
(2) a party engaged in a history or pattern of child abuse or child neglect; or
(3) a final protective order was rendered against a party. - Sec. 153.131. PRESUMPTION THAT PARENT TO BE APPOINTED MANAGING CONSERVATOR. (a) Subject to the prohibition in Section 153.004, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection. - Sec. 153.134. COURT-ORDERED JOINT CONSERVATORSHIP. (a) If a written agreed parenting plan is not filed with the court, the court may render an order appointing the parents joint managing conservators only if the appointment is in the best interest of the child, considering the following factors:
(1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;
(7) any other relevant factor.
Lets break down the statutes and put in place the definitions of the words the Legislature gave!
153.004(a) gives the court guidance "in determining" managing conservatorship (Sole or Joint). It states that the court is obligated/mandated [shall] "consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party's spouse, a parent of the child, or any person under the age of 18"
Blacks Law defines "consider" as: "the term that means to think about, or to ponder or study and to examine carefully"
Merriam-webster defines "consider" as: "to take into account" "to think of especially with regard to taking some action"
So a careful reading of 153.004(a), an ordinary citizen can come to this conclusion:
When the court asked to make a ruling on conservator hip of parents, the court is obligated to take into account abuse (physical or sexual) directed at a child, a spouse, or another parent.
Nothing more, nothing less as "it is not for the courts to add or to subtract from the statute".
I am hesitant to cite Appellate courts because there is often non-agreement between them, however this concept has been found in several differing appellate courts:
153.004(b) imposes a "prohibition" [may not] on the court from appointing a parent JMC if "credible evidence" is presented of "abuse or neglect" (sexual or physical or family violence).
"Credible Evidence" is later defined in statute 153.004(f) as:
The court is "obligated" or "mandated" [shall] to "take into account" or "ponder" [consider] whether a protective order was rendered during the two-years leading up to actually during the time of the case.
Why a protective order?
Because Texas Family Code Chapter 6 gives outlines the suit for dissolution of marriage [divorce].
Applying that knowledge back to the statute, we can see the reasoning that the court is "mandated" to "take into account" whether a protective order has been rendered.
153.005(a)(1) tells the court that except as provided in section 153.004 (covered above) the court has discretion [may] on appointing either Sole or Joint managing conservator.
153.005(c)(1), (2), (3) tells the court that it is "obligated" [shall] to "take into account" [consider]
(1) if a party has taken part in [engaged] family violence as defined by Texas Family Code 74.004,
(2) if a party has taken part in [engaged] abuse or neglect of a child, or
(3) a party has had a final protection order has been rendered on a party, when using the court's discretion to appoint a parent as Sole or Joint managing conservator.
153.131(a) starts off making the entire section subject to the "prohibition" found in 153.004 in appointing a parent as JMC. The statute then adds more discretion for the court by stating "unless the court finds "that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development..." then finishes by giving the court further discretion by creating a mandate [shall] in either appointing one parent as "sole" managing conservator or "both" parents as JMC.
Again, the Legislature ensures that:
153.131(b) simply informs the court that a finding of Family Violence (which is also construed as abuse) removes the presumption that the parent is entitled to be appointed JMC.
Without that presumption and because of the "prohibitions" found in other parts of the statutes, the court is "forbidden" [may not] from appointing that parent as JMC. This means as long as the other parent is "FIT" (in other words has not been found to have harmed the child), that parent will become the SMC while the parent who is forbidden from being appointed JMC will be appointed PC (or have their parental rights stripped form them).
153.134(a)(1) again we find that the trial court is given discretion in appointing a parent as JMC, however, attached to it is a powerful directive "ONLY IF".
Collinsdictionary defines "Only if" as: "never…except when".
This definition is shared by Wordink who defines "Only if" as: "Not unless; used to introduce a necessary condition" and "never except when".
Reading the section 153.134(a)(1) and interjecting our defined terms, we are able to come to the understanding that:
The trial court has the discretion to appoint a parent as JMC "never... except when" it is in the best interest of the child.
Meaning full well, that the court can ONLY appoint a parent when it is in the best interest of the child.
153.134(a)(7) amplifies the directive and broadens the discretion given to a court when appointing a parent as JMC.
Quite simply put, any other relevant factor is an open ended box that the court can use to deny a parent the appointment of JMC because some other relevant factor decided that it is NOT in the best interest of the child for that person to be appointed JMC.
