in Re the State of Texas Ex Rel. Brian W. Wice

• Court: Court of Appeals of Texas
• Decided: May 27, 2021
• Docket: 01-20-00479-CR
• Status: Published

Opinion

Opinion issued May 27, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00477-CR NO. 01-20-00478-CR NO. 01-20-00479-CR ———————————

IN RE THE STATE OF TEXAS EX REL. BRIAN W. WICE, Relator

Original Proceeding on Petition for Writ of Mandamus

CONCURRING AND DISSENTING OPINION

The State petitions for mandamus relief arguing that the trial court abused its

discretion in vacating an order that transferred these cases from Collin County to

Harris County. The majority disagrees and denies the State’s petition on the ground

that the transfer order is void. Among other things, the majority holds that: (1) the district judge who transferred these cases from Collin County to Harris County lacked the authority to do so because he presided over these cases under a statutory assignment and this statutory assignment had expired before he entered the transfer order; and

(2) Article V, Section 11 of the Texas Constitution, which allows a district judge to hold court for another when they deem it expedient, did not allow the district judge to continue presiding after his statutory assignment expired because this interpretation would thwart the statutory scheme.

With respect to the first prong of the majority’s holding, I concur because the

majority reaches the right result but does so for the wrong reasons. As to the second

prong of the majority’s holding, I respectfully dissent from it altogether.

Background

At the heart of this petition lies a dispute between the State and Ken Paxton

about where the underlying criminal cases should be tried. The State prefers that

they be tried in Harris County. Paxton prefers that they be tried in Collin County.

The procedural posture of this petition is straightforward. At the request of the

presiding judge of the First Administrative Judicial Region, in which Collin County

is located, the presiding judge of the Eighth Administrative Judicial Region, in which

Tarrant County is located, assigned Tarrant County District Judge George Gallagher

to preside over these cases in the 416th District Court of Collin County. But the

presiding judges of these two administrative regions entered conflicting orders as to

the duration of the assignment. The presiding judge of the Eighth Region assigned

Gallagher for a set number of days, unless the cases went to trial during this period,

2 in which case Gallagher was to shepherd them to final judgments, subject to

termination of the assignment at an earlier date by the presiding judge for the Eighth

Region. In contrast, the presiding judge of the First Region assigned Gallagher to

preside over these cases indefinitely, unless this presiding judge of the First Region

terminated the assignment at an earlier date.

The State eventually requested that Gallagher transfer these cases to Harris

County, and Gallagher did so. See TEX. CODE CRIM. PROC. art. 31.02 (authorizing

transfer on prosecution’s motion when fair and impartial trial cannot be had in

county in which case is pending). It is undisputed that Gallagher’s assignment had

expired under the terms of the order entered by the presiding judge of the Eighth

Region when Gallagher transferred these cases to Harris County.

Paxton objected to Gallagher’s transfer order, but Gallagher did not rule on

the objection. Instead, Gallagher ordered that Paxton’s objection be heard by the

Harris County district court to which the cases would be transferred.

The Harris County district court sustained Paxton’s objection. It vacated

Gallagher’s transfer order, returning the cases to Collin County, on the basis that

Gallagher’s assignment had expired before he transferred the cases. In its mandamus

petition, the State contests the order vacating the transfer order.

3 Analysis

First Prong of the Majority’s Holding

The majority first holds that the more definite assignment order of the

presiding judge of the Eighth Region trumps the broader one entered by the presiding

judge of the First Region. The majority reasons that construing Section 74.056(b) of

the Government Code “as allowing the receiving judicial administrative presiding

judge to unilaterally dictate the terms of an assignment would thwart regional

oversight and conflict with the purpose of regional administrative management.”

The majority further reasons that the more definite order prevails over the broader

one under well-established canons of interpretation.

While the majority reaches the right result, it does so for the wrong reasons.

Section 74.056(b) provides that a “presiding judge of one administrative region may

request the presiding judge of another administrative region to furnish judges to aid

in the disposition of litigation pending in a county in the administrative region of the

presiding judge who makes the request.” The statute expressly provides that one

administrative judge may request that another administrative judge furnish judges.

