O'CONNOR v. Lykos

960 S.W.2d 96, 1997 Tex. App. LEXIS 4333, 1997 WL 465650

• Court: Court of Appeals of Texas
• Decided: August 8, 1997
• Docket: 01-97-00752-CV
• Status: Published

Opinions

OPINION

HEDGES, Justice.

The issue in this mandamus proceeding is the authority of an assigned judge to preside over proceedings after she has signed an order granting a new trial. We hold that the assigned judge’s authority ended when she signed the order granting a new trial, and we conditionally grant the requested mandamus relief.

Facts

Relator Cynthia O’Connor and real party in interest Sean Kevin O’Connor were divorced in April 1990. Cynthia was named the primary joint managing conservator of the two minor children, and Sean was named a joint managing conservator. In re O’Con-nor, No. 89-36814 (309th Dist. Ct., Harris County, Tex.). Sean filed a motion to modify, seeking a change of conservatorship for both children. The matter was set for trial for March 24,1997.

Respondent, the Honorable Patricia R. Ly-kos, was sitting by assignment as the judge of the 309th District Court of Harris County for the week of March 24, 1997, in place of the Honorable John Montgomery, the presiding judge of the 309th District Court.¹ Sean appeared for trial on March 24, but Cynthia did not appear. Judge Lykos granted Sean a default judgment. Cynthia filed a motion to set aside the default judgment and a motion for new trial, which Judge Lykos denied on April 25. Cynthia filed amended motions and requested a hearing before Judge Montgomery. On May 13, Judge Montgomery referred the amended motions to Judge Ly-kos pursuant to the February 5,1997 assignment order. On May 16, Judge Lykos (1) heard the amended motions, (2) orally granted the motion for new trial, (3) announced her intention to enter temporary orders identical to the terms in the default judgment, (4) orally assessed sanctions, and (5) set the case for trial on June 24 at 10:00 a.m. On June 2, Judge Lykos signed an order memorializing her May 16 rulings in the presence of the attorneys for Cynthia and Sean.

On June 2, the presiding judge of the administrative region again assigned Judge Lykos to the 309th District Court.² At 9:59 a.m. • on June 24, Cynthia filed a written objection to Judge Lykos sitting as an assigned judge. Judge Lykos overruled the objection, tried the case, and appointed Sean as sole managing conservator and Cynthia as possessory conservator. Cynthia filed a motion for leave to file a petition for writ of mandamus on July 15, asking this Court to declare void all orders rendered by Judge Lykos after she signed the order' granting a new trial. We granted Cynthia’s motion for leave to file. See Tex.R.App. P. 121(c).

Discussion

When a party files a timely written objection to an assigned judge under section 74.053 of the Government Code, the assigned judge’s disqualification is mandatory. Tex. Gov’t Code Ann. § 74.053 (Vernon Supp. 1997); Flores v. Banner, 932 S.W.2d 500, 501 (Tex.1996). If the assigned judge overrules a timely section 74.053 objection, that judge’s subsequent orders are void and the objecting party is entitled to mandamus relief. Flores, 932 S.W.2d at 501. An objection is timely if it is filed before the first hearing or trial, including pretrial hearings, over which the assigned judge is to preside. Tex. Gov’t Code Ann. § 74.053(c) (Vernon Supp.1997). Because Cynthia filed her written objection before the June 24 trial, the objection was effective unless (1) Judge Lykos was validly proceeding under the first assignment or (2) Cynthia waived her objection.

When an assigned judge has an assignment order similar to those in this case, the signing of an order granting a new trial ends the assigned judge’s authority.³ Roberts v. Ernst, 668 S.W.2d 843, 846 (Tex.App.- Houston [1st Dist.] 1984, orig. proceeding); see Tex.R. Civ. P. 329b(c). Here, Judge Lykos was first assigned to the 309th District Court for the week of March 24, 1997, “provided that this assignment shall continue after the specified period as may be necessary for the assigned Judge to complete trial of any case begun during the period, and to pass on motions for new trial and all other matters growing out of cases tried by the Judge herein assigned during this period.” Because Judge Lykos tried the case during the week she was assigned, she had continuing authority over the case under the terms of the assignment order. That authority terminated, however, on June 2 under the assignment order’s express terms when she signed an order granting a new trial.⁴ See Roberts, 668 S.W.2d at 846. At that point, any authority Judge Lykos had to conduct the June 24 trial would have had to be based on the second assignment order, to which Cynthia filed a timely objection.