The key word here is "relevant".
Black's Law defines "relevant" as : "Applying to the matter in question; affording something to the purpose".
This is an open ended term, so a parent must be vigilant if he or she is denied the appointment as JMC and submit a motion for the "findings of fact and conclusion of law" [FFCL].
Blacks Law defines "consider" as: "the term that means to think about, or to ponder or study and to examine carefully"
Merriam-webster defines "consider" as: "to take into account" "to think of especially with regard to taking some action"
So a careful reading of 153.004(a), an ordinary citizen can come to this conclusion:
When the court asked to make a ruling on conservator hip of parents, the court is obligated to take into account abuse (physical or sexual) directed at a child, a spouse, or another parent.
Nothing more, nothing less as "it is not for the courts to add or to subtract from the statute".
I am hesitant to cite Appellate courts because there is often non-agreement between them, however this concept has been found in several differing appellate courts:
- "We must "`presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible.'" Id. (quoting Hardy, 963 S.W.2d at 520). It is not for the courts to add or to subtract from a statute. Boykin, 818 S.W.2d at 785." Uyamadu v. State, 359 SW 3d 753 - Tex: Court of Appeals 2011
153.004(b) imposes a "prohibition" [may not] on the court from appointing a parent JMC if "credible evidence" is presented of "abuse or neglect" (sexual or physical or family violence).
"Credible Evidence" is later defined in statute 153.004(f) as:
- Sec. 153.004(f) "In determining under this section whether there is credible evidence of a history or pattern of past or present child neglect or abuse or family violence by a parent or other person, as applicable, the court shall consider whether a protective order was rendered under Chapter 85, Title 4, against the parent or other person during the two-year period preceding the filing of the suit or during the pendency of the suit."
The court is "obligated" or "mandated" [shall] to "take into account" or "ponder" [consider] whether a protective order was rendered during the two-years leading up to actually during the time of the case.
Why a protective order?
Because Texas Family Code Chapter 6 gives outlines the suit for dissolution of marriage [divorce].
- Texas Family Code 6.404 INFORMATION REGARDING PROTECTIVE ORDERS. At any time while a suit for dissolution of a marriage is pending, if the court believes, on the basis of any information received by the court, that a party to the suit or a member of the party's family or household may be a victim of family violence, the court shall inform that party of the party's right to apply for a protective order under Title 4.
Applying that knowledge back to the statute, we can see the reasoning that the court is "mandated" to "take into account" whether a protective order has been rendered.
153.005(a)(1) tells the court that except as provided in section 153.004 (covered above) the court has discretion [may] on appointing either Sole or Joint managing conservator.
153.005(c)(1), (2), (3) tells the court that it is "obligated" [shall] to "take into account" [consider]
(1) if a party has taken part in [engaged] family violence as defined by Texas Family Code 74.004,
(2) if a party has taken part in [engaged] abuse or neglect of a child, or
(3) a party has had a final protection order has been rendered on a party, when using the court's discretion to appoint a parent as Sole or Joint managing conservator.
153.131(a) starts off making the entire section subject to the "prohibition" found in 153.004 in appointing a parent as JMC. The statute then adds more discretion for the court by stating "unless the court finds "that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development..." then finishes by giving the court further discretion by creating a mandate [shall] in either appointing one parent as "sole" managing conservator or "both" parents as JMC.
Again, the Legislature ensures that:
- 1) no harm has come to the child and
- 2) that it is in the child's best interest for one or both of the parents to be appointed as managing conservators.
153.131(b) simply informs the court that a finding of Family Violence (which is also construed as abuse) removes the presumption that the parent is entitled to be appointed JMC.
Without that presumption and because of the "prohibitions" found in other parts of the statutes, the court is "forbidden" [may not] from appointing that parent as JMC. This means as long as the other parent is "FIT" (in other words has not been found to have harmed the child), that parent will become the SMC while the parent who is forbidden from being appointed JMC will be appointed PC (or have their parental rights stripped form them).
153.134(a)(1) again we find that the trial court is given discretion in appointing a parent as JMC, however, attached to it is a powerful directive "ONLY IF".
Collinsdictionary defines "Only if" as: "never…except when".
This definition is shared by Wordink who defines "Only if" as: "Not unless; used to introduce a necessary condition" and "never except when".
