Rachel Lauren Goldstein v. James Sabatino

Supreme Court of Texas
══════════
No. 22-0678
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Rachel Lauren Goldstein,
Petitioner,

v.

James Sabatino,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the First District of Texas
═══════════════════════════════════════

Argued February 20, 2024

JUSTICE LEHRMANN delivered the opinion of the Court.

The primary question presented is whether “territorial
jurisdiction”—a criminal concept—is a jurisdictional requirement
underlying a district court’s power to issue a civil protective order under
Chapter 7B of the Texas Code of Criminal Procedure. The district court
issued a protective order under Chapter 7B’s predecessor 1 against a

1 When this suit was filed, the protective-order provisions were housed

in Chapter 7A of the Code of Criminal Procedure. Because Chapter 7B is the
Massachusetts resident, based on conduct that occurred entirely within
Massachusetts borders. On appeal, the respondent challenged the
district court’s personal jurisdiction over him and its subject matter
jurisdiction over the proceeding. The court of appeals vacated the order
and dismissed the case, holding that the district court lacked territorial
jurisdiction—a purportedly nonwaivable, third jurisdictional
requirement. The court of appeals did not address personal jurisdiction.
Though we disagree with the court of appeals’ territorial-
jurisdiction analysis, we agree with the respondent that the district
court lacked personal jurisdiction over him. Accordingly, we affirm the
court of appeals’ judgment vacating the protective order and dismissing
the case.

I. Background

Rachel Goldstein and James Sabatino dated for about two years
in Massachusetts; their relationship ended in 2017. In March 2020,
after almost three years with no communication, Sabatino began
contacting Goldstein through texts and calls, informing her that he had
found sexually explicit photos and conversations shared between her
and someone she dated before Sabatino. The photos and conversations
were apparently stored on a cell phone that Goldstein had loaned to
Sabatino during their relationship. Despite Goldstein’s request that
Sabatino return the phone, he refused. Goldstein became concerned

current version, the provisions cited in this opinion have not been
substantively revised, and any revisions to other provisions do not affect our
analysis, we generally reference Chapter 7B to minimize obsolete citations.

2
that Sabatino would use these texts and images to “control her and ruin
her career.”
Goldstein served Sabatino with a cease-and-desist letter
demanding that he cease communicating with her and return the phone.
In May 2020, a Massachusetts court granted Goldstein a protective
order against Sabatino. He subsequently violated the order and was
arrested. In June, the Massachusetts court extended the protective
order for another six months and included a prohibition on any further
contact by email, by text, or via a third party.
The same month, Goldstein moved to Harris County, Texas.
While the Massachusetts protective order was still in effect, 2 Sabatino
began filing small-claims lawsuits in Massachusetts against Goldstein
for defamation, lost wages, malicious prosecution, reimbursement for
pet care and a vacation they took together, and the cost of the cell phone
he was prevented from using. Sabatino also made at least two HIPAA
complaints against Goldstein (a doctor), which were later determined to
be unfounded.
In October 2020, Goldstein filed an application for a protective
order against Sabatino in Harris County. 3 On November 13, Sabatino

The record contains no information regarding the status of the
2

Massachusetts protective order after December 1, 2020, when the extension
ended.
3 Attorneys with the Harris County District Attorney’s Office filed the

application on Goldstein’s behalf. See TEX. FAM. CODE § 81.007(a) (“The county
attorney or the criminal district attorney is the prosecuting attorney
responsible for filing applications under [Title 4, Subtitle B of the Family Code,
which governs protective orders] . . . .”); TEX. CODE CRIM. PROC. art. 7B.008

