Opinion
NO. 01-21-00028-CV
06-30-2022
James SABATINO, Appellant v. Rachel Lauren GOLDSTEIN, Appellee
William Tyler Moore, Bryan, for Appellant. Bridget Woody Holloway, for Appellee.
William Tyler Moore, Bryan, for Appellant.
Bridget Woody Holloway, for Appellee.
Panel consists of Justices Kelly, Goodman, and Guerra.
Gordon Goodman, Justice
James Sabatino appeals from the trial court's entry of a protective order against him. We vacate the order and dismiss this suit for lack of jurisdiction.
BACKGROUND
The Harris County District Attorney applied for a protective order against James Sabatino, a Massachusetts resident, on behalf of Rachel Lauren Goldstein, a Harris County resident who had once dated Sabatino. As grounds for the order, the District Attorney alleged a clear and present danger of stalking.
As part of the application for the protective order, Goldstein submitted a declaration in which she detailed some of her past dealings with Sabatino. She and Sabatino stopped dating around August 2017, and they did not speak to each other for about three years afterward. Then, around March 2020, Sabatino contacted Goldstein. For the next month or so, he sent her text messages. Sabatino told Goldstein he had found explicit photos of her on a phone she had once loaned to him. In May 2020, Goldstein retained a lawyer, who sent a letter to Sabatino demanding he cease contacting Goldstein and return her phone. But Sabatino continued to send Goldstein text messages. So, Goldstein contacted the police in Massachusetts and obtained an emergency protective order. Sabatino violated the terms of that order by showing up at Goldstein's home, which resulted in his arrest. In June 2020, a Massachusetts court granted Goldstein a six-month protective order against Sabatino. Though her declaration is less than clear on the point, it seems all the preceding events occurred in Massachusetts. At any rate, Goldstein's declaration does not represent that any of these events happened in Texas.
Finally, Goldstein declared that in July 2020, she received a series of small-claims court notices. These notices were related to several small-claims court suits Sabatino had filed against Goldstein. Sabatino's small-claims court claims included:
• a claim relating to the phone that he had refused to return to her;
• a claim for $7,000 in lost wages resulting from his inability to work due to the Massachusetts protective order showing up in background checks;
• a claim for $1,500 he paid a private investigator to find Goldstein; and
• a claim for $1,000 for caring for Goldstein's pet in 2017.
The trial court held a virtual hearing on the application. Sabatino appeared at the hearing via ZOOM from Massachusetts and represented himself. A lawyer licensed to practice law in Massachusetts had tried to appear on Sabatino's behalf during the hearing, but the trial court disallowed the lawyer from doing so because he was not licensed to practice law in Texas and had not been admitted pro hac vice . See TEX. GOV'T CODE § 82.0361(b) (requiring nonresident attorneys to pay fee to Texas Board of Law Examiners and then file motion asking for permission to participate in suit); TEX. RULES GOVERN. BAR ADM'N R. 19(a) (requiring nonresident attorney to file written, sworn motion with court asking for permission to participate in suit).
At the hearing, Goldstein testified she currently resides in Harris County. She had relocated from Massachusetts to Texas in June 2020.
Before moving to Texas, Goldstein dated Sabatino for about two years. The two stopped seeing one another in 2017. Their last contact before the events that led her to seek a protective order was in August 2017.
Goldstein stated that if she was asked about her declaration, her testimony would be substantially the same as the contents of the declaration. She testified that she was seeking a protective order because Sabatino was stalking her. In particular, Goldstein said Sabatino continued to contact her, despite the previous Massachusetts protective order, via small-claims court notices.
During Goldstein's testimony, several exhibits were admitted into evidence: her declaration, a multitude of hostile text messages sent to her by Sabatino from March 2020 through May 2020, the May 2020 letter her lawyer sent to Sabatino, the June 2020 Massachusetts protective order, and several notices of small-claims court actions filed against her by Sabatino. A Massachusetts court issued these small-claims notices in July 2020. Each of these small-claims notices was mailed to Goldstein's former address in Massachusetts and then forwarded to her new address in Texas by the U.S. Postal Service.