Reading the section 153.134(a)(1) and interjecting our defined terms, we are able to come to the understanding that:
The trial court has the discretion to appoint a parent as JMC "never... except when" it is in the best interest of the child.
Meaning full well, that the court can ONLY appoint a parent when it is in the best interest of the child.
153.134(a)(7) amplifies the directive and broadens the discretion given to a court when appointing a parent as JMC.
Quite simply put, any other relevant factor is an open ended box that the court can use to deny a parent the appointment of JMC because some other relevant factor decided that it is NOT in the best interest of the child for that person to be appointed JMC.
The key word here is "relevant".
Black's Law defines "relevant" as : "Applying to the matter in question; affording something to the purpose".
This is an open ended term, so a parent must be vigilant if he or she is denied the appointment as JMC and submit a motion for the "findings of fact and conclusion of law" [FFCL].
Lots of talk about "best interest of the child" but what does it mean?
The Texas Family Code does not offer an exact definition of "best interest of the child", however, the SCOTUS does have this to say:
What is the SCOTUS telling us with this?
Lets break it down.
"The best interest of the child":
What it is:
If a set of well off parents wanted to adopt a child and take care of that child, even though it could be argued that it would be in the "best interest of the child" for this to happen, the state is prohibited from interfering with a family dynamic so long as the minimum needs of the child are being taken care of (i.e. the parents are considered".
Where does that leave us in our understanding of the Texas Statutes?
A strong argument (should NOT have to be made but) can be made that so long as the parent is "FIT", that means appointed a Managing Conservator (Sole or Joint), then state is prohibited from attempting to interfere with or infringe on the parent-child relationship [Fundamental liberty interest] and [POSSESSION].
- "The best interests of the child," a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion--much less the sole constitutional criterion—for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others. Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child's welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately. See Quilloin v. Walcott, 434 U. S. 246, 255 (1978). Similarly, "the best interests of the child" is not the legal standard that governs parents' or guardians' exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves. See, e. g., R. C. N. v. State, 141 Ga. App. 490, 491, 233 S. E. 2d 866, 867 (1977)...
"The best interests of the child" is likewise not an absolute and exclusive constitutional criterion…"
Reno v. Flores, 507 US 292 - Supreme Court 1993
What is the SCOTUS telling us with this?
Lets break it down.
"The best interest of the child":
What it is:
- common phrase in divorce proceedings
- a criterion for making decisions as to custody between two parents
- other more narrowly channeled judgements are also at play
- may be subordinate to other interests including other children or even the parents
- NOT the sole constitutional criterion
- NOT an absolute exclusive constitutional criterion.
- NOT a legal standard that governs parents exercise of custody
If a set of well off parents wanted to adopt a child and take care of that child, even though it could be argued that it would be in the "best interest of the child" for this to happen, the state is prohibited from interfering with a family dynamic so long as the minimum needs of the child are being taken care of (i.e. the parents are considered".
Where does that leave us in our understanding of the Texas Statutes?
A strong argument (should NOT have to be made but) can be made that so long as the parent is "FIT", that means appointed a Managing Conservator (Sole or Joint), then state is prohibited from attempting to interfere with or infringe on the parent-child relationship [Fundamental liberty interest] and [POSSESSION].
If the court appoints a parent as JMC, doesn't that mean that the court already found it to be in the child's best interest?
Indeed it should, at least per the plain language of the statutes.
The Legislature has place in many "safeguards" into the statute to ensure the children's safety and that ONLY "FIT" parents are appointed JMC.
Breaking down the safeguards in Texas Family Code 153, we can easily show that when a court appoints a parent JMC, it necessarily means that the court has already decided that the parent is "in the best interest of the child".
The Legislature has place in many "safeguards" into the statute to ensure the children's safety and that ONLY "FIT" parents are appointed JMC.
Breaking down the safeguards in Texas Family Code 153, we can easily show that when a court appoints a parent JMC, it necessarily means that the court has already decided that the parent is "in the best interest of the child".
- First it is clear between 153.004(a) and 153.004(b), the trial court is "prohibited" from appointing a parent JMC if any kind of "abuse" or "neglect" was found.
How does a "POSSESSORY CONSERVATOR" fit into all of this?