3
was served with citation and notice of a December 3 hearing, which took
place via Zoom. Sabatino did not file a special appearance and
participated in the Zoom hearing pro se. At the hearing, Goldstein
testified and offered copies of the text-message exchanges with Sabatino
and the lawsuits he had filed against her. After her testimony, the
district court allowed Sabatino to “directly examine” himself. Sabatino
testified that there was no evidence he had harmed or would harm
Goldstein, that the “text message issue has already been litigated in
Massachusetts,” that the civil suits against Goldstein were all filed in
Massachusetts, and that the Texas long-arm statute “does not apply in
this case.”
The district court found that it had jurisdiction over the parties
and the subject matter. It also found that there was reason to believe
Goldstein was the victim of stalking pursuant to the Texas Penal Code
and then-Chapter 7A of the Code of Criminal Procedure. Based on these
findings, the district court granted a lifetime protective order preventing
Sabatino from, among other things, communicating with Goldstein
except through an attorney or going near Goldstein’s residence or place
of work. 4

(“To the extent applicable, except as otherwise provided by this subchapter,
Title 4, Family Code, applies to a protective order issued under this
subchapter.”).
4 Specifically, the order prohibits Sabatino from:

(a) Committing dating violence against [Goldstein];

4
On appeal, Sabatino challenged the district court’s personal
jurisdiction over him and subject matter jurisdiction over the
protective-order proceeding. Goldstein responded that Sabatino waived
personal jurisdiction when he failed to file a special appearance and
that, because Goldstein lived in Harris County, the district court had
subject matter jurisdiction to hear her application and issue a protective
order.
The court of appeals agreed that the district court had subject
matter jurisdiction because Goldstein applied for the protective order in
the district court of the county where she resides. 649 S.W.3d 841, 847
(Tex. App.—Houston [1st Dist.] 2022) (citing former TEX. CODE CRIM.

(b) Communicating with [Goldstein] in any manner except
through []her attorney of record or a person appointed by the
Court;
(c) Communicating a threat through any person to [Goldstein];
(d) Going to or [within 200 feet of] the residence or place of
employment or business of [Goldstein] . . . or any future
residential and employment addresses of [Goldstein]
provided that a [compliant] “Notification of Change of
Address” is filed . . . ;
(e) Possessing a firearm, unless the person is a peace officer, as
defined by Section 1.07, Penal Code, actively engaged in
employment as a sworn, full-time paid employee of a state
agency or political subdivision;
(f) Engaging in conduct directed specifically toward [Goldstein],
including following [her], that is likely to harass, annoy,
alarm, abuse, torment, or embarrass [her];
(g) Harming, threatening, or interfering with the care, custody,
or control of a pet, companion animal, or assistance
animal . . . that is possessed by [Goldstein] or by a member
of [her] family or household[.]

5
PROC. art. 7A.01(b)(1) (current version at id. art. 7B.001(b)(1))). 5 The
court did not address Sabatino’s challenge to the district court’s personal
jurisdiction over him. However, the court of appeals concluded that,
“[p]roperly understood,” Sabatino’s challenge was to “the trial court’s
territorial jurisdiction, which is a distinct jurisdictional requirement in
all suits” that “cannot be waived.” Id. at 847–48. As none of the conduct
that gave rise to the protective order took place in Texas, the court of
appeals dismissed the case for lack of territorial jurisdiction. Id. at
849–50.
We granted Goldstein’s petition for review.

5 Article 7B.001(b) provides:

An application for a protective order under this subchapter may
be filed in:
(1) a district court, juvenile court having the jurisdiction of a
district court, statutory county court, or constitutional
county court in:
(A) the county in which the applicant resides;
(B) the county in which the alleged offender resides; or
(C) any county in which an element of the alleged offense
occurred; or
(2) any court with jurisdiction over a protective order under
Title 4, Family Code, involving the same parties named in
the application.
TEX. CODE CRIM. PROC. art. 7B.001(b). We need not and do not address
whether this provision imposes jurisdictional limitations on a court’s authority
to preside over a protective-order proceeding.