Goldstein testified that in Sabatino's text messages, he began talking about "sexually explicit photographs and conversations" saved on the disputed phone. He also sent these photos to her during these text-message conversations. These photos were of Goldstein and a prior boyfriend. Goldstein stated that she perceived Sabatino's behavior as a threat. Sabatino eventually returned the phone, but Goldstein remains concerned that other copies of the explicit photographs and conversations may exist elsewhere.
Goldstein further testified she has received two more small-claims court notices in addition to the ones that were admitted into evidence. Goldstein testified that she regarded the multitude of suits as harassment.
Sabatino testified that he neither physically harmed Goldstein nor threatened to physically harm her. Sabatino also testified that all the conduct Goldstein complained about on his part occurred in Massachusetts.
As to the small-claims suits, Sabatino argued that he had the right to petition a court for relief, even if Goldstein thought the suits were meritless. The trial court interjected, "She's not disputing that, sir. She's not disputing that." When Sabatino replied that Goldstein had testified his suits were harassment and he disagreed, the trial court stated, "Well sir, that's not for you to decide whether or not they constitute harassment. That's for the court to decide."
Sabatino also testified that he filed all the small-claims suits in Massachusetts and that the associated notices were directed to Goldstein's address in Massachusetts. In response to Sabatino's testimony that none of the events about which Goldstein complained had taken place in Texas, the trial court stated: "I don't care, sir. Move on. I do not care. That is not relevant to this proceeding. I need to know why I should not grant this protective order based on stalking and harassment under the Texas Penal Code and Chapter 7A of the Code of Criminal Procedure." Sabatino replied, "I believe I made my argument. I have nothing further." No additional evidence was admitted at the hearing. After hearing the evidence, the trial court entered a protective order on the basis that there were reasonable grounds to believe Sabatino had stalked Goldstein. The trial court also found that entry of a protective order was in Goldstein's best interest and necessary to prevent family violence and stalking. Finally, the trial court found that good cause existed to order Sabatino to have no contact with Goldstein. The trial court therefore prohibited Sabatino from:
• committing dating violence against Goldstein;
• communicating with Goldstein except through an attorney;
• communicating a threat to Goldstein through any person;
• going to or being within 200 feet of Goldstein's residence or place of employment;
• possessing a firearm;
• engaging in conduct directed specifically toward Goldstein, including following her, that is likely to harass, annoy, alarm, abuse, torment, or embarrass her; and
• harming, threatening, or interfering with the care, custody, or control of a pet owned by Goldstein or a member of her family or household.
The trial court ordered that these prohibitions remain in effect for the duration of Sabatino's life. Finally, the trial court ordered Sabatino to pay $900 in attorney's fees and reimburse the county $21 for the filing fee.
Although the trial court's protective order did not refer to the small-claims suits, the trial court admonished Sabatino about them from the bench, stating:
You are not allowed to harass her. What does that mean? She has testified that you are filing these civil suits to harass her. Let me suggest to you that you think twice before doing that again. Because if you violate the terms of this protective order, I can guarantee you that I will contact law enforcement up where you live and you could go to jail for violating the protective order.
Sabatino requested that the trial court make findings of fact and conclusions of law, which the trial court did. Among other things, the trial court found and concluded that there were reasonable grounds to believe Sabatino had engaged in conduct towards Goldstein that constituted stalking and harassment, as those criminal offenses are defined in Sections 42.07 and 42.072 of the Texas Penal Code and Chapter 7A of the Texas Code of Criminal Procedure.
Sabatino moved for a new trial, which was denied by operation of law.
DISCUSSION
On appeal, Sabatino contends the trial court lacked subject-matter jurisdiction because the record contains no evidence that he committed any acts whatsoever in Texas. Moreover, Sabatino continues, the record conclusively shows that the only acts he committed after Goldstein moved to Texas were filing several small-claims suits, which he filed in Massachusetts.
Standard of Review
When the jurisdictional facts are undisputed, whether a court has subject-matter jurisdiction is a question of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004). The same standard of review applies to the question of whether a court possesses territorial jurisdiction. Cox v. State , 497 S.W.3d 42, 54–56 (Tex. App.—Fort Worth 2016, pet. ref'd).