Lets look into the statutes, however, lets take them a bit out of order to better understand what we are dealing with.
Lets break down what the Legislature is trying to say here.
153.191 simply instructs the court that a parent how does NOT meet the standards to be appointed as JMC or SMC is mandated [shall] to be appointed as possessory conservator "UNLESS" it [trial court] finds that the appointment [PC] is NOT in the best interest of the child...
We know that there are "protections" put into place by the Legislature to protect the children against parents who have harmed them.
The court is (for all intents and purposes) prohibited from appointing a parent as a managing conservator (Sole or Joint) who has abused (sexually or physically), neglected, or otherwise harmed the child or other parent.
The Legislature therefore, gave the trial court direction and discretion about appointing a parent who does not fit the safeguards and criteria of being appointed JMC or SMC to be appointed PC.
Again, one more layer of safeguards by the Legislature and that is to give the trial court discretion to deem if actions by a parent reach a point that it is not even safe for the child to have any possession or access to that parent, at which time, the trial court can reject appointing the parent as PC.
153.006 is a very simple section of the statue. As long as the court appoints at least 1 managing conservator, the court has the discretion to appoint more than one PC. This of course carries some duties and responsibilities appointed by the court and will likely also carry some possession time.
153.004(c) is a very section that carries with it some thought and weight. Here the Legislature gives direction to the trial court and "mandates" [shall] that they "take into account" [consider] the commission of family violence [physical abuse] or sexual abuse when determining whether to "deny, restrict, or limit" possession for a PC.
It only states a PC and not a "JMC", or "SMC", or even more broadly a "managing conservator" or encompass them all with the term "conservator". This thought process is backed up by another section of the statutes and that is:
153.193 falls under a subchapter titled:
Of course it is true that subchapters [headings] carry no weight when determining the statute:
This can be shown in the SCoT rulings:
Since it does NOT list any specific persons (such as JMC, SMC, or PC) we have to assume that because it is under the "PARENT APPOINTED AS POSSESSORY CONSERVATOR" that the Legislature is directly expressing this to be directed to parents who are appointed as PC(s).
We now have 2 (two) acknowledgments from the Legislature that parents appointed as PC can have their possession "Limited" and/or "Restricted".
We also have the fact that the Legislature clearly set up safeguards to protect the children by limiting parents who are allowed to be appointed as JMC or SMC.
- Sec. 153.191. PRESUMPTION THAT PARENT TO BE APPOINTED POSSESSORY CONSERVATOR. The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.
- Sec. 153.006. APPOINTMENT OF POSSESSORY CONSERVATOR. (a) If a managing conservator is appointed, the court may appoint one or more possessory conservators.
(c) The court shall specify and expressly state in the order the times and conditions for possession of or access to the child, unless a party shows good cause why specific orders would not be in the best interest of the child. - Sec. 153.004(c) The court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.
- Sec. 153.251. POLICY AND GENERAL APPLICATION OF GUIDELINES. (a) The guidelines established in the standard possession order are intended to guide the courts in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator.
Lets break down what the Legislature is trying to say here.
153.191 simply instructs the court that a parent how does NOT meet the standards to be appointed as JMC or SMC is mandated [shall] to be appointed as possessory conservator "UNLESS" it [trial court] finds that the appointment [PC] is NOT in the best interest of the child...
We know that there are "protections" put into place by the Legislature to protect the children against parents who have harmed them.
The court is (for all intents and purposes) prohibited from appointing a parent as a managing conservator (Sole or Joint) who has abused (sexually or physically), neglected, or otherwise harmed the child or other parent.
The Legislature therefore, gave the trial court direction and discretion about appointing a parent who does not fit the safeguards and criteria of being appointed JMC or SMC to be appointed PC.
Again, one more layer of safeguards by the Legislature and that is to give the trial court discretion to deem if actions by a parent reach a point that it is not even safe for the child to have any possession or access to that parent, at which time, the trial court can reject appointing the parent as PC.
153.006 is a very simple section of the statue. As long as the court appoints at least 1 managing conservator, the court has the discretion to appoint more than one PC. This of course carries some duties and responsibilities appointed by the court and will likely also carry some possession time.
153.004(c) is a very section that carries with it some thought and weight. Here the Legislature gives direction to the trial court and "mandates" [shall] that they "take into account" [consider] the commission of family violence [physical abuse] or sexual abuse when determining whether to "deny, restrict, or limit" possession for a PC.