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II. Territorial Jurisdiction

A court has power to decide a case “only if it has ‘both subject
matter jurisdiction over the controversy and personal jurisdiction over
the parties.’” TV Azteca v. Ruiz, 490 S.W.3d 29, 36 (Tex. 2016) (quoting
Spir Star AG v. Kimich, 310 S.W.3d 868, 871 (Tex. 2010)). In criminal
cases, an additional jurisdictional concept known as “territorial
jurisdiction” comes into play when a criminal offense occurs partly or
wholly outside the boundaries of the State. Ex parte Watson, 601 S.W.2d
350, 352 & n.2 (Tex. Crim. App. 1980) (citing TEX. PENAL CODE § 1.04).
Under the Penal Code, territorial jurisdiction over an offense exists 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. TEX. PENAL CODE § 1.04(a). Absent such a
connection, the State may not criminally prosecute an offender. See
Allen v. State, 620 S.W.3d 915, 921 (Tex. Crim. App. 2021) (“To be clear,
Appellant cannot be held liable in Texas for the acts committed in Iowa.”
(citing TEX. PENAL CODE § 1.04)).
The court of appeals imported this distinctly criminal
jurisdictional component into Chapter 7B protective-order proceedings.

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649 S.W.3d at 848–50. Because such proceedings are undisputedly civil
matters, this was error.
Chapter 7B authorizes issuance of a protective order when “the
court finds that there are reasonable grounds to believe that the
applicant is the victim of sexual assault or abuse, stalking, or
trafficking.” TEX. CODE CRIM. PROC. art. 7B.003(b). 6 Among other
things, the court may prohibit the alleged offender from communicating
with the applicant or the applicant’s family or household “in a
threatening or harassing manner” and from “engaging in conduct
directed specifically toward the applicant or any member of the
applicant’s family or household . . . that is reasonably likely to harass,
annoy, alarm, abuse, torment, or embarrass the person.” Id.
art. 7B.005(a)(2)(A)(i), (C).
Chapter 7B thus authorizes a protective order when the court
finds reasonable grounds to believe that the respondent engaged in
conduct that would qualify as an offense under certain provisions of the
Penal Code. But that is not akin to prosecuting the respondent for the
underlying offense. Rather than punish someone for past conduct, a
protective order protects the applicant and prevents future harm. See,
e.g., id. art. 7B.005(a)(1) (when issuing a Chapter 7B protective order, a
court may, among other things, “order the alleged offender to take
action . . . that the court determines is necessary or appropriate to
prevent or reduce the likelihood of future harm to the applicant or a
member of the applicant’s family or household”). As the court of appeals

6 The Family Code authorizes issuance of a protective order upon a
finding that family violence has occurred. TEX. FAM. CODE § 85.001(b).

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itself recognized, Chapter 7B proceedings are civil matters. 7 649 S.W.3d
at 847. Thus, they do not implicate the “territorial jurisdiction” required
in criminal proceedings. Stated another way, as in any civil case, a court
presiding over a Chapter 7B proceeding must have “subject matter
jurisdiction over the controversy and personal jurisdiction over the
parties.” TV Azteca, 490 S.W.3d at 36. The court of appeals erred in
imposing a third, nonwaivable territorial limitation on the court’s
jurisdiction that applies only in criminal cases.
Sabatino nevertheless insists that “territorial jurisdiction” is a
longstanding, distinct jurisdictional requirement in civil cases. We
disagree. Before the U.S. Supreme Court’s landmark decision in
International Shoe Co. v. Washington, 326 U.S. 310 (1945), our case law

7 In In re Commitment of Fisher, we recognized that a civil statute can

be “‘so punitive either in purpose or effect as to negate [the State’s] intention’
to deem it ‘civil.’” 164 S.W.3d 637, 647 (Tex. 2005) (alteration in original)
(quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997)). In conducting that
evaluation, we apply the U.S. Supreme Court’s “Kennedy factors,” which
include:
(1) whether the sanction involves an affirmative disability or
restraint; (2) whether it has historically been regarded as a
punishment; (3) whether it comes into play only on a finding of
scienter; (4) whether its operation will promote the traditional
aims of punishment—retribution and deterrence; (5) whether
the behavior to which it applies is already a crime; (6) whether
an alternative purpose to which it may rationally be connected
is assignable for it; and (7) whether it appears excessive in
relation to the alternative purpose assigned.
Id. (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963)). We
need not engage in an exhaustive analysis of these factors to conclude that
Chapter 7B is not so punitive in purpose or effect as to controvert its “civil”
status—indeed, neither the parties nor the court of appeals suggests otherwise.

