in Re Toups Law Firm

• Court: Court of Appeals of Texas
• Decided: October 6, 2010
• Docket: 10-10-00226-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00226-CV

IN RE TOUPS LAW FIRM

Original Proceeding

MEMORANDUM OPINION

By opinion and judgment dated August 25, 2010, this Court conditionally

granted the mandamus petition filed by the Toups Law Firm, advising Respondent, the

Honorable John A. Hutchinson III, assigned judge to the County Court at Law No. 1 of

Brazos County, that a writ of mandamus would issue if he failed to notify this Court in

writing within fourteen days that he had cancelled a lis pendens filed in connection with

the underlying suit. Carolyn G. Vance has filed a motion for rehearing and a motion to

deny or dismiss the mandamus petition because a new judge has been assigned to the

underlying suit.

Shortly after filing the mandamus petition in this proceeding, Toups (and its

client William R. Vance, Jr.) filed a motion to disqualify and recuse Judge Hutchinson. Judge Hutchinson referred the motion to the presiding judge for the administrative

judicial region whom Toups and Vance also challenged by motion to disqualify and

recuse. As a result of these motions, the Presiding Judge of the Statutory Probate

Courts assigned the Honorable William T. McGee to preside over the underlying suit.

See TEX. GOV’T CODE ANN. § 25.0022 (Vernon Supp. 2010).

Toups has filed a response arguing that the Supreme Court’s decision in In re

Schmitz, 285 S.W.3d 451 (Tex. 2009) (orig. proceeding), is “controlling adverse and

dispositive precedent” on the issue. According to Toups, Schmitz stands for the

proposition that abatement is not proper when the named respondent is replaced by

another judge. Toups also requests that we sanction Carolyn for her failure to call our

attention to this “controlling” authority.

Schmitz concerned a very unique procedural circumstance in which the named

respondent did not make the ruling which was challenged by mandamus and then was

succeeded by a different judge before the Supreme Court decided the case. In Bexar

County where the case originated, the district courts maintain a central docket system

and pretrial motions like that under consideration are generally heard by one of the

county’s thirteen civil district judges on a monthly rotating basis. Id. at 453. Thus, the

judge who ruled on the challenged motion was not the elected judge for the district

court in which the motion was filed, but she was still in office at the time the Supreme

Court ruled on the mandamus petition. Id.

The Supreme Court explained, “The question is whether to abate this case for

reconsideration when the judge who ceased to hold office never ruled on the motion,

In re Toups Law Firm Page 2 and the judge who did rule on it is still in office.” Id. After defining the narrow issue

presented, the Court held “that abatement is not required in these circumstances.” Id.

(emphasis added).

Here, Toups seeks mandamus relief against Judge Hutchinson who denied the

motion to cancel the lis pendens. Judge Hutchinson is no longer presiding in the

underlying case. This is different from the procedural posture of Schmitz in which the

judge who made the challenged ruling was still in office. Thus, Schmitz does not apply.

And because Schmitz is not “controlling adverse and dispositive precedent,” Toups’s

motion for sanctions is denied.

“Mandamus will not issue against a new judge for what a former one did.” In re

Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228 (Tex. 2008) (orig. proceeding). Until

Judge McGee has had a reasonable opportunity to consider the summary-judgment

motion in which Toups requests dissolution of the lis pendens, it would be premature for

us to address the issues in this mandamus proceeding. See In re Shellhorse, No. 10-10-

00111-CV, 2010 WL 2706115, at *1 (Tex. App.—Waco July 7, 2010, orig. proceeding)

(mem. op.).

Therefore, we withdraw the opinion and judgment dated August 25, 2010 and

deny the petition without prejudice. Id. Toups’s motion for sanctions is denied.

Carolyn’s motion for rehearing is dismissed as moot.

FELIPE REYNA Justice

In re Toups Law Firm Page 3 Before Justice Reyna, Justice Davis, and Judge Walton1 Petition denied Opinion delivered and filed October 6, 2010 [OT06]

1 The Honorable Ralph H. Walton, Jr., Judge of the 355th District Court of Hood County, sitting by assignment of the Chief Justice of the Supreme Court of Texas pursuant to section 74.003(h) of the Government Code. See TEX. GOV’T CODE ANN. § 74.003(h) (Vernon 2005).

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