It only states a PC and not a "JMC", or "SMC", or even more broadly a "managing conservator" or encompass them all with the term "conservator". This thought process is backed up by another section of the statutes and that is:
- Sec. 153.193. MINIMAL RESTRICTION ON PARENT'S POSSESSION OR ACCESS. The terms of an order that denies possession of a child to a parent or imposes restrictions or limitations on a parent's right to possession of or access to a child may not exceed those that are required to protect the best interest of the child.
153.193 falls under a subchapter titled:
- SUBCHAPTER D. PARENT APPOINTED AS POSSESSORY CONSERVATOR
Of course it is true that subchapters [headings] carry no weight when determining the statute:
- Sec. 311.024. HEADINGS. The heading of a title, subtitle, chapter, subchapter, or section does not limit or expand the meaning of a statute.
This can be shown in the SCoT rulings:
- Although the Code Construction Act cautions that "[t]he heading of a ... subchapter ... does not limit or expand the meaning of a statute",[45]
the heading gives some indication of the Legislature's intent to group what it considered to be procedural matters together.
UNIVERSITY OF TEXAS SW MEDICAL CENTER v. Loutzenhiser, 140 SW 3d 351 - Tex: Supreme Court 2004 - Further, though a statutory heading does not limit or expand a statute's meaning, the heading can inform the inquiry into the Legislature's intent.
TIC Energy and Chemical, Inc. v. Martin, 498 SW 3d 68 - Tex: Supreme Court 2016 - And although its title, "Certificate of Merit," does not limit or expand the meaning of the statutory provisions, see TEX. GOV'T CODE § 311.024, the title nevertheless gives some indication of the Legislature's intent in enacting the section. See In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 307 (Tex. 2010).
PEDERNAL ENERGY v. BRUINGTON ENGINEERING, 536 SW 3d 487 - Tex: Supreme Court 2017 - The Legislature titled the provision "Statute of Limitations," id., and while such a heading cannot limit or expand the statute's meaning, TEX. GOV'T CODE § 311.024, the heading "gives some indication of the Legislature's intent," Loutzenhiser, 140 S.W.3d at 361; see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)
In re United Services Auto. Ass'n, 307 SW 3d 299 - Tex: Supreme Court 2010
Since it does NOT list any specific persons (such as JMC, SMC, or PC) we have to assume that because it is under the "PARENT APPOINTED AS POSSESSORY CONSERVATOR" that the Legislature is directly expressing this to be directed to parents who are appointed as PC(s).
We now have 2 (two) acknowledgments from the Legislature that parents appointed as PC can have their possession "Limited" and/or "Restricted".
We also have the fact that the Legislature clearly set up safeguards to protect the children by limiting parents who are allowed to be appointed as JMC or SMC.
How is it that it is common place for the trial courts are able to limit possession of children to parents who are appointed Joint Managing Conservator (i.e. FIT parents)?
There is something wrong with the system when parents are appointed as Joint Managing Conservators (JMC) can have their children withheld from them for vague or unapparent reasons.
By all intents and purposes, the trial court does NOT have the discretion to limit or restrict a parent appointed as JMC to anything less than the "standard possession order" (SPO), unless it can be "rebutted".
The Legislature has presented those critera that can "rebut" the SPO for a parent appointed as JMC.
Those critera are:
There is, however, not as much discretion here for the judge as one may think.
153.253 would allow a parent who has odd working hours or days that do not necessarily fit within the confines of the SPO to rebut the SPO and change it to something that is "workable" and that ensures the safety and best interest of the child.
For example: If a parent had to go out of town for work every 1st and 3rd weekends of the month, then the standard 1st, 3rd, 5th would be unworkable. The parent would not be able to adequately take care of the child and work at the same time. Therefore, that "rebuts" the SPO.
153.254 has already been stated that SPO is NOT intended for children under the tender age of 3 years old.
153.255 assuming that you have two parents appointed JMC, it is presumed that they act in the best interest of their children, therefore if they come to an agreement, it must be seen as an agreement that benefits the child.
Furthermore, since it is established that a parent who engaged in abuse (including Family Violence) cannot be appointed JMC, there is little worry that one parent or another would suffer any sort of "intimidation" to come to an agreement.