Article 7A Protective Orders
The trial court entered its protective order under Article 7A of the Texas Code of Criminal Procedure. Under Article 7A, a person who is the victim of stalking, as defined in Section 42.072 of the Penal Code, or a prosecuting attorney acting on the victim's behalf, may apply for a protective order. TEX. CODE CRIM. PROC. art. 7A.01(a)(1), (5). At the close of a hearing on the application, the trial court must find whether there are reasonable grounds to believe the applicant is the victim of stalking. Id. art. 7A.03(a). If the trial court finds this is so, then it shall issue a protective order. Id. art. 7A.03(b). Among other things, the trial court's protective order may contain provisions prohibiting the offending party from communicating with the applicant in a threatening or harassing manner, communicating with the applicant in any manner except through an attorney if there is good cause for an absolute bar on contact, going to or near the applicant's residence or place of employment, engaging in conduct directed specifically toward the applicant that is reasonably likely to harass, and possessing a firearm. Id. art. 7A.05(a)(2). The protective order "may be effective for the duration of the lives of the offender and victim or for any shorter period stated in the order." Id. art. 7A.07(a).
After the trial court entered its order, the Legislature repealed Article 7A and replaced it with Article 7B. This appeal solely concerns the now-repealed Article 7A.
Article 7A incorporates the Penal Code's definition of stalking. Under the Penal Code, stalking encompasses a variety of conduct. The Penal Code provides:
(a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that:
(1) constitutes an offense under Section 42.07, or that the actor knows or reasonably should know the other person will regard as threatening:
(A) bodily injury or death for the other person;
(B) bodily injury or death for a member of the other person's family or household or for an individual with whom the other person has a dating relationship; or
(C) that an offense will be committed against the other person's property;
(2) causes the other person, a member of the other person's family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be committed against the other person's property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and
(3) would cause a reasonable person to:
(A) fear bodily injury or death for himself or herself;
(B) fear bodily injury or death for a member of the person's family or household or for an individual with whom the person has a dating relationship;
(C) fear that an offense will be committed against the person's property; or
(D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.
Section 42.07, in turn, addresses the separate offense of harassment. It criminalizes several different types of conduct when one engages in the conduct with intent to harass, annoy, alarm, abuse, torment, or embarrass. PENAL § 42.07(a). The types of conduct include making obscene comments, threatening bodily injury or the commission of another felony against the person, knowingly making a false report that another has died or been seriously injured, or engaging in various types of communication via telephone, electronic communication, or the Internet. Id.
Analysis
Subject-Matter Jurisdiction
Subject-matter jurisdiction refers to a court's power to hear a particular type of suit. TV Azteca v. Ruiz , 490 S.W.3d 29, 36 (Tex. 2016). Texas courts derive their subject-matter jurisdiction from the Texas Constitution and state statutes. In re Allcat Claims Serv. , 356 S.W.3d 455, 459–60 (Tex. 2011). Our Constitution and state statutes vest district courts, like the one that entered the challenged protective order, with general jurisdiction, and we therefore presume district courts have subject-matter jurisdiction absent a contrary showing. TEX. CONST. art. V, § 8 ; TEX. GOV'T CODE §§ 24.007 –.008; Dubai Petrol. Co. v. Kazi , 12 S.W.3d 71, 74–75 (Tex. 2000).
No statute divests district courts of the power to hear an application for the entry of an Article 7A protective order. Article 7A states one may file an application for a protective order in several different courts, including district courts, in the county where the applicant resides, the county where the offender resides, or any county where an element of the alleged offense occurred. TEX. CODE CRIM. PROC. art. 7A.01(b)(1). Goldstein applied for a protective order in a district court in Harris County, where she resides. Thus, the trial court had subject-matter jurisdiction to hear Goldstein's application, and we reject Sabatino's contention to the contrary.