In this context, a request is the act of formally asking for something, and furnish

means to supply, give, or provide. NEW OXFORD AMERICAN DICTIONARY 705, 1483

(3d ed. 2010). If the presiding judge of one administrative region could simply

commandeer judges from another administrative region, that presiding judge would

4 not need to formally ask the presiding judge of the other administrative region for

this aid and the presiding judge of the other administrative region would not need to

supply, give, or provide this aid. In other words, the result that the majority intuits

from the statutory scheme’s purpose inheres in the plain language of the statute.

When, as here, a statute’s language is clear and unambiguous, our analysis

ends because the Legislature must be understood to mean what it expressed. Day v.

State, 614 S.W.3d 121, 127 (Tex. Crim. App. 2020). Under these circumstances, we

discern the Legislature’s intent, and thus the statute’s purpose, from the plain

meaning of the statutory text alone, not inferences drawn from the statutory scheme.

Id.; State v. Doyal, 589 S.W.3d 136, 149 (Tex. Crim. App. 2019).

And if Section 74.056(b) left any doubt as to who has the authority to assign

judges to another administrative region, another provision in this statutory

framework would eliminate that doubt altogether. Section 74.058(a) of the

Government Code provides that “a judge assigned by the presiding judge to a court

in the same administrative region, or to a court in another administrative region at

the request of the presiding judge of the other administrative region, shall serve in

the court or administrative region to which he is assigned.” The plain language of

Section 74.058(a) expressly identifies the presiding administrative judge of the

region in which the assigned judge ordinarily sits as the assigner.

5 The majority strays further afield in resorting to canons of interpretation. The

general-versus-specific canon is well established. E.g., Sims v. State, 569 S.W.3d

634, 642 (Tex. Crim. App. 2019) (applying canon to statutes). But courts ordinarily

apply this canon to resolve irreconcilable conflicts between statutory or contractual

provisions. It is not self-evident that the canon can be applied to inconsistent orders

entered by different judges. Nor is it apparent that the inconsistency at issue—the

duration of Gallagher’s assignment—is one susceptible to characterization as a

conflict between a general provision and a specific one. In its proper application,

courts apply the general-versus-specific canon so that a specific provision operates

as an exception to the general one in a particular situation, not to negate the general

provision entirely. Id. The majority’s application of the canon, however, interprets

one of the two orders, the one it characterizes as general, out of existence.

At any rate, assuming inconsistent orders entered by different judges can be

reconciled by resort to canons of interpretation in general, the majority’s attempt to

do so in this particular instance is fatally flawed because its reconciliation rests on

an erroneous interpretation of the statute under which the inconsistent orders were

entered. The majority erroneously posits that the presiding judge of the First Region

could have assigned Gallagher, notwithstanding the unambiguous contrary language

of Sections 74.056(b) and 74.058(a). But given that one of the assignment orders is

valid and the other is not, there is no need to reconcile the two orders.

6 In sum, the majority is correct that the narrower assignment order of the

presiding judge of the Eighth Region prevails over the broader one entered by the

presiding judge of the First Region. But this is so because the presiding judge of the

First Region did not have any authority to assign Gallagher to sit in Collin County

and hear these cases under the plain language of the applicable statutes, not because

of the ostensible overarching purpose of the statutory scheme or because of the

ostensible need to reconcile the two orders through canons of interpretation.

Second Prong of the Majority’s Holding

Apart from the statutory assignment of judges to other districts and counties,

our Constitution provides that “District Judges may exchange districts, or hold courts

for each other when they may deem it expedient.” TEX. CONST. art V, § 11. Under

this constitutional provision, district judges have broad discretion to exchange

benches or hold courts. Floyd v. State, 488 S.W.2d 830, 832 (Tex. Crim. App. 1972).

They may exchange benches or hold courts for each other without “a formal order

or entry on the record of the reasons.” Id. There are no geographical restrictions on

this provision. Sanchez v. State, 365 S.W.3d 681, 685 (Tex. Crim. App. 2012).

The majority holds that Article V, Section 11 does not apply for two reasons.