The guidelines in the SPO are intended as the minimum possession for a JMC.
They key word here is "THE"!
Had the Legislature used the word "a", as in... SPO are intended as "a" minimum possession for a JMC, it would take on a completely different meaning.
That would give credence to the idea that there is more than ONE "minimum possession".
For example, as shown here in Differencebetween.com "A" is shown to be "indefinite", in other words can have more than one meaning, while the term "THE" is seen as "definite" meaning that is pertains to a particular noun.
Merriam-webster defines "The" as "used as a function word to indicate that a following noun or noun equivalent is definite or has been previously specified by context..."
Lets examine the relevant part of the sentence again utilizing our understanding of the term "THE".
... SPO are intended as "definite" minimum possession for a JMC.
There being only ONE (1) "minimum possession" and it is the one found in the guidelines of the SPO.
Other than "A" standard possession!
As shown before, the use of the word "A" lets us know that the "standard possession" is "indefinite". There could be two or more "standard possessions" for the trial court to order.
We also see that the trial court is "obligated" [shall] to be "guided" by (here it is again) "THE" SPO.
The trial court also has the "discretion" [may] to "think about" [consider]:
By all intents and purposes, the trial court does NOT have the discretion to limit or restrict a parent appointed as JMC to anything less than the "standard possession order" (SPO), unless it can be "rebutted".
The Legislature has presented those critera that can "rebut" the SPO for a parent appointed as JMC.
Those critera are:
- Sec. 153.253. STANDARD POSSESSION ORDER INAPPROPRIATE OR UNWORKABLE. The court shall render an order that grants periods of possession of the child as similar as possible to those provided by the standard possession order if the work schedule or other special circumstances of the managing conservator, the possessory conservator, or the child, or the year-round school schedule of the child, make the standard order unworkable or inappropriate.
- Sec. 153.254. CHILD LESS THAN THREE YEARS OF AGE. (a) The court shall render an order appropriate under the circumstances for possession of a child less than three years of age. In rendering the order, the court shall consider evidence of all relevant factors, including:...
- Sec. 153.255. AGREEMENT. The court may render an order for periods of possession of a child that vary from the standard possession order based on the agreement of the parties.
There is, however, not as much discretion here for the judge as one may think.
153.253 would allow a parent who has odd working hours or days that do not necessarily fit within the confines of the SPO to rebut the SPO and change it to something that is "workable" and that ensures the safety and best interest of the child.
For example: If a parent had to go out of town for work every 1st and 3rd weekends of the month, then the standard 1st, 3rd, 5th would be unworkable. The parent would not be able to adequately take care of the child and work at the same time. Therefore, that "rebuts" the SPO.
153.254 has already been stated that SPO is NOT intended for children under the tender age of 3 years old.
- See 153.251(d) "The standard possession order is designed to apply to a child three years of age or older"
153.255 assuming that you have two parents appointed JMC, it is presumed that they act in the best interest of their children, therefore if they come to an agreement, it must be seen as an agreement that benefits the child.
Furthermore, since it is established that a parent who engaged in abuse (including Family Violence) cannot be appointed JMC, there is little worry that one parent or another would suffer any sort of "intimidation" to come to an agreement.
- Sec. 153.251. POLICY AND GENERAL APPLICATION OF GUIDELINES. (a) The guidelines established in the standard possession order are intended ... as the minimum possession for a joint managing conservator.
The guidelines in the SPO are intended as the minimum possession for a JMC.
They key word here is "THE"!
Had the Legislature used the word "a", as in... SPO are intended as "a" minimum possession for a JMC, it would take on a completely different meaning.
That would give credence to the idea that there is more than ONE "minimum possession".
For example, as shown here in Differencebetween.com "A" is shown to be "indefinite", in other words can have more than one meaning, while the term "THE" is seen as "definite" meaning that is pertains to a particular noun.
Merriam-webster defines "The" as "used as a function word to indicate that a following noun or noun equivalent is definite or has been previously specified by context..."
Lets examine the relevant part of the sentence again utilizing our understanding of the term "THE".
... SPO are intended as "definite" minimum possession for a JMC.
There being only ONE (1) "minimum possession" and it is the one found in the guidelines of the SPO.