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consistently treated the concept of territorial jurisdiction as a subsidiary
consideration relevant to personal jurisdiction. That is, the cases
discussing territorial jurisdiction did so for the purpose of establishing
jurisdiction over a defendant such that he could be justly bound by a
court’s judgment. See Armstrong v. Galveston, H. & S.A. Ry. Co., 46
S.W. 33, 35 (Tex. 1898) (“[C]orporations and persons, doing business
within the territorial jurisdiction of a state, are subject to its law.”);
Traylor v. Lide, 7 S.W. 58, 61 (Tex. 1887) (describing territorial
jurisdiction as limiting a court’s exercise of power when it lacks in
personam jurisdiction over a party); see also Mitchim v. Mitchim, 518
S.W.2d 362, 366 (Tex. 1975) (“Historically the jurisdiction of courts to
render judgment in personam is grounded on their de facto power over
the defendant’s person. Hence his presence within the territorial
jurisdiction of a court was prerequisite to its rendition of a judgment
personally binding him.”).
This understanding of territorial jurisdiction was grounded in the
U.S. Supreme Court’s 1887 holding in Pennoyer v. Neff that a court could
not constitutionally bind a defendant to a judgment unless the court
acquired jurisdiction “by service of process within the State, or his
voluntary appearance.” 95 U.S. 714, 733 (1887). In Ferrer v. Almanza,
667 S.W.3d 735 (Tex. 2023), we traced the development of the law
governing personal jurisdiction and service of process, culminating with
the Supreme Court’s complete “retreat” from Pennoyer in International
Shoe, in which the Supreme Court recognized that due process no longer
required “a defendant’s ‘presence within the territorial jurisdiction of a
court’ to render a judgment against that defendant.” Id. at 739 (quoting

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Int’l Shoe, 326 U.S. at 316). We affirmed in Ferrer that, in the context
of a statute tolling limitations during a defendant’s “absence from this
state,” such “absence . . . depends not on physical location but, rather,
on whether a defendant is subject to personal jurisdiction and service.”
Id. at 744. Our analysis in Ferrer reflects the understanding that
territorial jurisdiction was subsumed into the minimum-contacts
analysis.
The U.S. Supreme Court has understood International Shoe the
same way. Specifically, the Court held that “Due Process does not
necessarily require the States to adhere to the unbending territorial
limits on jurisdiction set forth in Pennoyer.” Burnham v. Superior Ct. of
Cal., 495 U.S. 604, 618 (1990). Territorial jurisdiction has not been
recognized as a separate jurisdictional consideration in the civil courts.
Rather, Pennoyer established a regime in which territorial jurisdiction
was the only way for a court to achieve personal jurisdiction over a party.
However, after International Shoe, a party’s presence within the
territorial jurisdiction of a state was no longer required to satisfy the
due process requirements of personal jurisdiction. After this shift, the
term “territorial jurisdiction” quickly fell into desuetude.
In his supplemental briefing in this Court, Sabatino relies on the
well-settled presumption against a statute’s having extraterritorial
effect to argue that “territorial jurisdiction” is a longstanding
prerequisite in civil cases. See, e.g., Citizens Ins. Co. of Am. v. Daccach,
217 S.W.3d 430, 443–44 (Tex. 2007). This presumption is that a statute
has no extraterritorial effect “[u]nless the intention to have [the] statute
operate beyond the limits of the state . . . is clearly expressed or