First, it says the record shows that Gallagher was statutorily assigned to these cases,

not that he exchanged benches with another judge under the constitutional provision,

and that his statutory assignment had expired. Second, the majority says an expired

7 statutory assignment cannot be “automatically converted” into a constitutional

exchange of benches because doing so “would create confusion about the scope of

assignment orders and undermine the effectiveness of the Court Administration

Act.”

I do not dispute that Gallagher was statutorily assigned to preside over these

cases or that his statutory assignment had expired when he transferred them to Harris

County. But Article V, Section 11’s standard—expediency—is very broad. Under

this provision, an exchange of benches is expedient whenever it is “convenient and

practical.” NEW OXFORD AMERICAN DICTIONARY 609 (3d ed. 2010). One of our

sister courts has held that an assignment order reflected that the judges involved had

deemed it expedient for the assigned judge to preside over a case as contemplated

by Article V, Section 11, notwithstanding the fact that the order referenced neither

the constitutional provision nor its expediency standard. Permian Corp. v. Pickett,

620 S.W.2d 878, 880–81 (Tex. App.—El Paso 1981, writ ref’d n.r.e.). Similarly, the

assignment order before us—though expired—effectively reflects that the judges

involved deemed it expedient for Gallagher to preside over these cases. This is

enough to save Gallagher’s transfer order, particularly given that Paxton did not

object to Gallagher’s continued involvement in the cases until after the order had

8 been entered and more than five months after Gallagher’s statutory assignment had

expired.1

I acknowledge that applying Article V, Section 11 under circumstances like

these could result in confusion about the scope of an assignment order in a given

case. But we can achieve certainty only at the expense of flexibility. Some potential

for confusion is unavoidable in a flexible system like ours, which includes multiple

sources of authority for the assignment of judges and exchange of benches under a

variety of circumstances. See TEX. CONST. art. V, § 11; TEX. GOV’T CODE §§ 24.003,

74.056–.057, 74.121; TEX. R. CIV. P. 330(e). Those who ratified the broad language

of Article V, Section 11 necessarily weighed the trade-off between certainty and

flexibility and struck the balance in favor of the latter by placing no limitations other

than expediency on the provision. Our safeguard against any resulting potential for

confusion lies in restraint, collegiality, communication, and cooperation on the part

1 At the December 17, 2019 hearing on Paxton’s motion to set aside Gallagher’s transfer order, Paxton’s counsel represented that he objected to the transfer order as soon as he discovered that Gallagher’s assignment had expired. But counsel’s representation was not based on personal knowledge. After counsel for the State argued that there was no evidence as to when Paxton’s counsel discovered that Gallagher’s assignment had expired, Paxton’s counsel explained: “I’m telling you as an officer of the court standing here in good faith we found out in May. If you want to take testimony on that, I’m happy to have Phil, who I think actually discovered this, testify.” Because Paxton’s counsel did not have firsthand knowledge of the matter (and Phil did not testify), the trial court could not rely on his representations as evidence. Gonzalez v. State, 435 S.W.3d 801, 811–12 (Tex. Crim. App. 2014). Nor can we. There is no evidence in the record as to how or when Paxton’s counsel discovered that Gallagher’s assignment had expired. 9 of judges. Davis v. Crist Indus., 98 S.W.3d 338, 343 n.19 (Tex. App.—Fort Worth

2003, pet. denied). In this case, the application of Article V, Section 11 could not

cause any more confusion than has already resulted from the entry of conflicting

assignment orders by the presiding judges of two administrative regions.

The majority cites our decision in Roberts v. Ernst as support for its position

that we cannot treat Gallagher’s assignment as a constitutional exchange of benches.