- Sec. 153.256. FACTORS FOR COURT TO CONSIDER. In ordering the terms of possession of a child under an order other than a standard possession order, the court shall be guided by the guidelines established by the standard possession order and may consider:
(1) the age, developmental status, circumstances, needs, and best interest of the child;
(2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and
(3) any other relevant factor.
Other than "A" standard possession!
As shown before, the use of the word "A" lets us know that the "standard possession" is "indefinite". There could be two or more "standard possessions" for the trial court to order.
We also see that the trial court is "obligated" [shall] to be "guided" by (here it is again) "THE" SPO.
The trial court also has the "discretion" [may] to "think about" [consider]:
- (1) age, needs,... best interest of the child (which is a sure sign that they are NOT talking about a JMC, because that has already been established by the appointment),
- (2) circumstances of both a "Managing Conservator (Sole or Joint) "AND" a possessory conservator.
And is a linking word, both sections must be true for the sentence to be true.
Merriam-webster defines "AND" as: "a logical operator that requires both of two inputs to be present or two conditions to be met for an output to be made or a statement to be executed",
Therefore, we know that this entire section is talking about a "possessory conservator". - Again, the factors here must be "relevant" to the matter at hand. In this case it must pertain to a "possessory conservator".
Bone thugs-n-HARMONY!
The interesting concept that SCoT has ruled (which the courts very seldom seem to implement) is that *IF* there is part of the statute that is ambiguous, the court has to construe that section of the statute so that it is in HARMONY with the rest of the entire statute.
It must not leave out or make any other part or section of the statute irrelevant, however, this seems to be a common practice with many trial court rulings.
It seems that they put emphasis on one part statute at the neglect of another part. This action is contradictory to what the statutes themselves state and of course contradictory to what the SCoT has stated:
Aside from emphasising the term "harmony" in the title, I expressly wanted to use the term thug. Not in a derogatory sense but in the way one person described it on URBAN DICTIONARY as:
One of them is the notions that judges have unlimited discretion.
That is the entire argument here.
Trial Judges get overturned all the time. Appellate courts rarely agree withe one another and their opinions are overturned with some regularity by the State Supreme Court. Keeping in mind that the State Supreme Courts hear only a small fraction of the cases that come before them and when they strike down an appellate court ruling, they are necessarily striking down a ruling by a panel (likely 3) judges.
It must not leave out or make any other part or section of the statute irrelevant, however, this seems to be a common practice with many trial court rulings.
It seems that they put emphasis on one part statute at the neglect of another part. This action is contradictory to what the statutes themselves state and of course contradictory to what the SCoT has stated:
- "Additionally, we must always consider the statute as a whole rather than its isolated provisions. Morrison, 699 S.W.2d at 208. We should not give one provision a meaning out of harmony or inconsistent with other provisions, although it might be susceptible to such a construction standing alone. Barr v. Bernhard, 562 S.W.2d 844, 849 (Tex.1978). We must presume that the Legislature intends an entire statute to be effective and that a just and reasonable result is intended. Tex. Gov't Code § 311.021(2),(3)."
Helena Chemical Co. v. Wilkins, 47 SW 3d 486 - Tex: Supreme Court 2001 - If two statutes are in conflict, "we will construe the different provisions in a way that harmonizes rather than conflicts." In re Mem'l Hermann Hosp. Sys., 464 S.W.3d 686, 716 (Tex. 2015)...
And we will not give an undefined statutory term a meaning that is out of harmony or inconsistent with other provisions in the statute. In re Hall, 286 S.W.3d 925, 928-29 (Tex. 2009).
Harris County v. WORKFORCE COMMISSION, 519 SW 3d 113 - Tex: Supreme Court 2017
Aside from emphasising the term "harmony" in the title, I expressly wanted to use the term thug. Not in a derogatory sense but in the way one person described it on URBAN DICTIONARY as:
- "A thug is a a follower in society, NOT a leader, thugs are lead by leaders, a thug don't think for himself, he thinks what a leader tells him, he follows trends that are almost always go against common sense..."
One of them is the notions that judges have unlimited discretion.
That is the entire argument here.
Trial Judges get overturned all the time. Appellate courts rarely agree withe one another and their opinions are overturned with some regularity by the State Supreme Court. Keeping in mind that the State Supreme Courts hear only a small fraction of the cases that come before them and when they strike down an appellate court ruling, they are necessarily striking down a ruling by a panel (likely 3) judges.