But our recognition that the trial court had subject-matter jurisdiction does not end the matter. Properly understood, Sabatino's argument is not about subject-matter jurisdiction, even though that is the label he applies to his position. Sabatino contends the trial court had no jurisdiction because he committed all the acts at issue in Massachusetts. Hence, what Sabatino challenges is the trial court's territorial jurisdiction, which is a distinct jurisdictional requirement in all suits. See Hart v. Moore , 952 S.W.2d 90, 93 (Tex. App.—Amarillo 1997, pet. denied) (territorial jurisdiction is distinct jurisdictional requirement from subject-matter jurisdiction); Valdez v. Cohen , 23 Tex.Civ.App. 475, 56 S.W. 375, 376 (Tex. App.—1900, writ ref'd) (territorial jurisdiction of Texas district courts is coextensive with boundaries of state).
When a party argues the substance of an issue but misnames or mislabels the issue, he nonetheless preserves the issue for our review (when preservation is required). St. John Missionary Baptist Church v. Flakes , 595 S.W.3d 211, 214 (Tex. 2020) (per curiam) ; see, e.g., Ancira Enters. v. Fischer , 178 S.W.3d 82, 89 n.8 (Tex. App.—Austin 2005, no pet.) (holding party preserved error and addressing substance of complaint even though party mislabeled issue as one of subject-matter jurisdiction). We now turn to the issue of the trial court's territorial jurisdiction.
Territorial Jurisdiction
Issues of territorial jurisdiction most often arise in the context of criminal prosecutions. Article 7A proceedings are civil matters. See Beach v. Beach , No. 01-19-00123-CV, 2020 WL 1879553, at *4 (Tex. App.—Houston [1st Dist.] Apr. 16, 2020, pet. dism'd w.o.j.) (mem. op.) (holding respondent had no Sixth Amendment right to counsel in Article 7A proceeding because it was civil matter). But reference to criminal-law authorities is unavoidable in this context, given that:
But see State ex rel. Cockerham v. Cockerham , 218 S.W.3d 298, 307 n.9 (Tex. App.—Texarkana 2007, no pet.) (describing proceeding for family-violence protective order as quasi-criminal in nature and noting order has significant collateral consequences).
• Article 7A is contained in the Code of Criminal Procedure;
• Article 7A incorporates by reference the criminal offense of stalking (among other offenses), as it is defined in the Penal Code; and
• the criminal offense of stalking incorporates another criminal offense, harassment, as it is defined in the Penal Code.
TEX. CODE CRIM. PROC. art. 7A.01(a)(1)–(2) ; PENAL §§ 42.07(a), 47.072(a). In addition, as was done in this case, Article 7A authorizes a prosecuting attorney to apply for a protective order on behalf of the victim. TEX. CODE CRIM. PROC. art. 7A.01(a)(5). And any protective order the trial court enters may entail deprivations of liberty and impair the constitutional rights of an offender to a degree commonly associated only with criminal convictions. E.g. , id. art. 7A.05(a)(2)(D) (allowing court to prohibit respondent from possessing firearms).
With respect to criminal law, one treatise observes that territorial jurisdiction "is sometimes mentioned as a third jurisdictional requirement, in addition to subject matter and personal jurisdiction." 21 AM. JUR. 2d Criminal Law § 425 (2022). Given that a state only has the authority to enact and enforce criminal laws within its borders, a state's courts do not have jurisdiction to adjudicate offenses committed outside the state. Id. Like subject-matter jurisdiction, this territorial limitation on a court's authority is essential to judicial proceedings and cannot be waived. Id.
The Penal Code specifies the territorial jurisdiction of Texas for purposes of criminal offenses, like stalking and harassment. The Penal Code provides that:
This state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which he is criminally responsible if:
(1) either the conduct or a result that is an element of the offense occurs inside this state;
(2) the conduct outside this state constitutes an attempt to commit an offense inside this state;
(3) the conduct outside this state constitutes a conspiracy to commit an offense inside this state, and an act in furtherance of the conspiracy occurs inside this state; or
(4) the conduct inside this state constitutes an attempt, solicitation, or conspiracy to commit, or establishes criminal responsibility for the commission of, an offense in another jurisdiction that is also an offense under the laws of this state.
