In re Barrera

9 S.W.3d 386, 1999 Tex. App. LEXIS 9090, 1999 WL 1125380
CourtCourt of Appeals of Texas
DecidedDecember 8, 1999
DocketNo. 04-99-00683-CV
StatusPublished
Cited by3 cases

This text of 9 S.W.3d 386 (In re Barrera) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Barrera, 9 S.W.3d 386, 1999 Tex. App. LEXIS 9090, 1999 WL 1125380 (Tex. Ct. App. 1999).

Opinion

OPINION

Opinion by:

KAREN ANGELINI, Justice.

Relator, Cynthia A. Barrera petitions this court for a writ of mandamus ordering Judge Woody Densen to vacate his orders granting partial summary judgment and dismissing the underlying case with prejudice and to disqualify himself from hearing any further proceedings in the underlying case. Because we find that Judge Den-sen’s disqualification is mandatory, we conditionally grant the writ.

Factual and PROCEDURAL Background

On April 27, 1999, relator Cynthia Barrera filed suit for damages against real parties in interest Judge Terry Canales and Jim Wells County in the 79th Judicial District Court of Jim Wells County.1 By order dated May 24, 1999, the presiding judge of the Fifth Administrative Judicial Region, assigned respondent Judge Woody [388]*388Densen to preside over the 79th Judicial District Court in Jim Wells County from May 24, 1999 to May 26, 1999. A separate order assigned Judge Densen to preside over the same court in Brooks County from May 27,1999 to May 28,1999.

Accordingly, Judge Densen heard and granted Judge Canales’ motion for protective order in Jim Wells County on May 25, 1999. Then, while he was sitting in Brooks County on May 27, 1999, Judge Densen conducted a telephone conference with the parties, during which he formally denied Barrera’s motion to quash a deposition notice.

By order dated June 9, 1999, the presiding judge again appointed Judge Densen to the 79th Judicial District Court for the express purpose of presiding over the underlying case. On August 13, 1999, Barrera filed an objection to the assignment of Judge Densen pursuant to Tex. Gov’t Code Ann. § 74.053 (Vernon 1998). Judge Den-sen overruled the objection on August 20, 1999, and granted Judge Canales’s motion for summary judgment. On August 31, 1999, Barrera renewed and supplemented her objection to Judge Densen’s assignment. Judge Densen noted that the objection to his assignment “[did] not apply” and granted Jim Wells County’s plea to the jurisdiction, dismissing the case with prejudice.

Discussion

Chapter 74 of the Texas Government Code authorizes the nine regional presiding judges to assign visiting judges to courts in their regions. See In re Perritt, 992 S.W.2d 444, 446 (Tex.1999). Where an assigned judge overrules a timely objection to his assignment, that judge’s subsequent orders are void and the objecting party is entitled to mandamus relief. See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex.1997); Flores v. Banner, 932 S.W.2d 500, 501 (Tex.1996). Objections to assigned judges are governed by section 74.053 as follows:

(b) If a party to a civil case files a timely objection to the assignment, the judge shall not hear the case. Except as provided by Subsection (d), each party to the case is only entitled to one objection under this section for that case.
(c) An objection under this section must be filed before the first hearing or trial, including pretrial hearings, over which the assigned judge is to preside.
(d) A former judge or justice who was not a retired judge may not sit in a case if either party objects to the judge or justice.

Tex. Gov’t Code Ann. § 74.053 (Vernon 1998). Subsection (b) allows a party to make one objection to any assigned judge. However, subsection (d) allows unlimited objections “to an assigned judge who was not a retired judge,” or in other words, to a former judge. See Mitchell Energy, 943 S.W.2d at 437. A judge’s status as a retired or former judge is determined at the time the judge leaves office, not at the time of assignment. See Perritt, 992 S.W.2d at 446 n. 2; Mitchell Energy, 943 S.W.2d at 440.

In the present case, Judge Densen’s status as either a former or retired judge is in dispute. The only evidence of Judge Densen’s status in the record before us is Judge Densen’s own statement, made during the hearing on Barrera’s objection to his assignment. Judge Densen noted that he “was a former judge when [he] left the bench ... however ... at that time, I was a vested judge.” This statement is ambiguous, at best, and provides little evidence of Judge Densen’s true status. Fortunately, however, Judge Densen’s status is irrelevant to the issue before us as only one objection to his assignment has been lodged. More to the point, regardless of Judge Densen’s status, any objection made to his assignment under chapter 74.053 was required to be timely. See Tex. Gov’t Code Ann. § 74.053(c) (Vernon 1998).

Judge Densen deemed Barrera’s objection to his assignment untimely because, [389]*389when the objection was filed, he had already heard and ruled upon pre-trial discovery matters in the case without objection. Barrera notes, however, that Judge Densen heard the motion for protective order by authority of the May 24, 1999, assignment. According to Barrera, her objection related to the June 9, 1999, assignment. At the time Barrera objected, Judge Densen had not presided over any matter in the underlying ease by the authority of the June 9, 1999, assignment. Accordingly, Barrera argues that the objection was timely.

On the other hand, real party in interest Terry Canales contends that Judge Den-sen’s authority over the underlying case did not expire with the May 24, 1999, order of assignment. Instead, according to Canales, once Judge Densen ruled on pre-trial matters, his authority extended to the entire case, including trial on the merits. Based upon this reasoning, Canales argues that the June 9, 1999, assignment order was superfluous and unnecessary.

We have not found nor have the parties cited a case that is precisely on point. However, Barrera points us to several cases presenting similar factual situations. In O’Connor v. Lykos, a judge who was assigned to hear a motion to modify custody granted a default judgment and then a motion for new trial. When the judge was reassigned to hear the new trial, one of the parties objected. The court held that the objection to the reassignment was timely because the judge had not taken action under the authority of the new assignment. See O’Connor v. Lykos, 960 S.W.2d 96, 98 (Tex.App.—Houston [1st Dist.] 1997, no writ).

Similarly, in Di Ferrante v. Smith, a judge was assigned to hear a motion to recuse without objection. He was later assigned to preside over the lawsuit in general. The court held that the objection to the second assignment was timely. See Di Ferrante v. Smith, 940 S.W.2d 843, 848-49 (Tex.App.—Houston [14th Dist.] 1997, no writ). And in Starnes v. Chapman, a judge who was assigned to preside over a specific case granted summary judgment. After the summary judgment was appealed and reversed, the judge was reassigned to hear the case on remand. The court held that that the objection to the reassignment was timely because the two assignments were separate. See Starnes v. Chapman, 793 S.W.2d 104.

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Bluebook (online)
9 S.W.3d 386, 1999 Tex. App. LEXIS 9090, 1999 WL 1125380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-barrera-texapp-1999.