668 S.W.2d 843 (Tex. App.—Houston [1st Dist.] 1984, orig. proceeding). But

Roberts was decided on very different facts. In that case, the presiding judge of the

administrative region assigned a district judge to another court for one week as well

as the period of time afterward necessary to complete any trial begun and to hear any

new-trial motions. Id. at 844. The assigned district judge tried a case during this

period but granted the plaintiffs a new trial afterward on the ground that the damages

awarded by the jury were inadequate. Id. Months later, as the case approached retrial,

the presiding judge of the administrative region assigned a second district judge to

the court to address pretrial motions. Id. at 844–45. This second judge heard these

motions and granted a continuance sought by the defendants. Id. at 845. The district

judge who originally tried the case apparently was in the courtroom when the second

judge did so and disapproved of the second judge’s ruling. See id. Almost within the

hour, the original judge—whose assignment to the court had long ago expired—

vacated the continuance entered by the second judge and then granted the plaintiffs

10 a change of venue! Id. In a later mandamus proceeding, the plaintiffs tried to defend

this turn of events on the ground that the first district judge continued to properly

exercise authority over the case under Article V, Section 11. Id. at 846. On these

remarkable facts, which involved one district judge whose assignment had expired

undoing the order of another judge who had since been assigned to the case, we quite

sensibly rejected the plaintiffs’ argument on the ground that the record contained no

evidence that the two judges had agreed to an exchange of benches. Id.

In other words, Roberts stands for the commonsense principle that an

exchange of benches cannot exist, or be implied from an expired assignment, when

the facts definitively show that one judge is interfering with the rightful authority of

another. This principle has no applicability here, given that Gallagher was the lone

judge presiding over these cases when he transferred them to Harris County.

Though the order assigning Gallagher to hear these cases had expired, it

implicitly reflects a judgment by the assigning presiding judge that Gallagher’s

presence is expedient. See Permian Corp., 620 S.W.2d at 880–81. Likewise, the

second assignment order, though invalid, implicitly reflects a judgment on the part

of the requesting presiding judge that Judge Gallagher’s presence is expedient. See

id. When, as here, a district judge continues to hear assigned cases after the

expiration of his assignment without protest from the assigning or receiving

presiding judges, and his continued hearing of the cases does not bring him into

11 conflict with the judge who ordinarily presides over the court, Article V, Section 11

fills the gap, enabling the district judge to carry on with the lapsed assignment until

circumstances arise that show his presence is no longer welcome. Thus, Gallagher’s

order transferring these cases from Collin County to Harris County is not void, and

the Harris County district court erred in vacating the transfer order on this basis.

As for the majority’s contention that applying Article V, Section 11 in this

instance would undermine the Court Administration Act, the majority puts the cart

before the horse. Our Constitution is supreme. If its provisions undermine a statute,

it is the statute that must give way. Courts have repeatedly said so with respect to

Article V, Section 11 in particular. See Moore v. Davis, 32 S.W.2d 181, 182 (Tex.

Comm’n App. 1930) (provision cannot be abridged by statute); Reynolds v. City of

Alice, 150 S.W.2d 455, 458–60 (Tex. App.—El Paso 1940, no writ) (provision’s

scope cannot be limited by statute); Ferguson v. Chapman, 94 S.W.2d 593, 599

(Tex. App.—Eastland 1936, writ dism’d) (provision cannot be abridged by statute);

Connellee v. Blanton, 163 S.W. 404, 406 (Tex. App.—Fort Worth 1913, writ ref’d)

(provision could not be interpreted as having been contravened by statute). But given

that neither the presiding administrative judges nor the district judge who ordinarily

presides over the Collin County court objected to Judge Gallagher continuing to hear

these cases, any ostensible conflict with the Court Administration Act is chimerical.

12 For these reasons, I think the majority’s refusal to apply Article V, Section 11

is flawed. Gallagher’s continued involvement in these cases after the expiration of

his assignment was expedient and therefore authorized by our Constitution.

Conclusion

I would grant the State’s petition for the writ of mandamus because Article V,

Section 11 of the Texas Constitution authorized Judge Gallagher to transfer these

cases to Harris County after his statutory assignment expired. Thus, I respectfully

dissent from the majority’s denial of the State’s petition for the writ of mandamus.

That said, at this point almost six years has elapsed since Paxton was indicted.

Whichever district court ultimately receives these cases should move them to trial

as expeditiously as possible. Further delay is anything but expedient.

Gordon Goodman Justice

Panel consists of Justices Goodman, Hightower, and Countiss.

Justice Goodman, concurring and dissenting.

Publish. TEX. R. APP. P. 47.2(b).