PENAL § 1.04(a); see Allen v. State , 620 S.W.3d 915, 921 (Tex. Crim. App. 2021) (citing Section 1.04 for proposition that appellant "cannot be held liable in Texas for the acts committed in Iowa" in prosecution for sex offenses against child).
The trial court found that an Article 7A protective order was warranted on the basis of stalking. Because there are no allegations or evidence of conduct threatening bodily injury, death, or property crime, the trial court's stalking finding necessarily turns on evidence that Sabatino repeatedly engaged in conduct that "constitutes an offense under Section 42.07," the penal statute criminalizing harassment. See PENAL § 42.072(a) (stalking consists of repeatedly committing offense of harassment or repeatedly engaging in conduct actor knows or reasonably should know victim will regard as threatening bodily injury, death, or property offense). The offense of harassment, in turn, criminalizes the following specified conduct:
A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:
(1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;
(2) threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of the person's family or household, or the person's property;
(3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;
(4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another;
(5) makes a telephone call and intentionally fails to hang up or disengage the connection;
(6) knowingly permits a telephone under the person's control to be used by another to commit an offense under this section;
(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; or
(8) publishes on an Internet website, including a social media platform, repeated electronic communications in a manner reasonably likely to cause emotional distress, abuse, or torment to another person, unless the communications are made in connection with a matter of public concern.
Id. § 42.07(a).
Based on the record, the trial court could have found that Sabatino violated subsection (a)(1) of the harassment statute based on his texting of sexually explicit photos to Goldstein. The trial court also could have found that Sabatino violated subsections (a)(4) and (a)(7) of the harassment statute based on his repeated and increasingly hostile text messages. However, it is undisputed that Sabatino engaged in this conduct in Massachusetts. It likewise is undisputed that Goldstein received these text messages in Massachusetts. None of these events took place in Texas.
Goldstein moved to Texas after these events. But a victim's relocation to Texas after being harassed in another state does not give Texas courts territorial jurisdiction over the harassment. Id. § 1.04(a); Allen , 620 S.W.3d at 921.
If Goldstein had been in Texas when she received Sabatino's text messages, it might alter our analysis. At least one relevant aspect of the harassment statute sets forth a result-of-conduct offense, specifically, subsection (a)(4)’s prohibition on causing another's telephone to repeatedly ring. Ex parte Sanders , No. PD-0469-19, 2022 WL 1021055, *10 (Tex. Crim. App. Apr. 6, 2022). When a result is an element of an offense and the result occurs in Texas, this state's district courts have territorial jurisdiction over the offense. Penal § 1.04(a)(1); Lee v. State , 537 S.W.3d 924, 926 (Tex. Crim. App. 2017) (Texas courts have jurisdiction "over an offense if either a conduct element or a result element occurs inside the state"). The audible sounds or vibration that commonly accompany receipt of text messages could conceivably constitute ringing for purposes of subsection (a)(4). See New Oxford American Dictionary 1505 (3d ed. 2010) (defining verb "ring" as to "make a clear resonant or vibrating sound"). Thus, a Texas district court may well have territorial jurisdiction over harassment allegations that are premised on the receipt of repeated texts accompanied by such audible sounds or vibration by someone in this state even though the sender is not.
The lone connection this case has to Texas is that the U.S. Postal Service forwarded to Goldstein's Texas address certain small-claims court notices. But Sabatino filed these claims in a Massachusetts court, and he directed these notices to Goldstein's prior address in Massachusetts. Assuming for argument's sake that a third-party's forwarding of court-related notices to Texas could give this state territorial jurisdiction, Sabatino's filing of small-claims suits and causing the issuance of corresponding notices does not even arguably violate any of the aforementioned subsections of the harassment statute. See PENAL § 42.07(a).
We sustain Sabatino's issue as to territorial jurisdiction. Because we must vacate the trial court's protective order for lack of jurisdiction, we need not address Sabatino's additional issues. See TEX. R. APP. P. 47.1 (directing us to issue written opinion that is as brief as practicable while addressing every issue necessary).
CONCLUSION
We vacate the trial court's protective order because the trial court lacked the territorial jurisdiction required to issue the order, and we dismiss the lawsuit.