11
indicated by its language, purpose, subject matter, or history.” Id. at
443 (quoting Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 187
(Tex. 1968)). 8 However, the presumption is not jurisdictional in an
adjudicative sense; it does not concern a court’s power to render a
binding judgment. Thus, as Sabatino disclaimed any challenge to
Chapter 7B’s reach or the validity of the order’s provisions in the court
of appeals, the issue is not before us. In any event, because, as discussed
below, we ultimately hold that the trial court lacked personal
jurisdiction over Sabatino, we need not address his argument in this
Court about the presumption against legislative extraterritoriality. 9

III. Personal Jurisdiction

The court of appeals did not reach Sabatino’s personal jurisdiction
issue, but in the interest of judicial economy we will address it in the
first instance here. See Jones v. Turner, 646 S.W.3d 319, 325 (Tex.
2022).

Even if the Legislature has overcome this presumption by clearly
8

expressing that a statute applies to extraterritorial conduct, there are also
constitutional limitations on the statute’s extraterritorial reach. Daccach, 217
S.W.3d at 446.
9 We also do not answer a related question—whether a person is the

victim of an offense under the Texas Penal Code, for purposes of the
protective-order statutes, if all the relevant conduct took place between
non-Texas residents in another jurisdiction. Answering that question could
involve considerations similar to the territorial jurisdiction analysis employed
by the court of appeals, but the answer would dictate whether a protective
order is available on the merits, not whether the court has jurisdiction over the
proceedings. Only jurisdictional questions are before us in this appeal; we
therefore hold only that a lack of territorial jurisdiction in the criminal sense
is not a jurisdictional bar to a Texas court’s consideration of a civil
protective-order application.

12
Texas courts may exercise personal jurisdiction over a
nonresident defendant when (1) our long-arm statute authorizes it and
(2) doing so comports with federal and state constitutional due process
guarantees. Old Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 550,
558 (Tex. 2018). But because Texas’s long-arm statute extends personal
jurisdiction as far as the federal constitutional requirements allow, the
“federal due process requirements shape the contours of Texas courts’
jurisdictional reach.” Searcy v. Parex Res., Inc., 496 S.W.3d 58, 66 (Tex.
2016).
The assertion of personal jurisdiction over a nonresident
defendant is constitutional when two criteria are met: (1) the defendant
has established “minimum contacts” with the forum state; and (2) the
exercise of jurisdiction does not offend “traditional notions of fair play
and substantial justice.” TV Azteca, 490 S.W.3d at 36 (quoting Int’l
Shoe, 326 U.S. at 316). To establish minimum contacts, the defendant
must have “purposefully [availed] itself of the privilege of conducting
activities within the forum state, thus invoking the benefits and
protections of its laws.” Moncrief Oil Int’l Inc. v. OAO Gazprom, 414
S.W.3d 142, 150 (Tex. 2013).
The purposeful-availment analysis is guided by three main
principles, which bear repeating. See Michiana Easy Livin’ Country,
Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005). First, only the
defendant’s contacts with the forum are relevant; the unilateral activity
of a third party is not. Moki Mac River Expeditions v. Drugg, 221 S.W.3d
569, 575 (Tex. 2007). Second, the defendant’s contacts must be
“purposeful” as opposed to “random, fortuitous, or attenuated.” Id. And

13
third, the defendant must seek some benefit, advantage, or profit by
availing itself of the jurisdiction. Michiana, 168 S.W.3d at 785.
Here, the analysis is simple. Goldstein does not point to any
purposeful contacts that Sabatino made with Texas—in fact, she points
to no contacts at all. The predicate conduct underlying the protective
order took place entirely in the Commonwealth of Massachusetts, and
most of it took place while both Goldstein and Sabatino were
Massachusetts residents. 10
Goldstein does not dispute the absence of contacts between
Sabatino and Texas. Rather, Goldstein argues that Sabatino waived
any challenge to the district court’s personal jurisdiction by entering a
general appearance. Texas Rule of Civil Procedure 120a, which governs
special appearances for the purpose of challenging personal jurisdiction,
provides that “[e]very appearance, prior to judgment, not in compliance
with this rule is a general appearance.” TEX. R. CIV. P. 120a(1). “A party
enters a general appearance,” and thus waives a challenge to personal
jurisdiction, “when it (1) invokes the judgment of the court on any
question other than the court’s jurisdiction, (2) recognizes by its acts
that an action is properly pending, or (3) seeks affirmative action from
the court.” Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004).
Goldstein argues that Sabatino failed to file a special appearance in