In overruling Cynthia’s objection, Judge Lykos noted in the docket sheet that Cynthia had waived her objection because (1) she was informed on May 16 that Judge Lykos would be sitting on June 24 and (2) the objection was unverified. Section 74.053(c) provides that an objection is timely if it is filed before the first hearing or trial, including pretrial hearings, over which the assigned judge is to preside.' Tex. Gov’t Code Ann. § 74.053(e) (Vernon Supp.1997). There is no statutory requirement that a party object earlier if the party is aware that an assigned judge will be sitting, and we decline to judicially engraft such a requirement.⁵ There is also no statutory requirement that an objection to an assigned judge be verified. Verification is unnecessary because, unlike a motion to recuse or disqualify a judge under Texas Rule of Civil Procedure 18a, a party need not assert any facts in an objection to an assigned judge.⁶

Conclusion

We hold (1) that Judge Lykos’ first assignment ended when she signed the June 2 order granting a new trial and (2) that Cynthia timely objected to Judge Lykos’ second assignment. Accordingly, any orders Judge Lykos entered after she signed the order granting a new trial, including the June 2 temporary orders, are void and Cynthia is entitled to mandamus relief. We conditionally grant the requested mandamus relief and order Judge Lykos to set aside the void orders. The writ will issue only if Judge Lykos does not comply.

MIRABAL, J., concurs in part and dissents in part.

1 . The first assignment order is as follows:

THE STATE OF TEXAS

SECOND ADMINISTRATIVE JUDICIAL REGION

ORDER OF ASSIGNMENT BY PRESIDING JUDGE

Pursuant to Section 74.056, Tex. Gov’tiCode, I hereby assign the Honorable Patricia R. Lykos Judge of the_District Court Senior Judge of the_District Court Former Judge of the 180th District Court To the 309th DISTRICT COURT of Harris County, Texas To the_Administrative Judicial Region of Texas, for reassignment by the Presiding Judge thereof. This assignment is for the period of _1_ weeks, or_days, beginning the 24th day of March, 1997, provided that this assignment shall continue after the specified period as may be necessary for the assigned Judge to complete trial of any case begun during the period, and to pass on motions for new trial and all other matters growing out of cases tried by the Judge herein assigned during this period.

CONDITIONS OF ASSIGNMENT:

The District Clerk is directed to post a copy of this assignment on the notice board so attorneys and parties may be advised of this assignment, in accordance with law.

ORDERED this 5th day of February, 1997. /s/ Olen Underwood

Presiding Judge, Second Administrative Judicial Region of Texas

2 . The second assignment order is as follows:

THE STATE OF TEXAS

SECOND ADMINISTRATIVE JUDICIAL REGION

ORDER OF ASSIGNMENT BY PRESIDING JUDGE

Pursuant to Section 74.056, Tex. Gov’t.Code, I hereby assign the Honorable Patricia R. Lykos Judge of the_District Court Senior Judge of the_District Court Former Judge of the 180th District Court To the 309th DISTRICT COURT of Harris County, Texas To the_Administrative Judicial Region of Texas, for reassignment by the Presiding Judge thereof. This assignment is for the period of J[ weeks, or_days, beginning the 23rd day of June, 1997, provided that this assignment shall continue after the specified period as may be necessary for the assigned Judge to complete trial of any case begun during the period, and to pass on motions for new trial and all other matters growing out of cases tried by the Judge herein assigned during this period.

CONDITIONS OF ASSIGNMENT:

The District Clerk is directed to post a copy of this assignment on the notice board so attorneys and parties may be advised of this assignment, in accordance with law.

ORDERED this 2nd day of June, 1997.

/s/ Olen Underwood

Presiding Judge, Second Administrative Judicial Region of Texas

3 . We note that our analysis is based on an interpretation of the language of the assignment order itself, not on some underlying statute or principle of common law.

The dissent points out that in Remington Arms Co. v. Caldwell, the supreme court allowed the trial judge to act further after granting a mistrial. 850 S.W.2d 167, 170 n. 5 (Tex.1993). The assignment order in both this case and Remington Arms, however, specifically refers to the trial judge granting new trials, not mistrials. The standard assignment-order language in both this case and in Remington Arms allowed the trial judge to "complete trial of any case begun during the period.” If the trial judge grants a mistrial, the trial is not yet completed. A new trial, however, can only be granted after a trial has been completed, Le., a judgment has been rendered. Accordingly, we see no conflict between this case and Remington Arms.

4 . Under tire terms of the assignment order, Judge Lykos had the continuing authority (1) to complete the trial of any case begun during the assignment period and (2) to pass on motions for new trial and all other matters growing out of that trial. Once the motion for new trial was signed, the case was no longer "tried” and there were, therefore, no other matters growing out of that trial to be considered.

5 . Sean claims the June 2 meeting with Judge Lykos constituted a hearing in connection with the second assignment. We reject this argument because the second assignment order specifically states that the assignment is for one week beginning June 23, 1997. Judge Lykos’ authority under the second assignment could, therefore, begin no earlier than June 23.

6 . We are aware that the San Antonio Court of Appeals suggested in dicta that an objection to an assigned judge must be verified, basing its reasoning on an analogy to Texas Rule of Civil Procedure 18a. Hawkins v. Estate of Volkmann, 898 S.W.2d 334, 343 (Tex.App.—San Antonio 1994, writ denied). We do not agree that Rule 18a applies to an objection to an assigned judge.