10 Sabatino filed small-claims lawsuits against Goldstein after she
moved to Harris County, but they were filed in Massachusetts, and notice of
those suits was directed to Goldstein’s Massachusetts address. We thus need
not address how serving Goldstein with those suits in Texas would have
impacted the analysis.

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accordance with Rule 120a and entered a general appearance by
appearing at the December 2020 hearing via Zoom.
In evaluating this procedural waiver question, we are mindful of
Sabatino’s status in the district court as a pro se litigant. We have said
that “[t]here cannot be two sets of procedural rules, one for litigants with
counsel and the other for litigants representing themselves.” Mansfield
State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978). Still, courts
should “review and evaluate pro se pleadings with liberality and
patience.” Li v. Pemberton Park Cmty. Ass’n, 631 S.W.3d 701, 706 (Tex.
2021). This is especially true when the application of a procedural rule
“turns on an actor’s state of mind . . . [which] does not create a separate
rule, but recognizes the differences the rule itself contains.” Wheeler v.
Green, 157 S.W.3d 439, 444 (Tex. 2005). Accordingly, the specific facts
and circumstances of this case are crucial for our analysis.
When Sabatino was served with the application for a protective
order, the district court sent a notice to the parties setting the date for
the December hearing and requiring them to file sworn motions on their
appearances before the hearing. See TEX. R. CIV. P. 120a(1) (“[A] special
appearance shall be made by sworn motion filed prior to motion to
transfer venue or any other plea, pleading or motion.”). Sabatino failed
to do so. However, he also filed no other pleadings or motions asking for
relief or otherwise indicating that the action was properly pending.
Further, “we have never held and decline to hold today, that merely
appearing as a witness in a cause serves as a general appearance,
subjecting one to the jurisdiction of the court.” Werner v. Colwell, 909
S.W.2d 866, 870 (Tex. 1995).

15
Moreover, Sabatino raised the issue of personal jurisdiction as
soon as he was permitted to speak substantively on his own behalf.
After being sworn in as a witness himself, Sabatino began his testimony
as follows:
SABATINO: Okay. So I just want to say for the record
that the plaintiff has testified that no physical harm or
threats of physical harm took place, either within our
relationship or after our relationship. She testified that to
that effect --
THE COURT: I’ve heard her testimony, sir.
SABATINO: Okay. The second one is that the text
message issue has already been litigated in the state of
Massachusetts. Texas -- the long arm statute from Texas
does not apply in this case.
This exchange demonstrates that, at the very least, Sabatino
challenged personal jurisdiction at his first opportunity to offer any
sworn testimony. See TEX. R. CIV. P. 120a(1) (“[A] special appearance
may be made by any party either in person or by attorney for the purpose
of objecting to the jurisdiction of the court over the person or property of
the defendant . . . .” (emphasis added)). Thus, interpreting Sabatino’s
actions liberally and with patience, we do not view his appearance at the
Zoom hearing as constituting a general appearance or a waiver of his
sworn challenge to the district court’s personal jurisdiction.

IV. Conclusion

The court of appeals erred in holding that territorial jurisdiction
is an independent jurisdictional requirement in Chapter 7B protective-
order proceedings. However, we hold that the district court lacked
personal jurisdiction over Sabatino, who did not enter a general

16
appearance. Accordingly, we affirm the court of appeals’ judgment
vacating the protective order and dismissing the case.

Debra H. Lehrmann
Justice

OPINION DELIVERED: May 24, 2024

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